Mohammed Ghouse And 5 Others vs The State Of Telangna And 4 Others
2024 Latest Caselaw 1296 Tel

Telangana High Court

Mohammed Ghouse And 5 Others vs The State Of Telangna And 4 Others on 26 March, 2024

     THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI

                  W.P.Nos. 30917 & 31353 of 2022

COMMON ORDER:

In both these writ petitions, the petitioners are seeking a

writ of mandamus declaring the action of the respondents in

applying the amended Rule 10(ii) of Telangana Police (Civil)

Subordinate Service Rules issued vide G.O.Ms.No.19, dated

06.02.2018 to the petitioners though their appointment by

transfer is within 10% quota against the vacancies of the year

2014 to 2018 i.e., prior to amendment, as illegal, arbitrary, as

they are depriving seniority and promotions to the petitioners

and consequently to declare that the petitioners seniority

cannot be effected by virtue of Amendment issued in

G.O.Ms.No.19, dated 06.02.2018 and to grant all consequential

benefits and to pass such other order or orders in the interest of

justice.

2. Brief facts leading to the filing of the present writ

petition are that some of the petitioners were initially appointed

as Police Constables (A.P.Special Police Battalion) and thereafter

appointed by transfer as Police Constables (Armed Reserve) and

further by transfer as Police Constables (Civil) and some of them

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were initially appointed as Police Constable in Armed Reserve of

Andhra Pradesh Police Subordinate Service and thereafter

appointed by transfer/conversion as Police Constables (Civil). It

is submitted that there is another police service called Andhra

Pradesh Special Police Battalions (APSP) governed by the

A.P.Police (Special Police battalions) vide G.O.Ms.No.69 Home

(Police-D), dated 07.04.1997. The police constables of APSP

have channel of appointment by transfer into A.P.Police

Subordinate Service Rules, 1959, upto 40% of the cadre

strength in constable (Armed Reserve/SPL/CAR) under Rules of

1959. It is submitted that petitioners herein were called to

submit their willingness for appointment by transfer as Police

Constables (Civil) within 10% quota meant for Armed Reserve

category in the State of Telangana. The petitioners have

submitted their willingness and they were appointed by transfer

as Police Constables (Civil) on various dates during the months

of June, July, August and October, 2018 and have been

working as Police Constables (Civil) ever since. It is submitted

that in the meantime, the G.O.Ms.No.19, dated 06.02.2018 has

been issued amending the Rule 10(ii) of Telangana (Civil)

Subordinate Rule-1999, by way of substitution, substituting the

earlier Rule with the amendment as extracted below i.e., the

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seniority in respect of the Police Constable (Civil) (Men)

appointed by transfer (conversion) from Police Constable's

(AR/SAR CPL) (Men) shall be fixed as follows:

"shall be given a weightage of one year for every completed

two years of service rendered as PC(AR/SAR CPL) (Men), subject

to a maximum of seven years."

3. It is submitted that though the above amendment

was issued after submission of willingness by the petitioners

herein, none of the petitioners were put on notice or informed

about the amendment of the Rule and without even mentioning

the said G.O.Ms.No.19, dated 06.02.2018, conversion orders

were issued appointing the petitioners as Police Constables

(Civil) and since they were not aware that the seniority will be

counted only from the date of appointment by transfer as Police

Constables (Civil), they have joined the post of Police Constables

(Civil) and have been working for the past four years. It is

submitted that the petitioners came to know only when the

provisional seniority list was issued by the respondents that

they are getting the weightage as per the G.O.Ms.No.19, dated

06.02.2018 and not the seniority from the date of their initial

appointment as Police Constables (APSP) or Armed Reserve,

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therefore, they have made representations to the respondents

on 09.03.2022, but the same has been rejected on the ground

that the appointment of petitioners by transfer have taken place

after the issuance of G.O.Ms.No.19, dated 06.02.2018 and

therefore, they are covered by its provisions.

4. Learned counsel for the petitioners submitted that

the amendment made to G.O.Ms.No.19, dated 06.02.2018, was

challenged before this Court in W.P.No.4636 of 2018 and batch

and vide judgment dated 25.01.2022 this Court was pleased to

hold that the vested right of seniority from the date of

appointment in the Armed Reserve Police Constables cannot be

taken away vide the amendment and therefore, the Armed

Reserve Police Constables, after being appointed by transfer as

Police Constables (Civil), shall be conferred seniority from the

date of initial appointment in the Armed Reserve. The Court

further held that the said amendment was effective only

prospectively.

