THE HON’BLE SRI JUSTICE B. PRAKASH RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION NOs. 4424 OF 2004, 6305, 6661, 6682, 6684, 6712, 7503, 7527, 7532, 7535, 8289, 9619, 12173 22795 AND 23974 OF 2006 Date: 04.12.2006 Between: Commissioner of Police, Hyderabad and two others. …. Petitioners. And L.K. Kasinath and others. ….Respondents. THE HON’BLE SRI JUSTICE B. PRAKASH RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION NOs. 4424 OF 2004, 6305, 6661, 6682, 6684, 6712, 7503, 7527, 7532, 7535, 8289, 9619, 12173 22795 AND 23974 OF 2006 COMMON ORDER: (per Hon’ble Sri Justice Ramesh Ranganathan) In these batch of writ petitions, the orders of the A.P. Administrative Tribunal, in directing the petitioners herein to consider the case of the respondent-applicants, in accordance with G.O.Ms. No. 280, Home (Police) Department, dated 13.12.2001, read with R.P. No. 24090 to 24157 of 1989 and W.P. No. 406 and 6208 of 2000, is under challenge. To understand the circumstances under which these orders were passed, and similar orders continue to be passed, by the A.P. Administrative Tribunal, it is necessary to note certain facts and refer to the relevant rules as amended from time to time. In exercise of its powers, conferred by the proviso to Article 309 of the Constitution of India, the Government of A.P. made the “A.P. Revised Scales of Pay Rules, 1969”. These rules were notified in G.O.Ms. No. 173, Finance (Pay Commission) Department dated 13.06.1969 and came into force retrospectively from 19.03.1969. Rule 3 thereunder details the principles of fixation of pay in the revised scales and provides that, notwithstanding anything in the Fundamental Rules or in the Hyderabad Civil Services Rules, the principles which shall govern fixation of pay, of government employees who opt for these scales of pay in the revised scales of pay, are as prescribed in clauses (a) to (j) thereunder. Clause “c” of Rule 3 read thus: “After the pay of the employee is fixed in accordance with clauses (a) & (b) above, weightage of one increment for service of 5 years and above in the old scale of pay in which he was drawing his pay shall be added” The rules, notified in G.O.Ms. No. 173 dated 13.06.1969, were amended in G.O.Ms. No. 105 dated 13.04.1970 and a proviso was added to clause ‘c’ of Rule 3 which reads thus: “Provided that non-gazetted government employees whose pay is fixed in accordance with clauses (a) and (b) shall be entitled to a weightage of one increment for service of three years and above upto six years and two increments for service of six years and above in the post in which he was drawing pay”. While under clause “c” of Rule 3, of the rules notified in G.O.Ms. No. 173 dated 13.06.1969, weightage of one increment was given for service of five years and above in the old scales of pay which an employee was drawing, as a result of the insertion of the proviso to Rule 3(c), vide G.O.Ms. No. 105 dated 13.04.1970, an employee was entitled for weightage of one increment for service of three years and upto six years in the post in which he was drawing his pay. Not only was the minimum period of service reduced from five years to three years, the amendment prescribed the service to be rendered in a “post” as compared to the service to be rendered in the “scales of pay” as prescribed earlier. The State Government, (in the Police Department), in its memo No. 905/Pol.C/72-7 dated 15.01.1973, informed that all service that counts for increments in the grade count for weightage for the purpose of pay fixation and, since the period of training on fixed pay does not count for purposes of annual increments in the post, the objection of the Accountant General that the period of training would not count for purposes of weightage was correct. The memo dated 15.01.1973, in effect, clarified that the fixed pay, paid during the period of training, did not count for the purpose of granting weightage increments. The government issued revised orders, in G.O.Ms.No.128 dated 20.3.1976, prescribing stipend for the period of training and ordered that the period of training shall be allowed to be counted as duty for all purposes like probation, pension, leave, increments etc subject to the restriction that, unless the employee completes the training or passes the prescribed tests during or after the training, he shall not be eligible for the first increment. The departments concerned were requested to examine the relevant service rules and to make provisions therefor. Learned Special Government Pleader, appearing on behalf of the Learned Advocate General, would contend that, the executive instructions in G.O.Ms. No. 128 dated 20.03.1976 was contrary to Rule 13 (b) of the A.P. Police Subordinate Service Rules and, though G.O.Ms. No. 