http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

PETITIONER: GOVT. OF ANDHRA PRADESH AND ORS. ETC.

       Vs.

RESPONDENT: M.A. KAREEM AND OTHERS ETC.

DATE OF JUDGMENT14/09/1990

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) RAY, B.C. (J)

CITATION:  1990 SCR  Supl. (1) 482  1991 SCC  Supl.  (2) 183  1990 SCALE  (2)493

ACT:     Civil  Services--Andhra  Pradesh  Ministerial   Service: Lower     Division      Clerks    in     District     Police Offices/Units--Appointed  to Chief Office--Whether  entitled to  retain  seniority--Employees not qualifying  in  general examination--Later qualified in special qualifying  examina- tion of relaxed standard--Seniority--Fixation of.

HEADNOTE:     The  respondents  in the Civil Appeal, were  working  as Lower Division Clerks in the district police  offices/units. Some posts of Lower Division Clerks fell vacant in the Chief Office and it was decided to fill up the same by  appointing Lower  Division  Clerks with good service  record  from  the district police offices. Accordingly a Memorandum was issued on  21.11. 1968 which expressly stated that  the  appointees would  be  put at the bottom of the list of  Lower  Division Clerks already working in the Chief Office. The  respondents and two others expressed their willingness to join and  also to  forego their seniority. Accordingly an order was  passed and the respondents joined duty in the Chief Office in  1970 and  were placed on probation. They completed the  probation satisfactorily  and  were  confirmed  with  their  seniority counted from the dates they joined Chief Office.     Later,  in  1983 they filed  a  Representation  Petition before  the  State Administrative Tribunal that in  view  of Memorandum  dated 18.1.1969 which stated that the  condition regarding  taking last rank would not be insisted upon,  the respondents were entitled to count their service rendered in the district police offices/units for the purpose of senior- ity in the Chief Office. The Tribunal allowed the  petition. The State has preferred the appeal against the said order.     The petitioners in the Writ Petitions were appointed  in the years 1965 to 1967. Since they did not pass the  general examination,  a special qualifying examination was  held  in 1968. They did not appear at the examination. Another chance was  given in 1974 and the petitioners successfully  cleared the  same. By an order dated 17.6.1976, their services  were regularised  with  effect  from  1.8.1972.  The  petitioners challenged  the validity of the order, claiming, that  their seniority 483

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

should be counted from the dates they were appointed. Allowing the appeal and dismissing the Writ Petitions,     HELD: 1. It has to be appreciated that the cadre of  the Chief  Office is altogether different from the cadre of  the district  police offices/ units where the  respondents  were earlier appointed and they were not liable to be transferred to  the  Chief Office. The service conditions at  the  Chief Office were better, which was presumably the reason for  the respondents  to  give up their claim based upon  their  past services. It is true that the differential advantage was not so  substantial  as to attract every  Lower  Division  Clerk working in the district offices/units, and in that situation the  letter dated 21.11.1968 had to be circulated.  However, so  far the respondents and the two others  were  concerned, they found it in their own interest to forego their claim of seniority  on the basis of their past services and they  did so. It is significant to note that their letters  expressing their  willingness to join Chief Office by  foregoing  their seniority were sent to the Inspector General of Police  many months after the issuance of circular dated 18.1.1969  stat- ing  that the condition of foregoing seniority would not  be insisted upon and they were allowed to join the Chief Office on  clear understanding that they would not be  entitled  to count their past services. It is, therefore, idle to suggest that  the respondents can now turn back and repudiate  their commitment expressly made many months after the said  circu- lar. [297G-H; 298A-B]     2. So far the allegation regarding payment of travelling allowance  is  concerned,  if some  officers  permitted  the respondents  to draw travelling allowance, this cannot be  a ground  to hold that it was a case of  regular  departmental transfer. Rule 16 of the Andhra Pradesh Ministerial  Service Rules  cannot,  therefore, be held to be applicable  in  the present case. [298C-E]     3.  The  petition before the Tribunal was filed  by  the respondents  after  a period of 13 years  of  their  initial appointment  in the Chief Office, during which  period  many orders consistent with the terms of service as indicated  in the  Memorandum dated 21.11.1968, must have been  passed  in favour  of the other incumbents of the service.  The  courts and  tribunals  should  be slow in  disturbing  the  settled affairs  in a service for such a long period.  Besides,  the respondents, in the application before the Tribunal, did not implead their colleagues who have been prejudicially affect- ed  by the impugned judgment. It cannot be assumed that  the respondents  had  no knowledge about them.  Apart  from  the merits  of the case, the petition of the respondents  before the Tribunal 484 was fit to be rejected on these grounds. [298B-D]     4.  There  is also no merit in the contention  that  the respondents  should not be put below those persons  who  had not  successfully  completed their probation  in  the  Chief Office on the date the respondents joined there. [299E]     5.1 As regards the Writ Petitions, it is significant  to note  that although the impugned order was passed  in  1976, the petitioners did not commence any legal remedy before the year  1984 when they filed the present application  directly before this Court after a period of 8 years. [300C]     5.2  Though  a Writ Petition was filed by  some  of  the employees  of  the Central Office making  similar  claim  of seniority the same was ultimately dismissed by this Court on August 8, 1986. [300E]     M.  Nirmala  and others v. State of Andhra  Pradesh  and Others, [1986] 3 S.C.R. 507, referred to.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

