K. Sukumari vs Government of A.P., Hyderabad and others

Motilal B. Naik, J

A short question that arises for consideration in this Writ Petition is whether the order passed in VMA No.74 of 1998 in MA No.339 of 1998 in OA No.480 of 1998 dated 27-2-1998 by the Andhra Pradesh Administrative Tribunal could be sustainable ?

Facts in brief are as under:

The petitioner and the third respondent were directly recruited to the post of Sub-Inspector of Police (woman) in the year 1989. After successful completion of the training at the Police Training College, Anantapur, petitioner was given posting as Sub-Inspector (woman) of Police in the City of Hyderabad and ever since she has been continuing in the said post for more than nine years. Petitioner''s probation in the category of Sub-Inspector of Police (woman) was also declared and she is receiving all the consequential benefits pursuant thereto. The third respondent who was also recruited along with the petitioner as Sub-Inspector of Police (woman) was required to pass a language test in Telugu as provided under Rule 13-A of A.P. State & Subordinate Service Rules (for short "Subordinate Service Rules") and the effect of not passing the language test in Tclugu would be the probation would be extended and increments in the time scale of pay shall also be postponed with cumulative effect until the said test is passed. According to the petitioner, as required under Rule 13-A of the Subordinate Service Rules, the third respondent has not passed the language Test in Tclugu even as of today. Petitioner further states that Rule 14 of A,P. Police Subordinate Service Rules (for short "Police Service Rules"-) also contemplates for passing a language Test in Telugu in terms of Rule 13-A of Subordinate Service Rules.

Petitioner complains that though the third respondent has not passed the mandatory test in Telugu language in terms of Rule 13-A of the Subordinate Service Rules, the second respondent has declared the probation of the third respondent in the category of Sub-Inspector of Police (woman) with effect from 15-1-1991, by his proceedings dated 21-1-1992 after obtaining an undertaking from the third respondent that she will appear for the language Test in Tclugu to be conducted by the A.P. Public Service Commission in due course.

According to tlie petitioner, a vacancy in the category of Inspector of Police (woman) which existed from the year 1988 was sought to be filled up by promotion from among the Sub-Inspectors of Police (woman). Petitioner staked her claim for promotion as Inspector of Police (woman) as she is an approved probationer and is discharging her duties without any blemish for the past nine years. At that stage, the third respondent lias also staked her claim for promotion as Inspector of Police (woman) on the basis of the order dated 21-1-1992 issued by the second respondent declaring the third respondent to have successfully completed her probation. According to the petitioner, as the third respondent has not passed the language test in Telugu as provided under Rule 13-A of the Subordinate Service Rules and Rule 14 of the Police Service Rules, the third respondent is not even eligible to be retained in the Department and she ought to have been discharged from service as she, admittedly, did not pass the said test within a total period of three years from the date of her appointment to the service. However, petitioner complains that the second respondent has erroneously granted a benefit to the third respondent ignoring the statutory requirement as provided under Rule 13-A of the Subordinate Service Rules, by declaring that the third respondent lias successfully completed her probation, by his order dated 21-l-1992.

Taking advantage of the order dated 21-1-992 passed by the second respondent, the third respondent has also staked her claim to get promotion as Inspector of Police (woman). At that stage, petitioner objected to the claim of the third respondent as she did not pass the mandatory requirement of language test in Telugu. The representations of the petitioner and the third respondent were forwarded to the first respondent for consideration. The first respondent, on a consideration of the entire material including the proceedings issued by the second respondent dated 21-1-1992 came to the conclusion that the third respondent has not passed the language test in Telugu as prescribed under Rule 13-A of the Subordinate Service Rules since her mother tongue was Urdu. The first respondent further opined that the second respondent has erroneously declared the probation of the third respondent through proceedings dated 21-1-1992 after obtaining an undertaking from her to the effect that she will appear for the said test in due course of time. The first respondent, therefore, set aside the order of the second respondent dated 21-1-1992 declaring it as an irregular order and extended the probation of the third respondent till she passes the language test in Tclugu within the time limit prescribed after giving reasonable opportunity to the third respondent. Through the same order the first respondent further directed that the petitioner shall be considered for appointment as Circle Inspector (woman) by transfer on temporary basis as per Rule 10 of APPSC Rules.

