Dismissal of an SLP without reasons binds the parties but is not a precedent under Article 141

A Division Bench of Justices Ravi Nath Tilhari and Subhendu Samanta set aside two Tribunal orders, holding there is no negative parity under Article 14 and illegality cannot be perpetuated.

An order of the Supreme Court dismissing a special leave petition without reasons, and without considering a judgment of its own that points the other way, binds the parties to that case but lays down no law, the Andhra Pradesh High Court has held. A Division Bench of Justice Ravi Nath Tilhari and Justice Subhendu Samanta set aside two orders of the Andhra Pradesh Administrative Tribunal which had allowed policemen to count earlier service in the armed wing towards their seniority in the civil wing. The Tribunal had rested entirely on a 2007 High Court judgment that was itself decided on a concession by both sides rather than on merits, and which the Bench found to be contrary to Rule 15(a) of the service rules and to a direct Supreme Court authority on that very rule. The judgment carries the court's own marking: reasoned, and reportable with the law-report copy to be marked.

Two sets of policemen and two Tribunal orders

The first writ petition, W.P. No. 24641 of 2014, concerned three police officers who had been appointed Reserve Sub-Inspectors of Police. The first of them came in through the 1996 direct recruitment and the other two through the 2003 recruitment. All three then sat the 2004 direct recruitment for the post of Sub-Inspector of Police (Civil), were selected, and were appointed on 2 May 2005; they were later promoted Inspectors of Police in 2012 and 2014. In O.A. No. 3350 of 2012 they asked the Tribunal to direct that their service as Reserve Sub-Inspectors be counted towards their service as Sub-Inspectors (Civil) in the Eluru Range. The Tribunal disposed of that application on 1 April 2014 in terms of an earlier order in O.A. No. 6168 of 2011.

The second petition, W.P. No. 1094 of 2016, concerned nine men now working as Head Constables. In O.A. No. 2943 of 2011 they sought a direction that their service as Armed Reserve Police Constables be counted towards their service as Civil Police Constables in Anantapur District. They raised the claim fifteen years after their appointment as Police Constables (Civil). On 26 April 2013 the Tribunal allowed it, directing that their seniority be fixed from the date of their initial appointment as Armed Reserve constables, applying the same principle the department had applied to Sub-Inspectors in a 2010 proceeding.

In both cases the men had entered the civil wing by direct recruitment, not by transfer. That distinction decided the case.

What Rule 15 actually provides

Rule 2 of the Special Rules recognises three routes into these cadres: direct recruitment, promotion, and transfer. Rule 15 then fixes seniority by the date of first appointment to a class, category or grade, with a carve-out that decides this case. A transfer of a person from one class or category to another carrying the same scale of pay is not treated as a first appointment to the latter for seniority purposes; the seniority of a person so transferred is determined with reference to the date of first appointment to the class or category from which he was transferred. A proviso adds that for Sub-Inspectors, Sub-Inspectors (Intelligence) and Reserve Sub-Inspectors, inter-se seniority is fixed on completion of training at the Police Training College or with the Andhra Pradesh Special Police, in order of merit by aggregate marks, rather than at the time of selection.

The architecture is therefore deliberate. A man who moves sideways on the same pay carries his old date with him, because he has not been freshly appointed. A man who competes in an open recruitment and wins a new post starts afresh, because he has.

Rule 15(a) and Rule 15(c), and why E. Shankar Reddy did not fit

Seniority in these cadres is governed by Rule 15 of the Andhra Pradesh Police Subordinate Service Rules, which treats direct recruitment and recruitment by transfer differently. Rule 15(a) applies to a direct recruit. Rule 15(c) applies where a person is appointed by transfer.

The Tribunal's orders traced back to a 2001 judgment of the High Court in W.P. No. 2120 of 2000 and batch, decided on 15 June 2001 and reported as E. Shankar Reddy v. Government of A.P., 2001 SCC OnLine AP 501. The Bench examined what that case had actually involved.

