Full Judgment Text
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CASE NO.:
Appeal (civil) 3618 of 2000
PETITIONER:
Commandant, 11th Battalion, A.P. Special Police (IR), Cuddapah, Cuddapah District
RESPONDENT:
B. Shankar Naik
DATE OF JUDGMENT: 25/04/2003
BENCH:
SHIVARAJ V. PATIL & ARIJIT PASAYAT.
JUDGMENT:
J U D G M E N T
[With Civil Appeal Nos. 3619, 3620, 4949, 7206-7209, 7080,
7395 and 7394 of 2000]
ARIJIT PASAYAT,J.
These appeals involve common point of dispute and,
therefore, are disposed of by this judgment, which shall
govern each one of them.
The appeals are directed against judgments of the
Andhra Pradesh High Court in several writ petitions by which
judgments of the Andhra Pradesh Administrative Tribunal (in
short the ’Tribunal’) were set aside. A batch of 32 original
applications was disposed of by a common order. The
applicants in some of those moved the High Court as Tribunal
had rejected their applications. They are respondents in
Civil Appeals 3618, 3619, 3620, 7206 to 7209, 7080, 7394 and
7395/2000. Six others had filed a joint petition before the
Tribunal. They are respondents in Civil Appeal No.4949/2000.
Factual position is almost undisputed and needs to be
noted in brief:
The respondents in these appeals were appointed as
Constables along with several others, total number being
732. They were placed on probation for a period of three
years and were also required to undergo training in the A.P.
Police Recruits School under Rule 11(a) of the A.P. Police
Subordinate Service Rules (in short the ’Special Rules’).
One of the conditions stipulated in the appointment order is
that they should pass the language test within a period of
probation and in case of failure they shall be discharged
from the service. This is in terms of Rule 13-A (a)(i) of
the A.P. State and Sub-ordinate Service Rules, 1962 (in
short ’the General Rules’). The selected candidates were
sent for training to the Police Recruits School and after
completion of the training, they were to be posted at
different places to work as Constables. In the appointment
order it was clearly indicated that they should undergo ten
months basic training. Their services were terminated under
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Rule 16(f)(i) of the A.P. State and Sub-ordinate Service
Rules, 1996 (in short ’the New General Rules’) on the ground
that they had failed to pass the prescribed test within the
prescribed period of probation. Said orders of termination
were challenged on the ground that said Rules were not
applicable to them as they had passed the SSC examination
with Telugu as medium of instruction. They were exempted
from passing the language test under Rule 14 and as such the
orders of discharge were bad. As this plea was not
accepted, the respondents moved applications before the
Tribunal. The basic question raised was whether the
applicants were required to pass the language test
prescribed under Rule 13-A(a)(ii) of the General rules.
Reference was made to Rule 14 of the said rules to claim the
exemption. The Tribunal upheld the order of dismissal taking
note of the stand pressed into services by the State and its
functionaries that they had not successfully completed the
training. Reference was made to paragraph 10 of the manual
for A.P. Recruits School and held that in view of the
mandatory requirement of taking training in the recruits
schools as laid sown under Rule 11 and 2(a) of the Special
Rules, there was a requirement to successfully complete the
training as the Constables, who were trainees. Their
dismissal was claimed to be in order. It was held by the
Tribunal that the syllabus prescribed in the manual for the
police recruits assumes a mandatory character and the
prescriptions in the syllabus under the manual have to be
followed and rightly, therefore, the orders of discharge
were passed. Orders of the Tribunal were challenged before
the Andhra Pradesh High Court which by the consolidated
impugned orders held that the orders of dismissal were not
tenable, since the concerned Constables had passed SSC
examination in Telugu medium with Telugu as one of the
subjects. Therefore, they were entitled to exemption and the
order of discharge was bad. It was held that the order of
appointment did not refer to any other test in which the
selected recruits were required to come out successful and,
therefore, the orders of discharge were bad.
In support of the appeals, learned counsel for the
appellant submitted that the approach of the High Court is
erroneous. The orders of discharge were passed on several
grounds. Firstly, non-passing the language test and secondly
non-success in the training. Even if it is conceded that
the recruits were exempted from passing the language test
because of the applicable rules, yet it cannot be lost sight
of that the very purpose of undergoing training is to
successfully complete it. If one does not successfully
complete the training, there is no scope for seeking
continuance. Statutorily such prescriptions were imposed.
In response, learned counsel for the respondents
submitted that the appointment orders only referred to the
period of probation and the language test. There was no
requirement about coming out successful in the training.
That being so, according to him, High Court was justified in
setting aside the order of discharge.
The specimen copy of an order of appointment was placed
on record. This clearly stipulates, as noted supra, "They
should undertake ten months basic training, commencing from
1.11.1994". Obviously, the training which is given cannot
be rendered purposeless. If the contention of the
respondents is accepted, it would mean that the training was
intended to be a meaningless and purposeless exercise
without having any relevance. This certainly cannot be the
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intention. A person who is sent for training is required to
be comprehended as to what is the effect of the training.
If after completion of the training, it is found by the
authorities that the trainee has not succeeded in the test
conducted after training, the inevitable conclusion is that
he has not undertaken training successfully. It has to be
construed that the requirements stipulated in the
appointment orders were not fully complied with. When the
recruit was to undertake ten months basic training, it
obviously means successful completion of the training.