This order of the first respondent issued in G.O. Rt. No.224 Home (Police-C) Department, dated 28-1-1998 was challenged by the third respondent in OA No.480 of 1998 before the A.P. Administrative Tribunal, on various grounds. The Tribunal initially suspended the said G.O. Rt. No.224, dated 28-1-1998 and on notice, the petitioner herein who is implcadcd as third respondent in the said OA No.480 of 1998 has filed a vacatc-petition in VMA No.74 of 1998 in MA No.339 of 1998 in OA No. 480 of 1998 contending that the interim order passed by the Tribunal in MA No. 339 of 1998 is unsustainable and sought vacating the same.

The Tribunal, however, went into the merits of the order passed by the first respondent in G.O. Rt. No. 224, dated 28-1-1998 and made the interim suspension order absolute by an order dated 27-2-1998 by holding that the third respondent herein who is the applicant in OA No.480 of 1998 ought to have been given a notice by the first respondent before issuing the G.O. Rt. No.224, dated 28-1-1998 and as the said G.O. Rt. No.224, dated 28-1-1998 is issued without notice to the third respondent herein, it has resulted in violation of die principles of natural justice. By the same order dated 27-2-1998, the Tribunal directed that the OA No.480 of 1998 be disposed of within a period of three weeks from that day.

Petitioner having waited nearly for five months with the fond hope that the Tribunal would dispose of OA No.480 of 1998 on merits as desired by it within a period of three weeks from 27-2-1998, moved this Court under Article 226 of the Constitution of India by presenting the instant writ petition on 24-7-1998 aggrieved by the order passed by the Tribunal in VMA No.74 of 1998 in MA No.339 of 1998 in OA No.480 of 1998.

On behalf of the petitioner, Sri G. Vedanta Rao, learned senior Counsel representing Sri J. Jayanand, Counsel for the petitioner, contended that the order passed by the Tribunal suspending G.O. Rt. No.224, dated 28-1-1998 passed by first respondent initially and on a vacate-petition being filed by die petitioner in VMA No.74 of 1998 making the suspension order absolute by an order dated 27-2-1998 solely on the ground that the third respondent ought to have been given a notice by the first respondent before issuing the said G.O. Rt. No.224 and non-issuance of notice has resulted in violation of the principles of natural justice, cannot be sustained inasmuch as die principles of natural justice concept cannot be extended to cases of this nature when the third respondent has failed to discharge her statutory requirement of passing the language test in Telugu as provided under Rule 13-A of Subordinate Service Rules and Rule 14 of Police Service Rules, for getting her probation declared. Learned senior Counsel further contended that the very statutory rules indicated above would be a notice to the third respondent as she is very well aware of the same and no further notice is necessary. Learned senior Counsel submits that when the second respondent has extended an illegal concession to the third respondent by his order dated 21-1-1992 declaring the third respondent to have successfully completed her probation period by obtaining an undertaking from her to the effect drat she would pass the language test in Telugu in due course, the first respondent having realised that an irregular concession, against the statutory rules, is extended to the third respondent, has rightly set aside the same by issuing G.O. Rt. No.224 dated 28-1-1998 and has also generously extended the period of probation of the third respondent instead of discharging her from service as provided under Rule 13-A of the Subordinate Service Rules. Senior Counsel, therefore, contends that the question of violation of the principles of natural justice would not arise when there is no vested right accrued to the third respondent in this regard. In support of his contentions, learned senior Counsel has drawn our attention to the decisions of the Supreme Court reported in State Bank of Patiala and others Vs. S.K. Sharma, , State of M.P. and others Vs. Mahesh Kumar and others, , Union Bank of India Vs. Vishwa Mohan, , and in Union of India v. W.N. Chaciha AIR 1993 SC 1083, Placing strong reliance on these decisions of the Supreme Court, learned senior Counsel submitted that the rule of lAudi Alteram Partem'' is not violated in this case as the third respondent has no vested right in her favour and she had only an erroneous concession in her favour granted by the second respondent by his order dated 21-1-1992 and when such illegal concession is sought to be corrected by the first respondent by issuing G.O. Rt. No.224 dated 28-1-1998, there cannot be any violation of the principles of natural justice. Leaned senior Counsel further submitted that even merely giving a notice to the third respondent would not have improved her case at all as admittedly she has not passed the language test in Telugu even as of today. Leaned senior Counsel further submitted that the petitioner who has been in service for more than nine years as Sub-Inspector of Police (woman) has unblemished record and successfully completed her probation and is due for her promotion as Inspector of Police (woman), at that stage, the third respondent has staked her claim of being promoted as Inspector of Police (woman) only with a view to defeat the legitimate claim of the petitioner. Learned senior Counsel, in the above circumstances, urged that the order dated 27-2-1198 passed in VMA No.74 of 1998 in MA No.339 of 1998 in OA No.480 of 1998 by the A.P. Administrative Tribunal be declared as illegal, arbitrary and unconstitutional.

