Yrs' Occ P & E Constable' R/o v. The Commissioner of Prohibition and Excise' State of Telangana' Abkari

Counsel for the Pe'litioners: SRI P' VENKATA SUBBARAO Counsel for the Respondents: GP FOR PROHIBITION ANO EXCISE The Court made the following: ORDER HON,BLE SRI JUSTICE NAGESH BHEEMAPAKA WRIT PETITION No. 84O8 OF 2O2O ORDER: Heard Sri P. Venkata Subbarao, learned counsel for petitioners and learned Government Pleader for Prohibition & Excise for resPondents.

2. This Writ Petition is {rled by petitioners questioning proceedings of Respondent No'1 Cr.NO.O2l20I I/CPF IEl2 dated: 28 O|-2O2O' and consequential proceedings of Responclent No'2 vide Proc Rc'No'A2 189 I 2014 dated: 08-06-2020. It the case of Petitioners that they were initially 3. appointed as A.P.S.P. Constable' Thereafter, they were deputed to u,ork in Prohibition and Excise Department and were as Prohibition and Excise Constabies subsequentll' absorbed Department respective based on G.O.Ms. No. 1i03 Revenue (Exercise 1) dated fi Oa-2OO7 . Petitioners submitted therr willingness for absorption as a Prohibition and Excise Constable and after his deputation on Lhe strength of the order of the commissioner of Prohibition and Excise, and after obtaining options and willingness from Petitioners that they would abide by the seniority list. Petitioners were appropriately included in 2 the seniority list for promotion to the post of Head Constable, based on the existing seniority list wherein the date of absorption nnd age were adopted as the determining criteria. The original instructions issued by Respondent No.1 dated 2l.Ol.2O2O, expressly mandated the preparation of seniorit5r lists after inviting objections and in strict compliance with the applicable service rules. However, the subsequent proceedings issued by Respondent No.1 vide Cr.No. 02/2018/CPE/82 dated 2a.Ol.2O2O , directing re-fixation of seniority based on merit, constitute a deviation from the earlier lawful directions and lack any statutory or legai authority for their issuance.

4. It is further submitted that the Department issued final seniority list after considering objections, vide proceedings Rc. No. A2i89 l2Ol4, dated:O8-O6-2O2O, issued by the District Prohibition and Excise Ofhcer, Mahabubnagar, Mahabubnagar District. The said final seniority list u,as published after due consideration of objections sutrmitted by thc concerned individuals. However, Petitioners, at present, does not possess details regarding the relevant period of said seniority list or the serial number at which his name was reflected. Respondent No.2 after receiving the proceedings dated 28 O2-2O2O from Respondent No.1 prepared final seniority list vide proceedings -) t dated: 08-06-2020, after issuing provisional seniority list vide proceedings Rc.No.A2la9 12014 dated: 1O-O2-2O2O, after obtaining objections from the effected parties by considering the merit lists instead of considering age criteria of the absorbed APSP Constables in to the Prohibition and Excise department. The APSP battalions have recruited the candidates on the basis of Physical efhciency test and therc is no parameter for concluding for the merit of the candidate.