128 dated 20.03.1976 required the respective departments to examine the relevant service rules and to make provisions in this regard, no such rules were, in fact, made. The government, in its memo dated 29.09.1987, clarified that the orders issued in G.O.Ms. No. 128 dated 20.03.1976, providing for counting the training period for all purposes, was correctly objected to by the Accountant General and that the excess amounts paid, if any, would be recovered from the concerned. Aggrieved thereby R.P. Nos. 24090 to 24157 of 1989 were filed before the A.P. Administrative Tribunal and the Tribunal, by its order dated 15.04.1998, allowed the revision petitions and set aside the impugned proceedings. It is necessary to note that the Tribunal, while allowing R.P.Nos.24090 to 24157 of 1989, took into consideration Rule 33(a) of the A.P. State and Subordinate Service Rules, and the government memos dated 15.01.1973 and 29.09.1987. The Tribunal also examined the Rules notified in G.O.Ms. No. 173 dated 13.06.1969 and G.O.Ms. No. 105 dated 13.04.1970. The Tribunal held that, under Rule 10 of the A.P. Police Subordinate Service Rules, a person appointed to a class or a category shall, from the date on which he joins duty, be on probation, that Rule 11(a) lays down that probationers shall undergo training and examination and that, within the period of their probation and course of training, their pay during the training period shall be the basic pay of the post plus usual allowances admissible at the time of training. The Tribunal held that, if the petitioners in the R.P. were already probationers within the meaning of Rule 10 of the A.P. Police Subordinate Service Rules, the period of training also falls within the period of probation and, even though the pay they were given may be called as stipend, as their pay during the training period shall be the basic pay of the post plus usual allowances admissible, they could not be declared ineligible for weightage on the ground that they were only receiving a stipend. The Tribunal held that once their probation started, and as direct recruits their date of joining would reckon for their seniority, it could not be held that such period would not count for increments and would, therefore, not count for weightage. The Tribunal also held that, on completion of probation, such employees became regular members of the service and once their probation started, as they were already members of the service, their pay would have to be fixed correctly and it was not open to the authorities to consider the portion in the probation period, spent on training, as not being eligible for regular pay. The Tribunal concluded that the petitioners in the R.P. were entitled for weightage as it had been clarified in G.O.Ms. No. 128 dated 20.03.1976 that the training period would be counted for all purposes and that weightage should be extended depending upon the extent of service. The Tribunal relied on the judgment of the Supreme Court in State of Himachal Pradesh Vs. J.L. Sharma[1], wherein it was held that the training period of direct recruits shall be counted for determining the seniority in the service provided that such direct recruits successfully complete their training. It is necessary to note that Rule 13(b), of the A.P. Police Subordinate Service Rules, was not brought to the notice of the Tribunal when R.P. Nos. 24090 to 24157 of 1989 came to be allowed by order dated 15.04.1998. Seeking a direction from this Court that the order of the Tribunal, in R.P. No. 24090 to 24157 of 1989 dated 15.04.1998, be implemented within a period of one month, W.P. No. 406 of 2000 was filed. Seeking to have the judgment of the Tribunal, in R.P. No. 24090 to 24157 of 1989, quashed, W.P. No. 6208 of 2000 was filed by the Government of A.P, the Director General of Police and the Superintendent of Police, Nellore District. Both the writ petitions were heard together and the Division bench of this Court, by order dated 24.07.2000, disposed of W.P. No. 406 of 2000 and dismissed W.P. No. 6208 of 2000. The Division bench, in its order dated 24.7.2000, noted that in both the writ petitions the issue was whether advance increments, which had been ordered to be given, was to be reckoned from the date of first appointment to the posts of police constables or from the date of declaration of probation. The Division bench noted that the Tribunal had held that the relevant rule was Rule 33(a) of the A.P. State and Subordinate Service Rules but this was sought to be construed by the government as only limited to seniority and not for payment of advance increments, that this interpretation was not accepted by the Tribunal as it was of the view that, even if probation was declared two years after initial