*THE HONOURABLE SRI JUSTICE V.V.S.RAO +WRIT PETITION NO.21910 OF 2005 %18-10-2005 # ANDHRA PRADESH IPS ASSOCIATION, HYDERABAD REPRESENTED BY ITS HONORARY SECRETARY V.DINESH REDDY, IPS ..PETITIONER Vs. $ GOVERNMENT OF ANDHRA PRADESH REPRESENTED BY ITS CHIEF SECRETARY AND OTHERS ..RESPONDENTS !COUNSEL FOR PETITIONER: M/S.V.PATTABHI & C.VISHNU KUMAR ^ COUNSEL FOR RESPONDENTS 1 TO 3: THE ADVOCATE GENERAL COUNSEL FOR RESPONDENT NO.4: CENTRAL GOVERNMENT STANDING COUNSEL <GIST >HEAD NOTE: ?CASES REFERRED: 1. (2002) 4 SCC 638 = AIR 2002 SC 1598 (para 17) 2. 2003(4) ALT 68 (DB) THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION NO.21910 OF 2005 18.10.2005 Between: Andhra Pradesh IPS Association, Hyderabad, represented by its Honorary Secretary, V.Dinesh Reddy, IPS …Petitioner AND 1. Government of Andhra Pradesh represented by its Chief Secretary, Secretariat, Hyderabad And others …Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION NO.21910 OF 2005 ORDER: Andhra Pradesh IPS Association, represented by its Hon.Secretary Sri V.Dinesh Reddy, IPS, former Commissioner of City Police, Hyderabad, filed the instant writ petition seeking a writ of Mandamus declaring orders of the Government in G.O.Ms.No.406, General Administration (Poll.A) Department, dated 02.09.2005, as arbitrary, illegal, irrational and violative of Article 14 of Constitution of India, and for a consequential direction that the Protocol Manual of the year 1996 issued by the Government of Andhra Pradesh be followed on all State Ceremonial Occasions and for such other orders as this Court may deem fit and proper. The petitioner has arrayed Government of Andhra Pradesh represented by its Chief Secretary, and Union of India in Ministry of Home Affairs represented by its Secretary to Government of India, New Delhi as respondents 1 and 2. Sri C.R.Biswal, IAS, Principal Secretary to Government in GAD (Political) Department is second respondent and Dr.Mohan Khanda, former Chief Secretary to Government of Andhra Pradesh is the third respondent. At the outset, this Court must observe that the petitioner association of members belonging to coveted All India Service i.e., IPS, has made this Court a platform for highlighting its grudge against another coveted service i.e., Indian Administrative Service (IAS). There is a lurking suspicion in the mind of this Court whether the petitioner is really aggrieved by whatever it has impugned or is it the Secretary of the Association who deposed on its behalf who is bemoaning and vindicating his heart burn. In this seemingly different kind of perennial War of Roses – it appears to be so. The highest constitutional Court in the State of Andhra Pradesh is required to adjudicate, pretty well thought of petty dispute of so called official Protocol brought before the Court. This has to be done without ignoring axiomatic principles of judicial review and limitations on such power. With this brief foreword as starting point, a brief narration of the events leading to filing of this writ petition may be noticed. A lengthy extraordinary affidavit running into twenty-four pages and seventy-one paragraphs accompanies the writ petition invoking the special extraordinary jurisdiction of this Court. The controversy is about who should take precedence over whom in formal State Ceremonial Functions, what in administrative parlance is called Warrant Of Precedence (WoP)/Order Of Precedence (OoP). Whether Principal Secretary to Government in GAD (Political) should come first after Director General and Inspector General of Police (DGP) or Commissioner of Police, Hyderabad City, who is of the rank of Additional Director General of Police (Addl.DG)) should come after DGP above Principal Secretary? This is the core question. The impugned Government Order, which amends the existing WoP/OoP places, for the first time Addl.DG in Article 26 in WoP whereas the Principal Secretary remain included in Article 25 of WoP. A cursory analysis of lengthy affidavit would show that paragraphs 5 to 11 deal with protocol that was followed and the change made by the Government during the Republic Day Ceremony in January, 2005 and the visit of President of India in July, 2005; Paragraphs 12 to 15 speak about the efforts of Sri V.Dinesh Reddy, IPS, the then Commissioner of City Police in getting “lapse” rectified by respondents 2 and 3; Paragraphs 21 to 31 devote to the issue of the impugned Government Order and a criticism of the same, whereas paragraphs 32 to 44 read like self-assessment or appraisal reports of Sri V.Dinesh Reddy, IPS, as Commissioner of City Police; and Paragraphs 47 to 51 couched in vituperative tone are directed against the third respondent who is alleged to have indulged in demeaning and disrespecting the police set up in the State. The grounds in support of the writ petition with noticeable repetition are contained in