IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE SIXTEENTH DAY OF DECEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH AND THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION Nos.20812 and 18357 of 2009 and 18696, 25532, 25541, 24133 and 23384 of 2005 BETWEEN The State of A.P. Rep. by its Principal Secretary, Home (Police) Dept., Secretariat, Hyderabad and others. …PETITIONERS AND Mohammed Mastan and others. …RESPONDENTS Counsel for the Petitioners: GP FOR SERVICES - I Counsel for the Respondents: Mr. Raja Sekhar Reddy, Mr. M.R. Tagore, Mr. K.V. Subrahmanya Narusu, Mr. P.V.V. Satyanarayana, Mr. Gopala Rao Gandrakota, Mr. J.R. Manohar Rao, Mr. Sri Rama Rao Mavidi Mr. M. Srikanth The Court made the following: COMMON ORDER: (per Hon’ble Sri Justice Vilas V. Afzulpurkar) This batch of cases is directed against the common order of the Andhra Pradesh Administrative Tribunal in O.A.No.7534 of 2000 and batch dated 11.12.2003 whereby and whereunder the OA’s were allowed by setting aside the impugned order of cancellation of promotion of the respective applicants vide G.O.Ms.No.366 Home (Police–C) Department dated 30.11.2000. Aggrieved by the said common order the State has preferred these writ petitions. 2. We have heard the learned Government Pleader for Services I on behalf of the petitioners and Sri Raja Sekhar Reddy, Sri M.R. Tagore, Sri K.V. Subrahmanya Narusu, Sri P.V.V. Satyanarayana, Sri Gopala Rao Gandrakota, Sri J.R. Manohar Rao, Sri Rama Rao Mavidi and Sri M. Srikanth, learned counsel appearing for the respondents. 3. For the sake of convenience the array of the parties as in the OA is referred to as applicants and respondents. For the purpose of appreciating the facts it would be suffice to notice the facts in O.A.No.7825 of 2000, which are follows: (a) O.A.No.7825 of 2000 was filed by 8 applicants. All the applicants initially entered in the police department as police constables and later promoted as Head Constables on different dates. After successful completion of probation period their names were shown in the seniority list of Head Constables. The applicants claim that they have good service record and they had even earned awards and rewards for their work. The applicants relied upon G.O.Ms.No.535 dated 16.09.1991 issued by the first respondent – State promoting one Sri K. Demudu, a head constable, much junior to the applicants to, the post of Sub-Inspector of Police taking into consideration his good record of service and by relaxing Rule 11(e) of the Police Subordinate Service Rules and Order No.107 of the Andhra Pradesh Police Manual by exercising power of relaxation under Rule 47 under General Rules. The applicants made self-same representations seeking promotions, which were considered by the first respondent – State and under various individual orders the individual cases of the applicants were considered and they were granted promotion as Sub-Inspectors. Since the promotional orders of the applicants are similar in nature it would suffice if we extract the relevant portions of the order relating to the first applicant – B.Ch. Brahmaiah issued under G.O.Ms.No.519 Home (Police–C) Department dated 06.07.1994. The first paragraph and last operative para are as follows: “ORDER:- Sri B. Ch. Brahmaiah, Head Constable 1431 of Visakhapatnam City in his representation first read above has stated that he was enrolled as Police Constable on 2-1-71 and ever since involved in the devoted performance with spectacular results in various wings of Police Department, that he is presently working as Head Constable and earned 141 rewards in his 22 years of service, that he has passed the promotional examination for Head Constables fit to act as Sub Inspectors (Civil) conducted in the year 1990 and requested to consider his case for regular promotion as Sub Inspector of Police by relaxing relevant rules in his favour. … Government after careful consideration of the matter are of the view that the petitioner maintained excellent service record with clean defaulter sheet and deserves to be promoted as Sub Inspector of Police on regular basis. They, therefore, in exercise of powers conferred under Rule 47of the Andhra Pradesh State and Subordinate Service Rules hereby relax Rules 11(e) of Andhra Pradesh Police Subordinate Service Rules and Order No.107 of Andhra Pradesh Police Manual Part-I in favour of Sri B. Ch. Brahmaiah, Head Constable 1431 of Visakhapatnam City for limited purpose and accordingly direct that Sri B. Ch. Brahmaiah, Head Constable 1431 be promoted as Sub Inspector of Police to the following conditions. (i) The promotion shall be personal promotion without benefit of notional seniority. (ii) The said promotion is only to enjoy the elevated status and emoluments till he gets his turn for promotion as per the seniority of ‘C’ list in