1 . J. Siddeshwar v. Excise Department

7. S. Srinivas, S/o. Bakkaiah, Age 45 Yrs, Occ. P & E HC, R/o. P and Excise Station, Kagaz Nagar, Komarainbheem Asifabad Dist. B. M. Suresh, S/o Durgaiah, Age. 47 Yrs, Occ. P & E HC, R/o P and Excise Statjon, Bellampally, lilancherial Dist. ,..RESPONDENTS Petition under Article 226 of the Constitution of lndia 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.2 vide Proc. Rc.No. A119012020 dated 09-07-2020 finalising the seniority list of the absorbed Prohibition and Excise Constables on the basis of merit and also the consequential Proceedings of the Respondent No.2 vide Proc. No. A'1/90/2020 dated 27-07-2020 promoting the Respondents No.5 to 8 Prohibition and Excise Constables as Prohibition and Excrse I lead Constables by way of promotion as arbitrary, illegal, discriminatory. malafide and unconstitutional violating Articles 14. 16 and 21 of the Constitution of lndia apart from following the Principles of Natural Justice as well as contrary to the A.P/Telangana State Subordinate Service Rules and set aside the same and issue consequential 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 Rc.No.A1 113412009 dated 18-10-2013 in the existing vacancies. tA NO: 1 OF 2020 Petition under Section 'i51 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court rnay be pleased to suspend the operation of the proceedings of the Respondent No.2 vide Proc. Rc.No. A'l190/2020 dated 09-07-2020 finalising the seniority list of the absorbed Prohibition and Excise Constables on the basis of merit and also the consequential Proceedings of the Respondent No.2 vide Proc. No. 41190/2020 dated 27-07-2020 promoting the Respondents No.S to B Prohibition and Excise Constables as Prohibition and Excise Head Constables pending disposal of this Writ Petition in the interest of justice. Counsel for the Petitioners: SRI SAI PRASEN GUNDAVARAM Counsel for the Respondents No.1 to 4: GP FOR PROHIBITION AND EXCISE Counsel for the Respondent Nos.S, 6 & 8: SRI VADAPALLI RAMESH Counsel for the Respondent No.7: - The Court made the following: ORDER HON'BLE SRI JUSTICE NAGESH BHEEMAPAI{A W.R.IT PETITION No. L2ta9 OF 2O2O ORDER: Heard Sri Sai Prasen Gundavaram, learned counsel for petitioners, learned Government Pleader for Prohibition & Excise on behalf of Respondents 1 to 4, Sri Vadapalli Ramesh, learned counsel for Respondents 5, 6 and 8.

2. This Writ Petition is filed assailing the legality and validity of the proceedings of Respondent No.2 dated O9.O7.2O2O, tinalizing the seniority of absorbed Prohibition & Excise Constables on the basis of a purported merit list, and the consequential proceedings dated 27 .O7 .2O2O, promoting Respondents 5 to 8 to the post of Prohibition and Excise Head Constables for the panel year 2079-2020. The said proceedings are challenged as being arbitrary, without jurisdiction and in direct contravention of binding service rules, government orders, and judicial directives. Petitioners are several absorbed Excise Constables

3. originally appointed as APSP Constables in 1995 through districtlevel recruitment. Pursuant to G.O.Ms. No. 1 103, dated ! I \ 2 I7.O8.20O7, Government ordered absorption of 2,151 APSP Constables into Excise Department, subject to conditions: a) acceptance of Excise Constable pay and allowances, b) forfeiture of APSP benefits, c) applicability of the Presidential Order, 1975, and d). seniority fixation commencing from the last candidate in the eisting Excise Constable seniority list, determined based on age. All candidates provided unequivocal and irrevocable options accepting these conditions. Final seniority lists were subsequently issued by the respective District Excise Officers and promotions followed based on age-based seniority lists, which had attained finality arld legitimacy under applicable service rules. Despite this, the Commissioner of Prohibition and Excise (Respondent No.1), issued instmctions dated