paragraphs 52 to 62 of the affidavit. But as lucidly summarized by the learned counsel for the petitioner, grounds in support of the case are only three in number. This Court, having perused the elaborate affidavit, is compelled to observe that most of the averments are irrelevant and not in good taste. Before summarizing the relevant factual matrix, this Court observes that when affidavits are filed accompanying the writ petitions as required under relevant Writ Proceedings Rules, 1977, persons approaching the Court for redressal must make out their grievance in sober language avoiding frivolous and vengenceful averments. No affidavit filed in this Court should appear vexatious to wreak out personal vendetta by somebody against somebody else. No one should forget that the Courts decide the disputes between persons and between the State and the citizen in a sober and sacred atmosphere. Averments, which are not in good taste, would certainly render the seriousness with which the issues are tackled in the Court casual, which no Court can afford to be, having regard to majesty. In order to regulate the OoP in the formal and Ceremonial, Government functions, the President’s Secretariat in New Delhi, with the approval of the President of India published a Table with respect to the rank of Precedence of the persons named therein. The persons so named are with reference to the constitutional office they hold/occupy or civil posts to which they are appointed. To start with for the purpose of this case by notification No.33-Press/79 dated 06.07.1979 (hereafter called the Central OoP), the President’s Secretariat notified the table of OoP. It consists of twenty six Articles. These Articles have various entries. The same was amended from time to time and communicated for general information to all the State Governments in India. Be that as it is, the State of Andhra Pradesh initially notified its own WoP–OoP in 1963 by G.O.Ms.No.497 dated 24.05.1963 and the same was being revised from time to time. After receiving the revised Central table of OoP, which was recorded and communicated by the Government of Andhra Pradesh in G.O.Ms.No.839, dated 22.11.1979, the Government of Andhra Pradesh issued G.O.Ms.No.384, dated 02.07.1988 duly reviewing the revised WoP-OoP of Andhra Pradesh. In the said Government Order, which refers to above events, it was also directed that the OoP shall be observed at all formal State and ceremonial functions, which are strictly formal in nature. There are thirty one Articles in ‘State revised OoP’. In this case, this Court is concerned with the OoP in relation to the posts of Principal Secretary (Political) to Government of Andhra Pradesh, Addl.DG/Commissioner of Police and the equivalent posts/ranks in the State Government and Central Government. Articles 25 and 26 deal with these posts except Addl.DG. Additional Secretaries to Government of India, DGP of Andhra Pradesh, Principal Secretaries to Government of Andhra Pradesh are included in Article 25 (though not in that order), whereas Inspector General of Police (as Head of the State Police) i.e., I.G.P (as Head), Joint Secretaries to Government of India are the posts which are included in Article 26 of State OoP. There is also no dispute that Chief Secretary to State Government is included in Article 23. As per Note II below the table of State OoP, “persons” in WoP will take rank in order of the number of the Articles and those included in the same Article will take precedence inter se according to date of entry into that Article. But as per Note 18, I.G.P. (as Head) in Article 26 will take Precedence above all others in that Article and as per Note 17, for the purpose of Article 26, the posts equivalent to the posts of Joint Secretaries to Government of India will have to be determined by Government of India in Ministry of Home Affairs. Insofar as the Central OoP is concerned, the various posts/offices mentioned in various entries in Article 26 are only posts/offices concerning Central Government and posts and offices governed by the relevant State Rules are conspicuous by their absence in Central OoP. But the constitutional officeholders like Chief Ministers are also shown in Articles 7 (Chief Ministers), 8 (Chief Ministers), 14 (Chief Justices of High Courts), 17 (Chief Justices and Puisne Judges of High Courts), 20 (Puisne Judges of High courts) in Central OoP. All the State cadre posts are not shown in the central table of OoP though few of them find place. The reason is obvious. In all the ceremonies conducted by the Central Government wherever it be in India, the Central OoP has to be followed and wherever the State Government conducts ceremony or function, the State OoP has to be followed which invariably arranged all offices and posts in the State Government in juxta position with higher or equivalent offices mentioned