GOVT. OF ANDHRA PRADESH AND ORS. ETC.versusM.A. KAREEM AND OTHERS ETC.

           GOVT. OF ANDHRA PRADESH AND ORS. ETC.
A
                                         V.
                   M.A. KAREEM AND OTHERS ETC.

                             SEPTEMBER 14, 1990

B           [B.C. RAY AND LAUT MOHAN SHARMA, JJ.]

          Civil Services-Andhra Pradesh Ministerial Service: Lower Divi-
    sion 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
c
           The respondents in the Civil Appeal, were working as Lower Divi-
    sion 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
D   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
E   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
F   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 seniority
    in the Chief Office. The Tribunal allowed the petition. The State has
    preferred the appeal against the said order.

G         The petitioners in the Writ Petitions were appoi11ted 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
    succe'ssfnlly cleared the same. By an order dated 17.6.1976, their
    services were regularised with effect from 1.8.1972. The petitioners
H   challenged the validity of the order, claiming, that their seniority

                                       482
                     GOVT. OF A.P. v. M.A. KAREEM                        483

should be counted from the dates they were appointed.
                                                                                A
       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            B
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. How-
ever, so far the respondents and the two others were concerned, they            c
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 forego-
ing their seniority were sent to the Inspector General of Police many
months after the issuance of circular dated 18.1.1969 stating that the          D
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 counUbeir past services.It is, therefore, idle to
suggest tliat the respondents can now turn back and repudiate their commit-
ment expressly mlide many months after the said cirwlar. [297G-H; 298A-B I
                                                                                E
       2. So far ihe allegation regarding payment of travelling allowance
 is concerned, if some officers permitted the respondents to draw travel-
 ling allowance, this cannot be. a ground to bold that it was a case of
 regular departmental transfer. Rule 16 of the Andhra Pradesh Ministe-
 rial Service Rules cannot, therefore, he held to be applicable in the
 present case. [298C-E]                                                         F

       3. The petiti_on 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 ""rvice. The courts      G
 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 wlio have been
  prejudicially affected by the impugned judgment. It cannot he assumed
 that the respondents had no knowledge about them. Apart from the
_ merits of the case, the petition of the respondents before the Tribunal       H
    484         SUPREME COURT REPORTS                [1990) Supp. I S.C.R.

    was fit to be rejected on these grounds. [298~-D I
A
          4. There is also no merit in the contention that the respondents
    should not be put below those persons who had not successfully comp-
    leted their probation in the Chief Office on the date the respondents
    joined there. [299E]
B
          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)

c        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 ulti-
    mately dismissed by this Court on August 8, 1986. (300E)

           M. Nirmala and others v. State of Andhra Pradesh and Others.
D   [ J986) 3 S.C.R. 507, referred to.
           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
E
    and 1968, hut 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
    adv'!ntage of two years of service rendered by them prior to their
F
    successfully completing the special qualifying examination. Even the
    standard of the special qualifying examinaton was not the same as that
    of the general examination held for recruitment. (300G-H; 301A-B J

          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 173
    of 1986.
G
          From the Judgment and Order dated 29.3. 1985 of the Andhra
    Pradesh Administrative Tribunal, Hyderabad in Representation Peti-
    tion No. 1589 of 1983.
                                     WITH
H
          Writ Petition (Civil) Nos. 11135-37 of 1984.
              GOVT. OF A.P. "· M.A. KAREEM· [SHARMA, J.]                485

       (Under Article 32 of the Constitution of India).
                                                                                A
      C. Sitharamaiah, G. Prabhakar, D. Prakash· Reddy, B. Rajesh-
 war Rao and Vimal Dave for the Appellants.