On behalf of the third respondent, Sri K Jogayya Sharma, learned Counsel advanced his arguments. The third respondent has also filed a counter. Learned Counsel contended that though the third respondent has not passed the language test in Telugu, but she has appeared for the same which was held in the month of July, 1998. Learned Counsel further contended that the order dated 21-1-1992 passed by the second respondent declaring the probation of the third respondent is in the nature of vesting a right in favour of the third respondent and when such a vested right is sought to be withdrawn by the first respondent, the third respondent is entitled for a notice. It is contended that the Tribunal is justified in holding that non-issuance of any notice to the third respondent before issuing the G.O. Rt No.224 dated 28-1-1998 which has the effect of taking away her vested right is a violation of the principles of natural justice and the well-considered order of the Tribunal dated 27-2-1998 cannot be interfered with. Counsel ncxtly contended that the third respondent is a meritorious candidate having won several medals and is working as Sub-Inspector (woman) for the past nine years without any blemish and therefore, she is entitled to be promoted as "Inspector of Police (woman) by virtue of the order dated 21-1-1992 passed by the second respondent declaring her probation. Learned Counsel nextly contended that the Tribunal while passing the impugned order dated 27-2-1998 directed that the OA No.480 of 1998 be disposed of within a period of three weeks from that day and that being the factual position, it would not be proper for this Court to adjudicate an issue which is pending before the Tribunal. In support of his contentions, learned Counsel has taken us to a decision of the Division Bench of this Court reported in R. Musalappa Reddy v. the State ofAndhra Pradesh, Rep. by its Secretary, Health and Municipal Administration Department, Hyderabad 1968 (1) An.W.R. 86.

In the wake of these submissions, we shall now proceed to examine the impugned order dated 27-2-1998 passed by the Tribunal. On a careful examination of the impugned order passed by the Tribunal, we have found that the Tribunal has placed reliance on Rule 25 of the A.P. State and Subordinate Service Rules and has held that the G.O. Rt. No.224 dated 28-1-1998 is issued without giving adequate opportunity to the third respondent herein and therefore, it amounts to violation of the principles of natural justice. By holding so, the Tribunal directed the respondents therein to maintain stains quo obtaining as on 27-2-1998 and the OA was directed to be posted after three weeks from that day.

In the background of the contention of the third respondent that she is entitled for a notice before issuance of G.O. Rt. No.224 dated 28-1-1998 by the first respondent as her vested right is sought to be withdrawn through the said G.O., and also having regard to the finding of the Tribunal that non-issuance of notice to the third respondent before issuance of G.O. Rt. No-224 dated 28-1-1998 has resulted in violation of the principles of natural justice, we shall now proceed to decide as to whether the third respondent has been conferred with any vested right at all.

