M.S. Ramachandra Rao, J.
1. In this Writ Petition petitioner is challenging the ‘inaction’ of the State of Andhra Pradesh (1st respondent) and the Director General of Police (A.P.), Mangalagiri, Guntur (4th respondent) in repatriating/finally allocating him to the State of Andhra Pradesh as arbitrary, capricious, illegal and violative of Articles 14 and 16 of the Constitution of India. He seeks a direction to the State of Andhra Pradesh, the Member Secretary to Advisory Committee, A.P. Re- Organization, Telangana Secretariat, Hyderabad (2nd respondent) and the State of Telangana (3rd respondent) to repatriate / ‘finally’ allocate him to the State of Andhra Pradesh and other ancillary reliefs.
2. The Director General of Police (TS) has been impleaded as the 5th respondent in the Writ Petition.
3. The petitioner filed I.A.No.4 of 2020 to implead the Union of India, rep. by its Secretary, Ministry of Personnel, PG & Pensions, Department of Personnel and Training, New Delhi as the 6th respondent in the Writ Petition and it was ordered on 09.06.2020.
The background facts
4. The petitioner had been recruited as Sub-Inspector in 1989 in Zone-IV (Kurnool District) of the erstwhile composite State of Andhra Pradesh and had reached the level of Dy. Superintendent of Police in 2009 by way of promotion.
5. After the bifurcation of the composite State of Andhra Pradesh into the new State of Telangana and the residuary State of Andhra Pradesh w.e.f. 2.6.2014 by the A.P. Reorganisation Act, 2014 (for short “the Act”), the petitioner was ‘tentatively’ allocated to the State of Telangana along with ten other Dy. Superintendents of Police vide Notification No.12731/SR.1/A.1/2015 dt.25.07.2016.
6. Though the petitioner appears to have given an option in 2016 seeking allotment to the State of Telangana prior to the tentative allocation, he gave representations on 28.07.2017 and 14.10.2017 to the 2nd respondent stating that he was pressurized to give such option and that he was withdrawing the said option.
7. But, notwithstanding the same, he was relieved by the Director General of Police (A.P.), Guntur on 20.10.2017 vide orders dt.30.10.2017. He then reported to duty in the State of Telangana on 26.10.2017.
8. The petitioner, at the time of filing the Writ Petition, was working as Assistant Commissioner of Police, Traffic Police Station (South Zone), Charminar, Hyderabad.
9. During the pendency of the Writ Petition, he attained the age of 58 years, which is the prescribed age of superannuation in the State of Telangana on 30.04.2020, and he has been retired from service by the State of Telangana on that date.
The grievance of the petitioner
10. The main issue to be considered in the Writ Petition is the ‘final’ allocation of the petitioner after the bifurcation of the erstwhile composite State of Andhra Pradesh into the new State of Telangana and the residuary State of Andhra Pradesh.
11. Petitioner contends that he ought to be ‘finally’ allocated to the State of Andhra Pradesh as the earlier allocation made on 25.07.2016 was only ‘tentative’.
12. Though certain reliefs have been sought by the petitioner in the Writ Petition in regard to his provisional allotment also, in our considered opinion, owing to his retirement in the State of Telangana on 30.04.2020, such reliefs have become infructuous.
13. The only issue which remains for consideration is the issue of his ‘final’ allocation, to either the new State of Telangana or the residuary State of Andhra Pradesh, which admittedly has not happened till date.
14. It is not in dispute that if he were to be allocated finally to the State of Andhra Pradesh, he would be entitled to serve till he attained the age of superannuation of 60 years, but if he were to be finally allocated to the State of Telangana, he would not get any such benefit as the age of superannuation in the said State remains at 58 years.
The statutory regime for consideration of the petitioner’s claim:
15. As already stated above, the composite State of Andhra Pradesh was divided into the new State of Telangana and the residuary State of Andhra Pradesh from 02.06.2014 pursuant to the Act.
16. After 02.06.2014, the Andhra Pradesh Public Employment (Regulation of Age of Superannuation) Amendment Act, 2014 (Act 4 of 2014) had been issued by the residuary State of Andhra Pradesh amending the Andhra Pradesh Public Employment (Regulation of Age of Superannuation) Act, 1984 and enhancing the age of superannuation of employees of the State Government from 58 years to 60 years.
17. Act 4 of 2014 contained sub-para (2) to para 3A which enabled even those employees who had retired on attaining the age of 58 years while serving in the State of Telangana provisionally, upon allotment to the State of Andhra Pradesh by the Government of India under subsection( 2) of Section 77 of the Act to be re-inducted with effect from the date of his/her final allotment to the State of Andhra Pradesh without break in service, if he/she has not attained the age of 60 years as on the date of final allotment to the State of Andhra Pradesh.
18. The Government of Andhra Pradesh issued G.O.Ms.No.104 dt.28.08.2015 stating that even those who are tentatively allotted to the State of Andhra Pradesh as per the directions of the Government of India would be re-inducted into service though final allocation has not happened. This was however made subject to the final allocation of the employees to be made by the Government of India under Section 77(2) of the Act.
19. Admittedly, vide G.O.Ms.No.312 General Administration (SR) Department dt.30-10-2014, the Government of Andhra Pradesh notified the approved guidelines for ‘final’ allocation of State Cadre employees under the Act which had been communicated to it by the Government of India.