There, Reserve Sub-Inspectors of the 1985 batch had challenged an executive instruction issued by a Government Order of 30 June 1999, and asked that their seniority be reckoned from their initial appointment as Reserve Sub-Inspectors in terms of statutory rules notified in February 1999 with retrospective effect from May 1992. The background was an amendment of April 1990 which had opened a channel of transfer to the post of Sub-Inspector (Civil), limited to five per cent of the personnel from the Reserve Sub-Inspector cadre. The question in that case was the inter-se seniority of the 1985 and 1989 batches of directly recruited Sub-Inspectors (Civil) as against Reserve Sub-Inspectors who came in through that five per cent transfer quota.

That is a Rule 15(c) dispute from beginning to end. It is about men who were transferred, under a quota, into a post carrying the same pay. Its reasoning had nothing to offer a man who had sat an open examination and been appointed on his own merit.

Working against the claim, and squarely on it, was a Supreme Court decision in K. Rajaiah, which the Bench described as directly on the point of seniority under Rule 15 of these very rules. Reproducing its paragraphs 7 to 12, the Bench noted the finding that Annexure I read with Rule 2(a) provides two modes of appointment — promotion, and direct recruitment or recruitment by transfer from another service — and that appointment of a serving Reserve Sub-Inspector to the post of Sub-Inspector (Civil) through the direct recruitment process is neither a transfer under Rule 15(c) nor recruitment by transfer. Seniority in such a case runs only from the date of appointment to the civil post.

Read together, the Bench set out the settled position in two limbs. A Reserve Sub-Inspector who applies in a direct recruitment for the post of Sub-Inspector (Civil), is selected and appointed, takes his seniority under Rule 15(a) from the date of that appointment; his past service as Reserve Sub-Inspector and the seniority he held there are neither available nor counted. A serving Reserve Sub-Inspector who is appointed to the civil post by transfer under the prescribed quota falls under Rule 15(c) instead. It was not in dispute that these respondents came in by direct recruitment. On the rule and on the authority, the claim failed.

A 2007 judgment that decided nothing

That left the question of how the Tribunal had come to the opposite conclusion. The answer lay in a chain of orders, and in one weak link.

In W.P. No. 22176 of 2004 and batch, decided on 1 March 2007, the High Court had dealt with the same grievance: the State's refusal to count past service as Reserve Sub-Inspector for seniority on direct appointment as Sub-Inspector (Civil). Those petitions were allowed. But the Bench examining the record now found that the 2007 judgment had been passed not on a consideration of the merits, but on the statements of counsel on both sides — the petitioners' counsel and the Government Pleader alike — that the controversy was squarely covered by E. Shankar Reddy. Nobody had checked whether it was.

The consequence, the Bench recorded, is that there is no consideration anywhere in that judgment of whether these claimants had any right under the Special Rules to seniority predating their appointment as Sub-Inspector (Civil). A concession was made and acted upon. Once the Bench found that E. Shankar Reddy concerned Rule 15(c) and these men came under Rule 15(a), the concession was revealed as a concession against the legal position, and one contrary to K. Rajaiah as well.

For that proposition the Bench had an authority the Government Pleader had itself cited. In Municipal Corporation of Delhi v. Gurnam Kaur, (1989) 1 SCC 101, the Supreme Court held that where a direction or order is made by consent of parties, the court neither adjudicates the rights of the parties nor lays down any principle. Quotability as law attaches to the ratio decidendi; the only thing in a judge's decision binding on a later judge is the principle on which the case was decided. A judgment that records a concession and acts on it supplies no principle at all, and so supplies nothing to be bound by.

The pattern had already repeated elsewhere. The respondents relied on an unreported 2014 decision of the same High Court, Government of Andhra Pradesh v. Ch. Srinivasa Rao, and on other orders built on the same 2007 judgment, where a Tribunal order of October 2013 had itself been founded on a 2004 common judgment which in turn rested on the 2007 judgment, which rested on the concession. The Bench held that the benefit of the 2007 judgment, or of any judgment based on it, could not be extended to these respondents.

