IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE THIRTEETH DAY OF MARCH TWO THOUSAND AND TEN HON’BLE SRI JUSTICE GHULAM MOHAMMED AND HON’BLE SRI JUSTICE G. BHAVANI PRASAD W.P.No.6229 of 2010 Between: P. Narasinga Rao .. Petitioner AND The Superintendent of Police, Nizamabad District and another .. Respondents ORDER: (Per Hon’ble Sri Justice Ghulam Mohammed) Questioning the legality and validity of the order dated 28- 06-2005 in O.A.No.1443 of 2002 on the file of the Andhra Pradesh Administrative Tribunal (for short “the Tribunal”), whereby and whereunder the O.P. was dismissed holding the same to be devoid of merits, while dismissing M.A.No.304 of 2005 and allowing the V.M.A.No.246 of 2002, the present writ petition has been filed. The facts, in brief, leading to filing the writ petition are that the petitioner was initially appointed as Civil Police Constable on 14-12-1972 since from which he was being posted in various stations for detecting various cases. Considering his conspicuous meritorious service as constable, he was promoted as Head Constable on the ground of merit and extraordinary courageous work in terms of Rule 2(b) of the Police Subordinate Services on out of seniority on temporary basis. His further case is that pursuant to the judgment of the Tribunal in O.A.No.3268 of 1992 and batch dated 30-04-1974, whereby the Government was directed to regularize the services of all the Head Constables, who were promoted on out of seniority basis and completed 3 years of service for 2 ½ months refresher’s course, he was deputed for training from 1-9-1994 by an order dated 29-08-1994 and after completion of the said training, he passed the examination. Though he passed the training examination, he was reverted as Constable and subsequently repromoted from 19-05-1995. Challenging the said action of the 1st respondent, he filed O.A.No.1443 of 2002 before the Tribunal and the Tribunal dismissed the said O.A. Aggrieved by the same, the present writ petition has been filed. Heard the learned counsel for the writ petitioner and the learned Government Pleader for Services-I. Learned counsel for the writ petitioner contended that the petitioner ought to have been considered to be eligible for promotion on account of his meritorious services as Head Constable from 1984 onwards, by virtue of Rule 2 (b) (i) of A.P. Police Subordinate Service Rules, notwithstanding the fact that his promotion is purely temporarily on out of seniority basis. He further contended that in spite of his passing the examination conducted by the Police Training College, he was not considered to be eligible for promotion. Further, the Tribunal, without looking into these aspects, erroneously dismissed the O.A., and that the impugned order needs interference of this Court. On the other hand, the learned Government Pleader for Services-I vehemently contended that the petitioner was initially appointed as police constable on 14-12-1972 and thereafter, he was promoted as Head Constable on 27-11-1984 purely temporarily on out of seniority basis. As the petitioner was not qualified in the examination conducted by the Training College, he was reverted as Constable inasmuch as the promotion is on out of seniority basis and that since the petitioner was not promoted on meritorious grounds, but on out of seniority basis on 27-11-1984, he cannot claim his regularization with effect from 27-11-1984, as he has to be considered for regularization only after undergoing 2 ½ months refresher course training and after passing the examination, which the petitioner did not fulfil earlier, and hence, the impugned order does not warrant any interference of this Court. On the above factual background, the points that arise for consideration are as to whether the petitioner is considered to be eligible for promotion from 1984 onwards from which he was promoted as Head Constable and whether the order of the Tribunal suffers from any legal infirmity? It is obviously evident from the material on record that the petitioner was initially appointed as Police Constable on 14-12- 1972 and subsequent thereto, he was promoted on 27-11-1984 as Head Constable temporarily on out of seniority basis without conferring any probationary rights over the post by the proceedings of the 1st respondent dated 27-11-1984 and thereafter he was reverted by the proceedings of the 1st respondent dated 02-07-1993 on the ground that he failed in the examination. It is the claim of the petitioner that in spite of qualifying the examination conducted by the Police Training College, Amberpet, Hyderabad, after completion of the training for a period of 2 ½ months, he was not promoted as Head Constable from the date from which he was temporarily promoted. The reversion proceedings