20. Clause 18(f) of the said guidelines states that the allocation shall be done in order of ‘seniority’ as available on 01-06-2014, and those who have opted for the State in relation to which they are local candidates, shall, in order of their seniority, be considered for allocation first.
21. Clause 18(c) of the guidelines also states that allocable employees shall be considered for allotment between the successor State on the basis of seniority list as available on 01-06-2014.
22. Thus the guidelines identifies ‘seniority’ as one of the essential criteria on the basis of which officers would be allocated to one or the other of the newly formed States.
23. If the petitioner were to be finally allocated to the State of Andhra Pradesh, undoubtedly he would have to be taken back into service by the State of Andhra Pradesh and allowed to continue in service till he attains the age of 60 years, in view of the amendment to Andhra Pradesh Public Employment (Regulation of Age of Superannuation) Act, 1984 mentioned above.
24. But before such final allocation of the petitioner is to be done, the seniority of the petitioner in the cadre of Dy. Superintendents of Police in the combined State as on 02-06-2014 is required to be finalized as per Clause 18(f) of G.O.Ms.312 (G.A.D.) SR Department dt.30.10.2014.
25. Though this Writ Petition is concerned only with the claim of the petitioner as an individual for final allocation to either the State of Andhra Pradesh or the State of Telangana, since that can obviously be done only while finally allocating all officers employed in the Home Department of the erstwhile composite State of Andhra Pradesh, the petitioner’s case cannot be dealt with in isolation de hors the issue of finalization of seniority in the said cadre and final allocation of members of the said cadre in the said department between the two States of Telangana and Andhra Pradesh.
26. Though the Home Department is one of the vital wheels in the administration of both the above States, though 6 years have elapsed from 02.06.2014, it is distressing that the ‘final’ allocation has not occurred, causing much uncertainty in the minds of the officers in the Police force who have been only tentatively allocated, w.r.t. issues such as age of retirement, promotions, departmental control, disciplinary action, postings, payment of retirement benefits.
The decision in an earlier W.P.9456 of 2016 and batch dt.19.09.2017 :
27. W.P.No.9654 of 2016 and batch had been earlier filed in the High Court of Telangana challenging the seniority list in the cadre of Dy. Superintendents of Police published vide G.O.Ms.No.108 dt.23-06-2014 and certain decisions rendered by the then A.P. Administrative Tribunal in March, 2016 in regard to the same.
28. It is not in dispute that a Division Bench of this Court, by its order dt.19.09.2017 in Writ Petition Nos.9654 of 2016 and batch, has held that no final allocations, in terms of guidelines framed by the Union of India, can be made without finalizing the seniority list of Dy. Superintendents of Police, substantively holding charge as such, as on 01.06.2014; that the State of Andhra Pradesh and the Director General of Police, Andhra Pradesh or the State of Telangana cannot sleep over and avoid finalizing the said seniority and continue with ad hoc arrangements only to the detriment of the officers; that the State of Andhra Pradesh and the Director General of Police, Andhra Pradesh, being the cadrecontrolling authorities, would necessarily have to undertake this exercise and draw the seniority list in the feeder category of Inspectors of Police (Civil) as notified under G.O.Ms.No.54 dt.22.02.2014 and G.O.Ms.No.115 dt.18.07.2014, and thereafter undertake the consequential exercise of finalizing the seniority of Dy. Superintendents of Police (Civil), by including Direct Recruit Dy. Superintendents of Police also up to 01.06.2014; and only after completion of this exercise, final allocations can be made. It directed that in the meanwhile, since tentative allocations have already been effected, the same shall continue to operate pending the exercise of finalization of seniority list. The Division Bench fixed period of six months within which the above exercise was to be completed.
29. This order was questioned by the State of Telangana in S.L.P.(Civil) Diary No.30154 of 2018. After condoning the delay in filing the appeal, the SLP was dismissed by the Supreme Court on 31.08.2018 by a non-speaking order.
The events which occurred after the decision dt.19.9.2017 in W.P.No.9654 of 2016 and batch
30. Thereafter, the State of Andhra Pradesh published the following four Government Orders pursuant to the order of the High Court dt.19.09.2017 in W.P.No.9654 of 2016 and batch:
(i) G.O.Ms.No.153 Home (Services-I) Department dt.05.10.2018 publishing the ‘Revised Final Integrated Seniority List’ of Inspectors of Police (Civil) of Andhra Pradesh and Telangana for the years 1972-73 to 2010-2011;
(ii) G.O.Ms.No.187 Home (Services-I) Department dt.29.11.2018, publishing the ‘Final Combined Seniority List’ of Dy. Superintendents of Police (Civil) (Direct Recruits and Promotees) of Andhra Pradesh and Telangana up to 01.06.2014;
(iii) G.O.Ms.No.197 Home (Services.I) Department dt.12.12.2018 publishing the ‘Final Seniority List of Additional Superintendents of Police (N.C.)’ of Andhra Pradesh and Telangana States for the panel years from 1988-89 to 2013-14; and
(iv) G.O.Ms.No.200 Home (Services.I) Department dt.14.12.2018 approving the recommendations of the Departmental Promotion Committee dt.14.12.2018 for promoting eligible Additional Superintendents of Police (N.C.) of Andhra Pradesh and Telangana States for notional promotion / promotion to the post of Superintendents of Police (N.C.) of Andhra Pradesh and Telangana States for the panel year from 1995-96 to 2013-14.
