IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY THE EIGHTH DAY OF APRIL TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 19291 of 2008 Between: 1 The Government of Andhra Pradesh Rep. by its Principal Secretary, Home Departmnet,. Hyderabad. 2 The Director General of Police A.P. Hyderabad. 3 The Commissioner of Police Hyderabad City, Hyderabad. ..... PETITIONER(S) AND K.B. Nair , S.I. of Police, Main Police Control Room, Basheerbagh, Hyderabad. .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue an appropriate writ or direction more particularly one in the nature of "Writ of Certiorari" calling for the records relating to and connected with the orders dt. 30-8-2007 in O.A.No. 6923/2004 including all further proceedings relating thereto of the Hon'ble A.P. Administrative Tribunal, Hyderabad and to quash or set aside the same by holding as erroneous and contrary to law and pass Counsel for the Petitioner:GP FOR SERVICES I Counsel for the Respondent No.: . The Court made the following : THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 19291 of 2008 Oral Order : ( Per Sri GM, J ) This Writ Petition has been filed by the State challenging the order dated 30-8-2007 in O.A.No.6923 of 2004 passed by the Andhra Pradesh Administrative Tribunal, Hyderabad. The facts, in brief, leading to filing of this writ petition are that the respondent herein was initially appointed as Police Constable on 24-4-1973. Thereafter, he was promoted as Head Constable on 29-7-1978. The respondent was promoted on out of seniority basis as Sub-Inspector of Police (OSSI) vide D.O.No.4264 dated 25-8-1984. It is stated that the said promotion was purely out of seniority basis without conferring any right to seniority in the said post of Sub-Inspector of Police. Thereafter, the respondent was promoted on regular basis as Sub-Inspector of Police with effect from 1-11-1998 vide orders dated 17-12-1998. His probation was declared as Sub-Inspector of Police vide orders dated 21-2-2000 with effect from 8-2-2000. Though the respondent’s probation was declared as regular Sub-Inspector in the year 2000, and his regular promotion as Sub-Inspector was effected in the year 1998, he filed O.A.No.6923 of 2004 seeking direction that his promotion shall be regularized with effect from 25-8- 1984. The respondent in that O.A. questioned the action of the petitioners in not regularizing his services in the post of out of seniority Sub-Inspector from the date of his promotion on OSSI basis with effect from 25-8-1984 on par with others by claiming extension of benefits given to other persons. The Tribunal passed the interim orders dated 28-12- 2004 directing the petitioners to dispose of the representation dated 18-10-2004 submitted by the respondent within six weeks. In pursuance of the interim directions, the representation of the respondent was examined and considered by the Government and accordingly his case was rejected vide government memo dated 29-12-2005 wherein the Government have issued orders rejecting the case of the respondent on the ground that the scheme itself was cancelled and therefore directed the 3rd petitioner to issue suitable reply on the basis of the above government memo. Accordingly, the 3rd petitioner issued memo dated 12-1-2006 rejecting the case of the respondent duly informing that he was promoted as Sub-Inspector of Police temporarily, purely on out of seniority basis without conferring any probationary rights. Thereafter, the said memo was questioned in the O.A. by filing amendment petition. The Tribunal on adjudication of the matter disposed of the O.A. with direction to reconsider the case of the respondent for regularization of services with effect from 25-8-1984. The relevant portion of the order reads as under : “ Keeping in view of the above orders of the Hon’ble High Court and this Tribunal, as the applicant continuously worked as OSSI with effect from 25-8-1984 and as similarly placed persons have been granted regularization from the date of original promotion on OSSI Basis, the applicant is entitled to be considered for such relief. Therefore, the impugned order dated 16-1-2006 of the 3rd respondent is hereby set aside and the respondents are directed to reconsider the case of the applicant for regularization of the services as S.I. with effect from 25-8-1984. Accordingly, the O.A is disposed of. There will be no costs.” Learned Government Pleader for Services contends that the Government have earlier issued memo dated 15- 5-1993 with regard to grant of out seniority promotion prescribing the guidelines and thereafter, the scheme of granting promotions on out of seniority basis has been withdrawn by the Government vide memo dated 20-2- 2003 wherein the earlier memo dated 15-5-1993 was cancelled. It is further submitted by the Government Pleader that erroneously two other individuals were granted the benefit of regularization contrary to the scheme of the Government and the same cannot be precedent for the respondent to claim the same benefit as the benefit itself given to other two individuals is contrary to rules, and the same cannot be a precedent. Learned Government Pleader further submitted that as the scheme of grating OSSI promotion was cancelled way back in the year 2003 and after cancellation of such scheme, the respondent availed out of seniority promotion accepting the conditions mentioned therein. The promotional order dated 17-9-2004 issued in favour Khaja Moinuddin and V.Veerappa and others reads as follows : “ Date: 17-9-2004 … In pursuance of the orders issued in the reference cited, the following Sub- Inspectors of City Police under Rule 10 (a) of A.P. State and Subordinate Service Rules on purely temporary basis without conferring any probationary rights. They are liable to be reverted to their substantive post at any time without assigning any reasons and notice thereon pending