5. Respondent No.2 in their counter affidavit has stated that in 1995, approximately 2,2OO Andhra Pradesh Special Armed Police (APSP) Constables were deputed to the State Excise Department, namely the Prohibition and Excise Department. Subsequently, by G.O.Ms.No. 11O3, Revenue (Excise-I) Department, dated 17.OA.2OO7, the Government directed absorption of 2,151 APSP Constables who were working on deputation in the Prohibition and Excise Department and declared surplus in the APSP. Such absorption was subject to adherence to the Andhra Pradesh Public Employment (Organization of Local Cadre and Regulation of Direct Recruitment) Orders, 1975, and other applicable Rules, following receipt of their unequivocal and irrevocable option to accept the pay scale applicable to Prohibition and trxcise Constables. It was further directed that their seniority shall be -t + fixed from the last candidate in the existing senioritl' list of the Prohibition and Excise Constables. It is stated that upon completion of absorption and repatriation process' the preparation of the seniorily list was initiated' The Commissioner of Prohibition and Excise, Telangana State, Hyderabad, requested the Inspector Add1. Director-General of APSP Battalions to furnish the merit/ marks list of the APSP Constables. The Addi. Director-General inlormed that no State- wise merit list of APSP Constables exists. Consequently, the Commissioner directed Respondent No.2 to prepare and finalize the senioriW list in accordance with Rules 33 and 36 of the A'P' State and Subordinate Service Rules, 1996, and the guidelines issued vide G.O.Ms.No. 11O3, Revenue (Excise I) Department, dated i7.Oi1.2007. Aggrieved, certain Constables petitioned the Commissioner, asserting that seniority must be finalized based on merit/marks as per the Rule of Reservation, and requested the Comm jssioner to obtain the merit/ marks lists from the respective Commardants. Accordingly, the Commissioner of Prohibition and Excise, Telangana State, Hyderabad, addressed a letter to the lnspector General of Police, TSSP, Hyderabad, requesting the merit lists of the 1995 batch APSP Constables' The Inspector General furnished the merit lists vide Lr.No.6O6lA2 l2ol7-18 dated 06.06.2O17, obtained from the ,., I I l respective Commandants' The Commissioner thereafter directed thisofficetoreviseandfinalizethesenioritylistofConstables based on the merit/marks lists provided by the APSP Battalion Commandants. Respondent No.2 filed counter contending that the 6 Commissioner of Prohibition and Excise' Telangana communicated the merit list of A'P'S'P Constables recruited during i995 furnished by the I'G'' Battalions (Recruitlng Agencies) and instructed to re-fix the seniority in terms of the orders issued by the this court in W'P' No' 31978 of 2018' W'P' No. 67O1 of 2018, W.P No' 26855 of 2019 and other W'P's and also instructed all the nodal District Prohibition and trxcise Officers to take care and to ensure that notices are issued to all the individuals affected by the process, calling for objections, if any. All the objections Iiled shall be listed and disposed of as per rules by issuing a proper speaking order' As mentioned supra' fromthecounterofRespondentNo.2,itisevidentthat government had issued G'O'Ms'No' 1 1O3' Revenue (trx'I) Department, dated: 17 -O8-2OO7 and instructions of the Commissioner of Prohibition and Excise' A'P'' Hyderabad in Cr' No.17657 l2OO7 lCPF,lH3, dated: 22-O5-2OO9 ' wherein the Constable deputed to Prohibition and Excise Department' have 6 absorbed as Prohibition and Excise constable subject to following conditions:- " 1. Andhra t)radesh Public Employment (Organization of Local Cadres and Regulation of Direct Recruitment) Order, 1975 and other relerant rul"s \ t'r.h are in vogue.

2. The! should be paid pay and allowances and Scale of pay on par with Prohib.tion and Excise Constables.

3. Thev shall forego the benefits attached to the Constables in Police Departmcnt.

4. Thr:ir seniority shall be fixed commencing from the last candidate in the existing senioritlr list of Prohibition and Excise Con sl a hlcs. flence the Petitioner contention is true".

7. It is an admitted fact that the Commissioner of Prohibition and Excise, Hyderabad in Cr.No.O2l2018 lCPtr/82 dated: 21-O1-2020 instructed to prepare the seniority list of Prohibition ar-rd 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. Rulcs Lgg6 and after absorption and after implementzrtion of Presidential Orders and as per the instructions of the Commissioner of Prohibition & Excise, Hyderabzrd a seniority list was prepared b1' following the provisions of Rules 33 & 36 of A.P. State and Subordinate Service Ru1es, 1996 and upon guidelines issued vide G.O.Ms.No.1lO3, Revenue(Excise-I) Department, dated ./" 1

17.8.2OO7 finalized and communicated vide this office Rc.No.A2l89/20i4, dt.08.06.2020 basing on the merit list provided by the APSP Battalions. It is contended by Respondent No.2 that seniority list in the present case was communicated on 08 06-202O 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 all the Nodal District Prohibition & trxcise Ofhcers, to revise seniority list in terms of Merit. The said orders of Commissioner were passed based on the direction issued by this court, W.P. No. 31978 of 2018 and batch.