the feeder category. (iii) He shall be included in ‘C’ list of Head Constables fit to act as Sub Inspectors along with his batchmates and above his immediate juniors. (iv) The service rendered in the personal promotion post shall not count for seniority for promotions/appointments in regular line. The Director General & Inspector General of Police shall take necessary action accordingly.” (b) Though the said promotions were specifically mentioned as personal and described as out of seniority promotions, the applicants contended that they are entitled to be regularized from the date of their enjoying the said promotional post and for the said relief they filed O.A.No.7534 of 2000, which is also heard and disposed of with the bath of OA’s. However, the said orders of promotion were not implemented by the Director General and Inspector General of Police of Andhra Pradesh on the ground that other things being equal such promotions may result in similar requests form several other similarly situated head constables and may have adverse affect on the disciplinary force. The said views of the Director General and Inspector General of Police, Andhra Pradesh, were considered by the Government and all the promotions were reviewed by the Government and the Government was of the view that all such promotions ordered from time to time being not in accordance with the requirements as desired by the Director General and Inspector General of Police and in order to maintain uniformity under principles of natural justice, the Government decided to rescind such personal promotions. The Government, therefore, issued impugned G.O.Ms.No.366 Home (Police-C) Department dated 30.11.2000 to which an annexure was enclosed giving the list of all 22 such personal promotions issued under various GO’s including that of all the applicants as having been rescinded. Questioning the aforesaid impugned GO the applicants approached the tribunal with the present OA. (c) The applicants contended before the tribunal that the first respondent – State has merely proceeded on the opinion of the Director General and Inspector General of Police without independently considering that as a policy it had ordered promotions recognizing the meritorious service of the applicants. It was also contended that all the applicants have been working in the promotional post for over six years with extraordinary performance and as a result of the impugned GO, they are liable to be reverted as head constables for no valid reasons. It was also contended that since there are sufficient number of vacancies reversion of the applicants from the elevated status will lead to a serious heart burning among the employees apart from such decision being unfair. The applicants, therefore, questioned the said GO on the ground that in view of the relaxation granted in favour of the applicants, they were allowed to continue in the promotional post for a considerable length of time and instead of regularizing them in the promotional post, cancellation of promotions at this distance of time is highly unjust. (d) The State as respondent contested the said OA primarily on the ground that the conditions of promotions itself make it clear that the said promotion will not enure as a regular promotion nor seniority can be claimed in the promotional post based on the said personal promotion. It was also contended that the impugned GO canceling the promotions was issued by the Government by taking a policy decision and as such, the same cannot be questioned as no legal right exists in favour of the applicants. (e) The tribunal considered the aforesaid OA on merits and was of the view that the issue involved in the OA is squarely covered by a decision of the Supreme Court in SANTHOSH KUMAR v. STATE OF AP [(2003) 5 SCC 511]. The tribunal accordingly felt that the Government having power of relaxation under Rule 47 of the General Rules, had justifiably granted promotions to the applicants and such promotions could not have been cancelled enmass by impugned GO by reviewing the said promotions. Based on the said view that the issue is covered by the aforesaid decision of the Supreme Court all the OA’s were allowed. A further direction was also given to give regularization orders to each of the applicants from the date on which they were promoted, while continuing them in the promotional post. The impugned GO was accordingly set aside by allowing the OA’s. The said order is questioned by the State in the present batch of writ petitions. 