Mohd. Abdul Hameed vs High Court of Andhra Pradesh and Others

This writ petition is concerned with a dispute as to conferment of full membership in the category of High Court Shorthand Writers. The writ petitioner and respondents 2 to 5 are all shorthand writers of the High Court. The High Court, by its proceedings, had conferred full membership in the substantive post of shorthand writers on respondents 2 to 5 on dates earlier to the date on which full membership of shorthand writer was conferred on the petitioner. The petitioner had, therefore, filed this writ petition seeking a declaration from this Court to the effect that he is senior to respondents 2 to 5 in the category of approved probationers of Court Masters and Personal Assistants to Hon''ble Judges and Registrars and that, therefore, full membership in the category of shorthand writers should be conferred earlier on him to respondents 2 to 5. I notice that this writ petition has been admitted on 29th July, 1980 sometime soon after the impugned action taken by the High Court.

The petitioner was appointed to the High Court Service as a Lower Division Clerk on 4th July, 1969. After he had worked for nearly three years, he was given his first promotion as a Shorthand Writer under Rule 10 of the A.P. High Court Service Rules, 1975. Under Rule 10, every person appointed to the service by promotion from any post in the service to a post on a higher scale of pay shall be on probation for a total period of one year on duty. The High Court has declared that the petitioner had completed one year period of probation by 4th August, 1973 Respondents 2, 3 and 4 were appointed as Shorthand Writers by the method of transfer. They were all previously working in the mofussil under the A.P. Judicial Ministerial Service Rules. Respondents 2, 3 and 4 were appointed to the High Court service by transfer on 9th June, 1972, and 4th July, 1972 respectively. The 5th respondent was directly appointed as Shorthand Writer on 24th July, 1972 i.e. along with the petitioner. Rule 10 of the A.P. High Court Service Rules requires that every person appointed to High Court Service otherwise than by promotion shall be on probation for a total period of two years on duty. Respondents 2, 3, 4 and 5, therefore, were under an obligation to put in a service of two years before their probation could be declared. They did put in those two years of service and completed their probation on 3rd July, 1974, 9th August, 1974, and 31st July, 1974 respectively, nearly a year later to the date of declaration of probation of the petitioner.

Now, the question is, whether the High Court is right in conferring full membership on respondents 2, 3, 4 and 5 earlier to the petitioner who had completed his probation earlier by 4th August, 1973 and had, therefore, become the senior most probationer.

The purpose of the Service Rules is to ensure the discipline of the employee while ensuring a certain degree of security of his job. This balance is struck by the High Court Service Rules by providing for the review of the work at various stages of an employee''s service. Work is reviewed at various levels and a new start is given from those points of service career. One of the crucial points in a service career is declaration of probation which gives the employee a semi-permanent right to hold on to that post. As it is well known, the origin of public or private service can only be in a contract. Now, once a person joins the service, he is tested for his probity and ability during a certain period of time, called the probationary period. During the probation period, the tenure of the employee is the most pervious. Under the Service Rules, the declaration commencing probation and the declaration that the employee has completed probation are the powers and responsibility of the employer. On completion of probation, the employee acquires a higher degree of security of his job. He may still be discharged from service but can only be so discharged respecting his seniority as an approved probationer. This is the first stage when the rule of general seniority gives in to the rule of higher status given to an approved probationer. This is the first stage of the Service Rules where an employee can steal a march over his senior rival. Although an employee is a junior in service, he cannot be retrenched so long as he is an approved probationer before his senior who is not an approved probationer is retrenched from service.