   5.3  The  respondent-officers  had  joined  the  Central Office after qualifying at the general examination held  for the purpose, and since the petitioners did not appear at the examination,  they  cannot be equated  with  the  respondent officers.  The general examinations for recruitment  to  the Central Office were held in 1964, 1965, 1966, 1967 and 1968, but the petitioners did not choose to avail of the  ordinary method  for  joining the service. Instead they  entered  the service  by  the side door and their department,  taking  an attitude liberal to them and other similar officers, decided to  hold special qualifying examinations. However,  for  the purpose  of seniority the petitioners were given the  advan- tage of two years of service rendered by them prior to their successfully completing the special qualifying  examination. Even the standard of the special qualifying examination  was not  the  same as that of the general examination  held  for recruitment. [300G-H; 301A-B]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  173  of 1986.     From  the  Judgment and Order dated 29.3.  1985  of  the Andhra Pradesh Administrative Tribunal, Hyderabad in  Repre- sentation Petition No. 1589 of 1983.                       WITH Writ Petition (Civil) Nos. 11135-37 of 1984. 485 (Under Article 32 of the Constitution of India).     C.  Sitharamaiah,  G. Prabhakar, D.  Prakash  Reddy,  B. Rajeshwar Rao and Vimal Dave for the Appellants.     Subodh  Markandeya,  W.A. Nomani,  Seshagiri  Rao,  Mrs. Chitra Markandeya and A. Subba Rao for the Respondents. The Judgment of the Court was delivered by SHARMA, J. Civil Appeal No. 173 of 1986:     By the judgment under appeal the Andhra Pradesh Adminis- trative Tribunal has accepted the claim of seniority pressed by the respondents in their Representation Petition No. 1589 of 1983.     2. The respondents were working as Lower Division Clerks (LDCs)  in the district police offices/units in Andhra  Pra- desh,  when  the question of appointing LDCs  in  the  Chief Office  arose. It was decided to give an opportunity to  the LDCs  working  in the district police offices/units  on  the condition that they would be willing not to rely upon  their service  rendered in the district police  offices/units  for the  purpose of seniority and that their seniority would  be counted  with  effect from the date they  joined  the  Chief Office.  Accordingly a Memorandum Rc. No.  1020/S1/68  dated 21.11. 1968 (Annexure ’A’) was issued to the district police offices/units.  The choice was limited to  probationers  and approved  probationers  having  good  service  records.  The letter  expressly stated that the appointees were to be  put at the bottom of the list of probationers or approved proba- tioners  already  working in the Chief  Office.  Immediately thereafter  the respondents and two other LDCs, who are  not parties to the present case, expressed their desire to  join the  Chief Office on the condition as mentioned in the  said memorandum. They in positive terms declared in Annexure  ’C’ series  their willingness to forego their  seniority.  After examination  of their service  records,  orders were  passed and accordingly Memorandum Rc. No. 1020/S1/68 dated 1.6. 197 (1  Annexure ’0’) was issued to the heads of departments  of the  concerned  district  police  offices/units.  A  pointed