in the central table of OoP. It is also a fact that no law of Parliament or the State regulates the table of WoP-OoP and these are executive guidelines. It appears that all the State Governments adopted central OoP with necessary modifications so as to avoid any conflict between the two. The Post of Commissioner of Police, Hyderabad (Commissioner of City Police, for brevity) is a statutory post under Hyderabad City Police Act, 1348-F. He is appointed and removed by the Government of Andhra Pradesh as per Section 5 of the said Act. At present, statedly, an IPS Officer of the rank of Addl.DG is being appointed as Commissioner of City Police. It is the case of petitioner that as and when State Ceremonial Functions are held, the Commissioner is being shown immediately after D.G.P. in the table of OoP for a given function. During the Republic Day Parade on 26.01.2004, Independence Day Parade on 15.08.2004, the Commissioner of City Police was shown above Principal Secretary to Government (Political) in GAD Department. However, during Republic Day Parade on 26.01.2005, the Principal Secretary to Government in GAD (Poll) Department was shown above the Commissioner of Police. This is grossly in breach of WoP-OoP. Sri V.Dinesh Reddy, who was the Commissioner protested against this before the third respondent, in vain. The third respondent addressed a letter dated 29.07.2005 informing Sri V.Dinesh Reddy, the then Commissioner of Police about the visit of President of India on 04.08.2005. It was also informed that the Chief Minister would introduce the Officers named therein and the Commissioner of Police was relegated to a position below Principal Secretary to Government in GAD (Poll) Department. Pointing out the alleged non-adherence to Protocol Manual, the deponent of the writ affidavit addressed a letter to Chief Secretary, Government of Andhra Pradesh, on 05.08.2005. The same describes grievance for redressal and is extracted herein below. GOVERNMENT OF ANDHRA PRADESH (POLICE DEPARTMENT) From To V.Dinesh Reddy, IPS The Chief Secretary, Commissioner of Police, Government of A.P., HYDERABAD CITY. HYDERABAD. (Through Director General of Police, A.P., Hyderabad) No.CP-Camp/39/2005, dt.5-8-2005. Sir, Sub:- Visits – Visit of the H.E. President of India to Hyderabad from 4th to 5th August, 2005 – non-adherence to Protocol Manual – Reg. Ref:- Letter No.721/Poll.A(2)/2005-27, dt.29-7-2005 of Principal Secretary to Govt. (Political) Genl. Admn. Dept. (Copy enclosed). << >> With reference to the above, this is to submit that the list of officers to be introduced by the Hon’ble Chief Minister to H.E. the President of India near the Aircraft/Saloon is not as per the Protocol Manual of the Government of Andhra Pradesh. As per para 2 of Chapter III of the Protocol Manual, the Commissioner of Police is to be placed next to Director General of Police. The list conveyed by the Principal Secretary to Government (Political) vide reference above is in total contravention of the Protocol Manual. For instance, he kept Commissioner of Police below the Major General who is equated to I.G. of Police who is much below the Additional D.G.P. Even in Warrant of Precedence Major General figures in Article 26 and Additional D.G.P. figures in Article 25 and in between there are about 30 other posts. The Commissioner of Police of the State Capital is an important functionary and his position assumes further significance when H.E. The President visits the State Capital. Keeping this in mind, he has been kept at 4th position in the list as per the Protocol Manual with a rider that he could be moved next to D.G.P. as per warrant of precedence. It is important to note that the manual does not even mention the seniority or rank of the Commissioner of Police as they become irrelevant in view of his functional significance, as C.P. can be of the rank of DIG/IGP/Addl. DGP/DGP. It is also not out of place to emphasize that even the rank of the present Commissioner of Police is that of the Addl. Director General of Police and he wears badges similar to that of the Director General of Police and Lt. General of the Army. Hence, even by applying the seniority or rank criteria hypothetically, his position cannot be shifted below the rank of Major General and in any case not to the 7th position as placed in the reference cited above. When I pointed out this to Mr.C.R.Biswal, IAS., Principal Secretary to Government (Political), he did not take cognizance of my objection and gave his own illogical interpretations. Such casual and whimsical modifications of this list erode the sanctity of the Protocol Manual and cause avoidable embarrassment to all concerned. Further tinkering with the protocol and warrant of precedence by issuing such irregular orders would undermine the rank structure in the uniformed services and undermining rank structure is a