tvl.shiva Kumar Reddy v. The State of Telangana' rep' by its Prrncrpal

Order

Heard Sri D. Linga Rao, learned counsel for petitioner as well as learned Government Pleader for Prohibition & Excise. to set aside This Writ Petition filed by petitioner -is 2. the proceedings dated l2-O2 2O2O issued by the 4d Respondent and consequently, to direct Respondents to continue him as prohibition and Excise Head constable at his place duly holding the final inter se seniority of Prohibition & Excise Constables ol Hyderabad uide Proceedings dated 15-06-2015, as valid and legal. It the case of Petitioner that he was initially 3. appointed as A.P.S.P. Constable at 7ft battalion at Dichpally' Nizamabad District on 14-lO-1995 and later he was deputed to work in Prohibition and Excise Department and subsequently absorbedasProhibitionandExciseConstableuriceproceedings dated 28-O5-2005, based on G'O'Ms' No' 1103' Revenue (Exercise- 1) Department, dated 17 -Oa-2OO7 ' Petitioner submitted willingness for absorption as a Prohibition and Excise Constabie after his deputation on the strength of the order of the Commissioner of Prohibition and Excise, and after obtaining options and willingness from Petitioner that he would abide by the seniorilv list. Final senioritlr list was issued by the depa-rtment after considering the objections uide proceedings dated 15-O6-2015 by the Superintendent of Prohibition and Excise, the said list was issued after considering the objections. In the final seniority list for the period O1-Ol-2008 to 31-12-2012, petitioner was shown at serial No. 13, based on which, he was promoted as Head Constable uide proceedings dated 29-12-2017 issued by the District Prohibition and Exercise Olficer, Hyderabad and he reported to duty as such on O2-OI-2O1A. While matter stood thus, the 4tt Respondent issued Proceedings dated |2-O2-2O2O wherein the final senioritSr list dated 15-06-2015 was revised. In view ol the said issuance of revised seniority list, Petitioner's position in the seniority list had comphtely changed and he was shifted to serial No.44. Altering the status of the final seniority list does not arise by way of the orders d.ated: 27-04-2012, passed in OA No. 71O3 of 20lO and batch, which has become linal, thereby the question of reopening the issue which was decided in the aforesaid OA and batch is nothing but re-educating/ re-litigating the same matter after lapse of three years, furthermore there is specific assertion that has been made by Petitioner that Government uide circular dated 2O-O5-2O24, },ad categorically heid that no request for revision of seniorit5r for a period which is more than three-year-old shall be considered. Petitioner relies upon a judgement passed by the Hon'ble Supreme Court reported in B.S. Bajwa v. State ol PunJabl, the relevant portion is as under:

"During the entire period of more than one decade thereby all along tilted as junior to the other aforesaid person and the rights inter see has 4 crystalized which ought not to have been reopen after the Iapse of such a long period. As every stage other for prompted before B.S.Rajwa and B.D.Gupta right from the beginning as found by the division bench itself. It is well settled that in service matter the question of seniority should not be reopen in such situation after the lapse of a reasonable period because that reserve in disturbing the settled position which is not justifiable. There was inordinate delay in the present case for mating such a grievance. This along was sufficient to decline interference under A-rticle 226 ar,d to reject the Writ Petition".

4. Petitioner had also relied upon another judgment in Narranrula Kotam Ro:ju a. Regional Deputg Director o;f Fisheries, Kakinada2 r,r.herein it has been held that seniority fixed after notice to alt the employees concerned cannot be reopened after a long lapse of time and if the same is directed to ' 099q 2 scc s2s '2oo 1 (3) ALD 649 (DB) --l i .+ a\ be done at this stage, it would amount to revocation of the order of promotion.

5. No Counter/ rebuttal is hled on behalf of Respondents, thereby, pleadings of Petitioners remained unchallenged in the writ petition. However this Court is taking judicial nolice of the counter filed on behalf of Respondent Nc.4 in Writ Petition No. 4777 of 2O2O and other writ petitions, for proper adjudication of the present Writ Petition. It is contended that Commissioner of Prohibition and Excise, Telangaaa had communica.ted the merit list of A.P.S.P Constables recruited during 1995 furnished by the I.G., Battalions (Recruiting Agencies) pertaining to the lst, 2,.d, 4th, 7b and 8ft Battalions (Expect 9ttt Battalion) and instructed to re-hx the seniority in terms of the orders issued by the this Court in Writ Petitions No. 31978 and 670l of 2018, Writ Petition No. 26855 of 2019 and other Writ Petitions and also instructed all the nodal District Prohibition and Excise Officers to take care and ensure that notices are issued to all the individuals affected by the process, calling for objections, if any. All the objections f-rled shall be Iisted and disposed of as per rules by issuing a proper speaking order. From. the counter, it is evident that government had issued G.O.Ms.No.1l03, dated |7-O8-2OO7 and, instructions of 5 the Commissioner of Prohibition and Excise, A.P., Hyderabad in Cr. No.17657 l2OO7 lCPE|H3, dated: 22-O5-2OO9, wherein the Constable deputed to Prohibition and Excise Department, working in Medak District have absorbed as Prohibition and Excise constable subject to following conditions:- "

1. Andhra Pradesh Public Employment (Organization of l.ocal Cadres and Regulation of Direct Recruitment) Order, 1975 and other relevant rules which are in vogue.