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

reference to the memorandum of 21.11. 1968 was made  stating that  the  clerks in question were to take  their  seniority from the date of their joining the duty in the Chief  Office as already mentioned in their letters. Accordingly, all  the five respondents joined their duty in the Chief Office after submitting,  with  reference to the  memorandum  dated  1.6. 1970, separate letters (at pages 40-44 of the 486 paper  book) addressed to the Inspector General  of  Police, stating that: "I submit that I am willing to take the last rank in senior- ity  in the category of LDCs. in Chief Office from the  date reporting duty in Chief Office." Their  respective  dates  of joining the  Chief  Office  are detailed  in  the Memorandum dated  7.9.1970,  Annexure  ’H’ (page  47 of the paper book). They were placed on  probation with  the  condition that if they failed to  complete  their probation  satisfactorily they would be sent back  to  their original district/unit offices.     3. The respondents satisfactorily completed their proba- tion  and were substantively confirmed in the  Chief  Office and  their seniority was counted with effect from the  dates they joined the Chief Office. In 1983 they filed an applica- tion  before  the  Andhra  Pradesh  Administrative  Tribunal claiming  that  they were entitled to  count  their  service rendered  in the district police offices/units for the  pur- pose of their seniority in the Chief Office, which has  been allowed by the impugned judgment.     4.  In support of their claim the respondents relied  on the Memorandum Rc. No. 1020/S1/68 dated 18.1. 1969 (Annexure ’B’) issued by the office of the Inspector General of Police to  the  heads of the district  police  organisations/units, stating that,           "In  continuation of the Chief  Office  memorandum cited,  the Commissioner of Police, all  Superintendents  of Police and Commandants etc., are requested to state  whether there  are  any L.D. Clerks willing to come on  transfer  to Chief Office, if the condition stipulated in the  Memorandum cited  regarding taking of last rank is not  insisted  upon. The records of the L.D. Clerks recommended should be good." It  has  been argued before the Tribunal as also  before  us that  this letter clearly indicates that adequate number  of clerks  from  the  district police  offices/units  were  not available and a decision to forgo the condition in regard to the seniority of the clerks was taken. It has been contended that  in view of this departmental decision the  respondents should not be bound down by their statements made in  Annex- ures  ’C’ series and in their letters Annexures ’E’  series. The Tribunal has accepted their plea. 487     5. Mr. C. Sitharamaiah, the learned counsel appearing in support of the appeal, has urged that the Memorandum  Annex- ure  ’B’ does not indicate any final decision taken  by  the Department.  The  learned  counsel appears to  be  right.  A perusal of the letter makes it clear that the office of  the Inspector  General of Police was only making an  inquiry  in the  terms  indicated therein. It is true  that  presumably. sufficient  number  of volunteers from the  district  police offices/units were not available which promoted the authori- ty  concerned to issue the letter Annexure ’B’, but it  does not go beyond circulating a query. It cannot be suggested on its  basis  that  there was a reversal of  the  policy  with respect  to  the counting of the seniority of  the  incoming LDCs  from  the district police offices/units. It  has  been asserted in the counter affidavit of the State filed  before