28.O1.2O2O, citing orders of this Court in Writ Petition No' 26855 of 2019 and directed all appointing authorities to re-fix the seniority of absorbed constables based on 'merit'. Based on these instructions and enclosed battalion-wise merit lists, Respondent No.2 issued provisional seniority list dated

20.O2.2O2O, finalized it on 09.O7.2O2O, and affected promotions on 27.O7.2O2O. Petitioners contend that these actions are unlawful as no such direction for merit-based seniority exists in 3 the Court's order in the above Writ Petition, which merely directed the competent authority to dispose of Appeals in accordance with law.

4. This Court had passed interim ..orders in Writ Petitions No. 2823, 9315 and 9393 of 202O, directing that no promotions be affected to the cadre of Head Constables pending adjudication of similar issues. Despite receiving copies of these orders in the first week of Jwly 2O2O, Respondent No.2 proceeded to finalize the seniorit5r and alIect promotions, contending that no specifrc restraint had been imposed upon him personally. Petitioners state that they were due for promotion to the post of Head Constable based on the original age-based seniorit5r list and that their juniors, including those absorbed in 1996, were wrongly promoted over them. Petitioners were wrongly placed at the bottom of the revised merit-based seniority list, prepared without legal basis or uniformity. The so- called merit lists lvere neither contemporaneous with recruitment nor sanctioned under any statutory provision or rule. 4

5. It is stated that APSP recmitment was physical- .l performance based and no merit ranking existed. The post of APSP Constable was never treated as a state-level post. The x argument that non-applicability of Presidentr.al Order elevated battalions to state-level status is without legal foundation. Even in the absence of the Presidential Order, battalions were treated as separate recruitment units comprising one or two districts each. The original seniority list prepared by Respondent No.2 was consistent with law and was based on date of absorption and age. The application of a merit-based criterion after more than a decade violates the principles of certainty, senioritlr rights . and the legitimate expectation of petitioners. Even the Commissioner himself had earlier issued instructions in 2011, 2012 and 2O13, directing that in the absence of a merit [ist' senioritlr should be fixed based on absorption and age.

6. The Hon'ble High Court in Writ Petitions No. 2823 of 2O2O and 24941 of 2019, by order dated 19.02.2020, noted that: a) No merit list existed at the time of APSP recruitment; b) appointments were made based on physical enduralce tests; c) Seniority revision based on merit, without notice or ': opportunity, rras impeflnissible; d) District-level seniorit5r, once finalized, could not be disturbed unilaterally. In light of the above, this Court directed that no promotions be allected pending resolution of the seniority issue. These directions were reiterated in Writ Petitions No. 9315 and 9393 of 2O2O, yet Respondent No.2 acted in defrance of these orders. Petitioners further state that impugned proceedings are not only contrar5r to settled government policy and judicial precedent, but are also in gross violation of the principles of natural justice, as no hearing was granted to affected individuals prior to affecting the revised list and consequential promotions. Petitioners and others made timely representations opposing the move, but the same were brushed aside mechanically by Respondent No.2. It is clarified that apart from Writ Petition No. 8995 of 2O2O, they have not hled any other suit or writ petition on this subject matter. The rvrit petition has been necessitated due to the lack of any alternative efficacious remedy, and in view of the serious prejudice caused by the impugned actions.