made it clear that the said reversion was effected as the incumbents including the petitioner have not qualified earlier in the ‘C’ list of police constables fit to act as Head Constables and the said reversion is only on administrative grounds and to accommodate the incumbents who are included in the fresh ‘C’ list. Further, the contents of the counter affidavit filed before the Tribunal clearly show that the petitioner was promoted to the post of Head Constable on out of seniority basis at which time no ‘C’ list was prepared as there were no qualified candidates available at that time, and that out of seniority, promotions were made without any probationary rights. In order to prepare ‘C’ list, the eligible police constables including the petitioner were sent to undergo 2 ½ months refresher course training at PTC, Amberpet, Hyderabad and at the end of such training period, an examination was conducted in which the petitioner did not qualify as a result of which he was not included in the ‘C’ list. Subsequently, when the petitioner including the other incumbents, who have not qualified in the earlier examination, have passed the examination in the year 1994, they were promoted as Head Constables. All these contentions were not even denied by the petitioner either before the Tribunal or before this Court. The tabulation sheet, which is relied on by the petitioner, showing the result of the examination conducted by the PTC, Amberpet, Hyderabad, does not indicate as to when the petitioner passed the examination. Further, the promotion proceedings by which the petitioner was promoted explicitly show that the said promotions were made temporarily on out of seniority basis without conferring any probationary rights over the post and they will be reverted to their substantive posts at any time without assigning any reasons. In support of the his contention, the learned counsel for the petitioner relied on Rule 2(b) (i) of the A.P. Police Subordinate Service Rules reads as follows: “Promotion to all non-gazetted posts in this service shall be made in accordance with the seniority-cum-fitness provided they pass the tests, undergo training and fulfil all other conditions prescribed in the Rules and under the instructions of the A.P. Police Manuel. Note:- The aforesaid provision shall not applied to a case where – a) the promotion to a member has been withheld as a penalty; or b) in such cases where the member is given the special promotion in recognition of a conspicuous merit and ability.” Learned Government Pleader for Services-I vehemently submitted that the promotion of the petitioner is on out of seniority basis without conferring any probationary rights, and hence, he cannot claim any regularization from the date from which he was promoted in such a manner, besides the requirement of qualifying the examination conducted by the Training College to be eligible for promotion as Head Constable. In support of his contention, he relied on a decision of the Division Bench of this Court in W.P.No.19291 of 2008 dated 18-04-2009, wherein it was held that when once the respondent has not passed the departmental test for regular promotion to the post of Sub-Inspector, it is only for smooth administration and to meet the exigency of work, the applicant-respondent was temporarily promoted out of seniority basis, that temporary promotion does not confer any right much less legally enforceable right to claim seniority. It was further held that equality clause cannot be invoked in respect of the persons whose services have not been regularized in accordance with the rules, though the Government has granted some concessions and that by itself does not give any right to claim equality doctrine. Under the circumstances stated supra, having regard to the fact that the promotion of the petitioner as Head Constable in the year 1984 is purely temporarily on out of seniority basis without conferring any probationary rights, and as the petitioner did not qualify the examination in the year 1984, more so, in the light of the observation made by this Court in the decision supra, the petitioner cannot have any right much less legally enforceable right to claim any seniority from 1984, and hence, the petitioner cannot be considered to be eligible for promotion from 1984 and he can be considered only from 1994 when he passed the examination. The Tribunal, considering the facts and circumstances of the case, had rightly dismissed the O.A. from which we do not find any illegality or irregularity calling for interference of this Court in exercise of restricted judicial review. Accordingly, the writ petition is dismissed. No costs. _____________________ GHULAM MOHAMMED, J _____________________ G. BHAVANI PRASAD, J Date: 30-03-2010 Ksn