31. The 2nd respondent is the Member Secretary to the Advisory Committee constituted under Sec.80 of the Act to assist the Central government to discharge any of the functions conferred on it under Part VIII.
32. According to the Member Secretary to the Advisory Committee (2nd respondent), 13 Writ Petitions were filed in the High Court of A.P. challenging the first of the above four G.Os., i.e., G.O.Ms.No.153 dt.05-10-2018 notifying the integrated State wide seniority list of Inspectors of Police (Civil), but no interim orders were granted in any of those matters.
33. The Member Secretary stated in his counter affidavit that a sub- Committee of the Advisory Committee consisting of Joint Secretary, DoPT, Government of India, Prl. Secretary to Govt., (SR), GAD, Govt. of Telangana and E.P. Prl. Secretary to Govt., (SR), GAD, Govt. of Andhra Pradesh on 31-12-2018, approved the following course of action:
a) As there is a change in the no. of filled and vacant posts in the cadre strength from the cadre strength already notified, the cadre strength may be notified again in respect of DSsP, Addl. SsP and SP (NC) posts duly canceling the earlier notification.
b) As there are changes in the seniority list besides changes in the position of the employee in the seniority list, options may be called for afresh from the employees in the cadres of DSsP, Addl. SsP and SP (NC) posts, duly canceling the earlier notification calling for options.
c) To publish both the revised notifications simultaneously.
At this stage, according to the counter of the Member-Secretary of the Advisory Committee, on 09.01.2019, the Telangana Government (3rd respondent) had taken objections to the Govt. of India on the published final integrated seniority in the categories of Dy. Superintendents of Police (Civil), Additional Superintendents of Police (Civil) and Superintendents of Police (None Cadre); and Government of India called for the comments/remarks of the G.A. (SR) Department, and ‘advised’ both the States to sit together and come out with consensus. He stated that the issue of seniority was not resolved so far. As and when the issue is finalized, the GA (SR) Department, Government of Andhra Pradesh will take suitable action in the matter.
These facts are not disputed by S.Sarat Kumar, Special Govt. Pleader for the State of Telangana and Sri P.Govind Reddy, Special Counsel for the State of A.P. The stand of the State of A.P. and the DGP (AP) (respondent Nos.1 and 4)
34. It is contended that the petitioner, though belonging to the State of A.P., had opted for the State of Telangana when he gave his option in 2016, and did not submit any objection to his provisional allotment in the portal within the time permitted; and therefore he was allocated ‘temporarily’ to the State of Telangana and was relieved by the State of A.P. on 20.10.2017 and he joined the State of Telangana. It was denied that the petitioner gave his option under duress.
35. Though a contention is raised by the State of Andhra Pradesh and its D.G.P. that fixation of inter se seniority is not necessary prior to making allocation of an employee to the other State, this plea is not legally tenable in view of the Division Bench Judgment dt.19.09.2017 in W.P.No.9654 of 2016 and batch which was also confirmed by the Supreme Court.
36. It is contended that the petitioner is not entitled to any relief in the Writ Petition.
The stand of the State of Telangana (respondents 3 and 5)
37. According to these respondents, petitioner was promoted as DSP on 08.12.2009 and he retired from service on attaining the age of superannuation on 30.04.2020 on completion of the age of 58 years.
38. While admitting that the petitioner was tentatively allocated to the State of Telangana, it is stated that he reported to the State of Telangana on 26.10.2017; while he was working in the State of Andhra Pradesh, he had come into the zone of consideration for ad hoc promotion as Additional SP (NC) on par with his batch-mates in the State of Telangana, but his case was not considered for the said promotion since he was working in the State of Andhra Pradesh.
39. It is stated that after he reported to the State of Telangana on 26.10.2017, he could not be promoted immediately due to pendency of an oral enquiry for a major punishment initiated against him by the DGP (AP) on 20.11.2018, but later the said proceedings were dropped on 14.10.2019 and the period of suspension was regularized as eligible leave, and thereafter he was given ad hoc promotion as Additional SP (NC). It is contended that petitioner is not entitled to any relief in the Writ Petition.
40. Sri Sarat Kumar, Special counsel for the State of Telangana and it’s DGP ( respondents 3 and 5) did not make any submissions before this Court explaining the refusal of his clients to cooperate for the final allocation of the Officers after the seniority lists were finalized as mentioned above.
41. He did not appear before the Bench and address any arguments though he was given several opportunities to do so on 13.7.2020, 14.7.2020, 22.7.2020 and 23.7.2020. It was therefore construed that his clients have no valid explanation to offer for their above noncooperation.
The consideration by the Court
A. Sec.77(2) of the Act confers a right on the petitioner to be finally allocated to one of the successor States after 2.6.2014
42. Sub-Section (2) of Section 77 of the A.P. Reorganization Act, 2014 directs the Central Government to determine as soon as may be, the successor State to which persons serving on substantive basis in connection with the affairs of the existing State of Andhra Pradesh to be finally allotted.
