Non-Ministerial Posts In Special Police Battalion Fall Under State Cadre, Promotions Must Follow State-Wide Seniority: Telangana High Court

The Telangana High Court has held that posts of Police Constable, Head Constable and Assistant Reserve Sub-Inspector in the Special Police Battalions are State cadre posts governed under Andhra Pradesh Public Employment (Organisation of Local Cadres and Regulation of Direct Recruitment) Order 1975.

It further held that promotions to such non-ministerial posts cannot be governed by battalion-wise (local) seniority under the Andhra Pradesh Police (Special Police Battalions) Subordinate Service Rules1997.

The court was hearing a challenge to constitutional validity of Rule 3 of the Andhra Pradesh police (Special police Battalions) Subordinate Service Rules notified in 1997–which provides for the method and manner of appointment and promotion to various posts in the Special Police Battalion, and Rule 1(b) of G.O.Ms.No.85, Home (Police-D) Department, dated 28-04-1997–which made certain provisions applicable to promotions within the battalion structure.

A Division Bench of Chief Justice Aparesh Kumar Singh and Justice G.M. Mohiuddin observed:

“It is declared that the posts of Police Constable, Head Constable and Assistant Reserve Sub-Inspector (ARSI) in the Special Police Battalions are State Cadre posts governed by the Andhra Pradesh Public Employment (Organisation of Local Cadres and Regulation of Direct Recruitment) Order, 1975. Consequently, Rule 3 of G.O.Ms.No.69… and Rule 1(b) of G.O.Ms.No.85… insofar as they mandate battalion-wise seniority and promotions up to the rank of ARSI, are held to be inconsistent with the Presidential Order and unenforceable to that extent.”

The Bench, however, stopped short of formally striking down the provisions, noting the State's stand that steps had already been initiated to restructure the service regime and frame fresh rules in conformity with the Presidential Order.

The court was hearing a writ petition by S.P. Kasim Peera–an Assistant Reserve Sub-Inspector in the 8th Battalion of the Telangana State Special Police, challenging the teo rules.

His case was that promotions from Police Constable to Assistant Reserve Sub-Inspector (ARSI) were being made on battalion-wise seniority, though the posts in question were non-ministerial posts required to be treated as State-level cadre posts under the 1975 Order.

The petitioner contended that the impugned rules fragmented a cadre recruited through a State-wide process and denied “State-wide seniority and promotional consideration,” thereby rendering the rules ultra vires the 1975 Order and violative of constitutional guarantees.

He also relied upon an official communication dated 27.11.2017 issued by the Director General of Police to the Principal Secretary, wherein it was expressly acknowledged that G.O.Ms.No.69 and the subsequent amendments were “against the Presidential Order.”

On the other hand, the State defended the existing framework on the ground that promotions and seniority had long been regulated under the 1997 Rules, and that any interference would unsettle decades-old seniority positions. It was also submitted that, after bifurcation, the Government had already begun the process of restructuring the service conditions of Special Police Battalion personnel, and had taken steps such as merging all groups into a single category, recognising the need for “a single common seniority list.”

The Court further noted that this position stood reinforced by G.O.Ms.No.795 dated 30.06.1976, whereby the Government organised local cadre posts in the Police Department but consciously excluded posts in the Special Police Battalions. The Bench observed that the contemporaneous executive understanding thus “accords with the constitutional mandate embodied in the Presidential Order.”

Tested against this framework, the Bench held that the provisions of G.O.Ms.No.69 and G.O.Ms.No.85, insofar as they confine appointing authority, seniority and promotions from Police Constable to ARSI to the battalion level, are “plainly inconsistent with the Presidential Order.”

It added that subordinate legislation “cannot dilute or override a constitutional order issued under Article 371-D,” and that the inconsistency in the present case “is not merely asserted by the petitioner but stands admitted by the respondents themselves.”

The Bench placed particular emphasis on the DGP's communication of 27.11.2017, noting that it categorically acknowledged that the Service Rules framed under G.O.Ms.No.69 and the amendment under G.O.Ms.No.85, by fixing Battalion Commandants as appointing authorities and restricting seniority to individual battalions, operate “against the Presidential Order.” Since this admission had not been specifically denied or rebutted in the counter affidavit, the Court said it could not sustain the validity of such provisions.

At the same time, the Court adopted what it termed a “calibrated approach.” While holding the impugned provisions unenforceable to the extent they mandated battalion-wise seniority and promotion in respect of State cadre posts, it refrained from pronouncing directly upon their vires, taking note of the State's undertaking to initiate remedial measures and the possibility of “large-scale and wide-spread administrative disruption or upheaval” if the entire regime were retrospectively unsettled.

Relying on earlier observations made by a Division Bench in a 2016 petition, the Court further noted that without preparation of State-level seniority, serious anomalies were likely to arise in allocation and promotion. It quoted the earlier order to note that “unless the inter se seniority of all the Battalions situated in both the States is finalized, they cannot be allocated among the respective states,” for otherwise a senior in one Battalion could become junior to a person in another Battalion.

Accordingly, the Court disposed of the writ petition with directions declaring:

1. the posts of Police Constable, Head Constable and ARSI in the Special Police Battalions to be State cadre posts;
2. directing respondent authorities to complete the process of framing and notifying fresh service rules within six months;
3. requiring reconsideration of the petitioner's representation dated 09.03.2020 within four months; and
4. restraining the respondents, pending formulation of fresh rules, from effecting promotions based solely on battalion-wise seniority under the impugned 1997 Rules where such promotions are likely to perpetuate the illegality declared in the order.

Case Title: S.P. Kasim Peera v. State of Telangana & Ors.

Case No.: Writ Petition No. 16166 of 2020

Appearance: Sri A. Srinath for the Petitioner; Sri B. Krishna, GP for Home, for Respondent Nos. 1 to 4.

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