IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE THIRTY FIRST DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE Mr. JUSTICE GHULAM MOHAMMED and THE HON'BLE Mr. JUSTICE C.V.RAMULU WRIT PETITION Nos.27749, 27708 and 28373 of 2007 and 14433 of 2008 WRIT PETITION No. 27749 of 2007 Between: E. Shankar Reddy S/o. E. Nagi Reddy Inspector of Police, Banjara Hills PS, Hyderabad. ..... PETITIONER AND 1 P. Ramaseshaiah S/o. Sri Venugopal Naidu Hyderabad. 2 The State of Andhra Pradesh, Rep. by its Principal Secretary to Government, Home (Legal-1) Department, Secretariat, Hyderabad. 3 The Director General & Inspector General of Police A.P. Hyderabad. 4 The Deputy Inspector General of Police, Hyderabad Range,Hyderabad. 5 G.P. Vinod Kumar Inspector of Police, Chilkalguda PS, Hyderabad. 6 S. Mohan Reddy Inspector of Police, Office of Commissioner of Police, 7 G.P. Vasusena Inspector of Police, C.S.W. 8 Md. Ghouse Mohiuddin Inspector of Police, Uppal Traffic P.S. Ranga Reddy District. ....RESPONDENTS 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 issue an appropriate writ order or direction more particularly one in the nature of writ of Certiorari by calling for the records of the A.P. Administrative Tribunal, Hyderabad in OA No. 5046 of 2007 dt. 10-12-2007. Counsel for the Petitioner: Mr.B.ADINARAYANA RAO Counsel for the Respondents : GP FOR HOME Mr. D.Prakash Reddy, Sr.Advocate WRIT PETITION No.27708 of 2007 Between: 1 G.P. Vinod Kumar, W/o. Sri Pentaiah, Chilkalguda Police Station, Hyderabad. 2 Ravela Vijayapaul, S/o. Mr. R. Joseph, Nalgonda. ..... PETITIONERS AND 1 The Deputy General Of Police, Hyderabad Range, Lakadikapool, Hyderabad. 2 The Director General of Police, Lakadikapool, Hyderabad. 3 The State of Andhra pradesh, Rep. by its Principal Secretary to Government, Home Department, Secretariat, Hyderabad. 4 Sri R. Pratap Reddy, Inspector of Police, Humayan Nagar Police Station, Hyderabad. .....RESPONDENTS 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 issue a Writ, order or direction more particularly a Writ in the nature of Writ of Mandamus and declare the order and judgment made in O.A.No.5045/2007, dated 10-12-2007 as illegal and contrary to law and consequently set aside the same and to pass Counsel for the Petitioners: Dr.K.LAKSHMI NARASIMHA Counsel for the Respondent No.: GP FOR SERVICES I The Court made the following : THE HON'BLE Mr. JUSTICE GHULAM MOHAMMED and THE HON'BLE Mr. JUSTICE C.V.RAMULU WRIT PETITION Nos.27708, 27749 and 28373 of 2007 and 14433 of 2008 COMMON ORDER: (per C.V. RAMULU,J) In all these Writ Petitions, the question that arises for consideration is whether mere seniority alone is the criteria or is there any eligibility criteria, apart from the seniority in a particular cadre, for the purpose of promotion to the higher post ? Petitioners were all initially appointed as Reserve Sub-Inspectors (RSIs) of Category-3 of Class I of A.P. Police Subordinate Service. The RSIs are entitled to be appointed as Sub-Inspectors (Civil) in Category-1 of Class 1, against 5% of the vacancies earmarked for them. The RSIs, on transfer, are put on probation and sent for 6 months training. The RSIs, who had put in 5 years and more service in Class I Category-3 posts of the Andhra Pradesh Police Subordinate Service Rules (for short ‘Special Rules’), on conversion as SIs (Civil) and after completion of probation and training, according to them, are entitled for being promoted to the post of Inspector of Police (Civil) i.e. Category 4 of A.P. Police Service, on taking their seniority from the date of their initial appointment in the category of RSI; thus, they claim that they are entitled for being promoted to the post of Inspector immediately after completion of 6 years of service from the date of their initial appointment, on conversion as SI (Civil) under 5% quota. In fact, this was a subject matter of O.A.No.1396 of 1999 and batch, wherein the A.P. Administrative Tribunal held that the RSIs are not entitled to claim their seniority from the date of their initial appointment and consequential promotion to the post of Inspector of Police. Challenging the same, Writ Petition No.2120 of 2000 and batch were filed, which were disposed of by a Division Bench of this Court by an Order dated 15-6-2001. The Division Bench, while taking note of various Rules governing the field as to the claim of seniority of RSIs, ultimately held that in view of the legal position and fiction, they are entitled to reckon seniority right from the date of their initial appointment in the post of RSI and thus allowed the Writ Petitions filed by the RSIs and dismissed the Writ Petitions filed by direct recruits. Further, G.O.Ms.No.188, dated 