5. Learned counsel for the petitioners, while

reiterating the above submissions, submitted that the issue is

squarely covered by the various judgments of this Court as well

as the Andhra Pradesh High Court and that the Hon'ble

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Supreme Court has repeatedly held that the rules of the game

cannot be changed after the game has begun. Since the

willingness of the petitioners has been obtained prior to the

amendment of Rule 10 (ii), but the appointments were made

subsequent to the amendments, the said Rules cannot be

applied to the petitioners herein without putting the petitioners

on notice of the same.

6. Learned Special Government Pleader for the

respondents relied upon the averments made in the counter

affidavit and submitted that since the petitioners have been

appointed to the post of Police Constable (Civil) by transfer after

the amendment of Rule 10 (ii), the said Rule would be applicable

and the petitioners' seniority was conferred accordingly.

7. Having regard to the rival contentions and the

material on record, this Court finds that the amendment of the

Rule 10(ii) has been made on 06.02.2018. Therefore,

undisputedly that can only be made applicable to the

subsequent transfers. However, in this case, it is seen that the

transfers were made after the amendment, but the willingness

was obtained much prior to the amendment. Admittedly, the

petitioners were not put on notice about the G.O.Ms.No.19. As

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held by the Hon'ble Supreme Court in Civil Appeal No. 9746 of

2011, the rule of the game cannot be changed after the game

has begun. Having received the options or willingness of the

petitioners for transfer to the post of Police Constable (Civil) in

the year 2016, their seniority cannot be changed without their

consent or without putting them on notice. The G.O.Ms.No.19,

is dated 06.02.2018 i.e., much later to the options exercised by

the petitioners. Therefore, the amended rule cannot be made

applicable to the petitioners herein as held by the Division

Bench of this Court in W.P.No.4636 of 2018 and batch, dated

25.01.2022. For the sake of ready reference relevant Paras are

reproduced hereunder:

2. The petitioners before this Court who are serving in the posts of Constables under the Telangana Police (Civil) are aggrieved by the G.O.Ms.No.19, Home (Legal) Department, dated 06.02.2018, issued by the State Government by which the recruitment rules, known as the Special Rules for the Telangana Police (Civil) Subordinate Service Rules issued in G.O.Ms.No.374, Home (Pol.C) Department, dated 14.12.1999, have been amended.

49. In the considered opinion of this Court, as the Recruitment Rules provided for transfer only to the extent of 10% posts, the petitioners at the relevant point of time opted for transfer to Civil Police and they would have certainly received promotions by now in the parent organization. The Amendment in the Recruitment Rules, i.e., G.O.Ms.No.19, dated 06.08.2018 has been introduced and for the first time, a weightage formula has been introduced by the State Government under the Recruitment Rules governing the field, meaning thereby, wiping the past

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seniority and therefore, once a right which has accrued in favour of the petitioners, cannot be wiped out by the impugned Amendment and the Amendment is certainly not at all applicable with retrospective effect. The question of depriving the petitioners by making the Amendment applicable with retrospective effect does not arise. Therefore, this Court is of the considered opinion that all those constables who have come prior to 06.02.2018 are certainly entitled for grant of seniority and all those constables who have come on transfer after 06.02.2018 shall be governed by the Amended Recruitment Rules.

7(1). Further in the case of P.Brahma Sai vs. The State

of Andhra Pradesh in W.P.No.45816 of 2018, the Division

Bench of the Andhra Pradesh High Court in paras 11 & 12 are

held as under:

11. It is settled principle of law, as laid down in the above referred judgments, cited by the learned counsel for the petitioners, that the rules of the game cannot be changed in the middle and, in the instant case, the respondent authorities followed the said rule in breach. It is also pertinent to note, in this context, that in the letter, dated 20.01.2017, addressed by the second respondent herein to the State Government, in unnumbered paragraph No.3 of the last page of the said letter, the second respondent expressed his opinion that it is desirable to entrust all future recruitments of Horticulture Officers to the APPSC but eventually recommended for entrustment of 36 Horticulture Officer posts, including the posts notified vide notification, dated 01.09.2016, to the APPSC and all future recruitments also to the APPSC. In this context, it would be appropriate to refer to certain paragraphs in the said letter of the second respondent, which would read as under:

"As could be seen from the above, the 15 marks being awarded for the experience has become a crucial factor and may change the fortunes of the candidates for the post of Horticulture Officers. Moreover, this is an

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appointment in the department on permanent basis. Therefore, the selection should be based on merit of the candidates.