43. It states:
“Sec.77 (2) As soon as may be after the appointed day, the Central Government shall, by general or special order, determine the successor State to which every person referred to in subsection (1) shall be finally allotted for service, after consideration of option received by seeking option from the employees, and the date with effect from which such allotment shall take effect or be deemed to have take effect:
Provided that even after the allocation has been made, the Central Government may, in order to meet any deficiency in the service, depute officers of other State services from one successor State to the other:
Provided further that as far as local, district, zonal and multi-zonal cadres are concerned, the employees shall continue to serve, on or after the appointed day, in that cadre:
Provided also that the employees of local, district, zonal and multi-zonal cadres which fall entirely in one of the successor States, shall be deemed to be allotted to that successor State: Provided also that if a particular zone or multi-zone falls in both the successor States, then the employees of such zonal or multi-zonal cadre shall be finally allotted to one or the other successor States in terms of the provisions of this sub-section.”
44. Thus sub-section (2) of sec.77 confers a right on the petitioner to be finally allocated to either the State of Andhra Pradesh or the State of Telangana. This is not denied by any of the respondents.
B. The final allocation of employees between the successor States cannot be unduly delayed in view of the language contained in Sec.77 (2) of the Act in view of the words ‘as soon as may be’ used therein :
45. In our opinion, when Parliament enacted in Sec.77(2) that final allocation be made between the successor States “as soon as may be after the appointed day” (the appointed day being 2.6.2014 as per Sec.2(a) read with S.O.No.655 (E), Ministry of Home Affairs, New Delhi), it clearly intended that the final allocation should have occurred within the least possible time after 2.6.2014.
46. In Sophia Gulam Mohd. Bham v. State of Maharashtra (1999) 6 SCC 593), the Supreme Court interpreted the words “ as soon as may be” occurring in Art.22(5) of the Constitution of India, in the context of preventive detention and explained that there ought not to be delay in supplying the grounds on which the order of detention was based to the detenu.
“22. (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.”
12. The above will show that when a person is detained in pursuance of an order made for preventive detention, he has to be provided the grounds on which the order was made. He has also to be afforded the earliest opportunity of making a representation against that order. Both the requirements have to be complied with by the authorities making the order of detention. These are the rights guaranteed to the person detained by this clause of Article 22 and if any of the rights is violated, in the sense that either the grounds are not communicated or opportunity of making a representation is not afforded at the earliest, the detention order would become bad. The use of the words “as soon as may be” indicate a positive action on the part of the detaining authority in supplying the grounds of detention. There should not be any delay in supplying the grounds on which the order of detention was based to the detenu. The use of the words “earliest opportunity” also carry the same philosophy that there should not be any delay in affording an adequate opportunity to the detenu of making a representation against the order of detention.
The right to be communicated the grounds of detention flows from Article 22(5) while the right to be supplied all the material on which the grounds are based flows from the right given to the detenu to make a representation against the order of detention. A representation can be made and the order of detention can be assailed only when all the grounds on which the order is based are communicated to the detenu and the material on which those grounds are based are also disclosed and copies thereof are supplied to the person detained, in his own language.
47. The composite state of Andhra Pradesh had been bifurcated into a new State of Telangana and the residuary State of Andhra Pradesh with effect from 02.06.2014. Thus, more than ‘six years’ have elapsed, but no final allocation had occurred.
48. The period of six years which has elapsed since the appointed day of 2.6.2014, without final allocation of the members of the Police force of the erstwhile composite State of Andhra Pradesh, cannot, by any stretch of imagination, be said to be in compliance with the mandate contained in subsection (2) of Sec.77 of the Act to make the final allocation “as soon as may be after the appointed day”.
49. In State of Jharkhand v. Harihar Yadav (2014) 2 SCC 114), the Supreme court observed in the context of unresolved issues left after the bifurcation of the erstwhile state of Bihar into the State of Jharkhand and the residuary State of Bihar in relation to the employees:
“43. We call it sad as we are disposed to think that when a State is bifurcated by a parliamentary legislation, both the States and the Centre are required to take certain decisions under the Act and they are required to be taken in quite promptitude and not leaving the poor employees high and dry and suffer for no fault of theirs.”
50. In spite of such a precedent of the Supreme Court, there has been an inordinate delay in finalizing the final allocation of officers of the Home Department of the erstwhile State of Andhra Pradesh between the successor States of Telangana and Andhra Pradesh.
The role of the Union of India (6th respondent) in facilitating the final allocation of the employees
51. In the counter filed by the Member Secretary (2nd respondent) it is stated that Government of India had advised both the States to sit together and come out with consensus. But in spite of such advise, such consensus has apparently not happened.
52. Can the Union of India, merely give ‘advise’ and then keep quiet when the successor States have differences of opinion in making final allocation of employees among them after 2.6.2014?
53. Does it not have responsibility to play a pro-active role in the matter, particularly, when the employees concerned are officers of the Police force, a force necessary to maintain law and order in both States and also carry out investigation of crimes, duties which are undoubtedly in public interest?
54. It is here that Section 80 of the Act comes into play and the Union of India (6th respondent) must take pro-active steps to see that the matter regarding final allocation of officers gets completed quickly by both the successor States.
55. In this regard, it is relevant to refer to Sec.80 of the Act which states:
“80. Advisory committees.
(1) The Central Government may, by order, establish one or more Advisory Committees, within a period of thirty days from the date of enactment of the Andhra Pradesh Reorganisation Act, 2014, for the purpose of assisting it in regard to––
(a) the discharge of any of its functions under this Part; and
(b) the ensuring of fair and equitable treatment to all persons affected by the provisions of this Part and the proper consideration of any representations made by such persons.