What the dismissal of an SLP actually settles

The State had taken the 2007 judgment to the Supreme Court, and private parties had appealed too. On 16 March 2010 the Civil Appeals and the special leave petitions were dismissed. The men before the Tribunal said that settled it: the 2007 judgment stood affirmed by the Supreme Court, so whatever its reasoning, the High Court was bound.

The Bench framed the question as whether, notwithstanding that these respondents fell outside Rule 15(c) and outside E. Shankar Reddy, the dismissal of those appeals obliged it to maintain the Tribunal's order. It held that it did not, and the distinction it drew is the part of this judgment with reach beyond the police cadres.

The dismissal of the special leave petition contained no declaration of law on the interpretation of Rule 15. In the proceedings where the appeals and the petitions were dismissed, K. Rajaiah does not figure in the consideration at all. A simple dismissal without reasons, without any declaration of law, without engaging the rule position and without engaging the Supreme Court's own authoritative pronouncement on the same rule, cannot be said to have declared any law. Such a dismissal is binding on the parties to those proceedings, on the doctrine of merger and finality. It is not binding as a precedent under Article 141 of the Constitution.

Set against it was a decision that did declare the law on the same rule. The Bench held itself bound by K. Rajaiah as a binding precedent under Article 141, and on that footing the Tribunal's orders could not stand.

Parity cannot be built on an illegality

The remaining argument was one of fairness, and it is the argument most often made in service litigation: others in the same position got the benefit, so we should have it too. Several sets of applicants had in fact received it, through the Tribunal's order in O.A. No. 6168 of 2011 and through the 2007 judgment.

The Bench refused to extend it. What had been granted earlier was a concession, and a concession against the legal position both as laid down in E. Shankar Reddy and as laid down by the Supreme Court in K. Rajaiah. Benefit could not follow merely because others had received it in different proceedings, because it is settled that “illegality cannot be permitted to be perpetuated” and because “there is no concept of negative parity under Article 14” of the Constitution.

The judgment gathers the Supreme Court's own line on the point. Basawaraj v. Land Acquisition Officer, (2013) 14 SCC 81, holds that Article 14 is not meant to perpetuate illegality or fraud even by extending wrong decisions made in other cases, that the provision has only a positive aspect, and that where similarly placed persons have been given a benefit inadvertently or by mistake, that order confers no legal right on anyone else. Chaman Lal v. State of Punjab, (2014) 15 SCC 715, and Fuljit Kaur v. State of Punjab, (2010) 11 SCC 455, say the same. Doiwala Sehkari Shram Samvida Samiti Ltd. v. State of Uttaranchal, (2007) 11 SCC 641, puts it at its bluntest, drawing on Union of India v. International Trading Co.: “two wrongs do not make one right”. Equal treatment presupposes a similar legal foothold, and it does not countenance repeating a wrong action to bring wrongs on a par. The same judgment notes there can be no equality in illegality, citing Sushanta Tagore, Sashi Balasubramanian and Sant Raj Singh.

Stated plainly, the chain ran like this. A 2001 judgment on transfer appointees was treated by consent as covering direct recruits. A 2007 judgment acted on that consent without examining it. The Supreme Court dismissed the resulting appeals without reasons. The Tribunal then read that dismissal as authority and applied it to two fresh sets of claimants, one of whom had waited fifteen years to raise the point. At no stage had anyone decided whether the Special Rules gave these men the right they were claiming. When the High Court finally did, the answer was that they did not.

Order

Both writ petitions were allowed. The Tribunal's order of 1 April 2014 in O.A. No. 3350 of 2012 with V.M.A. No. 1127 of 2012 was set aside, as was its order of 26 April 2013 in O.A. No. 2943 of 2011. There was no order as to costs, and pending miscellaneous petitions stood closed. The Bench recorded the order as reasoned and reportable, with the law-report copy to be marked.