recruitment, the declaration would date back and that the date of initial appointment not only counted for seniority but also for payment of advance increments. The Division bench held that this approach of the Tribunal did not call for interference and that they did not find any merit in W.P. No. 6208 of 2000. The Division bench issued directions to the respondents, in W.P. Nos. 406 of 2000, to give effect to the orders passed in R.P. No. 24090 to 24157 of 1989 dated 15.04.1998 within a period of one month from the date of receipt of a copy of the order. It is necessary to note that Rule 13(b) of the A.P. Police Subordinate Service Rules was not brought to the notice of the Division bench when W.P. No. 406 and 6208 of 2000 were heard and disposed of by order dated 24.07.2000. Consequent upon the orders of the Division bench, in W.P. No. 406 and 6208 of 2000 dated 24.7.2000, G.O.Ms. No. 280 Home (Police) Department dated 13.12.2001 was issued wherein the government took note of the letter of the Director General and Inspector General of Police dated 03.12.2001 that the Government Pleader, Administrative Tribunal, Hyderabad and the Government Pleader for Services II, High Court of A.P. had both opined that it was not a fit case to file a Special Leave Petition in the Supreme Court of India. The Government, after careful consideration of the matter, decided to implement the judgment of the A.P.A.T, in R.P. Nos. 24090 to 24157 of 1989 dated 15.04.1998 filed by Sri G.V. Ramanaiah, Armed Reserve Constable and 67 other Police Personnel of Nellore District, as confirmed by this Court in its judgment, in W.P. No. 406 and 6208 of 2000, dated 24.07.2000. The Director General and Inspector General of Police was requested to take necessary action in the matter accordingly. As the benefit of weightage increments was extended to Sri G.V. Ramanaiah and 67 other police constables, in G.O.Ms. No. 280 dated 13.12.2001, several O.As came to be filed before the Tribunal and thereafter similar orders, such as those impugned in the present batch of writ petitions, came to be passed. Learned Special Government Pleader, appearing on behalf of the learned Advocate General, would submit that neither Rule 10(1) nor Rule 11 of the A.P. Police Subordinate Service Rules relate to counting of service during the probationary period for being extended the benefit of weightage increments and that Rule 33(a), of the A.P. State and Subordinate Service Rules, which prescribes that seniority of a person be determined by the date of his first appointment, is also not relevant. According to the Learned Special Government Pleader, while Rule 11(a) of the A.P. Police Subordinate Service Rules, relates to pay during probation and training period, Rule 33(a) of the A.P. State and Subordinate Service Rules relates to seniority of employees. According to the learned Special Government Pleader, since the general rules are subject to the special rules framed for a particular service, the A.P. Police Subordinate Service Rules have overriding effect over the A.P. State and Subordinate Service Rules. Learned Special Government Pleader would place reliance of Rule 13(b), of the A.P. Police Subordinate Service Rules, whereunder an approved probationer is entitled to count the period of his probation, excluding the period, if any, during which he was undergoing a course of training, for increments in his time scale of pay, to contend that while the period of probation is also required to be included for the purpose of granting increments, the period of training, during this period of probation, is required to be excluded. Learned Special Government Pleader would contend that, since Rule 13(b) was not brought to the notice of either the Tribunal or the Division Bench of this Court, no reliance can be placed on these judgments, rendered per incuriam, as they do not constitute a binding precedent. Learned Special Government Pleader would place reliance on Mamleshwar Prasad Vs. Kanhaiya Lal[2], Deo NarainSingh Vs. Daddan Singh[3], Municipal Corporation of Delhi Vs. Gurnam Kaur[4], State of U.P. Vs. Synthetics and Chemicals Ltd[5]; S. Nagaraj Vs. State of Karnataka[6] and Nirmal Jeet Kaur Vs. State of M.P.