     Subodh Markandeya, W.A. Nomani. Seshagiri Rao, Mrs. Chitra
 Markandeya and A. Subba Rao for'the Respondents.'. ·                           B

       The Judgment of the Court was delivered by

       SHARMA, J. CivilAppea/NiJ. 173 of 1986:·

       By the judgment under appeal the Andhra· Prad~sh Administra,
 tive Tribunal has accepted the claim of seniority pressed by the respon-       c
 dents in their Representation P~tition No.· 15S9 of 19S3. ·   ··

        2. The respondents were working as Lowe'r Division ·clerks
  (LDCs) in the district police offices/units in Andht~ Pradesh, when the
  question of appointing LDCs in the Chief O'ffice arose.'Ii was decided        D
  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 Re. No. 1020/Sl/68 dated 21.11.1968 (Annexute''A')                 E
  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 fo be put at the
  bottom of the list of probationers· or approved probationers already
  working in the Chief Office. Immediately thereafter the respondents
. and two other LDCs, who are not parties to ·the present case, expres-         F
  sed their desire to join the Chief Office on the condition <ts 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 accmdingly
  Memorandum Re. No:· 1020/SJ/68 dated 1.6.1970 (Annexure 'O') was,
  issued to the heads of departments of the concerned distrkt police            G
  offices/units. A pointed 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 alfeady
  mentioned in their letters. Accordingly, ·an ihe fivi; resp6;..dents joined
  their duty in the Chief Office after SUbl)litting,. with reference to the
  memorandum dated 1.6.1970, separate letters :(at 'pages 40:44 of the          H
    486         SUPREME COURT REPORTS                [ 1990] Supp. !' S.C.R.
                                              •
    paper book) addressed to the Inspector General of Police, stating that:
A
                "I submit that I am willing to take the last rank in seniority
                in the category of LDCs. in Chief Office from the date
                reporting duty in Chief Office."

B   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 pl.aced 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.


c were 3.substantively
            The respondents satisfactorily completed their probation and
                       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 application before the Andhra Pradesh Administra-
  tive Tribunal claiming that they were entitled to count their service
  rendered in the district police offices/units for the purpose of their
D 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 Re. No. 1020/S 1/68 dated 18. l. 1969 (Annexure 'B')
    issued by the office of the Inspector General of Police to the heads of
E   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
F               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 recom-
                mended should be good."

  It h'as been argued before the Tribunal as also before us that this letter
G clearly indicates that adequate number of clerks from the district
  police offices/uints 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 Annexures 'C'
  series and in their letters Annexures 'E' series. The Tribunal has
H accepted their plea.
             GOVT. OF A.P. v. M.A. KAREEM [SHARMA, J.)                 487

      5. Mr. C. Sitharamaiah, the learned counsel appearing in sup- A
port of the appeal, has urged that the Metnorandum Annexure 'B'
does not indicate any final decision taken by the Department. The
learned C()unsel appea.rs to be right. A perusal of the letter makes it
clear that the office of the Inspector General of Police was only mak-
ing an inquiry in the terms indicated therein. It is true that presumably
sufficient number of volunteers from the district police offices/units B
were not available which promoted the authority 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 the Tribunal that not a single
person was allowed to join the Chief Office on the condition indicated
                                                                           c
in Annexure 'B', and it has not been denied on behalf of the respon-
dents 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. D
We have, therefore, no hesitation in holding· that the condition
mentioned in Annexure '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 respondents were permitted to join the         E
 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 join-       F
 ing the Chief Office corroborates their stand. We have considered the
  argument addressed on behalf of the respondents along with the rele-
  vant 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      G
  Chief Office. The service conditions· at the Chief Office were better,
. which was presumably the re.ason 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
  district offices/units, and in that situation the le1ter Annexure 'B' had
  to be circulated. However, so far the respondents and the two others          H
    488         SUPREME COURT REPORTS                [ 1990] Supp. 1 S.C.R.

    were concerned, they found it in their own interest to forego their claim
A   Of seniority .on the· basis of their past services and they did so. It is
    significant to note that their. letters Annexures 'E' series were sent to
    the Inspect.or 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
B   services. it is, therefore, idle to suggest that the respondents can now
    turn. back and repudiate their commitment expressly made many
    months after Arrnexure 'B'.