finalisation of the seniority and other related cases pending in the APAT and in the High Court of A.P., and allotted to the Units as shown against their names. … A reading of the above order it is clear that it is only a short gap arrangement and was given purely on out of seniority basis and they will be reverted to the substantive post. Learned Government Pleader contends that the Tribunal has committed a serious jurisdictional error in directing to account the seniority with effect from 1984. The respondent did not pass the departmental tests as required and that meanwhile promotion was given to the respondent on regular basis, and that the promotion given on adhoc basis does not confer any legal or enforceable right. In support of his contentions, learned Government Pleader relied on the decisions reported in DIRECT RECRUIT CLASS II ENGINEERING OFFICERS ASSOCIATION VS. STATE OF MAHARASHTRA ( (1) AIR 1990 SC 1607) and in STATE OF BIHAR v. KAMESHWAR PRASAD SINGH ( (2) 2000 (9) SCC 94), AIR 2001 SC 2691. In KAMESHWAR PRASAD SINGH’s case ( 2 supra ), the Supreme Court held that benefits extended to some persons in an illegal or irregular manner cannot be claimed by others on the plea of equality. It was also held that seniority cannot be counted when appointment to the officiating post is not in accordance with the Rules but is purely ad hoc and stopgap arrangement. The relevant portion of the order reads as under : “ The concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals other cannot claim the same illegality or irregularity on ground of denial thereof to them. Similarly wrong judgment passed in favour of one individual does not entitle others to claim similar benefits. In this regard this Court in Gursharan Singh v. NDMC, (1996) 2 SCC 459 : (1996 AIR SCW 749 : AIR 1996 SC 1175) held that citizens have assumed wrong notions regarding the scope of Article 14 of the Constitution which guarantees equality before law to all citizens. Benefits extended to some persons in an irregular or illegal manner cannot be claimed by a citizen on the plea of equality as enshrined in Article 14 of the Constitution by way of writ petition filed in the High Court. The Court observed (Para 9) : "neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination. " Again in Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain, (1997) 1 SCC 35 this Court considered the scope of Article 14 of the Constitution and reiterated its earlier position regarding the concept of equality holding : "suffice it to hold that the illegal allotment founded upon ultra vires and illegal policy of allotment made to some other persons wrongly, would not form a legal premise to ensure it to the respondent or to repeat or perpetuate such illegal order, nor could it be legalised. In other words, judicial process cannot be abused to perpetuate the illegalities. Thus considered, we hold that the High Court was clearly in error in directing the appellants to allot the land to the respondents. " In State of Haryana v. Ram Kumar Mann, (1997) 3 SCC 321 : (1997 AIR SCW 1574) this Court observed (Para 3) : "the doctrine of discrimination is founded upon existence of an enforceable right. He was discriminated and denied equality as some similarly situated persons had been given the same relief. Article 14 would apply only when invidious discrimination is meted out to equals and similarly circumstanced without any rational basis or relationship in that behalf. The respondent has no right, whatsoever and cannot be given the relief wrongly given to them, i. e. , benefit of withdrawal of resignation. The High Court was wholly wrong in reaching the conclusion that there was invidious discrimination. If we cannot allow a wrong to perpetrate, an employee, after committing misappropriation of money, is dismissed from service and subsequently that order is withdrawn and he is reinstated into the service. Can a similarly circumstanced person claim equality under Section 14 for reinstatement? The answer is obviously "no". In a converse case, in the first instance, one may be wrong but the wrong order cannot be the foundation for claiming equality for enforcement of the same order. As stated earlier, his right must be founded upon enforceable right to entitle him to the equality treatment for enforcement thereof. A wrong decision by the Government does not give a right to enforce the wrong order and claim parity or equality. Two wrongs can never make a right. " In DIRECT RECRUIT CLASS II ENGINEERING OFFICERS ASSOCIATION VS. STATE OF MAHARASHTRA ( (1) AIR 1990 SC 1607 ) it was held by the Apex Court as follows : (A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop- gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. (B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted. (C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly. (D) If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down. (E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date. (F) Where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota rule. (G) The quota for recruitment from the different sources may be prescribed by executive instructions, if the rules are silent on the; subject. , (H) If the quota rule is prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the executive instruction has ceased to remain operative. (I) The posts held by the permanent Deputy Engineers as well as the officiating Deputy Engineers under the State of Maharashtra belonged to the single cadre of Deputy Engineers. (J) The decision dealing with important questions concerning a particular service given after careful consideration should be respected rather than scrutinized for finding out any possible error. It is not in the interest of Service to unsettle a settled position. With respect to Writ Petition No. 1327 of 1982, we further hold: (K) That a dispute raised by an application under Art. 32 of