(2) The allocation guidelines shall be issued by the Central Government on or after the date of enactment of the Andhra Pradesh Reorganisation Act, 2014 and the actual allocation of individual employees shall be made by the Central Government on the recommendations of the Advisory Committee:
Provided that in case of disagreement or conflict of opinion, the decision of the Central Government shall be final:
Provided further that necessary guidelines as and when required shall be framed by the Central Government or as the case may be, by the State Advisory Committee which shall be approved by the Central Government before such guidelines are issued.”
56. Therefore under Sec.80 of the Act, the actual allocation of individual employees shall be made by the Central Government on the recommendations of the Advisory Committee and in case of disagreement or conflict of opinion, the decision of the Central Government shall be final.
57. Therefore the Union of India (the 6th respondent) cannot sit silent and refuse to proceed further merely because the State of Telangana refused to accept the final seniority list prepared by the State of A.P, the cadre controlling authority.
58. We are also of the opinion, that individual officers may dispute their seniority in the said seniority list, and may challenge it in the appropriate forum, but we do not understand how a State Government can have any grievance about a seniority list. In any event we fail to understand how the Union of India gets any jurisdiction to decide the dispute raised by the State of Telangana with regard to the seniority of the officers in various cadres such as Inspectors of Police or Dy. Superintendents of Police, etc., because no such power is conferred on it under any law to decide such disputes.
59. According to us, it is the duty of the Union of India to exercise it’s power under sub-section (2) of Sec.80 of the Act and if need be, even under first proviso to sub-section (2) of Sec.80, and ensure that the final allocation takes place with promptitude once the final seniority lists have been published by the State of A.P and it cannot abdicate this responsibility by just offering ‘advice’ to the two States to resolve their disputes amicably and keep silent thereafter.
60. Though more than six (6) weeks time had been granted to the Union of India to file its counter affidavit from 09.06.2020 till 23.07.2020, it had not filed any counter affidavit explaining its stand.
The word ‘may’ used in Sec.81 which gives power to the Central Government to give directions ought to be construed as ‘shall’ :
61. We shall now refer to another provision of the Act which also plays an important role i.e., Section 81 of the Act. It states:
“81. Power of Central Government to give directions: The Central Government may give such directions to the State Government of Andhra Pradesh and the State Government of Telangana as may appear to it to be necessary for the purpose of giving effect to the foregoing provisions of this Part and the State Governments shall comply with such directions.”
62. Sec.81 confers power on the Central Government to give directions to both the States of Andhra Pradesh and Telangana, which it considers to be necessary, for the purpose of giving effect to provisions of the Act and further states that the State Governments shall comply with such directions.
63. Such directions, therefore, can certainly be given by it in relation to not only final allocation of employees but also other provisions such as distribution of assets of the erstwhile State between the successor States, etc.
64. In our opinion, Section 81 is to be construed as a provision of the said Act not only conferring power on the Union of India (6th respondent), but also as a provision coupled with a duty on it to exercise the said power. Otherwise, there will be a stalemate and uncertainty in the matter of final allocation.
65. In regard to the aspect of final allocation under Sub-Section (2) of Section 77 of the Act, we are of the opinion that it is necessary for the Union of India (6th respondent) to take a pro-active role and issue directions under Section 81 (if not under Sec.80). Otherwise, there would be no final allocation of Police officers of ranks such as the Dy. Superintendents of Police and above, in the services of the composite State of Andhra Pradesh to one or the other of the successor States, and there would be uncertainty as to their promotions, who would have disciplinary control, what is the retirement age of the officers, or who should bear liability to pay the retirement benefits, causing grave hardship to them. This would not be in the public interest.
66. In our opinion, therefore, the word ‘may’ used in Section 81 of the Act, is to be interpreted as not merely conferring a discretion on the Central Government to give directions to both the State Governments, but where within the least possible time, the final allocation as contemplated by the Act of the erstwhile employees has not occurred, it has the duty in public interest to step in and issue directions to ensure that such final allocation does take place and the will of the Parliament is carried out. The word ‘may’ has to be construed as ‘shall’ so that effect can be given to the provisions of the Act and in particular, sub-Section (2) of Section 77 for making final allocation, so that the object of the legislation is achieved; and the final allocation does not get stalled on account of non-cooperation of the State of Telangana to the detriment of the public interest.
67. Such interpretation will advance the objects of the Act enacted by the Parliament and give a quietus to the issue of allocation of officers of the Home Department of the erstwhile composite State of Andhra Pradesh once and for all.
68. In Julius v. Bishop of Oxford (1880) 5 AC 214 at Pg.222-223), Earl Cairns, while construing the words (it) ‘shall be lawful’ observed :
“there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so.” Lord Blackburn in the same case observed: (AC p. 241)
“I do not think the words ‘it shall be lawful’ are in themselves ambiguous at all. They are apt words to express that a power is given; and as, prima facie, the donee of a power may either exercise it or leave it unused, it is not inaccurate to say that, prima facie, they are equivalent to saying that the donee may do it; but if the object for which the power is conferred is for the purpose of enforcing a right, there may be a duty cast on the donee of the power, to exercise it for the benefit of those who have that right, when required on their behalf.”
69. The principle in the above decision has been applied in India in several cases by the Supreme Court.
70. Suffice it to refer to one such case i.e., D.K. Basu v. State of W.B. (2015) 8 SCC 744) wherein the Supreme Court was considering whether the constitution of a State Human Rights Commission under Section 21(1) of the Protection of Human Rights Act, 1993 was mandatory or not, and whether it depends upon the discretion of the State Government.