serious impropriety. I understand Mr.Biswal might not be well versed with rank structure. But instead of simply brushing aside my objection, he should have clarified with Chief Secretary or checked up with DGP/Principal Secretary (Home), who could have thrown light on these matters. In fact on an earlier occasion during the visit of Prime Minister, he issued an order placing C.P. in between DGP and himself but now he upgrades himself next to DGP. It may be noted here that the norm to be taken as per warrant of precedence among the officers of equivalent rank or position is that when that officer is placed in that pay scale. In which case his position would be next to C.P. I am not the person to get worked up on such trivial issues but the way he has behaved in spite of taking this to his notice perplexes me. Hence I am forced to bring this issue to your notice. It is requested that the discrepancy in the letter under reference may be taken note of and the same may please be rectified for future. Yours faithfully, Sd/- x x x Commissioner of Police Hyderabad City Encl: Xerox copy of Chapter-III page 62 & 63 Of Protocol Manual On 02.09.2005, the first respondent issued Memo No.469/SC.D/A2/2005-1, directing Sri V.Dinesh Reddy to furnish his explanation for using intemperate language in official communication and for violating directions of the Government with regard to line up at the reception and send off during the visit of President of India on 4-5th August, 2005. It was alleged therein that though the Commissioner of Police has been placed in accordance with the WoP in the line for reception and send off during the visit of President, Sri V.Dinesh Reddy has chosen to blatantly violate the Protocol by all means of official decency and decorum by taking of position in the line up before the Major General rank officers who are in Article 25 at the time of reception and by placing himself next to D.G.P. at the time of send off to President of India, which is not as per the order issued by the Government and hence conducted himself in a manner unbecoming on the part of the member of service. The petitioner sent his explanation vide letter dated 10.09.2005 addressed to the third respondent taking strong objection and informing that the Commissioner of Police is being wronged and that he will take the matter directly to Hon’ble Chief Minister. Sri V.Dinesh Reddy in his reply dated 10.09.2005 also made the following remarks. What perplexes me the utmost is when serious issues especially those involving moral turpitude of senior officers which are highly detrimental to public interests are pending with you they are either buried or allowed to rot for months together for reasons best known while as this petty issue regards to the protocol is being magnified to such an extent. In fact this is such a trivial issue which could have been viewed dispassionately and as a senior most civil servant, in a big brotherly manner would have called for both of us, heard to us and advised accordingly. Instead you have chosen to mete out such shabby treatment to Commissioner of Police by serving such a memo which smacks of any official decency and decorum and which does not befit communication from Chief Secretary to Commissioner of Police who is a senior and important functionary of the state administration like Chief Secretary. In fact this was served at the most inopportune time when as City Police Chief at this juncture is supervising one of the important and mega event of Ganesh festivities, the smooth passage of which is in fact the concern of every one of us, especially the Hon’ble Chief Minister and Hon’ble Home Minister are very much seriously seized of this event. As incharge of the civil administration I am sure one of the genuine concerns is to keep up the morale of the City Police Chief at this juncture and not to cause mental anguish. Such treatment was not meted out earlier even for grave irregularities committed in the past by my predecessors. It appears that I am being singled out for this raw deal from the C.S. level. If no less than Commissioner of Police himself is being wronged and such treatment is being meted out one can imagine the plight of others and common man for whose welfare we all exist. We are the trustees of the people as per Gandhiji’s philosophy and we cannot abrogate to ourselves such type of unbridled indiscretion in the name of Government. (emphasis supplied) On 02.09.2005, on the day when the Government issued Memo to Sri V.Dinesh Reddy calling upon him to submit explanation for his alleged misconduct during the visit of President of India, the first respondent issued the impugned Government Order making following amendments. In the Warrant of Precedence – Order of Precedence appended to the Notification issued in the said order,- 1. In article 24, in between the entries of “the officers of the rank of Lieutenant general or equivalent rank” and “Retired Chief Secretaries to Government”, the entry “Special Chief Secretaries to Government” shall be inserted. 