'l . K. Pratap v. 5. Guruvaiah

Petition underr Article 226 of the constitution of lnclia praying that in the circumstances stated in the affidavit filed therewith, the High court may be pleased to issue a writ, order or Direction declaring the proceedings of the Respondent No r, vide cr.No. o2t2ol\rcpEtB2 dated 28ro1t2o2o and consequential proceedings vide proceedings Rc.No. 173t20121p and E/A.l dated June, 202o of Respondent No.2 as arbitrary, iflegar, discriminatory, marafide and unconstitution a I violating Articles 14, '1 6 and 21 of the constitution of India apart from following the Principles of Natural Justice as well as contrary to the A.P/Telangana State subordinate service Rules and and set aside the same and issue consequentiar direction, directing the respondents to forthwith consider promotion to the post of prohibition and Excise Head constable as per the seniority list prepared by the Respondent No.2 by proceedings vide Cr.No. 1121120061 P and E/A1 daled z1lott2ol S in the existing vacancies. lA NO: 1 OF 2020 Petition under section '151 cpc praying that in the circumstances stated in the affidavit filed in support of the petition, the High court may be pleased to direct the Respondents to forthwith consider promotion to the post of prohibition and Excise Head constabre as per the seniority rist prepared by the Respondent No.2 by proceedings vide cr.No. 112112006r p and E/A.r dated 2iro7r2015 in the existing vacancies. lA NO: 2 OF 2020 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the operation of the proceedings vide Cr.No. 0212018/CPE/82 dated 2810112020 issued by the Respondent No.'l and consequential proceedings vide Rc.No. 173l20121P and E/A1 dated June,2020 of Respondent No.2 pending disposal of this Writ Petition in the interest of justice. Counsel for the Petitioner: SRI P. VENKATA SUBBARAO Counsel for the Respondents No.1 to 4: GP FOR PROHIBITION AND EXCISE Counsel for the Respondents No.S to 8: M/s.V.BRAHMAIAH CHOWDARY The Court made the following: ORDER I HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA \VRIT PETITION No. 9315 OF 2020 ORDER: Fleard Sri P- Venkata Subba Rao, learned counsel for petitioner-s as' well as learned Government pleader for Prohibition & Excise and Sri Vadapalli Ramesh, learned counsel for Responder-rts 5 to 8.

2. This Writ Petition fiied by petitioners is ro declare proceedings of Respondent No.1. Cr.NO.O2l20 18/CPtr l82 dated: 28-O1,2O2O, whereby and whereunder Respondent No.2 was directed to re-fix seniority on the basis of merit, as without power or jurisdiction and also consequential proceedings of Respondent No.2 vide proc Rc.No. 173 /2012lP&,tr/A1 dated: Jwne, 2O2O is without any power or jurisdiction and contrary to the orders of this Court, the Respondent No.1 issued the impugned proceedings to prepare seniority list by considering the merit. The impugned proceedings are bad in law, in violation of principles of Natural Justice, contrary to 1aw and unconstitutional.

3. It- the case of Petitioners that they were initially appointed as A.P.S.P. Constables in 199S. Thereafter, they were I I l deputed to work in Prohibition and Excise Department and was subsequently absorbed as Prohibition and Excise Constable, based on G.O.Ms. No. i 103 Revenue (Exercise- 1) Department dated: 17 -O8-2OO7 . Petitioners submitted their respective willingness for absorption as a Prohibition and Excise Constables and after their deputation on the strength of the order of the Commissioner of Prohibition and Excise and after obtaining the options and willingness from Petitioners that he would abide by the seniority list. Petitioners were appropriately inctuded in seniority list vide Cr. No. 1l2l /2Oo6lP&E/Al dated

25.07.2015 for promotion to the post of Head Constable, based on the existing seniority list wherein the date of absorption and age were adopted as the determining criteria' The original instructions issued by Respondent No.1 vide proceedings Cr'No' 19 I 2O2O I CPEI 84 dated: 2l .Ol .2O2O, expressly mandated the preparation of seniority 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 l82 d'ated 2a-Ol.2O2O, directing the re-fixation of seniority based on merit, constitutes deviation from the earlier ) .I ,/ lawful directions and lack of statutory or legal authority- for their tssuance.