4. Learned Government Pleader contended that the view of the tribunal that the present issue is squarely covered by the decision of the Supreme Court in Santosh Kumar’s case referred to above is factually incorrect. In the facts of that case similar personal promotions were ordered and thereafter, the direct recruits, who had joined the service after the promotees, had questioned such personal promotions. While negativing the said challenge the Supreme Court noticed that the personal promotions were within the promotees quota and were granted by exercising the power under Rule 47 of the General Rules, which gives the power of relaxation to the Government. The direct recruits, therefore, being not affected by such promotions, had no justifiable legal right. The facts of the present case, however, stand on a different footing where such promotees are challenging the cancellation of their personal promotions. The learned Government Pleader, therefore, submits that allowing of the present batch of OA’s on the basis of the aforesaid decision of the Supreme Court is clearly not sustainable. It is also contended that promotions to each of the applicant under individual GO’s being subject to specific conditions attached to the said promotions, none of the applicants have ever questioned the said conditions and as such, no right much less a right of regularization accrues to the applicants based on the said conditional promotions. It is also contended that regularization as sought for by the applicants in the said promotional post from the date of their promotions would seriously affect the seniors of the applicants and to demonstrate the same a comparative statement was furnished by the learned Government Pleader in this batch of cases, which is as follows: Sl.Sl. No.No. No. Name of the Officer District Date of promotion Remarks 1 1 1. B.Ch. Brahmayya, HC 1431 (Retd) VSP City 23.08.94 Sri T. Jaggu Naidu is the immediate senior to Sri B. CH. Brahmayya was promoted as Regular S.I. on 01.10.2004. Sri P.R. Pathrudu is immediate junior to Sri B.CH. Brahmaya promoted as Regular S.I. on 01.10.2004. 2. N. Suryanarayana, HC 1594 (Retd) VSP City 23.12.96 Sri G. Krishna Rao is the immediate senior to Sri N. Suryanarayana was promoted as Regular S.I. on 13.09.2006 vide R.O.O.No.136/06. Sri D. Nageswara is immediate junior to Sri N. Suryanarayana was promoted as Regular S.I. on 10. 05. 2006 vide R.O.O. No. 70/2006. 3. L. Ramana Babu, HC 2075 VSP City 15.07.96 Sri D. Narasimha Rao is the immediate senior to Sri L. Ramana Babu was promoted as Regular S.I. on 03.11.2006 vide R.O.O.No.167/06. Sri S. Raghava Rao is immediate junior to Sri L. Ramana Babu was promoted as Regular S.I. on 03.11.2006 vide R.O.O. No. 167/2006. 4. K.S.N. Konda, HC 284 VSP City 15.05.94 Sri K. Ramachandra Rao is the immediate senior to Sri K.S.N. Konda was promoted as Regular S.I. on 15.12.2007 vide R.O.O.No.50/07. Sri B. Appa Rao is immediate junior to Sri K.S.N. Konda promoted as Regular S.I. in the month of July 2007. 5. K. Kanaka Raju, HC 778 VSP City 15.07.96 Sri T. Sugunakar Rao is the immediate senior to Sri K. Kanaka Raju was promoted as Regular S.I. on 19.09.2007 vide R.O.O.No.185/07. Sri V.V.V. Satyanarayana is immediate junior to Sri K. Kanaka Raju was promoted as Regular S.I. o n 19.09.2007 vide R.O.O.No.185/2007. 6. G. Appa Rao, HC 1757 VSP City 01.10.97 Sri S. Satyanarayana is the immediate senior to Sri G. Appa Rao was promoted as Regular S.I. on 25.08.2008 vide R.O.O.No.248/08. Sri G. Narsayya is immediate junior to Sri G. Appa Rao was promoted as Regular S.I. on 25.08.2008 vide R.O.O. No. 248/2008. 7. V. Krishna Rao, HC 1743 VSP City 15.07.96 Sri B. Ramakrishna is the immediate senior to Sri V. Krishna Rao was promoted as Regular S.I. in the month of September 2009. Sri A. Satya Rao is immediate junior to Sri V. Krishna Rao was promoted as Regular S.I. on 25.08.2008 vide R.O.O.No. 248/2008. 8. A.L.A.S. Joga Rao, HC 1748 VSP City 02.02.96 Sri N. Appa Rao is the immediate senior to Sri A.L.A.S. Joga Rao was promoted as Regular S.I. 25.08.2008. Sri N. Sanyasayya is immediate junior to Sri A.L.A.S. Joga Rao was promoted as Regular S.I. on 15.11.2006. 9. N. Rama Rao, HC 1743 SKL Dist. 08.05.07 Sri Y. Ramappadu is the immediate senior to Sri N. Rama Rao was promoted as Regular S.I. on 10.05.2006 vide R.O.O.No.70/06. Sri P.N. Panda is immediate junior to Sri N. Rama Rao was promoted as Regular S.I. on 18.07.2006 vide R.O.O.No. 89/2006. 5. It would be noticed from the above and if we take the case of the first applicant, which is at Sl.No.1 he was granted personal promotion on 23.08.1994 out of seniority and his immediate senior Mr. T. Jaggu Naidu was promoted as regular Sub-Inspector on 01.10.2004 whereas the immediate junior of the said applicant one Mr. P.R. Patrudu is a regular pormotee as Sub-Inspector on 01.10.2004. Similar instances of other applicants are given in the chart as above. 