2. They should be paid pay and allowances and Scale of pay on par with Prohibition and Excise Constables.

3. They shall forego the benefits attached to the Constables in Police Department.

4. Their seniority shall be ixed commencing from the last candidate in the existing seniority list of Prohibition and Excise Constables. Hence, the petitioner contention is true". 6. It is admitted by the 4th Respondent that, the Commissioner of Prohibition and Excise, A.P., Hyderabad in Cr.No.36071/2olllCPElH3, dated 13-06-2011 instructed to prepare the seniority list of Prohibition and Excise Constable in continuation to the existing seniority list and communicate to the individuals i.e., absorbed A.P.S.P. Constable as per Andhra Pradesh Sub-Ordinate Service, Rules 1996 and Accordingly, provisional artd final seniority list of A.P.S.P. Constables/ Prohibition and Excise Constables up to 3 1-O7-2O 12 was prepared subject to outcome of O.As/WP/Govt.Orders/Orders I 6 r) of Commissioner 'Prohibition and Excise, Hyderabad and communicated vide Cr. No. A2116612011, dated: 07 -O4 2015.

7. Respondent No.2 admitted that after finalizing the seniority list of the absorbed A.P.S.P. Constables, Petitioners were promoted as Prohibition and Excise Head Constables subject to following conditions: - '1. The above promotion is purely temporary and shall not confer any right what so ever including regularization of services etc., in the cadre of Prohibition and Excise Head Constable in future.

2. Thr: above Promotion is subject to outcome of O.A's/W.Ps pending before the Hor.r'ble APAT/High Court/Supreme Court.

3. Th<: above promotion is also subject to finalization of seniority list on part with the Commissioner of Prohibition and Excise, A.P... Hyderabad". From the counter it is evident that it is an 8. undisputed fact that the Government circular No. 57759 lSer.Al2OO4-1, of GA (Ser.A) Department, dated 2O-O5-2OO4 had clarified that, "Settled Seniority - 1. Not to re-open: In dealing with the cases for hxing the Seniority, the Procedure and Rules prescribed in AP State & Subordinate Serice Rules 1996 or in Special Rules governing the Post shall be followed. 2. No request for revision of Seniority for a period which is more than 3 years old shall be considered. 3. The Seniority List in each category 7 a shall be communicated as and when the employee completes the prescribed period of Probation in the respective category.

9. The above instructions are based on the orders passed by the Supreme Court of India in B.S. Baiua's case (supra) which heid that "lt is well-settled that in service matters, the question of seniority should not be re-opened in such situations after the lapse of reasonable period because that results in disturbing the settled position which is not justifiable". In the Present case, the Seniority list was Communicated on 17- 1 l-2O14, though it is settled Seniority List, the Commissioner of Prohibition and Excise, T.S. Hyderabad being the Head of the Department issued orders to all the Nodal District Prohibition & Excise Officers, in the State to revise the said senioritSr iist in terms of Merit. The orders of Commissioner of Prohibition and Excise, T.S. Hyderabad based on the direction of this Court in Writ Petition No.31978 of 2O18 and batch.

10. It is contended by Respondent No.4 that seniority list in the present case was communicated on 17-ll-2o14 and it is settled seniority list and Commissioner of Prohibition and Excise, T.S., Hyderabad being the Head of the Department had issued orders to a-11 the Nodal District Prohibition & Excise -l I l 8 h Offrcers, to revised seniority list in terms of Merit. The said orders of CommisSioner were passed based on the direction issued by this Court in Writ Petition No. 31978 of 2018 and batch. Certain Prohibition & Excise Constables of Rangareddy and Nizambad districts I-rled Writ Petition No. 6701 of 20 18 dated 28-02-2018 and Writ Petition No. 26855 of 2019 seeking to prepare seniorit5r list oa Merit basis. In the common order passed by this Court dated 18-09-2018, the direction given is that "The Commissioner shall cause notice on all the affected parties and on due consideration of the respective objections, shall take appropriate decision as warranted by law and communicate the same to the parties".

11. It is categorically stated in the counter at para No. 15 that the I'inal seniority list dated 07-O4-2O75 was issued after a provisional seniority list was issued in Cr. No. A2/166/2011, dated l7-lO-2O14 and after considering the objections filed by the aggrieved parties, the frnal seniorit5r list was issued basing on the date of Appointment and Date of Birth.