The Supreme Court held that even though Section 21 states that the State Government “may” constitute the State Human Rights Commission, the use of the said word was not itself determinative of the true nature of the power or the obligation conferred or created under the provision.
It held that conferment of power on the authority may, having regard to the context in which such power has been conferred, and the purpose of its conferment as also the circumstances in which it is meant to be exercised, carry with such power an obligation which compels its exercise.
After referring to several decisions rendered by it, it held:
“13. A long line of decisions of this Court starting with Sardar Govindrao v. State of M.P. (AIR 1965 SC 1222) have followed the above line of reasoning and authoritatively held that the use of the words “may” or “shall” by themselves does not necessarily suggest that one is directory and the other mandatory, but, the context in which the said expressions have been used as also the scheme and the purpose underlying the legislation will determine whether the legislative intent really was to simply confer the power or such conferment was accompanied by the duty to exercise the same.
14. In Official Liquidator v. Dharti Dhan (P) Ltd. (1977) 2 SCC 166) this Court summed up the legal position thus: (SCC p. 171, paras 7-8)
“7. In fact, it is quite accurate to say that the word ‘may’ by itself, acquires the meaning of ‘must’ or ‘shall’ sometimes. This word, however, always signifies a conferment of power. That power may, having regard to the context in which it occurs, and the requirements contemplated for its exercise, have annexed to it an obligation which compels its exercise in a certain way on facts and circumstances from which the obligation to exercise it in that way arises. In other words, it is the context which can attach the obligation to the power compelling its exercise in a certain way. The context, both legal and factual, may impart to the power that obligatoriness.
16. It is unnecessary to refer to all those decisions for we remain content with reference to the decision of this Court in Bachahan Devi v. Nagar Nigam, Gorakhpur (2008(12) SCC 372) in which the position was succinctly summarised as under: (SCC pp. 383-84, paras 18-21)
“18. It is well settled that the use of the word ‘may’ in a statutory provision would not by itself show that the provision is directory in nature. In some cases, the legislature may use the word ‘may’ as a matter of pure conventional courtesy and yet intend a mandatory force. In order, therefore, to interpret the legal import of the word ‘may’, the court has to consider various factors, namely, the object and the scheme of the Act, the context and the background against which the words have been used, the purpose and the advantages sought to be achieved by the use of this word, and the like. It is equally well settled that where the word ‘may’ involves a discretion coupled with an obligation or where it confers a positive benefit to a general class of subjects in a utility Act, or where the court advances a remedy and suppresses the mischief, or where giving the words directory significance would defeat the very object of the Act, the word ‘may’ should be interpreted to convey a mandatory force. As a general rule, the word ‘may’ is permissive and operative to confer discretion and especially so, where it is used in juxtaposition to the word ‘shall’, which ordinarily is imperative as it imposes a duty. Cases, however, are not wanting where the words ‘may’, ‘shall’ and ‘must’ are used interchangeably. In order to find out whether these words are being used in a directory or in a mandatory sense, the intent of the legislature should be looked into along with the pertinent circumstances.
19. The distinction of mandatory compliance or directory effect of the language depends upon the language couched in the statute under consideration and its object, purpose and effect. The distinction reflected in the use of the word ‘shall’ or “may” depends on conferment of power. [Depending upon the] context, “may” does not always mean may. May is a must for enabling compliance with provision but there are cases in which, for various reasons, as soon as a person who is within the statute is entrusted with the power, it becomes [his] duty to exercise [that power]. Where the language of statute creates a duty, the special remedy is prescribed for non-performance of the duty.’*
20. If it appears to be the settled intention of the legislature to convey the sense of compulsion, as where an obligation is created, the use of the word ‘may’ will not prevent the court from giving it the effect of compulsion or obligation. Where the statute was passed purely in public interest and that rights of private citizens have been considerably modified and curtailed in the interests of the general development of an area or in the interests or removal of slums and unsanitary areas. Though the power is conferred upon the statutory body by the use of the word ‘may’ that power must be construed as a statutory duty. Conversely, the use of the term ‘shall’ may indicate the use in optional or permissive sense. Although in general sense ‘may’ is enabling or discretional and ‘shall’ is obligatory, the connotation is not inelastic and inviolate. Where to interpret the word ‘may’ as directory would render the very object of the Act as nugatory, the word ‘may’ must mean ‘shall’.
21. The ultimate rule in construing auxiliary verbs like ‘may’ and ‘shall’ is to discover the legislative intent; and the use of the words ‘may’ and ‘shall’ is not decisive of its discretion or mandates. The use of the words ‘may’ and ‘shall’ may help the courts in ascertaining the legislative intent without giving to either a controlling or a determinating effect. The courts have further to consider the subject-matter, the purpose of the provisions, the object intended to be secured by the statute which is of prime importance, as also the actual words employed.”
The Supreme Court even held that, even if the word “may” and “shall” are used in two different parts of the same provision, the same does not mean that the former is always ‘directory’ and the later is always ‘mandatory’ and still, the Court can hold that the intention of the Parliament was to read both as ‘directory’ or both as ‘mandatory’ or one as ‘directory’ and the other ‘mandatory’ or viceversa.