Admittedly, both the writ petitioner and the third respondent are working as Sub-Inspectors of Police (woman) in the City of Hyderabad. It is also admitted that the petitioner is an approved probationer in the category of Sub-Inspector (woman) whereas the third respondent has not passed the languagetest in Tclugu in terms of Rule 13-A of the Subordinate Service Rules and Rule-14 of the Police Service Rules, which is a sine-qua-non for declaring her probation in the category of Sub-Inspector of Police (woman). For better appreciation of the issue involved in this writ petition, it is apt to extract the provisions of Rule 13-A of the Subordinate Service Rules and Rule-14 of the Police Service Rules.

Rule 13-A of the A.P. State & Subordinate Service Rules, postulates as under:

Rule 13-A: language Test in Telugit: (a)

(i) Every person who was appointed to a service after the 15th November, 1966 shall, within the period of probation, pass the language test in Telugu, failing which his probation shall be extended and increment in the time scale of pay shall be postponed without cumulative effect, until he has passed the test: ;''

Provided that any such person who does not pass the test within a total period of three years from the date of his appointment to the service shall be discharged from service,

Rule 14 of the A.P, Police Subordinate Service Rules further provides as under:

Rnle~14: language Test in Telugit:

In respect of the persons recruited direct to the Andlira Pradesh Police Subordinate Service, the provisions of General Rule 13-A shall apply. On a conjoint reading of the above rules, it is clear that a person who is recruited directly to the A.P. Police Subordinate Service, shall have to pass the language test in Telugu within the period of his probation failing which his probation shall be extended and increments in the time scale shall also be postponed without cumulative effect till he passed the said test. It is also provided that whoever does not pass the test within a total period of three years from the date of his/her appointment to the service shall be discharged from service.

In view of the above rule position, it is incumbent upon the third respondent to pass the language test in Tetugu during the period of her probation. However, admittedly, the third respondent has not passed the said test even as on today. Though the third respondent has not passed the language test in Telugu, the second respondent by an order dated 21-1-1992 declared the tliird respondent as to have successfully completed her probation with effect from 15-1-1991 by obtaining an undertaking from the third respondent to the effect that she would pass the said language test in Telugu in due course. This order dated 21-1-1992 issued by the second respondent is contrary to the statutory rules as extracted above and is irregular, to say the least. As the third respondent has not passed the mandatory language test in Teliigu language during the period of her probation, the normal course open to the second respondent was to discliargc the third respondent from service as provided under Rule 13-A of the Subordinate Service Rules which is adopted as Rule 14 of the Police Sen-ice Rules. The second respondent, however, by-passing the above statutory requirement has declared the probation of die third respondent by his order dated 21-1-1992. When the order dated 21-1-1992 is passed in violation of the statutory'' requirement, can it be said that such an order has conferred a vested right on the third respondent ? We are afraid, we cannot hold that such an order which is irregular, to say the least, has conferred a vested right on the third respondent. At the most, it can be said that such an order dated 21-1-1992 passed by the second respondent is only in the nature of a concession extended by taking a lenient view to the third respondent.

It is settled law that when an order is issued in accordance with the rules and statutory requirements, then only it confers some vested right on a person in whose favour it is issued. But when an order passed ignoring the statutory requirements and rules, it docs not confer any vested right on the person in whose favour it is passed but only extends some sort of concession. Therefore, by any stretch of imagination, it cannot be said that the order dated 21 -1 -1992 passed by the second respondent lias conferred a vested right on the third respondent. When the petitioner and the third respondent have submitted their representations staking their claims for promotion as Inspector of Police (woman), they were forwarded to the first respondent. On a consideration of the entire material placed before him, the first respondent, realising the anomaly committed by the second respondent in passing the order dated 21-1-1992, has termed the said order as irregular and set aside the same by issuing G.O. Rt. No.224 dated 28-1-1998. As the order dated 21-1-1992 passed by the second respondent is an irregular order, the first respondent is justified in setting aside the same. As already discussed above, the order dated 21-1-1992 is only an order of concession in favour of the third respondent, it has not conferred any vested right on her and no notice need be given to her when such an anomaly was sought to be rectified, and there is no violation of the Rule of ''Audi Alteram Partem''.