12. APSP constables initially appointed as constables in APSP of Police Department, were sent on deputation to Prohibition and Excise Department in 1995 and continued as Y 9 such for some years. Subsequently, it was felt that APSP constables who have put in more than three years of service in Excise Department, shall be repatriated to their parent department, but, later, the Government had taken decision to absorb2l5lAPSPconstableswhowereworkingondeputation in Excise Department by GOMs'No' 1103 dated 17'O8'2OO7' in the existing vacancies of excise constables duly following the provisions of the Presidential Order and other relevant rules which are in vogue. They were absorbed after obtaining unequivocal/irrevocable option from the APSP constable to the effect that they are willing to take scale of pay of prohibition and excise constables. In view of the undertaking and willingness given by way of option, their services were absorbed in various District units of the prohibition and excise during 2009 ' in terms of GOMs.No' 11O3 dated 17 'O8 '2OO7 Though the said exercise was challenged by the interested persons' the same was dismissed by the Tribunal by filing OA'No'3335 of 20O4 and batch. The Tribunal upheld the orders issued in GOMs'No'11O3 dated 17 .Oa.2OO7 , absorbing 2151 APSP constables in Prohibition&ExciseDepartment.Whentheorderspassedby the Tribunai were challenged, this Court also upheld the orders 10 t.' issued in GOMs.No.l 103 dated 17.O8.2OO7, by order dated

26.O3.20O9t in Writ Petition No.8573 of 2008 and batch.

13. 'I'he post of police constable in APSP is not a local cadre post, whereas the post of Prohibition and Excise constable in the AP State excise service is in organized cadre, governed by the Presidential Order. As such, the post of APSP constable is a State-wide post and unit of appointment is not restricted to either Battalion or any unit. It is apparent from the pleadings and recor<l that when the merit list of APSP Battalion constables, who were deputed to the Excise Department is not available as informed by the DG APSP Battalion, uide proceedings dated 24.O2.2012, there was no other option except to prepare a State list of APSP constabies basing on the date of joining on cleputation in prohibition and excise department. On completion of allotments, the appointment authorities felt that the only possible way for fixing the seniority list is to tal<e date of joining on deputation in the excise department and date of birth of the candidates as per Rules 33 and 36 of the Andhra Pradesh Shte and Subordinate Service Rules, 1996 ['APSSS Rules', for brevity). Accordingly, the Nodal Prohibition and Excise Superintendent have finalized the seniority of absorbed APSP constables as per the said Rules and considered r r-l promotions to the next higher cadre of prohibition and excise head constable in some Districts where there were vacancies.

14. The Commissioner of Prohibition and Excise who is Respondent No. t had initiated steps to prepare the seniority list of Excise Constables in the Excise Department based on the merit list as per Rules 33 to 38 with reference to merit list of selection of APSP Constables who are later absorbed as Prohibition and Excise Constables and want to unsettie the settled senioritSr of Excise Constabies issued by the 2nd Respondent in the seniority list dated 11 15.06.2015 which was prepared based on the date of joining on deputation in the Prohibition & Excise Department and date of birth. Basing on the iist of APSP Constables absorbed as Prohibition arrd Excise Constables, combined seniority list has been prepared by the Commissioner of Prohibition and Excise taking the date of joining and age, if the date of joining is one and the same under Rule 33 to 36 of APSSS Rules. Basing on the list of absorbed APSP Constables, the Nodal Prohibition and Excise Superintendents concerned have prepared the seniority list of Prohibition & Excise Constables basing on the date of joining and date of birth and promotion to the category of Prohibition and Excise Head Constables were considered. Now, that is { I t2 (: sought to be disturbed by way of impugned proceedings. The competenl authority had issued seniority list taking into account date of joining/date of birth as the criterion to determine rhe seniority among absorbed APSP, Constables as all APSP Conslables absorbed as Excise Constables in the Excise Department duly rejecting the objections filed. The post of Constable in the State Prohibition and Excise Department is organized into a separate cadre as per the said provision. As per Para 3 (8) ol the Presidential Order, Central Government is empowered to notify any category to be excluded fiom organizatir>n ol local cadre. In exercise of powers under Para 3 (8) of the Presidential Order, Government of India has issued notification on 18.10.1975 in G.S.R.No.529 lE, excluding all categories of posts in the Special Police Battalions from the purview of the Presidential Order, and in view of such notilication, the post of Police Constable in APSP is not a local cadre post, r.r,hereas the post of Prohibition and Excise Constable in the A.P. State Excise service is in organized cadre, governed b1. the Presidential Order, as such, the post of APSP Constable is a State-wide post and the unit of appointment is not restricted to either Battalion or any unit. As per Rule 8(1)(a) of the Presidential Order, 80% of the posts are to be lilled by i3 ( direct recruitment from the local area of the unit and only 2Oo/o can be recruited from outside the unit i.e. District. The Director General, APSP Battalions uide C.No.363lA6l2Ol2 dated