“16…. The above decision also dispels the impression that if Parliament has used the words “may” and “shall” at the places in the same provision, it means that the intention was to make a distinction inasmuch as one was intended to be discretionary while the other mandatory. This is obvious from the following passage where this Court declared that even when the two words are used in the same provision the Court’s power to discover the true intention of the legislature remains unaffected: (Bachahan Devi case (7 supra), SCC p. 384, para 22)
“22. ‘9. … Obviously where the legislature uses two words “may” and “shall” in two different parts of the same provision prima facie it would appear that the legislature manifested its intention to make one part directory and another mandatory. But that by itself is not decisive.’**
The power of court to find out whether the provision is directory or mandatory remains unimpaired.”
The Supreme Court held that the power of the State Governments under Section 21 to set up the State Human Rights Commissions in their respective areas/territories is not a power simpliciter but a power coupled with the duty to exercise such power especially when it is not the case of anyone of the defaulting States that there is no violation of human rights in their territorial limits; and that if the States concerned are allowed not to set up State Human rights Commissions, it would violate the principle of “access to justice” enshrined in Art.21 of the Constitution of India.
71. If the word ‘may’ used in the first part of Sec.81 of the AP Reorganisation Act,2014 is construed as only ‘directory’, then the Union of India (6th respondent) can remain silent and abdicate it’s responsibility, and:
(i) allow issues of final allocation to fester indefinitely which would not be in public interest;
(ii) allow either of the States to hinder the final allocation of officers of the police force of the erstwhile composite State of Andhra Pradesh between the two successor States; and
(iii) defeat the will of the Parliament contained in the said Act to make final allocation as soon as may be.
72. Why the Union of India has not chosen to exercise this power conferred on it under Section 81 of the Act, though more than six years have elapsed since the bifurcation of the States, and the issue pertains to division of posts and officers serving the very important police force falling within the Home Department of the composite State, till date is beyond comprehension.
73. Applying the principles in D.K.Basu (4 Supra), and for the aforesaid reasons, we hold that merely because the word ‘may’ is used in the first part of Sec.81, and the word ‘shall’ is used in the later part of Sec.81, the former cannot be construed as merely ‘directory’.
74. We hold that it ought to be construed as ‘mandatory’; and that it is ‘mandatory’ for the Central Government to give directions to the successor governments of State of Telangana and/or the State of A.P., which are necessary for the purpose of completing the ‘final’ allocation of the officers of the Home Department of the erstwhile composite State of Andhra Pradesh between the said two states, which has not been done till date, for more than 6 years after the bifurcation of the said composite State into the new States of Telangana and the residuary State of Andhra Pradesh.
75. In our opinion, such interpretation suppresses the mischief, and construing it as only being ‘directory’ would defeat the very object of the Act.
76. The binding judgment of the Division bench of this Court in W.P.9654 of 2016 is unfortunately suppressed by both the successor States in their respective counter affidavits.
77. It is important to note that in the counter affidavits filed by the State of AP/its DGP and the State of Telangana/its DGP, there is no mention of the order passed by the Division Bench of this Court on 19.09.2017 in W.P.No.9654 of 2016 and batch with regard to fixation of seniority in the cadre of Inspectors of Police (Civil) and the consequential finalization of seniority of DSPs (Civil) and the next step of making final allocation between the two States under the A.P. Reorganisation Act, 2014.
78. The dismissal by the Supreme Court of the Special Leave Petition (Civil) Diary No.30154 of 2018 filed by the State of Telangana against the said judgment on 31.08.2018 is also not mentioned by these respondents (1, 3 to 5).
79. Why these facts have been suppressed by them is inexplicable.
Whether the petitioner is entitled to any relief, and if so, to what relief ?
80. We have already held that petitioner has a right to be finally allocated to either the State of Telangana or the State of Andhra Pradesh under Sub-Section (2) of Section 77.
81. The petitioner had sought in the Writ Petition as prayer (a), a declaration that the inaction of the State of A.P. and its DGP in repatriating him to the State of A.P. is arbitrary, capricious, illegal and violative of Article 14, 16 and 21 of the Constitution of India, and to direct the State of Andhra Pradesh, the Member Secretary to Advisory Committee of the A.P. Reorganisation, and the State of Telangana to repatriate him to the State of Andhra Pradesh. In payer (d) also, the petitioner has sought for repatriation to the State of Andhra Pradesh.
82. In our opinion, the petitioner is essentially seeking ‘final’ allocation to the State of Andhra Pradesh, and this was what the counsel for the petitioner submitted at the time of hearing of oral arguments in this matter.
83. Since admittedly petitioner’s ‘final’ allocation has not occurred, the plea of the State of A.P./its DGP and plea of the State of Telangana/its DGP that the petitioner is not entitled to any relief in this Writ petition, cannot be accepted.
84. The impediment for the petitioner’s final allocation, as per the guidelines laid down in G.O.Ms.No.312 General Administration (SR) Department dt.30-10-2014 was that the seniority in the cadre of Dy. Superintendents of Police had not been finalized previously prior to 29.11.2018.
85. When G.O.Ms.NO.187 Home (Services-I) Department dt.29.11.2018 was issued by the State of Andhra Pradesh publishing the final combined seniority list of Dy. Superintendents of Police (Civil) after the order dt.19.09.2017 was passed in WP.No.9654 of 2016 and Batch, there is now no such impediment for making ‘final’ allocation of the petitioner.