30.6.1999 was declared as invalid. Aggrieved thereby, though the Government did not carry the matter in appeal, direct recruit Civil SIs carried the matter by way of an appeal and it is given to understand that the Civil Appeal is pending; however, no interim orders were passed by the Apex Court. Thus, according to the RSIs, the question as to reckoning of the seniority and the consequent promotion on the basis of such seniority attained finality in the Judgment of this Court in W.P.No.2120 of 2000 and batch. Therefore, the same cannot be reagitated in the O.As and hence, the Tribunal has committed an error in going beyond its jurisdiction and passing an Order contrary to the above Judgment of this Court and holding that in Judgment in Writ Petition No.2120 of 2000 and batch, the eligibility criteria for the purpose of promotion was not taken into consideration and the relevant rules were not considered. On consideration of those rules, the Tribunal held in O.A.No.5045 of 2007 and batch that though the RSIs are entitled for seniority as per the rule and legal fiction, but the seniority, as such, cannot be taken into consideration as a matter of course for the purpose of promotion to higher posts. For the purpose of promotion to higher posts, the Rules govern the field and not the seniority alone. Challenging the same, these Writ Petitions are filed. Sri B. Adinarayana Rao, the learned counsel appearing for RSIs, (petitioner in W.P.No.27749 of 2007) stated that a provisional seniority list dated 2-8-2007 was prepared in pursuance of the earlier orders, which attained finality. Therefore, preparing another provisional seniority list does not arise. Rule 15(a) read with Rule 15(c) of the Special Rules and G.O.Ms.No.35, dated 11-2-1999 were considered by this Court in W.P.No.2120 of 2000 and batch and against the Judgment therein, though Civil Appeal is filed before the Apex Court, no stay has been granted. Further, all the points raised by the unofficial respondents herein before the Tribunal as to preparation of seniority list, putting the RSIs, on transfer, on probation and training etc., were all taken into consideration and this Court finally held that RSIs are entitled to reckon their seniority from the date of their initial appointment. In fact, some of them were also promoted and were given notional promotion in the cadre of Inspector. Whether one person is eligible for promotion or not is a matter of verification of the facts in each and every case. Many of the affected parties were not impleaded to these proceedings. Therefore, in an O.A. of this nature, a direction could not have been given to the authorities to prepare a panel for each year without laying down correct guidelines. The Tribunal cannot assume jurisdiction and decide eligibility on its own and cannot examine the academic questions in vacuum. The promotion of many of the RSIs, who were transferred to Class I of Category I services and were further promoted long ago was never challenged by any of the applicants before the Tribunal. The question whether the Government gives promotion with retrospective effect notionally or not has to be examined only in individual cases and not as a general. The eligibility cannot be on the basis of a general principle {Rule 5(F)(i)}. If the judgment of the Tribunal is to be accepted, every thing becomes otiose – all the settled things become unsettled. The seniority, promotion, probation etc., everything gets nullified and in view of the Order passed by the Tribunal it assumes a new dimension. In the present lis, the question of examining the eligibility criteria has no place. The Tribunal cannot decide the matter like the High Court under Article 226 of the Constitution. The powers and functions of the Tribunal are limited to Sections 19 and 20 of the Administrative Tribunals Act. In this regard, the learned counsel relied upon B. ANANDA RAMA RAO AND OTHERS v. STATE OF ANDHRA PRADESH[1] wherein a Division Bench of this Court held that an application under Section 19 of the Administrative Tribunals Act questioning the provisional seniority list is not maintainable and mere apprehension of breach of service conditions does not give rise to cause of action to file the application. Learned counsel also contended that the Government filed a counter before the Tribunal supporting the cause of RSIs, who were transferred and posted as SIs (Civil), whereas now a different stand is sought to be taken stating that the State Government can take such a stand while accepting the rationale adopted by the Tribunal, on advice. Further, the legislative intendment was given effect to in the earlier Judgment as it does