7. Respondent No. 1 fiied counter contending that APSP Constables appointed in several battalions in 1994-95 1 \ I 6 were deployed to Prohibition & Excise Department on deputation for effective implementation of total Prohibition of liquor in A.P. State. The Government in G.O.Ms.No.11O3, dated 17 .Oa.2OO7 issued orders that 2 1 5 1 APSP Constables were working on deputation in Prohibition & Excise Department duly following the orders issued in A. P. Public Emplo5rment (Organisation of Local Cadres and Regulation of Direct Recruitment) Order, 1975 and other relevant rules which are in vogue scmpulously after obtaining unequivocal/irrevocable options from APSP Constables. In contimration of the Government Orders, the Commissioner of Prohibition & Excise, A.P., Hyderabad ui.de Cr.No.l7657 l2OO4lCPE|H3 dated 22.O5 .2OO9 issued instructions to absorbed (58) APSP Constables who had exercised option in 20O7 Prohibition & Excise Department duly obtaining unequivocal/irrevocable option forms afresh once again from APSP Constables and complete the process before 30.05.2009, on the foliowing conditions on their absorption in Prohibition & Excise Department 1) Willing to accept the Pay and Allowances as applicable to the Prohibition & Excise Constable in Prohibition & Excise Department; 2) Willing to be absorbed as per the 7 provisions oJ- A. P. Public Employment (Organisation of local Cadres and Regulation of Direct Recruitment) Order, 1975; 3) Willing to forgo the benefits attached to the Constables in ApSp / Police Department; 4) Willing to be fixed seniority commencing from the last candidate in the existing seniorit5r list of Prohibition &. trxcise constables in the District.

8. It is admitted that Commissioner of prohibition and Excise, Hyderabad in Cr.No.O2/2OtS /CpElP2 dated 21.O1.202O instmcted to prepare the seniority list of prohibition and Excise Oonstable in continuation to the existing seniori$r list and communicate to the individuals i.e., absorbed A.p.S.p. Constable as per Andhra Pradesh Sub-Ordinate Service, Rules 1996 and after absorption and after implementation of Presidentia,l Orders and as per the instmctions of the Commissioner of Prohibition & Excise, Hyderabad, a seniority list was prepared by following the provisions of Rules 33 and 36 of A.P. State and Subordinate Serrrice Rules, 1996 and upon guidelines issued urrCe G.O.Ms.No. 1103, dated 17.Og.2OOZ frnalized and communicated on 2O-O2-2O2O based on merit list prorrided by APSP Battalions. I 8

9. Respondent No.2 filed counter affidavit defending his actions, stating that he merely acted in compliance with the instructions of the Commissioner of Prohibition and Excise, Telangana. It is his contention that the Commissioner had communicated merit Iists obtained from various APSP battalions of the 1995/96 recruitment batch and instructed that seniority of absorbed Excise Constables be re-fixed accordingly. Based on these instructions, a provisional revised seniority list was issued on 2O.O2.2O2O and objections were invited. According to him, twenty objections were received and all were disposed of with a common explanation that the re-fixation was done in accordance with the directions from the Commissioner. Thereafter, final seniority list was published on 09.O7.2O2O alrd, promotions were affected on 27.O7.2O2O. It is stated that earlier seniority list dated 18.10.2013, which was based on date of absorption, appointment and birth was revised due to administrative exigencies and transfer of personnel. He argues that since merit list was subsequently received from the battalions, it was appropriate to restructure seniority on that basis and that age becomes relevant only where two individuals secure the same marks. He also contends that the batch of 9 recruitment is not always clearly recorded in service books, and as such, recruits of 1995 and 1996 were treated as the same batch. Respondent No.2 places reliance on the original G.O. Ms. No. 1103 and subsequent instructions from the Commissioner issued from 2O 1 1 to 2O 13, which had directed that seniorit5r be fixed from the end of the existing Excise Constables, list, following Rules 33, 35, and 36 of the A.p. State and Subordinate Service Rules, 1996, since no reliable merit data was available at the time. He submits that new merit lists, once received, provided a basis for re-evaluation and that therr: were no explicit judicial or administrative directions restraining him from acting r>n the revised data. It is also stated that petitioners had earlier filed Writ Petitions No. 45151 and,44594 of 2016 on the very same subject of seniority, hence this Writ petition may be clubbed with the earlier ones for proper adjudication. Petitioners, however, maintain that no merit list was ever part of the original selection process; recruitment to ApSp Battalions was based on physical efficiency, not academic merit. The so_ called merit list now being relied upon is a post facto reconstruction that lacks legal legitimacy. Furthermore, promotions based on the revised seniority list have prejudiced 1 x 10 petitioners and others, as several juniors, who were even absorbed later, were promoted above them. These actions are in blatalt defiance of earlier judicial orders, settled administrative policy, and binding government instructions.