86. There is no rebuttal by the State of Telangana and its DGP to the stand taken by the Member Secretary of the Advisory Committee (2nd respondent) that the State of Telangana had taken-up objections on 09.01.2019 to the Government of India on the published ‘final’ integrated seniority list in the categories of Dy. Superintendents of Police (Civil), Additional Superintendents of Police (Civil) and Superintendents of Police (Non-Cadre).
87. As we have stated above, it is not within the purview of the Government of India to decide the correctness of the said final seniority lists in the said cadres.
88. Under the pretext that the Government of India has not decided its objections, it is not open to either State, much less the State of Telangana to refuse to cooperate with the final allocation of employees such as the petitioner as per the Government of India Guidelines for final allocation contained in G.O.Ms.No.312 General Administration (SR) Department dt.30-10-2014.
89. We have already extracted Sub-Section (2) of Section 77 of the Act. It directs the Central Government, ‘as soon as may be’, after the appointed day to determine, by general or special order, the successor State to which every person serving on substantive basis in co
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nnection with the affairs of the existing State of Andhra Pradesh to be ‘finally’ allotted for service keeping in mind the options given by the employees and the guidelines framed by it. We have already held that the Union of India (6th respondent) has (i) got power under Section 80 to make final allocation as per the recommendations of the Advisory committee and (ii) power coupled with duty to give directions to both the successor States also under Section 81 and, in particular, relating to the allocation of employees. 90. No doubt, the petitioner had initially given his option in 2016 seeking allotment to the State of Telangana, but later he changed his mind in 2017 and gave two representations seeking his allotment to the residuary State of Andhra Pradesh. It is also no doubt true that Clause 19(vi) of the Guidelines relating to the allocation of State Services Employees issued by the Union of India states that once option was exercised, it cannot be changed under any circumstances. 91. However, the final allocation of the petitioner to one or other of the successor States is dependent on petitioner’s position in the final seniority list of Dy. Superintendents of Police which has been published vide G.O.Ms.No.187, Home (Services-I) Department, dt.29.11.2018 by the Cadre Controlling Authority, i.e., the State of Andhra Pradesh. This is clear from Clause 18(f) of the Guidelines, which states: “18 (f) The allocation shall be done in order of seniority as available on June 01, 2014. Those who have opted, who are ‘local candidates’ relatable to the State to which they have opted, shall, in order of their seniority, be considered for allocation first. If allocable posts in that category remain, hen, others who have opted to the State may be allocated in order of seniority. If still posts remain allocation will be made in reverse order of seniority.” 92. Therefore, notwithstanding the option given by the petitioner, it is possible that he may not get the State, which he had mentioned in the option form, and he may get allotted to the other State. 93. More importantly, according to the 2nd respondent’s counter, a Sub-Committee of the State Advisory Committee constituted under Section 80 of the Act, in a meeting held on 31.12.2018 had approved (a) that the cadre strength is to be notified again in respect of DSsP, Additional SsP and SP(NC) posts duly canceling the earlier notification; and (b) that options may be called for afresh from the employees in the cadres of DSsP, Additional SsP and SP(NC) posts, duly canceling the earlier notification calling for the options. 94. Therefore, in the light of the above decision of the Sub- Committee to the Advisory Committee constituted under Section 80 of the Act, there is a likelihood of fresh options being called for from the officers in the cadres Superintendents of Police, Additional Superintendents of Police and Superintendents of Police (NC) posts and the petitioner, in such an event, can also opt for the residuary State of Andhra Pradesh. 95. However, we are not expressing any opinion as to the State to which the petitioner might get finally allocated by the Union of India since it is premature for us to take any view on that aspect, having regard to the directions we propose to issue in the matter. Conclusion 96. In the result, (a) The Writ Petition is partly allowed; (b) A Writ of Mandamus is issued to the Union of India (6th respondent) to take action under Sub-Section (2) of Section 77 read with Sub-Section (2) of Section 80 of the Act, and, if necessary, to take a decision under the first proviso to Sub-Section (2) of Section 80 of the Act, or in the alternative, to give directions to the respondents 1, 3 and 4 under Section 81 of the Act to enable the Union of India (6th respondent) to do all necessary things pursuant to the recommendations of the Advisory Committee constituted under Section 80 of the Act for final allocation of officers belonging to the cadre of Dy. Superintendents of Police, Additional Superintendents of Police and Superintendents of Police (NC) posts (including the petitioner) of the erstwhile combined State of Andhra Pradesh to one or other of the successor States; (c) This exercise shall be completed by the Union of India (6th respondent) within six (6) weeks from the date of receipt of a copy of this order and respondents 1, 3 and 4 shall extend full cooperation to the 6th respondent in that regard and abide by the directions, if any, issued by the 6th respondent; (d) Reliefs sought by the petitioner relating to his provisional allotment to the State of Telangana are rejected; (e) In the event the petitioner is finally allocated to the State of Andhra Pradesh (respondent No.1), it shall take back the petitioner into its service and continue him till he attains the age of superannuation of sixty (60) years. (f) Costs of Rs.5,000/- (Rupees five thousand) each shall be paid to the petitioner by the State of Telangana (3rd respondent) and the Union of India (6th respondent) within four (04) weeks from the date of receipt of copy of the order. 97. As a sequel, miscellaneous petitions pending if any in this Writ Petition, shall stand closed.