[7] in this regard. Learned Special Government Pleader would submit that, the mere fact that the benefit was extended to some of the employees, pursuant to G.O.Ms. No. 280 dated 13.12.2001, did not confer any right on the respondent-applicants to claim a similar benefit, since two wrongs do not make a right and as no direction can be issued to the government to perpetuate an illegality. Learned Special Government Pleader would place reliance on Union of India Vs. International Trading Company[8] in this regard. According to the learned Special Government Pleader since the relief granted earlier was in ignorance of Rule 13(b) of the A.P. Police Subordinate Service Rules, which required the training period not to be reckoned for the purpose of granting weightage increments, the respondent-applicants were not entitled for the benefit of being granted weightage increments for the training period during their probationary period. Sri Gopalrao Gandikota, learned Counsel for the respondent-applicant, would contend that the respondent- applicants were regularly appointed, were placed on probation prior to 1976 and are similarly situated to Sri G.V. Ramanaiah and the 67 other Police constables who were given the benefit of weightage increments, even for their training period while on probation, under G.O.Ms. No. 280 dated 13.12.2001. Learned Counsel would rely on Rule 10, of the A.P. Police Subordinate Service Rules, which prescribes the period of probation and provides that every person appointed to a class or category shall, from the date on which he joins duty, be on probation. Learned Counsel would refer to Rule 11(a) which relates to probationers who have to undergo training and their pay. Learned Counsel would refer to Rule 13 which relates to pay of approved probationers and clause (a) thereunder which provides that an approved probationer on duty shall be granted the pay which would be admissible to him if he were a full member of the service in the category in which he is holding the post. Learned Counsel would submit that Rule 13(b) relates to the normal annual increments in the time scale of pay which an approved probationer was entitled to and that the said rule has no application to grant of weightage increments. Learned Counsel would refer to Rule 2(4) of the A.P. State and Subordinate Service Rules which defines “Approved Probationer” to mean a member of the service who has satisfactorily completed his probation in such service. Learned Counsel would submit that since Rule 13 of the A.P. Police Subordinate Service Rules relates only to approved probationers, it has no application to the respondent- applicants. Learned Counsel would submit that, since Rule 13(b) relates to approved probationers and it is only after a person is found suitable for full membership under Rule 11(a) would he become an approved probationer, the said rule has no application for computation of weightage increments during the period of probation including the training period. Learned Counsel would rely on Rule 15 of the A.P. Police Subordinate Service Rules which relates to seniority. Learned Counsel would submit that non-mention of Rule 13(b), in the affidavit filed in support of W.P. No. 6208 of 2000, does not necessitate a presumption that Rule 13(b) was not brought to the notice of the Division Bench. According to the learned counsel the order of the Division Bench, in W.P.Nos.406 and 6208 of 2000 dated 24.07.2000, is a mandamus to the government to grant weightage increments even during the training period while on probation and, since the government had implemented the order of the Division bench in G.O.Ms. No. 280 dated 13.12.2001 in respect of some employees, it could not deny the said benefit to the respondent-applicants as that would amount to hostile discrimination between similarly situated employees, thereby violating the fundamental rights of the respondent-applicants under Articles 14 and 16 of the Constitution of India. Learned Counsel would place reliance on J.L. Sharma1 in support of his submission that the respondent-applicants were entitled for weightage increments during the training period. According to the learned Counsel since the Government had implemented the orders of the Tribunal, in R.P. Nos. 24090 to 24157 of 1989 dated 15.04.1998, and the Division bench judgment of this Court, in W.P. Nos. 406 and 6208 of 2000 dated 24.07.2000, by issuing G.O.Ms. No. 280 dated 13.12.2001, it was estopped from contending that the aforesaid orders/judgment were not applicable or from denying the benefits of weightage increments to the respondent-applicants who are similarly situated to those given the said benefit under G.O.Ms. No. 280 dated 13.12.2001. It is obvious from a plain reading of the order of the A.P. Administrative Tribunal, in R.P. Nos. 14090 of 24157 of 1989 dated 15.04.1998, and the judgment of the Division bench of this Court, in W.P. Nos. 406 and 6208 of 2000 dated 24.07.2000, that Rule 13(b) of the A.P. Police Subordinate Service Rules was not noticed. An order or judgment of a Court/Tribunal, even if erroneous, is binding inter-parties. The binding character of judgments, of Courts of competent jurisdiction, is in essence a part of the rule of law on which administration of justice is founded and a judgment of the High Court under Article 226, passed after a hearing on merits, must bind the parties till set aside in appeal. (Direct Recruit Class II Engineering Officers’ Association Vs. State of Maharashtra[9]; UPSRTC Vs. State of U.P.