6. Learned Government Pleader, therefore, submits that if regularization as prayed for and as granted by the tribunal under the impugned order is implemented, it would result in the first applicant being granted status of a regular promoted Sub-Inspector on 23.08.1994 much ahead of his immediate senior, who could get promoted only on 01.10.2004. In other words, the learned Government Pleader contends that so far as the first applicant is concerned his turn for promotion as a regular Sub-Inspector would have arrived only on 01.10.2004 and that the rights of his senior cannot be overlooked for regularizing the promotion of the first applicant from the date of his personal promotion. Learned Government Pleader has relied upon a Division Bench decision of this Court in WP.No.19291 of 2008 dated 08.04.2009 wherein identical and similar matter decided by the tribunal, following Santosh Kumar’s case referred to above, was set aside and the writ petition was allowed. He has also placed before us the order of another Division Bench in WP.No.26240 of 2008 dated 07.07.2009 to which one of us, [Hon’ble Sri Justice V. Eswaraiah], is a party, which has followed the earlier Division Bench decision referred to above and set aside the order of the tribunal by allowing the writ petition. It is urged that the present case is covered by the said decisions of this Court in favour of the State. 7. Learned counsel for the respondents contended that all the promotees/applicants are working in the promotional posts for several years. They also submit that the promotion given to the applicants are based upon similar promotion given to one K. Demudu another head constable in G.O.Ms.No.535 dated 16.09.1991. Further, the said promotee was regularized also from the date of his personal promotion though the said promotee stands much junior to the applicants. Learned counsel also relied upon Rule 2(d)(2) of the Andhra Pradesh Police Subordinate Service Rules for the contention that promotion based on meritorious service is recognized even under the service rules. Thus, the present promotees are entitled to regular promotions as per the rule, though unreasonable conditions were attached while giving the said personal promotions. A ground of hardship and serious heart burning is also urged by contending that enmass cancellation after several years would result in reversion of the applicants for no fault of theirs. One of the counsel also contended that in this batch of cases the State has not questioned the common order in O.A.No.7534 of 2000 filed by the same applicants and the State has only questioned the order in O.A.No.7825 of 2000 in WP.No.18696 of 2005 and therefore, no interference with the orders of the tribunal is warranted. 8. Learned counsel also submitted that the meritorious service having been rewarded by granting promotion as an incentive, enmass cancellation of the said promotions at the instance of the Director General and Inspector General of Police is wholly unwarranted and rightly set aside by the tribunal. Learned counsel also placed reliance upon the decision of the Supreme Court in Santosh Kumar’s case referred to above and further relied upon the Constitutional Bench judgment of the Supreme Court in DIRECT RECRUIT CLASS II ENGG. OFFICERS’ ASSOCIATION v. STATE OF MAHARASHTRA[1] for the proposition that 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 from the date of his confirmation. 9. In the light of the above contentions, the questions that fall for consideration are as follows: 1. What is the nature of promotional order, which is passed in favour of the applicants granting them personal promotions? 2. Whether the direction of the tribunal under the impugned order, directing regularization of the applicants’ promotions from the date of their promotion, is justified? 10. Rule 2(d)(2) of the Andhra Pradesh Police Subordinate Service Rules is as follows: “Rule 2. Method of Appointment and Promotion: - (a) … (b) … (c) … (d) All other promotions shall, subject to the provisions of Rule be made in accordance with seniority, unless: (1) The promotion of a member has been withheld as a penalty; or (2) A member is given special promotion for conspicuous merit and ability.” The said rule provides that special promotion can be granted for conspicuous merit and ability, which is an exception to all promotions being made in accordance with seniority. Rule 2(b)(i) is also necessary to be noticed, which is as follows: “Rule 2. Method of Appointment and Promotion: - (a) … (b) (i) Promotion to all non-gazetted posts in this service shall be made in accordance with seniority-cum-fitness provided they pass the tests, undergo training and fulfill all other conditions prescribed in the rules and in the instructions of the Andhra Pradesh Police Manual Note: - The aforesaid provision shall not be applied to a case where – (a) the promotion of a member has been withheld as a penalty; or (b) in such of the cases, where a member is given a special promotion in recognition of a conspicuous merit and ability.” Note (b) from the above also deals with special promotions in recognition of conspicuous merit and ability. Rule 11(e)(i) of the aforesaid Rules is as follows: “Rule 11. (a) … (b) … (c) … (d) … (e) (i) Head Constables selected for promotion as Sub-Inspectors, Class I and Class VII shall undergo a course of training for six months in the Police Training College, Anantapur. Their pay during the period of training shall be Rs.100 per mensum or the amount which they would have drawn but for their training whichever is higher.” 