the Constitution must be held to be barred by principles of res judicata including the rule of constructive res judicata if the same has been earlier decided by a competent Court by a judgment which became final. In view of the above and other findings recorded earlier, we do not find any merit in any of the civil appeals, writ petitions and special leave petitions which are accordingly dismissed. There will be, however, no order as to costs.” Sri M. Ratna Reddy, learned counsel for the respondent contends that following the judgment rendered in SANTOSH v. STATE OF OF A.P. ( ( 3) 2005 (3) Supreme Court Cases 511 ), the government has relaxed the benefit in favour of Veerappa, Mohd Khaja Moinuddin, who are in promotees quota, and that the Tribunal has not committed any jurisdictional error in directing the petitioners to reconsider the matter for regularization. He further contends that when the Government itself has passed order in respect of others, the same treatment should be given to the applicant. In SANTOSH KUMAR’s case, in the year 1983, the substantive posts of Sub-Inspectors of Police in Andhra Pradesh were calculated and apportioned between direct recruits and promotees according to the prescribed quota. Some Head Constables including respondents therein were appointed under Rule 10(a)(i)(1) of the A.P. State and Subordinate Service Rules 1962 in the promotees quota temporarily as out of seniority Sub Inspector (OSSI) with effect from 3-12-1984 without following the recruitment rules. The appellant therein (Santosh Kumar ) was appointed as a direct recruit on 12- 9-1985. Between 1996 and 1997, the Government of Andhra Pradesh issued various government orders relaxing the relevant recruitment rules and Standing Order 107 of A.P. Police Manual, Part I by exercising the powers under Rule 47 of the General Rules in favour of the respondent and others regularizing their services with effect from the date of their temporary appointment, affecting the seniority of the appellant therein. The appellant therein successfully challenged the same before the Tribunal. However, reversing that decision this Court held that the recruitment rules could be relaxed with retrospective effect. It was further held by the Division Bench of this Court that even if the promotees’ initial appointment was not made by uninterruptedly till their services were reglarised by relaxing the rules and therefore, their officiating services had to be taken into account for the purpose of seniority. The appellant then filed the instant appeal. The appellant therein contended that the basic rules of recruitment i.e. A.P. Police Subordinate Service Rules could not be relaxed in exercise of the power under Rule 47 of the General Rules, that a person not appointed in accordance with the rules was not entitled to seniority from the date of his temporary appointment and that such relaxation even if permissible could not affect the seniority of the direct recruits appointed on regular basis after selection by State PSC. The Apex Court dismissing the appeal, held that power under Rule 47 of the General Rules can be exercised with retrospective effect wherever required in the interest of justice and equity. The relevant portion of the order reads as under : “ … The Government, has for good reasons chosen to regularize the services of the respondent with effect from the date of temporary promotion as Sub-Inspector in recognition and providing incentive for merit and in public interest. …. Once the services of the respondent and other promotees were regularized it cannot be contended that their initial appointment was only on ad hoc basis and not according to the Rulse and made as a stopgap arrangement. ….. Moreover, the promotion given to the respondent to the post of Sub-Inspector was against the vacancies meant for the quota of promotees. The respondent was admittedly promoted on temporary basis as OSSI prior to the recruitment of the appellant. Once his services were regularized, that too in the promotee quota, the appellant being a direct recruit cannot make any grievance. In this view it cannot be said that the appellant was an affected person for want of notice before passing the order of relaxation to challenge the seniority of the respondent. In SANTOSH KUMAR’s case ( 3 supra ), relaxation granted in favour of out of seniority promotees was questioned by direct recruitees, and in those circumstances, this Court as well as the Apex Court upheld the exercise of power of relaxation by the Government. The promotion to given on 17-9-2004 clearly states that it is purely on ad-hoc basis and liable to be reverted. Though applicant has been continuously worked as OSSI with effect from 25-8-1984 that itself does not confer any right to claim the relief of regularization of services from 25-8-1984. The respondent approached the Tribunal in the year 2004 by which time the scheme of granting promotions on out of seniority basis was withdrawn by the Government in the year 2003 vide memo dated 20-3- 2003. 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 muchless legally enforceable right, to claim seniority. It is also made clear that equality clause cannot be invoked in respect of the persons who has not been regularized in accordance with the rules, though the Government has granted the some concessions and that by itself does not given any right to claim equality doctrine. In the circumstances, the impugned order of the Tribunal is set aside and accordingly, the writ petition is allowed. However, this order does not preclude the respondent from making appropriate representation to the Government seeking appropriate relief, in which event the same shall be considered and appropriate orders be passed thereon. No costs. ___________ GM, J __________ BSSR, J Kk Date : 8-4-2009 THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 19291 of 2008 8-4-2009