Presidential Order Overrides State Service Rules: Telangana High Court Directs State Cadre Level Seniority For Special Police Battalions
Court mandates unified restructuring of seniority framework to eliminate battalion-wise fragmentation.
The Telangana High Court has held that the constitutional supremacy of the Presidential Order of 1975 prevails over state-level service rules, noting that non-ministerial posts in the Special Police Battalions must be treated as State cadre posts. The Court held that any subordinate legislation, such as the 1997 Service Rules, that fragments seniority into individual battalions is inconsistent with the constitutional mandate and therefore lacks legal efficacy.
The Court addressed the long-standing practice of battalion-level promotions, characterising it as a "continuing wrong" that causes recurring prejudice to personnel. The mandate for restructuring is expanded through the Court's directive to the State to frame fresh Service Rules in strict conformity with both the 1975 Presidential Order and the 2018 Telangana Public Employment Order.
Chief Justice Aparesh Kumar Singh and Justice G.M. Mohiuddin emphasising that the statutory force of a Presidential Order issued under Article 371-D of the Constitution of India cannot be diluted or overridden by executive-framed rules, observed, “…the provisions of G. O. Ms.No.69, Home (police-D) Department, dated 07.04.1997, and G.O.Ms.No.85, Home (police-D) Department, dated 28.04.1997, insofar as they confine appointing authority, seniority and promotions from police constable to Assistant Reserve Sub-Inspector to the battalion level, are plainly inconsistent with the Presidential order. In this regard, the subordinate legislation cannot dilute or override a constitutional order issued under Article 371-D…”.
Advocate A. Srinath appeared for the petitioner and B. Krishna, Government Pleader appeared for the respondent.
The petitioner, an Assistant Reserve Sub-Inspector (ARSI) in the 8th Battalion of the Telangana State Special Police (TSSP), challenged the practice of effecting promotions based on battalion-wise seniority. He contended that under the 1975 Presidential Order, non-ministerial posts in Special Police Battalions are State-level cadres.
The application of battalion-level seniority, as dictated by G.O.Ms.No.69 and G.O.Ms.No.85 of 1997, resulted in the petitioner being bypassed for promotion by juniors who were appointed after him but served in different battalions.
The petitioner approached the High Court under Article 226 of the Constitution of India seeking to declare the relevant 1997 Rules as illegal and violative of Articles 14, 15, and 21 of the Constitution of India.
The respondents initially justified the actions based on decades of administrative practice and the absence of revised rules. However, a 2017 communication from the Director General of Police (DGP) surfaced during the proceedings, which explicitly admitted that the 1997 Rules operated "against the Presidential Order".
The Court noting that the Presidential Order of 1975 has an overriding effect and statutory force, held that the State itself had acknowledged the incompatibility of the 1997 Rules with the governing constitutional instrument.
Rejecting the State’s plea of laches, the Bench held that an illegal seniority system constitutes a continuing wrong, and administrative convenience cannot serve as a shield to perpetuate an illegality that infringes upon the constitutional rights of employees.
“It is to be noted that the Doctrine of Laches has limited application. Seniority system founded upon rules inconsistent with the Presidential Order gives rise to a continuing wrong, resulting in recurring prejudice. Each denial of promotion or consideration on the basis of an illegal seniority regime furnishes a fresh cause of action”, it noted.
The Court declared that posts from Police Constable to ARSI are State Cadre posts and held the battalion-wise seniority mandates of the 1997 Rules to be unenforceable.
It directed Respondent Nos. 1 to 3 to notify fresh Service Rules maintaining State-wide seniority within six months. The Principal Secretary (Home) was ordered to reconsider the petitioner's representation dated 09.03.2020 and pass a reasoned order within four months. Furthermore, the State was restrained from effecting any further promotions based solely on battalion-wise seniority under the impugned rules.
Cause Title: SP Kasim Peera vs. The State of Telangana & 8 others Writ Petition No: 16166 of 2020
Appearances:
Petitioner: A. Srinath, Advocate.
Respondents: B. Krishna, Government Pleader.