11. It is an admitted fact borne out from record that all the applicants are head constables and as per seniority list their turn for regular promotions, as Sub-Inspectors, had not reached. All the applicants had also not undergone training course of six months as required under Rule 11(e)(1) quoted above. The rules quoted above though provide that there can be a special promotion on account of conspicuous merit and ability, the orders of promotion in each of these cases are not described as special promotions, on the contrary, the said promotions were described as personal promotions without benefit of notional seniority and the said promotion is only to enjoy the elevated status till the promotee gets his turn for regular promotion as per seniority in the feeder category. It is further made categorically clear in the said conditions that notwithstanding the personal promotion and elevated status of Sub-Inspector, the name of the promotee would continue to be included in the ‘C’ list of head constables fit to act as Sub-Inspectors along with the batch mates and immediate juniors and lastly, the service rendered in the said promotional post shall not count in the regular line of promotions. None of the applicants ever questioned the conditions aforesaid. The relief sought for in many of the OA’s, however, is contrary to the aforesaid conditions. Thus, notwithstanding the condition that the service rendered in the said promotional post shall be notional and shall not count in the regular line, directions are sought that the promotees be regularized on regular side from the date they are promoted. Such relief is directly opposed to the conditional promotion of the applicants. More importantly, as per one of the conditions, though the promotees are discharging the functions as Sub-Inspectors and though they are in elevated status as Sub-Inspectors, their name continues to appear in the ‘C’ list of head constables. This situation is directly opposed to the claim of the applicants that for all purposes they are promoted as Sub- Inspectors and ought to be regularized as such, whereas in reality they continue to be head constables in ‘C’ list waiting for their turn for regular promotion as Sub-Inspectors. A relief of regularization as sought for by the applicants and as granted by the tribunal, therefore, would not only be against the aforesaid conditional promotion but would also be against the claims of their seniors in the ‘C’ list head constables as is demonstrated in the annexure extracted above. We are, therefore, unable to appreciate the contention of the respondents that the applicants are entitled to be regularized in that position from the date of their personal promotion. 12. The power of relaxation exercised by the Government under Rule 47 of the Andhra Pradesh State and Subordinate Service Rules, 1962 is exercised by the Government only to make the applicants eligible for promotion though they had not undergone the requisite training for Sub-Inspector as required under Rule 11(e)(1) of the Andhra Pradesh Police Subordinate Service Rules. Rule 23(a) of the Rules of 1962 further provide that if a person is temporarily appointed to a post otherwise than in accordance with the Rules and is subsequently regularly appointed as per Rules, he shall commence his probation from the date of such subsequent appointment or from an earlier date as the appointing authority may determine. The aforesaid Rules are now replaced by 1996 Rules. The power under rule 47 under old Rules is now correlated to Rule 31 of the new Rules and similarly Rule 23 of the old Rules is correlated to Rule 16 of the new Rules. From Rule 23 referred to above, it is evident that from the date of such personal promotion, which is not in accordance with the Rules, it cannot be said that probation of the promotees has commenced nor it can be said that their long length of service in the said promotional category would otherwise make them eligible for regularization from their date of promotion. The direction of the tribunal under the impugned order directing regularization of the promotees is, therefore, clearly unsustainable and is liable to be set aside and is accordingly set aside. 13. So far as the reliance by the tribunal on the decision of the Supreme Court Santosh Kumar’s case is