2. In article 26, the entry “Inspector General of Police (As Head of State Police)” shall be substituted with the entry “Additional Director General of Police”. 3. In article 27, the entry Chief Conservator of Forests shall be replaced with the entry “Additional Principal Chief Conservator of Forests”. 4. In article 28, for the entry “Additional Chief Conservator of Forests” the entry “Chief Conservators of Forests” shall be substituted. In assailing the above Government Order and amendments, the learned counsel for the petitioner, Sri V.Pattabhi, made the following submissions. WoP-OoP is issued by the President’s Sectretariat which is binding and mandatory on all the States. Though the State Government may modify the same depending on the specific needs and circumstances of the State, it is beyond the powers of the State Government to alter and amend central WoP-OoP and give precedence to officers in any manner they like. The impugned order is without power or authority and nonest. It is only the Union of India in Ministry of Home Affairs, which can bring out such amendments. Secondly, as seen from the communication of Addl.DG of BSF, the post of Additional Director General in BSF, CRPF, ITBP and the posts of Additional Secretaries in Government of India are of the same rank. Therefore, the posts of Additional DGPs in the State of Andhra Pradesh, which is equivalent to the Additional Secretaries in Government of India are to be included in Article 25 and as a necessary corollary Addl.DG should be placed above Principal Secretaries to Government and below DGP. Inclusion of the Addl.DG in Article 26 after deleting the posts of IGP (as Head) is illegal and irrational. The Government of Andhra Pradesh have not applied their mind in issuing the impugned order. Lastly, it is contended that the impugned order is vitiated mala fide exercise of power by respondents 2 and 3 who acted detrimental to the interest of the then Commissioner of Police and Police set up by abuse of their power and authority. Till January, 2005, the Commissioner of Police was always placed in line up of officers to be introduced to the Governor immediately after the DGP but suddenly during the ceremonial parade on 26.01.2005, the second respondent changed the protocol to promote himself above the Commissioner of Police which is illegal. The learned Advocate General, Sri C.V.Mohan Reddy, opposed the writ petition as not maintainable. He also submits that the posts of Special Chief Secretary to Government, Additional Director General of Police and Additional Principal Chief Conservator of Forests are cadre posts which were not included in the revised State OoP in G.O.Ms.No.384 dated 02.07.1988 and the impugned order was issued by making amendment so as to include these posts in the table of precedence. Secondly, he would urge that the Principal Secretary to Government is equivalent to the Additional Secretary to Government of India and therefore it was included in Article 25. Initially the posts of Addl.DGPs were not at all included in the table of precedence and therefore the Government ordered substitution of entry “IGP” (as Head) in Article 26 with Addl.DG. The post of IGP is no more existence after the creation of the post of DGP in 1988. In its place, the Government included Addl.DG (in Article 26) and having regard to the functions discharged by Principal Secretary to GAD (Political), the Government thought it fit to include Article 25, which is in accordance with Central OoP. The Question of Competence of the State In the constitutional scheme, the State executive power is vested in the Governor which is exercised with respect to such matters about which the legislature of the State has power to make laws. The power is exercised on the aid and advise of the Council of Ministers who are appointed on the advise of the Chief Minister. In the absence of any specific law, it is always within the power of the State to exercise the power by an executive order and mere absence of law made by State Legislature does not in any manner fetter the ‘executive power’ of the State. While exercising this power, though the same is expressed in the name of the Governor, decisions are taken by political executive i.e., Ministers and Chief Minister and the designated bureaucrats like Chief Secretary and other Secretaries to the Government in accordance with the Rules of business, promulgated by the Governor under article 166(3) of Constitution of India. The legislative powers of the Union and the State are distributed in List I (Union List), List II (State List) and List III (Concurrent List). As per Article 246(3), the State Legislature has power to make laws for the