not offend Rule 15(c) of the Special Rules. Learned counsel further contended that it is ridiculous to say that there was no seniority list, which attained finality or it is still open for the respondents to reopen such an issue, which was settled between the parties. Legislative fiction has to be taken into consideration as interpreted by the Division Bench earlier. The Division Bench in W.P.No.2120 of 2000 and batch, at para- 41 has made it very clear as to the legal fiction and seniority; therefore, Rule 6 or Rule 5(F)(i) of the A.P. Police Service Rules has no help to the unofficial respondents. In support of his contentions, Sri Adinarayana Rao, learned counsel, relied upon a decision of the Apex Court in UNION OF INDIA v. K.B. RAJORIA[2] wherein the recruitment rules prescribe ‘two years’ regular service on feeder post for becoming eligible for promotion. Under those circumstances, it was held that the regular service did not mean actual service only and eligibility could be determined with reference to notional promotion granted from a retrospective date. Learned counsel further relied upon a decision of the Apex Court in K. JAGANNADHA RAO v. STATE OF A.P.[3] to impress upon the Court that in a similar case the seniority and promotion has attained finality and the same requires to be followed in this case and drawn attention of the Court to paragraphs 2 and 6 of the said judgment, which read as under: “2. Rule 5 (1) of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1963, framed in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, classifies the civil services of the State into (a) the State Services, and (b) the subordinate services. The State Services are the superior class. The Andhra Pradesh Police Service is one of the State Services. The subordinate services include, among others, the Andhra Pradesh Police Subordinate Service. The Andhra Pradesh Police Service Rules, 1966, described as Special Rules for Andhra Pradesh Police Service, were also made in exercise of the powers conferred by the proviso to Article 309 of the Constitution. Rule 2 of the 1966, Police Service Rules sets out the three categories of officers constituting the service, namely : Category 1 composed of Commandants, Andhra Pradesh Special Police; category 2 which includes Deputy Superintendents of Police and Assistant Commissioners of Police, other than those in category 3; and category 3 comprising Deputy Superintendents of Police in various capacities including Assistant Commandants, Andhra Pradesh Special Police. Rule 3 of the Andhra Pradesh Police Service Rules, 1966, lays down the method and conditions for appointment to posts in the different categories. We are concerned in this appeal with Deputy Superintendents of Police belonging to categories 2 and 3 of the rules. Appointment as Deputy Superintendent of Police in category 2 is made by (a) direct recruitment, or (b) 'recruitment by transfer' from Andhra Pradesh Police Subordinate Service, or (c) appointment from category 3 of this service with the concurrence of the Public Service Commission provided that the number of such appointments does not exceed two in a calendar year. Rule 3 (15) of the Andhra Pradesh State and Subordinate Services Rules, 1962, also framed under proviso to Article 309 of the Constitution, defines the expression "recruited by transfer"; from the definition it is clear that such recruitments are really by way of promotion. It is further prescribed by the 1966, rules that officers appointed Deputy Superintendents of Police from Category 3 to category 2 must pass certain tests and undergo further training and probation. It is also required that they must complete 8 years of service as Deputy Superintendent of Police in category 3 and shall be below 40 years of age. 6. There appears to be no dispute on the following points :- (1) categories 2 and 3 carry equal pay; (2) qualifications for direct recruits to both categories are the same; (3) promotion to either category is from the post of Inspector of Police which is a subordinate service, and the Inspectors of Police in the respective branches from whom promotions to the two categories are made also enjoy the same scale of pay.” Sri D.Linga Rao, learned counsel appearing for the petitioners in Writ Petition No.14433 of 2008, stated that when the judgment rendered between the parties once attained finality, the issue cannot be reopened. The issue relating to seniority between the parties attained finality in the judgment of the Division Bench in W.P.No.2120 of 2000 and batch, dated 15-6-2001. In this regard, learned counsel relied upon a Judgment reported in DIRECT RECRUIT CLASS II ENGG.OFFICERS’ ASSOCIATION v. STATE OF MAHARASHTRA[4] and drawn attention to paragraph-35, which reads as under: “35.