The next and the highest degree of job security is assured to the Government employee by admitting him to full membership of a substantive post which is borne on the cadre. Every cadre has certain number of posts and no more. Those posts are to be filled up by substantive appointments made to them. It is called conferment of full membership. When once an employee becomes a full member of the service, he cannot be retrenched except on the ground that the post itself is abolished. One cannot become a full member unless he has been declared an approved probationer and there is a substantive vacancy in a permanent post. Ordinary notions of law tell us that in filling up of a substantive post, an employee, who has earlier satisfactorily completed his probation and who has obtained a declaration to that effect under the Rules from his employer, would have priority over his rival who, though general senior in service, has not yet completed his probation or has only completed his probation much later to the former employee. The moment there is a substantive vacancy in a post, an approved probationer is required to be appointed to that vacancy. This would clearly show that in the matter of admitting an employee into full membership of service, general seniority does not play much of a part. The definition clause of the High Court Service Rules, which is bodily lifted from the A.P. State and Subordinate Service Rules, defines an approved probationer as a member of the service who has satisfactorily completed his probation and awaits appointment as a full member of the service (emphasis is added). In my opinion, the words "awaits appointment as a full member of the service" are greatly significant in showing the intention of the rule that an approved probationer''s right to occupy a substantive vacancy shall not be postponed. The expectations of an approved probationer to occupy a substantive post are thus considered to be legitimate. An approved probationer acquires a right to be admitted to full membership by reason of the fact that he is an approved probationer. In the normal course, i the petitioner who has been declared as an approved probationer earlier to respondents 2, 3, 4 and 5, ought to have been admitted the full membership of the service in preference to them. The petitioner has been awaiting to be appointed as a full member of the service from 1973 onwards, whereas the respondents had at that point of time no claims or hopes of becoming full members of the service because they had not completed their probation on 4th August, 1973. I do not see any basis either in good sense or in the statutory rules that would justify the stultification of the legitimate expectations of an approved probationer. The postponing of the petitioner''s admittance to full membership cannot be justified. Certainly it could not be postponed merely in order to allow the respondents time to complete their probation and become full members. That would clearly be contrary to the rule of equal treatment that the Constitution requires to be accorded to all the employees. There is no reason to treat the interest of the petitioner and his legitimate expectation as of inferior value than those of the respondents. The fact that, under the A.P. High Court Service Rules, the respondents are required to put in two years of probationary period before they could acquire the status of an approved probationer is an incident of service and cannot therefore be repaired at the cost of an employee like the petitioner. Such a circumstance cannot be taken note of at all. That is the incidence of Service. You cannot go behind the Rules which require shorter probation of promotees. The shorter time of probationary period prescribed by the Rules for an employee recruited by promotion is not argued before me to be arbitrary. Accepting that differential as legitimate I cannot refuse to give it full effect. I, therefore, cannot hold that the respondents had by reason of longer period of probation suffered some injury which should be compensated by postponing the enjoyment of the rights which are accrued in praesenti to the petitioner. As said above, the words "awaits appointment as a full member" show that the moment a substantive vacancy arises, an approved probationer should be made into a full member. In other words, his waiting period can be prolonged, not on the ground that some other employee has not completed his probation, but only on the ground that there was no substantive vacancy. Rule 14 of the A.P. High Court Service Rules, which deals with the question of appointment of full members, does not, in my opinion, say anything even remotely contrary to what I said above. On the other hand I find it fully supporting the above view. It says that subject to the provisions of Rule 26 (which deals with an employee who is absent from duty), an approved probationer shall, if a substantive vacancy in the permanent cadre of a category or post for which he was selected exists, be appointed to be a full member of the service in such category at the earliest possible opportunity, and if such vacancy existed from a date previous to the issue of the order of appointment, he may be so appointed with retrospective effect from such date, or as the case may be, from a subsequent date from which he was continuously on duty as a member of the service in such category or in a higher category. The language of this Rule 14 is not only clear but mandatory in showing the intention that an approved probationer acquires a right to be appointed to be a full member at the earliest opportunity. No doubt, that does not deal with the case of rival claims of approved probationers. But that is really no answer to the contention of the petitioner that he ought to have been made into a full member from 4th August, 1983 onwards. I do not find that the High Court has ever stated in its counter affidavit that the petitioner could not be appointed as a full member for the reason that there existed no substantive vacancy between 1978 and 1980. Even on the assumption that substantive vacancy has arisen only in the year 1980. I am of the opinion that the thrust of Rule 14 which requires retrospective full membership should be given to an approved probationer is to preserve the primacy of the claim of an approved probationer who was first among the approved probationers. But, Sri Raghuram, learned counsel for the contesting respondents, and Sri Subba Reddi for the High Court argued that Rule 14 must be read along with rule 5(2) and that rule of general seniority should be respected. In general law or in common sense I do not find any justification for taking such a view. The eligibility for full memberships is not general seniority but only the approved probationer ship. There is no language in Rule 14 to displace the operation of that general principle. The first proviso to Rule 14 says that, where more than one approved probationer is available for such appointment as full member, the senior-most approved probationer on the date of vacancy shall be appointed. In my opinion those words seek to exclude the claims of a junior probationer although he is a general senior. But Sri Raghuram argued that the words ''senior-most approved probationer'' mean senior-most among the approved probationers. That is clearly supplying the words ''among the'' before the words ''approved probationer'' and totally altering the structure and meaning and even the tenor of that proviso. The words ''senior-most approved probationer'' only refer not to the general seniority in service but to the seniority in the rank of approved probationers. If the rule-making authority intended that the junior-most approved probationer should be given preference over the senior-most approved probationer, the rule should have been differently worded. I am, therefore, unable to agree with this contention of Sri Subba Reddi and Sri Raghuram. The second proviso to Rule 14 is the only exception that admits an exception to the above conclusion. But it has no application to the facts of this case. Proviso (2) to Rule 14 says that, where by reason of administrative convenience a member of the service completes his probation earlier than another member of the service who is senior to him, the member who so completes his probation earlier shall not be confirmed before the member who is senior to him. For the operation of this proviso, the administrative convenience must have been the cause that had prevented the respondents from completing their probation. Frankly, none was suggested except Rule 10 of the A.P. High Court Service Rules, 1975, which had prescribed two years probationary period for the respondents while prescribing one year of probationary period for the petitioner. The question is, whether this can be called ''administrative convenience''. The very words ''administrative convenience'' show that they refer to some fortuitous circumstances and unforeseen administrative exigencies. In my opinion, those words do not at all refer to the requirement of the regular rules which apply uniformly to all. Rule 10 which prescribes different probationary periods for the promotees and transferees cannot, therefore, be called as an administrative convenience. It is clearly foreseeable by the respondents on the day when they joined the service of the High Court by transfer. After they joined they have not lost a day in completing their probation by reason of any act of administration. I am, therefore, unable to agree with the contention of the learned counsel for the respondents that Rule 10 has any relevance in this context. The only judgment that has been referred to in this case is the one reported in V. V. V. Satyanarayana v. R. Naidu 1974-II-LLJ-435. The language in para 9 on which Shri Raghuram placed reliance does not appear to me to support his contention. Para 9 merely states that their Lordships of the Supreme Court considered the summary of Rule 29 of the State and Subordinate Service Rules. I am, therefore, unable to derive any benefit from those observations. In Quinn v. Leathem (1901 Appeal Cases 494) the Earl of Halsbury observed :

"Even judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found that are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what is actually decided. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all."

Examining the above judgment of the Supreme Court, I cannot find any principle which can be called out that can be applied to the facts of this case.

For the above reasons, I declare the petitioner to be senior to the respondents 2 to 5 in the category of approved probationers and direct the High Court to confirm the petitioner as a full member in the High Court Service as a Court Master earlier to respondents 2 to 5. The Writ Petition is accordingly allowed. No costs, Advocate''s fee Rs. 250/-.