Undisputedly the same has not been done. The authorities
were justified in passing the order of discharge. This
position gets crystal clear when some of the relevant
provisions are considered.
Rule 11(a) of the Special Rules reads as follows:
"Probationers shall undergo training and
examination as within the period of their
probation and course of training and their
pay during the training period shall be the
basic pay of the post plus usual allowances
admissible at the time of training.
Probationers Course of training
xx xx xx
4. Constables other If appointed otherwise
(i) Band Constables, by transfer from the
Reserve Constables, A.P. Special Police
Buglers and Bellow Training for a period
Boys (Category-5 of of not less than six
Class I) and Cagegory-2 months in a Police
of Class IV). Recruit School or in
any of the A.P. Special
Police Battalions."
Rule 16(f)(i) and 17(5) of the New General Rules read
as follows:
"16(f)(i): If within the period of probation
a candidate fails to pass such tests or
acquire such qualifications as may be
prescribed in these rules or in the special
rules, the appointing authority shall, by
order, discharge him from the service unless
the period of probation is extended under the
sub rule (b) of Rule 17 and if within such
extended period also, the candidate fails to
pass such tests or acquire such special
qualifications, the appointing authority
shall discharge him from service.
17(5): In the case of any probationer failing
to pass the tests or acquire the prescribed
qualifications, the appointing authority may
extend his probation to enable him to pass
the prescribed tests or acquire special
qualifications, as the case may be. Such
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extension by the appointing authority shall
not exceed one year, whether on duty or
otherwise in such service, class or
category".
Para 10 of the Manual for Andhra Pradesh Police
Recruits Schools reads as follows:
"10: Period of training:- Recruit Constables
shall undergo training for a period of six
months in a Police Recruits School. A
recruit who passes his examinations should be
passed out at the end of six months
irrespective of short leave or sickness, but,
if he does not pass his examination, he may
be retained for one more-month, examined
again and, if successful, passed out, with
the next batch of recruits. Men failing to
pass after the extra months must
discharged."
Reference may be made also to Rules 6 and 7 of the A.P.
Special Armed Police Service Rules (in short ’Armed Police
Rules’), which read as follows:
"Rule 6 Probation: Every person appointed a
Category shall, from the date on which he
joins duty, be on probation for a total
period of two years on duty within a
continuous period of three years, if
recruited direct and for a total period of
one year on duty within a continuous period
of two years if recruited by promotion or by
transfer.
Rule 7 Training: (1)A probationer appointed
as otherwise than by promotion shall, within
the prescribed period of his probation,
undergo training in the Police Recruits
School of a period of not less than six
months and thereafter advanced training for a
period not less than four months in the
Andhra Pradesh Special Police battalion, to
the satisfaction of the Commandant."
Conspectus of these provisions provides a further basis
for the conclusion that successful completion of the
training is an inbuilt requirement for continuance. Para 10
of the Manual also throws beacon light by providing for
extension by one month for a fresh try.
It may be noted that there is some amount of confusion
as to what was the ground for discharge. While the
respondents contend that the same was relatable to non-
passing of the language test, stand of the appellant is that
it related also to failure in passing the test after
training. It appears that after the training the indoor and
outdoor activities were assessed and marks were also
allotted. The assessment is clearly permissible and as
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noted above cannot be isolated from the requirements of
successful completion of the training. This was highlighted
by the appellant before the Tribunal and the High Court.
However, no other deficiency has been noted by the
authorities. What remains is the failure of respondents to
come out successful in the indoor and outdoor subject tests
conducted. While the indoor activities related to tests on
various subjects, outdoor test related to skill in various
activities etc.
However, it does not appear that one month’s extension
as provided in Para 10 of the Manual was granted. Interest
of justice would be best served if chance in terms of Para
10 is granted to the respondents. If the respondents come
out successful in the tests to be conducted, their services
shall be continued, but in case of their being failure,
orders of discharge will be effective.
However few facts need to be noted at this stage.
The original applications filed by the respondents were
dismissed by the Tribunal nearly five years back. This Court
stayed operation of the High Court’s judgment which was in
favour of the respondents more than three years back. In
other words, the respondents are not in service. If they
come out successful in training pursuant to directions in
these appeals, they can only be adjusted if there are
existing vacancies or against the vacancies that may arise
till the end of 2005 in order of seniority-cum-merit inter-
se, subject to their satisfying all other eligibility
conditions. In case they are adjusted in the vacancies as
stated above, they shall not be entitled to claim any back
wages or arrears of salary or any other emoluments and the
period during which they were out of service shall not be
counted for seniority, however, it shall be reckoned only
for the purpose of pensionary benefits. This order is
confined to the respondents in these appeals only and none
else.
The appeals are accordingly disposed of.
However few relevant factors need to be noted at this stage.
The original applications filed by the respondents were
dismissed by the Tribunal nearly five years back. This Court
stayed operation of the High Court’s judgment which was in
favour of the respondents more than three years back. In
other words, the respondents are not in service. If they
come out successful in training pursuant to directions in
these appeals, they can only be adjusted if there are
existing vacancies. In case there are no vacancies, their
cases shall be considered as and when vacancies arise till
end of 2006. They shall not be entitled to any pay or other
emoluments for the period commencing from the date of their
removal from service till restoration of service, if any,
and the period shall not count for the purpose of seniority.
It can only be reckoned for the purpose of computing
pension. This order shall operate only in respect of the
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respondents in these appeals and none else.
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