24.O2.2012 inlormed that the merit list of APSP Constables who were deputed to Excise Department is not available. Therefore, there was no other option except to prepare a State list of APSP Constables basing on date of joining on deputation in Prohibition and Excise Department. Accordingly, an exercise has been taken up for implementing the Presidential Order taking the number of locals absorbed in the District and proportional 2O%o open quota to be lilled from non-locals. Since the number of such Constables is more than the number that has given willingness, some Constables have to be compulsorily transferred to other Districts from where they are working at that time to maintain the minimum required proportion of Constables from local area i.e., 807o. Accordingly three options have been called for from such Constables for allotment to the Districts other than where they are working at that point of time. On receipt of options, they have been allotted to the District opted by them or local area or nearby District with reference to availabilit5z of vacancies keeping in view the Presidential Order. On completion of allotments, the appointing 14 (r) authorities felt that the only possible way for fixing the seniority list is to take date of joining and date of birth of the candidates under Rules 33 and 36. Accordingly, Nodal Prohibition and Excise Superintendents have finalized the seniority of absorbed APSP Constables under Rules 33 and 36 and considered promotions to the next higher cadre of Prohibition and Excise Head Constables in some Districts where there are vacancies. Thereby, the l't Respondent had grossly erred in issuing the impugned proceedings.

15. From the facts and pleadings, this Court comes to a clear conclusion that earlier the seniority list was prepared as per the provisions of Rules 33 to 38 of the APSSS Rules which include the determination of seniority based on the date of joining and age which method of determining seniority is in accordance with the provisions of the Rules and is therefore, valid and cannot be disturbed.

16. In the present case, it appears that seniority list dated 15.06.2015 was prepared as per the provisions of Rules 33 to 38, w'hich include determination of senioriff based on the date of joining and age. Further, petitioner who is the aifected party was not arrayed as party respondent to the lis before this Court in the earlier round of litigation. As such, orders passed i 15 - by this Court in Writ Petition No' 6701 and 31978 of 2018 are not binding on Petitioner. Since it appears that there was no selection held for 17. the purpose of promotion or appointment to the posts in question, seniority was determined based on the date of joining of absorbed APSP constables, this Court finds that in the absence of any selection list, it is not open to prepare a new seniority list based on the merit obtained in APSP Battalions as per Rule 33 of the APSSS Rules' Therefore, the settled final seniority list prepared and confirmed earlier cannot be interfered at this stage by the 1st Respondent Commissioner of Prohibition and Excise. The power to prepare and publish seniori[z lists is vested with the appointing authority or any other authority empowered to do so by the Government or any other competent authority' This Court finds that the 1"t Respondent does not have the power or authority to direct the Nodal Offrcers to prepare a final seniority list based on the merit as per Rule 33 of the APSSS Rules, without any .appeal being filed and without setting aside the said frnal seniority lists prepared in various Districts' I /

18. seniority list dated 15.06.2015 prepared is as per the provisions Court therefore, comes to a conclusion that This . I J To, 1

3. 4 5 b l6 fi: of Rules 33 to 38 of APSSS Rules based on the dates of joining and age is valid and cannot be interfered with. Further, this Court holds that the l"t Respondent does not have the power or authority to direct the Nodal Officers to prepare a final seniorigr list based on the merit as per Rule 33 of the APSSS Rules. As a consequence of the same, the Writ Petition is allowed setting aside the impugned order dated 12.O2.2O2O of the l.t Respondent as the said proceeding is illegal. Consequently, Respondents are directed to continue Petitioner as Prohibition and Excise Head Constable in accordance with the proceedings dated 15.06.2O 15. No costs.

19. Consequently, Miscellaneous Applications, if any shall stand <:losed. ,^ L //TRUE COPY// SD/- T.VIJAY KUMAR DF:PU-IY REGISTRAR SECTION OFFICER r (Excise) DePartment, State u The Principal S')cretary to-Government Reve "i'i.jrji b"rir. Seirerariat r s' Hvderabad The Commissioner of Prohibition and Excise Department' Hyderabad The Deputy Commissioner of Prohibition and Excise' Hyderabad' The District Prohibition and Excise Officer' Hyderabad' One CC to SRI D LINGA RAO' Advocate [OPUC] Two CCs to GP for Prohibition & Excise' High Court for the i"ringrn, at Hvderabad [oUT] Two CD CoPies State of 7 BS v MP I I HIGH COURT DATED:2810512025 (s (.. 17 JUN 2M oF.spATCIi r-9 ORDER WP.No.4754 of 2020 ALLOWING THE WRIT PETITION WITHOUT COSTS VI6w