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

the  Tribunal that not a single person was allowed  to  join the Chief Office on the condition indicated in Annexure ’B’, and  it  has not been denied on behalf  of  the  respondents either  before  the Tribunal or before us.  The  respondents have  not been able to produce a copy of any decision  taken on  the lines indicated in Annexure ’B’ nor have  they  been able to cite even a single case of an LDC joining the  Chief Office  on such a supposed decision. We have, therefore,  no hesitation in holding that the condition mentioned in Annex- ure ’B’ is of no avail to the respondents.     6.  The learned counsel for the respondents referred  to r.  16  of the A.P. Ministerial Service  Rules  (hereinafter referred  to as the Rules) and urged that when the  respond- ents  were  permitted to join the Chief  Office,  they  were allowed  to  do  so by way of a regular  transfer  from  one department  to another and this was done for  administrative exigencies  of the Police Department, within the meaning  of the  said  Rules, and not on their own  request.  They  are, therefore,  entitled to count their earlier service for  the purpose  of seniority. It is alleged that the fact that  the respondents were paid travelling allowances for joining  the Chief  Office corroborates their stand. We  have  considered the  argument addressed on behalf of the  respondents  along with  the  relevant documents but do not find any  merit  in their stand. It has to be appreciated that the cadre of  the Chief  Office  is  altogether different  from  cadre,of  the district  police  offices/units where the  respondents  were earlier appointed and they were not liable to be transferred to  the  Chief Office. The service conditions at  the  Chief Office were better, which was presumably the reason for  the respondents  to  give up their claim based upon  their  past services. It is true that the differential advantage was not so  substantial as to attract every LDC working in the  dis- trict offices/units, and in that situation the letter Annex- ure  ’B’ had to be circulated. However, so far the  respond- ents and the two others 488 were  concerned,  they  found it in their  own  interest  to forego  their claim of seniority on the Oasis of their  past services  and  they did so. It is significant to  note  that their letters Annexures ’E’ series were sent to the  Inspec- tor  General  of Police many months after  the  issuance  of Annexure ’B’ and they were allowed to join the Chief  Office on  clear Understanding that they would not be  entitled  to count their past services. It is, therefore, idle to suggest that  the respondents can.now turn back and repudiate  their commitment expressly made many months after Annexure ’B ’.     7. So far the allegation regarding payment of travelling allowance  is  concerned, the same has been  dealt  with  in paragraph 6 of the counter affidavit of the appellant  filed before the Tribunal in the following terms: "They  cannot claim seniority now after a lapse of 13  years on  the  ground that they were given T.T.A. at the  time  of their  transfer. No orders were issued from this  office  to the  Subordinate Officer that the petitioners  are  eligible for T.T.A. and joining time. In fact the Dy. Inspr. Genl. of Police,  Hyderabad Range in his order No.  534/E/256/70  Hr. Dt. 5.6.70, addressed to Supdt. of Police, Medak had specif- ically  informed  that the petitioners No. 1 and 2  are  not entitled for any T.T.A. and joining time." [t  is urged that inspite of the clarification made  by  the Deputy Inspector General of Police, as stated above, if some officers permitted the respondents to draw travelling allow- ance, this cannot be a ground to hold that it was a case  of regular departmental transfer. The ’. 16 cannot,  therefore,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

be held to be applicable in the present case.     8.  Mr.  Sitharamaiah urged that having  regard  to  the entire circumstances as spelt out of the different documents on  the records of the present case, it should be held  that the  Memorandum  Annexure  A’ issued by the  Office  of  the ’Inspector  General of Police was a mere invitation  to  the LDCs  in  the  district police offices/units  to  apply  for appointment in the Chief Office with the condition mentioned therein.  and availing of the opportunity,  the  respondents accordingly  requested by their statements and  letters  for appointment  in  the Chief Office. It is  suggested  by  the learned  counsel  that if the case be treated to be  one  of transfer, it has to be held, in the circumstances, to be  at the  request of the LDCs concerned within the meaning of  r. 16 of the Rules. There considerable substance in the  alter- native argument of Mr. Sithara- 489 maiah  also, but, it is not necessary to go into this  ques- tion  deeper  as the absorption of the  respondents  in  the Chief Office cannot be treated by way of transfer within the meaning of the Rules.     9.  Besides  the above infirmities there are  two  other important  considerations  which weigh heavily  against  the respondents.  The petition before the Tribunal was filed  by the respondents after a period of 13 years of their  initial appointment  in the Chief Office, during which  period  many orders consistent with the terms of service as indicated  in the Memorandum Annexure ’A’ must have been passed in  favour of  the  other  incumbents of the service.  The  courts  and tribunals  should be slow in disturbing the settled  affairs in  a service for such a long period. Besides, the  respond- ents,  in the application before the Tribunal, did  not  im- plead their colleagues who have been prejudicially  affected by  the  impugned judgment. It cannot be  assumed  that  the respondents  had  no knowledge about them.  As  was  rightly pointed out by Mr. Sitharamaiah, although in paragraph  4(d) of  their  application before the Tribunal (page 53  of  the paper  book)  the  respondents mentioned  one  Vijaya  Chand alleged to be an officiating LDC who was put over them, they did  not  implead even him. We are, therefore, of  the  view that apart from the merits of the case, the petition of  the respondents  before the Tribunal was fit to be  rejected  on the ground of the above mentioned last two points.     10. Finally the learned counsel for the respondents said that in any event they should not be put below those persons who  had not successfully completed their probation  in  the Chief Office on the date the respondents joined there. We do not  find any merit in this submission either.  Accordingly, the  judgment  under  appeal passed by  the  Andhra  Pradesh Administrative Tribunal is set aside and the  Representation petition  of  the respondents is dismissed.  The  appeal  is allowed,  but, in the circumstances, there will be no  order as to costs. Writ Petitions (Civil) Nos. 11135-37 of 1984:     11. These applications under Article 32 of the Constitu- tion  have  been  filed by the three  petitioners  who  were appointed during the years 1965-67 in the Central Office  of the Inspector General of Police (now redesignated as  Direc- tor  General and Inspector General of Police),  Andhra  Pra- desh. Since they had not passed the general examination held for  the purpose, a special qualifying examination was  held in  1968 to facilitate the petitioners and  other  similarly situated  persons  to  pass at the  test.  The  petitioners, however, did not appear at this 490