[10]). Matters in controversy, in writ proceedings under Article 226, decided after full contest, after affording fair opportunity to the parties to prove their case, by a Court competent to decide it and which proceedings have attained finality, will operate as res judicata in subsequent proceedings on the same matters in controversy between the same parties. (Gulabchand Chhotalal Parikh Vs. State of Gujarat[11]; State of Punjab Vs. Bua Das Kaushal[12]). The rule of conclusiveness of judgments, as to the points decided earlier of fact, or of law, or of fact and law, in every subsequent proceeding between the same parties is the rule of res judicata. Once a matter which was the subject-matter of a lis stood determined by a competent Court, no party thereafter can be permitted to reopen it in a subsequent litigation. The principle of res judicata envisages that a judgment of a Court of competent jurisdiction directly upon a point creates a bar as regards a plea, between the same parties in some other matter in another Court, where the said plea seeks to raise afresh the very point that was determined in the earlier judgment. (Swamy Atmananda Vs. Sri Rama Krishna Tapovanam[13]; Iswar Dath Vs. Land Acquisition Collector[14]). Issues which have been concluded inter-parties cannot be raised again in proceedings inter-parties. (State of Haryana Vs. State of Punjab[15]). In so far as the employees, who were parties to the earlier proceedings are concerned, (i.e., petitioners in R.P. Nos. 24090 to 24157 of 1989 before the A.P. Administrative and W.P. No. 406 of 2000 and the Respondents in W.P. No. 6208 of 2000), the order of the Tribunal and the judgment of the Division bench of this Court was implemented by the government in G.O.Ms. No. 280 dated 13.12.2001. None of the applicants in the O.As, impugned in the present batch of writ petitions, were parties either to R.P. Nos. 24090 to 24157 of 1989 or to W.P. Nos. 406 and 6208 of 2000. While a decision inter-parties, even if it is erroneous, is binding, not every observation made in a judgment would constitute a binding precedent for other cases. I n Nirmal Jeet Kaur7the Supreme Court referred with approval to the observations, in Young Vs. Bristol Aeroplane Co. Ltd[16], that the “quotable in law” is avoided if it is rendered in ignorance of binding authority. “Incuria” literally means carelessness. Law declared is not that can be culled out but that which is stated as law to be accepted and applied. A conclusion without reference to the relevant provision of law is weaker than even casual observations. (Synthetics & Chemicals Ltd5). A decision passes sub-silentio when the particular point of law involved in the decision is not perceived by the Court or present in its mind. A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. (Gurnam Kaur5). A decision rendered in ignorance of a rule having the force of law is to be treated as given per incuriam and ceases to have precedential value. In Mamleshwar Prasad2, the Supreme Court observed: “….. CERTAINTY of the law, consistency of rulings and comity of courts - all flowering from the same principle - converge to the conclusion that a decision once rendered must later bind like cases. We do not intend to detract from the rule that, in exceptional instances where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedents. It should be a glaring case, an obtrusive omission…..” (emphasis supplied) If it were to be held that in view of Rule 13(b), of the A.P. Police Subordinate Services rules, weightage increments could not be granted taking into account the training period during probation, then the order of the Tribunal, in R.P. Nos. 24090 to 24157 of 1989 dated 15.04.1998 and the judgment of the Division bench of this Court, in W.P. Nos. 406 and 6208 of 2000, dated 24.07.2000 would be decisions given per incuriam as Rule 13(b) was not noticed. The contention regarding estoppel must only be noted to be rejected. The A.P. Police Subordinate Service Rules, are rules made in exercise of the proviso to Article 309 of the Constitution of India, and have the force of law. If it were to be held that Rule 13(b), of the A.P. Police Subordinate Service Rules, applied and the period of training during the probationary period was required to be excluded for grant of weightage increments, the doctrine of estoppel would have no application. There is no estoppel against a Statute (Pune Municipal Corporation Vs. Promoters and Builders Association[17]). There can be no estoppel against the exercise of legislative