10. This Court, in the interim order in Writ Petitions No. 2823 of 2O2O and 24941 of 2Ol9 dated 19.02.2020, specifically held that: a) APSP recruitment was not based on merit; b) no common merit list was ever circulated; c) seniority revision without notice is impermissible; and d) promotions shall be kept in abeyance. These binding directions were reinforced by subsequent orders in Writ Petitions No. 9315 ald 9393 of 2O2O, yet Respondent No.2 proceeded to act contrary to them. I 1. It is an undisputed fact that the Government Circular dated 2O.05.2004 had clarifred that, "Settled Seniority - 1 . Not to re-open: In dealing with the cases for fixing the Seniority, the Procedure and Rules prescribed in AP State & Subordinate Sewice 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. J 11

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 Honble Supreme Court in B.S. Bajua o, Sto'te of Punjabl, wherein it has been held that "It 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 distr-rrbing the settled position which is not justihable,,. In the present case, seniority list was Communicated on lZ.ll.2O14, though it is settled Seniority List, the Commissioner of prohibition and Excise, Hyderabad being the Head of the Department issued orders to all the Nodal District prohibition & Excise Officers, in the State to revise the said seniority list in terms of merit. The orders of Commissioner based on the direction of this Court in Writ Petition No.31978 of 2018 and batch. 21.

12. 'I'he 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 such for some years. Subsequently, it was felt that t gssay z scc 5123 t2 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 G.O.Ms.No.1103 dated fi.0a.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 seryices were absorbed in various District units of the prohibition ald excise during the year 2OO9, in terms of G.O.Ms.No. 1 103 dated

17.O8.2OO7. Though the said exercise was challenged by the interested persons, the same was dismissed by the Tribunal in OA.No.3335 of 2OO4 and batch. The Tribunal upheld the orders issued in G.O.Ms.No.1lO3, dated L7.OB.2OO7, absorbing 2151 APSP constables in Prohibition & Excise Department. When the orders passed by the Tribunal were challenged, this Court also upheld the orders issued in G.O.Ms.No.11O3, dated 17.O8.2OO7, 13 in its order dated 26.03.20O9 in Writ petition No. 8573 of 2OOg and batch.

13. The post of police constable in ApSp is not a local cadre post, whereas the post of prohibition and Excise constabre in the AP State excise senrice is in organized cadre, governed by the Presidential Order. As such, the post ofApSp 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 initiated steps to prepare the seniorit5r list of Excise Constables in the Excise Department based on the merit list as per 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 unsetfle the settled seniority of Excise Constables issued by the 2.,a respondent in the seniority list dated 0g.06.2022 which was prepared based on the date of joining on deputation in the Prohibition & Excise Department ald date of birth. Based on the list of APSP Constables absorbed as prohibition ald Excise Constables, combined seniority list has been prepared by the Commissioner of prohibition and Excise taking the date of l4 joining and age, if the date of joining is one and the same under I Rule 33 to 36 of APSSS Rules. Basing on the iist of absorbed APSP Constables, the Nodal Prohibition and Excise Superintendents concerned have prepared the seniority list of Prohibition & Excise Constabies 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. 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 Constabies in the Excise Departrnent duly rejecting the objections Iiled.