4. It is further stated that the Department issued Iinal seniority list after considering objections, vide proceedings Rc.No. 173120t2/pe9lAt dared: June, 2020, issued by the District Prohibition and Excise Officer, Khammam, Khammam District. The said final seniority list was published alter due consideration of objections submitted by the concerned individuals. Respondent No.2 after receiving the proceedings dated 28-02-2020 from respondent No. 1 prepared final seniorit5z lists vide proceedings Rc.No. 173/20 t2/p&E/ AI dated: June, 2020, after issuing provisional seniorier list vide proceedings Rc.No. 173120 12/PeE lAl dated: June, 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 the Physical efliciency test and there is no parametcr for concluding for the merit of the candidate. 5. Respondent No.2 in their counter affidavit stated that in 1995, apprr:ximately 2,200 Andhra pradesh Special 1 Armed Police (APSP) Constables were deputed to the State Excise Department, namely Prohibition and Excise Department. Subsequently, by G.O.Ms.No. 1103, Revenue (Excise-1) Department, dated 17 .O8.2007, 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 LocalCadre and Regulation of Direct Recruitment) Orders, 1975, and other applicable ru1es, following receipt of their unequivocal and irrevocable option to accept the pay scale applicabie to Prohibition and Excise Constables. It was further directed that their seniority shall be fixed from the last candidate in the existing seniority list of the Prohibition and Excise Constables. It is stated that upon completion of the absorption and repatriation process, the preparation of the seniority list was initiated. The Commissioner of Prohibition and Excise, Telangana State, Hyderabad, requested the Inspector Addl. Director-General of APSP Battalions to furnish the merit/marks list of the APSP Constables. The Addl. Director-General informed that no State-wise merit list of APSP Constabies exists. \ )\ -) Consequently, the Commissioner directed Responclent No.2 to prepare and hnalize the senioritSr list in accordance with Rules 33 and 36 of the A.p. State ald Subordinate Service Rules, 1996, and the guidelines issued vide G.O.Ms.No. 1103, Revenue (Excise-l) Department, dated 17.0g.20O7. Aggrieved, certain Constables petitioned the Commissioner, asserting that seniority must be firtalized based on merit/ marks as per the Rule of Reservation, and requested the Commissioner to obtain the merit/marks lists from the respective Commandants. 6. No counter/ rebuttal is filed on behalf of the Respondents. Thereby, the pleadings of the petitioners remained unchallenged in the present writ petition. However, this court is taking judrcial notice of the counter filed on behalf of Respondent No.2 filed in W.p. No. 4Z17 of 2O2O ancl other writ petitions, for proper adjudication of the present wrir petition. It is admitted by Respondent No.l that the Commissioner of Prohibition and Excise, Hyderabad in Cr.No.O2 / 2OtB/ CpE /82 dated: 21-0 1-2O20 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 t 6 Service, Rules 1996 and after absorption and after implementation of Presidential Orders and as per the instructions of the Commissioner of Prohibition & Excise, Hyderabad a seniority list was prepared by following the provisions of Rules 33 & 36 of A.P. State and Subordinate Service Rules, 1996 and upon guidelines issued vide G.O.Ms.No.1103, Revenue(trxcise-I) Department, dated 17.O8.2OO7 hnalized and communicated vide this office Rc.No. 173l2Ol2lP&E/Al dated: June, 2020 basing on the merit list provided by the APSP Battalions. 7 . It is an undisputed fact that the Government circular No. 57759 / S er.A I 2OO4-l , of GA (Ser.A) Department, dated: 2O-05-2OO4 had clarified that, "Settled Seniority 1. Not to re-open: ln dealing with the cases for fixing the Seniority, the Procedure and Rules prescribed in AP State & Subordinate Service Rules 1996 or in Special Rules governing the Post shall be followed. 2. No request lor revision of Senioritl. for a period which is more than 3 years old shall be considered. 3. The Seniority List in each category shall be communicated as and when the employee completes the prescribed period of Probation in the respective category. The above instructions are based on the orders passed by the Supreme court of India in ll998l 2 SCC 523 held 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 justihable". In the Present case, the Seni6rity list was Communicated on 17 11 2014, though it is settled Seniority List, the Commissioner of 7 Prohibition and Excise, T.S. Hyderabad being the Head ol the Department issued orders to all the Nodal District Prohibitiorr & Excise Officers, in the state to revised the said senioritl, list in terms of Merit. The orders of Commissioner of Prohibition and Excise, T.S. H-yder:lbad based on the direction of Hon'ble High Coun for the State of Telangana in W.P.No.31978 of 2018 and batcl-.'

8. The 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 t.he APSP constables who have put in more than threc years of service in excise department, shall be repatriated I to their parent department. But, later, the Government had taken decision to absorb 2151 APSP constables r,,r.ho were working on deputation in excise department by GOMs.No. 11O3 dated 17.08.2007, in the existing vacancies of excise constables duly lollowing 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 the year 2009, in terms of GOMs.No. 1 1O3 dated { E fi.Oa.2OO7 . Though the said exercise was chailenged by the interested persons the same were dismissed by the Tribunal by filing OA.No.3335 of 2OO4 and batch. The Tribunal upheld the orders issued in GOMs.No. I 103 dated 77 'Oa '2OO7 , absorbing 2 15 1 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.1103 dated 17.Oa.2OO7, in its order dated 26'O3'2OO9 in WP.No.8573 of 2008 and batch. g. The 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. 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 iist as per Rule 33 to 38 of the APSSS Rules with reference to merit list of selection ol APSP Constables who are later absorbed as Prohibition and Excise Constables and'wants to unsettle the settled seniority of Excise 9 / Constatrles issued by the 2 Respondent in the seniority list dated 08/06/2O2 which was prepared based on the date of joining on deputation in the Prohibition & Excise Department and date of birth. Basing on the list of APSP Constables absorbed eLs Prohibition and Excise Constables, combined seniority list has been prepared by the Commissioner of Prohibition and Excise taking the date ofjoining 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 iist 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 sought to be disturbed by way of impugned proceedings.