8. Certain Prohibition & Excise Constables of Rangareddy and Nizambad Districts fi1ed W.P. No' 67Ol of 2018 dated: 28-02-2O18 and W-P. No. 26855 of 2O19 seeking to prepare seniority iist on Merit basis. In the common order in W.P. No. 31978 of 2O18, 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 respectiue objections, shall take appropriate d.ecision as uarranted bg latu and communicate the same to the parties" ' g. Respondent No.2 further contended that in view of the furnishing of merit list of Inspector General of Police, TSSP vide letter No. 606lA2l2Ol7'18, dated: 06l06/2017 the 8 CommissionerP&trhaddirectedtoinitiatethesenioritylist basing on the merit/ marks list, thereby there is illegality in passing the orders which are impugned' APSP constables initially appointed as constables in APSP of Police Department' were sent on deputation to prohibition and excise department in the year 1995 and continued as such for some years' Subsequently, it was felt that the 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 absorb 2151 APSP constables who were working on deputation in excise department by GOMs.No. i 1O3 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 werc absorbed after unequivocal/ irrevocable option from the APSP conslable to the obtaining effect that they are willing to take scaie of pay of prohibition and excise constables. ln 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 the year 2OO9, in terms of GOMs.No- 1 103 dated 17 -Oa.2OO7 ' Though the said exercise was challenged by the interested persons the same were dismissed by the Tribunal by filing OA.No.3335 of 2OO4 I 9 and batch. The Tribunal upheld the orders issued in GOMs.No. 1103 dated 17.OB-2OO7, absorbing 2151 APSP constables in Prohibition & Excise Department' When the orders passed by the Tribunal were challenged before this Court, this Court also upheld the orders issued in GOMs.No.1 103 dated 17.O8.2OO7, in its order dated 26'03'2009 in WP.No.8573 of 2OO8 and batch.

10. The post of police constable in APSP is not a locai 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. When merit list of APSP Battalion constzrbles, who were deputed to the excise department is not available as informed by the DG APSP Battalion, vide proceedings C.No.363/A6/ 2Ol2 dated 24.O2'2012' there was no other option except to prepare a State list of APSP constables basing on the date of joining on deputation 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 take date of joining on deputation in the excise department and date of birth of the candidates as per Rule 33 & 36 of the Andhra Pradesh State and Subordinate *.= \ \ l0 Service Rules, 1996 ['APSSS Rules', for brevity). Accordingly, the Nodal Prohibition and Excise Superintendent have linalized the seniority of absorbed APSP constables as per Rules 33 & 36 of APSSS Rulcs and considered promotions to the next higher cadre of prohibition and excise head constable in some Districts where there we re vacancies.

11. The Commissioner of Prohibition and Excise who is Respondent No.1 had initiated steps to prepare the seniority list of Excise Constables in the Excise Department based on the merit list as pe r Rule 33 to 38 of the APSSS Rules with reference to merit list of selection of APSP Constables who are later absorbed as Prohibition and Excise Constables and wants to unsettle the settled seniorily of Excise Constables issued by Respondent No.2 in the seniority list dated 08.06.202O which was prepared based on the date of joining on deputation in the Prohibition & Excise Department ald date of birth. Basing on the list of APSP Constables absorbed as Prohibition and Excise Constables, combined seniority list has been prepzrred 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 '/ 4"" l : ,/. I , I i 11 Prohibition & Excise Constables basing on the date of joining and date of birth and promotion to the category of Prohibition and Dxcise Head Constables were considered' Now, that is sought to be disturbed by way of impugned proceedings'

12. The competent authority had issued seniority list taking into account date of joining/date of birth as the criterion to determine the seniority among absorbed APSP Constables as all APSP Constables absorbed as Excise Constables in the Excise Department duly rejecting the objections filed' The post ofConstableinthestateProhibitionandExCiSeDepartmentiS organized. into a separate cadre as per the said provision' As per Para 3 (8) of the Presidential Order, Central Government is empowered to notify any category to be excluded lrom organization of local caclre. In exercise of powers under Para 3 (8) of the Presidential Orcler, Government of India has issued notification on 18. 1O. 1975 in G'S'R'N o '529 lD' excluding all categories of posts in the Special Police Battalions from Lhe purview of the Presidential Order, and in view of such noti{ication, the post of Pollce Constable in APSP is not a local cadre post, whereas the post of Prohibition and Excise ConstableintheA.P.StateExciseserviceisinorganizedcadre' governed by the Presidential Order as such, the post of APSP Constable is a State-wide post and the unit of appointment is \ -l I I t2 not restrictcd to either Battalion or aly unit' As per Ruie 8(1)(a) of the Presidential Order, 80% of the posts are to be filled by direct recruitment from the iocal area of the unit and only 2070 can be recruited from outside the unit i.e., District- The Director General, APSP Battalions vide C.No.363 I A6 l2Ol2 dated