The Supreme Court in the decision cited (AIR 1993 SC 1083 supra), while dealing with the rule of ''''Audi alterant partem\\ its applicability and exclusion has categorically held thus:

"The rule of audi alteram partem is not attracted unless the impugned order is shown to have deprived a person of his liberty or his property. The rule of audi alteram partem is a rule of justice and its application is excluded where the Rile will itself lead to injustice. There is exclusion of the application ofaudi alteram partem rule to cases where nothing unfair can be inferred by not affording an opportunity to present and meet a case. This rule cannot be applied to defeat the ends of justice or to make the law lifeless, absurd, stultifying and self-defeating or plainly contrary to the common sense of the situation and this rule may be jettisoned in very exceptional circumstances where compulsive necessity so demands. There are certain exceptional circumstances and situations whereunder the application of the rule ofaudi alteram pcirtem is not attracted."

The Supreme Court in the decision cited State of M.P. and others Vs. Mahesh Kumar and others, has also held that when no vested right is created in favour of a person when a concession is granted to him, and such concession is sought to be withdrawn on valid grounds, the Principle of natural justice is not violated.

Having regard to the above discussion and in the light of the principles laid down by the Supreme Court in the decisions cited supra, we are inclined to hold that the order passed by the second respondent dated 21-1-1992 is only in the nature of a concession extended to the third respondent and it has not conferred any vested right in favour of the third respondent. We are further inclined to hold that the said order dated 21-1-1992 is passed contrary to the statutory rules as indicated above and when such order is sought to be withdrawn by the first respondent through G.O. Rt. 224 dated 28-1-1998, no notice need be given to the third respondent and non-issuance of prior notice to the third respondent does not amount to violation of the principles of natural justice.

A reading of the impugned order dated 27-2-1998 passed by the Tribunal leaves an indelible impression in our minds that the Tribunal has misdirected itself in placing reliance on Rule 25 of the A.P. Slate and Subordinate Service Rules. Rule 25 of the said Rules only contemplates that the appointing authority, if it decides to extend the probation, shall point out the lapses within a period of eight weeks and communicate it to the officer concerned so as to enable him to rectify such lapses. However, in the instant case, the probation of the third respondent has not been extended but has been declared contrary to the statutory rules though the third respondent, admittedly, has not passed the language test in Telugu. Rule 25 of the said Rules, therefore, has no application at all to the facts and circumstances of the case.

Learned Counsel for the third respondent contended that through the impugned order dated 27-2-1998 the Tribunal directed that the OA No.480 of 1998 be disposed of within a period of three weeks from that date and that being the factual position, this Court under Article 226 of the Constitution of India cannot adjudicate an issue which is already pending before the Tribunal for adjudication. We are unable to accept this contention of the learned Counsel. Though the Tribunal through the impugned order dated 27-2-1998 desired that the OA be disposed of within a period of three weeks from that day, but even upto the date of filing this writ petition by the petitioner which was in the month" of July, 1998 the Tribunal has not taken up the OA for adjudication. This has resulted in denial of the legitimate claim of the petitioner to be promoted as Inspector of Police (woman) though she is qualified in all respects. Though learned Counsel for the third respondent has cited the decision (1968 (1) AWR 86 supra) in support of his contentions, having regard to our discussion in the foregoing paragraphs and in the light of the principles laid down by the Supreme Court in the decisions cited supra, we arc inclined to hold that the said decision cited by the learned Counsel for the third respondent has no application to the facts and circumstances of the case.

Having regard to the totality of the facts and circumstances of the case, we are inclined to hold mat tlie impugned order dated 27-2-1998 passed by the A.P. Administrative Tribunal is erroneous and it lias resulted in denial of justice to the petitioner and as such it is unsustainable. We accordingly set aside the same.

In the result, this writ petition is allowed. However, no costs.