……………………..In similar situation a Constitution Bench of this Court in Daryao v. State of U.P., (1962) 1 SCR 574: (AIR 1961 SC 1457) held that where the High Court dismisses a writ petition under Art. 226 of the Constitution after hearing the matter on the merits, a subsequent petition in the Supreme Court under Art. 32 on the same facts and for the same relief filed by the same parties will be barred by the general principle of res judicata. The binding character of judgments of courts of competent jurisdiction is in essence a part of the rule of law on which the administration of justice, so much emphasised by the Constitution, is founded and a judgment of the High Court under Art. 226 passed after a hearing on the merits must bind the parties till set aside in appeal as provided by the Constitution and cannot be permitted to be circumvented by a petition under Art. 32. An attempted change in the form of the petition or the grounds cannot be allowed to defeat the, plea as was observed at page 595 (of SCR) : (at p. 1467 of AIR) of the reported judgment, thus: "We are satisfied that a change in the form of attack against the impugned statute would make no difference to the true legal position that the writ petition in the High Court and the present writ petition are directed against the same statute and the grounds raised by the petitioner in that behalf are subsequently the same." The decision in Forward Construction Co. v. Prabhat Mandal (Regd.), Andheri, (1986) 1 SCC 100 : (AIR 1986 SC 391), further clarified the position by holding that an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had decided as incidental to of essentially connected with subject matter of the litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence. Thus, the principle of constructive res judicata underlying Explanation IV of S. 11 of the Code of Civil Procedure was applied to writ case. We, accordingly hold that the writ case is fit to be dismissed on the ground of res judicata. He further contended that the rights of the parties, which were concluded as per Rule 15(a) and (c) of the Special Rules read with Rule 33(c) of the General Rules cannot be taken away. Dr. K. Lakshmi Narasimha, learned counsel appearing for the petitioners in Writ Petition No.27708 of 2007, reiterated the same stand as was taken by Sri B. Adinarayana Rao and further stated that only three persons objected for the provisional seniority list prepared in pursuance of the earlier judgment of this Court in W.P.No.2120 of 2000 and batch and the said objections were repelled; therefore the Tribunal was not right in saying that the eligibility criteria was not decided in the earlier Writ Petition. Insofar as the criteria is concerned, learned counsel relied upon the Judgment reported in R. RAMASWAMY v. GOVERNMENT OF TAMILNADU[5] and drawn our attention to paragraphs 5 and 6, which read as under: “5. In view of the diverse contentions, the only question that arises for consideration is whether the appellant can be considered as senior to respondents 3 and 4 as Assistant Directors in the present Directorate. Rule 35(b) of the Tamil Nadu State and Subordinate Services Rules states thus: “35. (b) The transfer of a person from one class or category of a service to another class or category carrying the same pay or scale of pay shall not be treated as first appointment to the latter for purpose of seniority and the seniority of a person so transferred shall be determined with reference to the rank in the class or category from which he was transferred; where any difficulty or doubt arises in applying this sub-rule seniority shall be determined by the appointing authority.” 6. In view of the order passed by the Government appointing the appellant substantively as Project Officer w.e.f 22-5-1979 and treating the said post as equivalent to the post of Assistant Director carrying the same status scale of pay, the necessary implication is that he is holding the status and scale of pay of the post of Assistant Director in the present Directorate. However, the question is whether the appellant is senior to Respondents 3 and 4. As already observed, respondents 3 and 4 were appointed on 10-12-1979 and 25-5-1981 respectively i.e., later than the appellant. Rule 35(b) clearly envisages that the seniority of the transferred persons shall be determined with reference to the rank in the class or category from which he was transferred, which in the case of the appellant was the post of Project Officer. The necessary implication is that the appellant was deemed to have been transferred with the same