10. The competent authority had issued a seniorit5r list taking into account date ofjoining/date of birth as the criterion to determinr: the seniorit5z among absorbed APSP Constables as all APSP Constables 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 10 organized into a separate cadre as per the said provision' As per Para 3 (8) of the Presidential Order, Central Government is empowered to notily any category to be excluded from organization of local cadre- In exercise of pow-ers under Para 3 (8) of the Presidential Order, Government of India has issued notification on 18.10.1975 in G.S.R.No 529/8, excluding all categories of posts in the Speciai Police Battalions from the purview of the Presidential Order, and in view of such notification, the post of Police Constable in APSP is not a iocal cadre post, whereas the post of Prohibition and Excise Constable in the A.P. State Excise service is in organized cadre, governed by the Presidentia-l 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, 8O% of the posts are to be filled by 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 vide C.No.363 / A6l2Ol2 clated

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 \ I Constables basing on date of joining on depr-rtation 1n Prohibition and Excise Department. Accordingll., an exercise has been taken up for implementing the Presidential Order taking the rumber of locals absorbed in the District and proportional 2O%o open quota to be filled from non-locals. Since the number of such Constables are 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., 8O%o. Accordingly, three options have been ca lled for lrom such Constables for allotme nt to the Districts othcr 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 Presidential Order. On completion of allotments, the appointing authorities felt that the oniy possible way for fixing the seniorit5r list is to take date of joining and date of birth of the candidates under Rule .13 and 36 of APSSS Rules. Accordingly, Nodal Prohibition and Excise Superintendents have finalized the seniority of al;sorbed APSP Constables under Rule 33 and 36 of t2 APSSS Rules and considered promotions to the next higher cadre of Prohibition and Excise Head Constables in some Districts where there are vacancies. Thereby the 1" Respondent had grossly erred in issuing the impugned proceedings. 1 i. From the facts and the pleadings,- this Court comes to a clear conclusion that earlier the seniorit5r list was prepared as per the provisions of 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 seniorig, is in accordance with the provisions of the rules and is therefore valid and cannot be disturbed.

12. Since it appears that there was no selection held for 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 seniorit5r list based on the merit obtained in ApSp Battalions as per Rule 33 of the APSSS Rules. Therefore, the settled fina-I seniority list prepared and conhrmed earlier vide proceedings Cr.No.112l /2006/PeE/Al dated 2S-OZ -2OlS cannot be interfered with at this stage by the 1st Respondent \ ) ' - I 13 I Commissiotrer 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 finds that the 1" Respondent docs not have the po\{er or authority to direct the Nodal Olhcers to prepare a final seniority list based on Ruk:s, u'ithout anY per Rule 33 of the APSSS the merit as I appeal being filed and without setting aside the said final seniority lists prepared in various Districts' This Court hereby comes to a conclusion that 13. seniority iists dated 25.07 '2015 vide proceedings Cr' No' 1l2l/2006lP&E/Al prepared is as per the provisions of Rule 33to38ol.APSSSRulesbasedonthedatesoljoinirrgandageis validaldcannotbeinterferedwithHence'itisheldthat Respondent No. 1 does not have the power or authority to direct the Nodal Officers to prepare a final seniorit'v list based on the merit as per Rule 33 of the APSSS Rules' Therefore, the proceedings of Respondent No' 1' vide

14. Cr.No.O2l 20 1 I I CPE I 82 dated: 28-O l - 2O2O and consequential proceedings vide Rc.No.17 3l2Ol2lP&'E lA1 dated June' 2O20 of Respondent No.2 are set aside' Respondents are directed to / 14 { forthwith consider the cases of petitioners for promotion to the post of prohibition and excise head constables as per the seniority list basing the age as criteria in the existing vacancres' This Writ Petition is accordingly allowed' no costs' 15. Consequently, Misceilaneous Applications' if any

16. shall stand closed' //TRUE COPY'I sD/-T.vl DEPUTY JAY KUMAR REGISTRAK SECTION OFFICER I To, ers, State of Prohibition and Exci se and avan, Nam pallY Road, Hvd erabad na, A sioner of 1. The Co bkari Bh Telanga 2. The District Prohibition and Excise Officer' of Prohibition a 3 The DePutY Commissioner District Khammam' Khammam District Khammam, Khammam nd Excise' I Secretary, Prohibition and Excise

4. The State of Telang DePartme nt, Secret ana, ReP' bY its PrictPa 5. One CC to SRI P VENKATA SUBBARAO Advocate [OPUCI Building S,Hyderab ad. EXCI SE (TG) ,High Cou rt for the State 6 Two CCs to GP FO R PROHIBITION of Telangan a. [oUT] 7. One CC to M/s V'BRAH MAIAH CHOWDARY' Advocate tOPUCj fu a. Two CD CoPies BSK teT t1E 5r ^ r(. ( l c o 1/ JUN UE /a,lPnrcHl-rJ* T : ( -t i ...?' HIGH COURT DATED:2810512025 ORDER WP.No.9315 of 2020 i ALLOWING THE WRIT PETITION WITHOUT COSTS tD t \1