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

examination. Another special qualifying examination was held in  1974 and the petitioners successfully cleared the  same. Thereafter,  by  an order dated 17.6. 1976  (Annexure  ’E’), their  services were regularised with effect from  1.8.1972. Their  claim in the present case is for counting their  sen- iority  with effect from their initial dates of  appointment in the years 1965-67     12. It has been contended by the learned counsel for the petitioners that they were not qualified for the 1968 exami- nation  and at the very first opportunity available to  them in 1974, they passed the special qualifying examination and, therefore,  they should not be penalised by  ignoring  their services rendered before 1.8. 1972."     13. It is significant to note that although the impugned order  was passed in 1976, the petitioners did not  commence any  legal remedy before the year 1984 when they  filed  the present  application  directly  before this  Court  after  a period of 8 years.     14. By way of a preliminary objection, Mr. Subbarao, the learned counsel appearing for some of the officers impleaded as respondents in this petition, has drawn our attention  to the fact that earlier a writ application, being W.P. No. 106 of  1980, was filed by some of the employees of the  central office  making  similar claim of seniority and  the  present petitioners  specifically  stated that their case  would  be governed by the judgment in the earlier writ petition  which was ultimately dismissed by this Court on August 8, 1986 (M. Nirmala  and Others v. State of Andhra Pradesh  and  Others, [1986]  3  SCR  507. Mr. Subbarao contends  that  after  the dismissal of the earlier case, the petitioners now cannot be permitted to urge any new ground in support of their  claim. The reply on behalf of the petitioners is that if the earli- er  writ  application had been allowed, they would  also  be entitled  to  succeed, but after its dismissal  their  claim cannot  be  rejected without examination of  the  additional questions which did not arise in the earlier case.     15.  On merits the reply on behalf of the Government  of Andhra  Pradesh is that the respondent-officers  had  joined the office of the Inspector General of Police after qualify- ing  at  the general examination held for the  purpose,  and since  the  petitioners did not appear at  the  examination, they  cannot  be equated with the respondent  officers.  The general  examinations for recruitment to the central  office were held in 1964, 1965, 1966, 1967 and 1968, but the  peti- tioners  did not choose to avail of the ordinary method  for joining the service. Instead 491 they entered the service by the side door and their  depart- ment,  taking an attitude liberal to them and other  similar officers,  decided to hold special qualifying  examinations. It is contended that in these circumstances the rule as laid down in Memorandum No. 473/Y1/70-5 dated 24.7. 1970  (Annex- ure  ’VII’)  is clearly applicable, and for the  purpose  of seniority  the petitioners were given the advantage  of  two years of service rendered by them prior to their successful- ly completing the special qualifying examination. The  argu- ment  is well founded. The learned counsel also pointed  out that the standard of the special qualifying examination  was not  the  same as that of the general examination  held  for recruitment.     16. Besides the weakness in the case of the  petitioners as  mentioned above, the delay of 8 years on their  part  to initiate legal remedy is fatal and these writ petitions  are fit  to be rejected on this ground alone. The writ  applica- tions  are, therefore, dismissed with costs payable  to  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

respondents represented by Mr. Subbarao. G.N.            Appeal allowed and writ petition dismissed. 492