status and scale of pay as Assistant Director, w.e.f. 21-5-1979. Consequently, he became senior to respondents 3 and 4 in that category, i.e. Assistant Director.” The sum and substance of the arguments of the learned counsel for the petitioners is that the rights between the parties attained finality and it was held by the Court that the RSIs appointed as SIs (Civil) on transfer, are entitled to reckon their seniority from the date of their initial appointment in the post of RSI and when that is the guiding star for the purpose of fixation of seniority as well as promotion, the question of considering the further eligibility itself does not arise. Sri J. Sudheer, learned Special Government Pleader appearing for the official respondents, contended that the Government can change its stand as per the advise as well as the rationale of the situation. In this regard, he relied upon the judgment reported in P. NALLAMMAL v. STATE[6] whereunder it was held as follows: “7. Union of India was made a respondent before the Madras High Court and one Under Secretary to the Government of India had filed a counter-affidavit therein on 1-12-1998 conceding to the legal position espoused by the appellants. But Shri V.R. Reddy, learned senior counsel now appearing for the Union of India strongly supported the stand adopted by the State of Tamil Nadu. The volte-face of the Union of India cannot be frowned at, for, it is open to the State or Union of India or even a private party to retrace or even resile from a concession once made in the Court on a legal proposition. Firstly, because the party concerned, on a reconsideration of the proposition could comprehend a different construction as more appropriate. Secondly, the construction of statutory provision cannot rest entirely on the stand adopted by any party in the lis. Thirdly, the parties must be left free to aid the Court in reaching the correct construction to be placed on a statutory provision. They cannot be nailed to a position on the legal interpretation which they adopted at a particular point of time because saner thoughts can throw more light on the same subject at later stage.” Learned Special Government Pleader also brought to the notice of this Court, another judgment of the Apex Court reported in M.P. GOPALAKRISHNAN NAIR v. STATE OF KERALA[7] wherein following the said judgment in P.NALLAMMAL’s case (supra) held that a wrong concession of law cannot bind the parties, particularly when the constitutionality of a statute is in question. The only thing, which needs to be examined in a situation like this, is whether the changed stand is legally tenable or not. Learned counsel also relied upon the decision in COMMISSIONER OF ENDOWMENTS v. VITTAL RAO[8] and drawn attention of the Court to paragraph-14 of the said decision, which reads as under: “14. It was not contended on behalf of the appellants, till it was raised for the first time during the course of arguments before the Division Bench in the Writ Appeal No. 429 of 1998, that the learned Advocate General did not appear before the learned single Judge and it is not the case of the appellants that the counsel representing the appellants before the learned single Judge were not authorized to make the consent statement to accept the compromise. However, it was contended before us that a concession made on the question of law by the learned counsel does not bind the parties. Learned Single Judge disposed of the writ petition on the representation of learned counsel for the parties recording the compromise as per the Government Memo No. 1295, dated 27-10-1989. The writ petition was disposed of in terms of the compromise with a direction to implement them within a period of four weeks. The representation so made or consent given for disposal of the Writ Petition before the Learned Single Judge, in our view, is not and does not amount to giving of concession on a point of law particularly, when we are taking a view that the provisions of the Act have no application to the property in question. The two decisions in Nedunuri Kameswaramma v. Sampat Subba Rao (1963) 2 SCR 208 and (2) B.S. Bajwa and another v. State of Punjab and others (1998) 2 SCC 523 have no application to the facts of the present case for the reasons that they were the cases dealing with concession on the point of law given by the counsel and those decisions were rendered on the facts of those cases. Further, we are of the view that in this case, there was no concession by the learned counsel on behalf of the appellants on a point of law.” Learned Special Government Pleader further stated that the Tribunal has laid a correct law; therefore, the Government accepted the