In the present system, the candidate with lesser merit, often getting an edge of advantage over the candidates with higher merit because of the weightage allowed for experience and seniority. The candidates with higher merit are left out due to lack of weightage marks. Further, the experience so rendered is either purely on outsourcing basis of contract basis and for such appointments, no rational selection procedure or merit is followed. Therefore, merit candidates should not be deprived of the benefit of a fair chance of selection for want of experience.

Accordingly, through various notifications (91) posts of Horticulture Officers were already filled in the Department. At present, out of the total sanctioned posts of (territorial) posts of Horticulture Officers in the Department, 36 posts are vacant.

Therefore, filling up of (36) Horticulture Officer posts vacant as on date may be entrusted to APPSC and all future recruitments shall be done by the APPSC".

12. It is very much obvious from a reading of the above portion of the letter of the second respondent that he expressed certain possibilities of change of fortunes because of stipulation of certain qualifications in the notification. In the considered opinion of this Court, the said assumptions and presumptions cannot be the basis and foundation for the respondents herein to change the rules of the game in the middle of the process of selection.

7(2). Further in W.P.No.15291 of 2021 and batch, the

Andhra Pradesh High Court has also considered the case of the

persons who have given options prior to the amendment and

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were appointed subsequent to amendment and has held as

under:

34. In view of the law laid down in the judgments cited by the learned counsel for the writ petitioners, referred to supra, in the preceding paragraphs, the said contention of the learned Special Government Pleader and the learned counsel for the unofficial respondents in W.P.No.10593 of 2022 is liable to be rejected. The fact remains that, except the issuance of the appointment orders, the rest of the process came to an end by the time the amendment came into force. It is a settled and well established principle of law that the rules of the game cannot be changed in the middle of the game. In this context, it may also be pertinent to note that, when a similar amendment was made by the State of Telangana vide G.O.Ms.No.19 dated 06.02.2018, the aggrieved filed a batch of Writ Petitions vide W.P.No.4636 of 2018 and batch before the High Court for the State of Telangana. A Division Bench of the High Court for the State of Telangana, while categorically holding that a right, which has accrued, cannot be wiped out by amending the statute when the applicability of the statute is not in retrospective effect and that the State Government was not able to point out the public interest involved in the matter, held that the constables, who came on transfer after 06.02.2018, were required to be governed by the amended recruitment Rules.

In the case on hand, the reality remains that, as mentioned supra, the process of recruitment, by transfer of the writ petitioners started anterior to the impugned amendment. It is equally true that the writ petitioners submitted their willingness for being posted as Police Constables (Civil) much anterior to the impugned amendment.

35. Since the writ petitioners, admittedly, applied in terms of the notification issued under the unamended Rule and as they expressed willingness for being appointed as Police Constables (Civil) in terms of the unamended Rule, in the considered opinion of this Court, the action of the respondent authorities in denying the benefit/right accrued to the writ petitioner under the unamended Rule, cannot

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stand for judicial scrutiny and the said action is a clear infraction of the Fundamental Rights guaranteed under Chapter 3 of the Constitution of India. Admittedly, the impugned amendment came to be carried out by placing reliance on the judgment of the Composite High Court of Andhra Pradesh in W.P.No.26765 of 2011 and batch, dated 08.10.2013. In the considered opinion of this Court, the respondents grossly erred in making the said judgment as the basis as the issues in the said batch of Writ Petitions would not relate to the subject category of posts. In the considered opinion of this Court, the impugned amended Rule cannot be made applicable to the cases of the petitioners.

8. In view of the above, both the writ petitions are

allowed. There shall be no order as to costs.

9. Miscellaneous petitions, if any, pending in these

writ petitions, shall stand closed.

                                         ____________________________
                                         JUSTICE T.MADHAVI DEVI
Date:    26.03.2024
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