24.2.2012 informed 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. Accordingiy, an exercise has been taken up for implementing thc Presidential Order taking the number of locals absorbed in the District and proportional 2Ooh open quota to be filled from non-locals. Since the number ol such Constables are more than the number that has given r,a,,illingness, 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 availability of vacancies keeping in view the /'4 Presidential Order. On completion of allotments, the appointing 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 Rule 33 and 36 of APSSS Rules. Accordingly, Nodal Prohibition and Excise Superintendents have finalized the seniority of absorbed APSP Constables under Rule 33 and 36 of APSSS Rules and considered promotions to the next higher cadre of Prohibition and Excise Head ConstaLrles in some Districts where there are vacancies. Thereby the 1st Respondent had grossly erred in issuing the impugned proceedings.

13. From the facts and the pleadings, this Court comes to a clear conclusion that earlier the seniority list was prepared as per the provisions ol Rule 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.

14. In the present case, it appears that the seniority list dated 08-O6-2020 was prepared as per the provisions of Rule 33 to 38 of the said rule s, which include the determination of seniority based on the date of joining and age. Further, the petitioners herein who are the affected parties were not arrayed as party respondents to the lis before this court in the earlier j -l t4 round of litigation. As such, orders passed by this Court in W.P.No. 6707 of 20 18 and W.P.No.3197B of 201 8 are not binding on the petitioners. Since it appears lhat there was no selection held for

15. the purpose of promotion or appointment to the posts in question, seniority was determined based on the date of joining of absorbecl 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 3il of the APSSS Rules. Therefore, the settled final seniority list prepared and confirmed in earlier cannot be interfered with at this stage by the 1st Respondent Comrnissioner of Prohibition and Excise' The power to prepare and publish seniority 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 hnds that the 1st Respondent does not have the power or authority to direct the Nodal Ofhcers 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 final seniority lists prepared in various Districts.

16. This court therefore, comes to a conclusion that seniority lists dated 0A-06-2020 prepared is against the / j l I provisions of Rules 33 to 38 of APSSS Rules based on the dates of joining and age is of valid and need to be interfered with' Further, this Court hereby held that lst Respondent does not have the power or authority to direct the Nodal Officers to prepare a final seniority list based on the merit as per Rule 33 of the APSSS Rules.

17. The proceedings of Respondent No' I vide Cr.No.O2l2O 18lCPE l82 dated: 28-O1-2O2O and consequential proceedings vide Rc.No.A2l89 l2Ol4 dated: 08-O6 -2O2O of Respondent No.2 are set aside. Respondents are therefore, directed to forthwith consider the cases of petitioners for promotion to the post of prohibition and excise head constables as per the seniorit5r list basing the age as criteria in the existing V CANClCS.

18. 79 The Writ Petition is accordingly, a11owed. No costs' Consequently, Miscellaneous Applications, if any sha1l stand closed. //TRUE COPYii \ To, I The Commissioner of Prohibition and Excise, S Bhavan, NamPallY Road, HYderabad. SDi.P. GOWRI SHANKAR EPUTY REGISTRAR SECTION OFFICER of Telangana, Abkari

2. The District Prohibition and Excise officer, Mahaboobnagar, lvlahaboobnagar District.

3.TheDeputyCommissionerofProhibitionandExcise'Mahaboobnagar' Mahaboobnagar District.

4. The Principal Secretary, Prohibrtion and Excise Department' State of Telangana. Secretariat Buildings. Hyderabad'

5. One CC to SRI P. VENKATA SUBBARAO, Advocate IOPUC] 6. Two CCs to GP for Prohibition & Excise, High Cou( for the State of Telangana at Hyderabad. [OUTI

7. Two CD CoPies MP aa *fl,***txl*- i HIGH COURT DATED:2810512025 (.)f. liiE S14 14. 17 JUl'l 2E o t' I.' a) l\ ,,\ a -) l I '/. \ ORDER WP.No.B408 of 2020 ALLOWING THE WRIT PETITION WITHOUT COSTS 6ler t