         7. So far the. allegation regarding payment of travelling allo-
    wance is concerned, the. same has been dealt with in paragraph 6 of the
    counter afficlavit of the appellant filed before the Tribunal in the fol-
c   lowing 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
D               Subordinate Officer that the petitioners are eligible for
                T.T.A. and joining time. Jn fact the Dy. lnspr. 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
                specifically informed that the petitioners No. 1 and 2 are
                not entitled for any T. T.A. and joining time .. "
E
    It is ·urged ihat inspiie of the clarification made by the Deputy
    Inspector General of Police, as stated above, if some officers permit-
    ted the respondents to draw travelling allowance, this cannot be a
    grou~d to hold that ii was a case ·of regular departmental transfer. The
    r. !6 cannot, therefore, be held to be applicable in the present case.
F
          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 heid 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
G   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. lt .
    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
H   is considera~l_e substance in the alternative argument of Mr. Sithara-
                 GOVT. OF A.P. v. M.A. KAREEM [SHARMA, J.J                489

~   maiah a!So, but, it is not necessary to go into this question deeper as      A
    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 impoGtant
    considerations which weigh heavily against the respondents. The peti-
    tion before the Tribunal was filed by the respondents after a period of      B
    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 respondents, in the application before the Tri-
    bunal, did not implead their colleagues who have been prejudicially          c
    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              D
    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       E
    any event they should not be put below those pers_ons 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 submis-
    sion either. Accordingly, the judgment under appeal passed by the
    Andhra Pradesh Administrative Tribunal is set aside and the Rep-
    resentation petition of the respondents is dismissed. The appeal is          F
    allowed, but, in the cifcumstances, there will be no order as to costs.

    Writ Petitions (Civil) Nos. 11135-37of1984:

          11. These applications under Article 32 of the Constitution have
    been filed by the three petitioners who were appointed during the            r,
    years.1965-67 in the Central Office of the Inspector General of Police
    (now redesignated as Director General and Inspector General of
    Police), Andhra Pradesh. Since they had not passed the general exami-
    nation held for the purpose, a special qualifying examination was held
    in 1968 to facilitate the petitioners and other simiiarly situated persons
    to pass at the test. The petitioners, however, did not appear at this        H
    490         SUPREME COURT REPORTS                 [1990) Supp. 1 S.C.R.

A   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 i.n the present case is for counting
    their seniority with effect from their initial dates of appomtment 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 examination and
    at the very first opportunity available to them in 1974, they passed the
    special qualifying examination and, therefore, they shoul,d not be
    penalised by ignoring their services rendered before 1.8.1972.
c         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.

D          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
E   would be governed by the judgment in the e'rlier 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 sup-
    port of their claim. The reply on behalf of the petitioners is that if the
F   earlier writ application had been allowed, they would also be entitled
    to succeed, but after its dismissal their claim cannot be rejected with-
    out 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
G   Pradesh is that the respondent-officers had joined the office of the
    Inspector General of Police 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
H   choose to avail of the ordinary method for joining the service. Instead
            GOVT. OF A.P. v. M.A. KAREEM [SHARMA, J.]              491

they entered the service by the side aoor and their department, taking    A
an attitude liberal to them and other similar officers, decided to hold
special qualifying examinations. It is contended that in these circum-
stances the rule as laid down in Memorandum No. 473/Yl/70-5 dated
24. 7 .1970 (Annexure '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 successfully completing the       B
special qualifying examination. The argument is well founded. The
learned counsel also pointed out that the standard of the special qua-
lifying examination was not the same as that of the general examina-
tion held for recruitment.

      16. Besides the weakness in the case of the pel!l!oners as          c
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 applications are, therefore, dismissed with
costs payable to the respondents represented by Mr. Subbarao,

G.N.                       Appeal allowed and writ petition dismissed.