14. 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) of the Presidential Order, Central Government is empowered to notifli any category to be excluded from organization of locaf cadre. In exercise of powers under Para 3 (8) of the Presidential Order, Government of India had issued notilication on 18.10.1975 in G.S.R'No.529 /E' 15 excluding all categories of posts in the Special Police Battalions from the purwiew of the Presidential Order, and in view of such notification. the post of Police Constable in APSP is not a local cadre post, whereas the post of Prohibition and Excise Constable in the A.P. 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 the unit of appointment is not restricted to either Battaiion or any unit. As per Rule 8(1)(a) of the Presiclentia] Order, 8O% of the posts are to be filled by direct recruitment from the local area of the unit and ooly 2O"k can be recruited from outside the unit i.e. District. The Director General, APSP Battalions uide C-No.363 /A6 /2012 dated 24.02.2012 informed that 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 ta.ken up for implementing the Presidential Order taking the number of locals absorbed in the District and proportional 2O%o open quota to be fiiled from non-loca1s. Since the number of such Constables are more than the ni,rmber that I I I I i 16 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., 80%o. 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 Presidential Order. On completion of allotments, the appointing authorities felt that the only possible way for fixing the seniorit5r iist is to take date ofjoining and date of birth ofthe candidates under Rule 33 and 36 of APSSS Rules. Accordingly, Nodal Prohibition and Excise Superintendents have finalized the seniorit5r 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 Constables in some Districts where there are vacalcies. Thereby, the 1st Respondent had grossly erred in issuing the impugned proceedings.

15. From the facts and the pleadings, this Court comes to a clear conclusion that earlier the seniorit5z list was prepared ui.de RC. No. Ail13412OO9, dated 18.1O.2O13 as per the provisions of Rules 33 to 38 of the APSSS Rules which include determination of seniorilr 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, the first seniority list for the absorbed APSP Constables in Adilabad District was prepared and issued by the appointing authority, i.e., the District Prohibition and Excise Officer, uide proceedings dated

18.10.2013. This seniority list was based on the criteria laid down in G.O. Ms. No. 11O3 dated 17.08.2O07 ald in accordance with Rules 33, 35, and 36 of the A.P. State and Subordinate Service Rules, 1996. Since it appears that there was no selection held for the purpose of promotion or appointment to the posts in question, seniorit5r 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 t8 a new seniority list based on the merit obtained in APSP Battalions as per Rule 33 of the APSSS Rules. Therefore, the settled frnal seniority list prepared ald conhrmed in earlier cannot be lnterfered with at this stage by the 1"t Respondent Commissioner 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 frnds that the l"t Respondent does not have power or authorit5r to direct the Nodal Oflicers to prepare a final seniority list based on the merit as per Ruie 33 of the APSSS Rules, without any appeal being fiIed and without setting aside the said Iinal seniorit5r lists prepared in various Districts'

17. Therefore, the proceedings of Respondent No.2 dated O9-07-2O2O finalising the seniority list of the absorbed Prohibition & Excise Constables on the basis of merit and also the consequential Proceedings of Respondent No' 2 dated

27.O7.2O2O promoting Respondents 5 to 8 Prohibition & Excise Constables as Prohibition & Excise Head Constables by way of promotion are arbitrary, illegal, discriminatory as well as I t9 contrary to the A.P.Telangana State Subordinate Services Rules and thereby, they are set aside. This Court therefore, directs official respondents to forthwith consider the cases of petitioners for promotion to the post of Prohibition and Excise Head Constables as per seniorit5r list based on the age as criteria in the eisting vacancies.

18. costs.

19. With the above, the Writ Petition is al1owed. No Consequently, Miscellaneous Applications, if any shall stand closed. \ I To, //TRUE COPY// SD/-P. GOWRI SHANKAR . DEDUTY REGISTRAR R

1. The Commissioner of p rohibition and Excise Bhavan, Nampally Road, Hyderabad District Tetangana, Secretariat Biiitdings, Hta;rrb;. -^"'' 2' The District Prohibition and Excise officer, Adirabad, Adirabad District. 3 The Deputy commrssioner of prohibition and Excise, Adirabad, Adirabad 4 The Principal Secretary,.. .prohibition and Excise Department, State of 5. One CC to SRt SAt PRASEN GUNDAVARAM, Advocate tOpUCl 6 Iqo CCs to Gp for prohibition & Excise, Hiqh Court for the State of 7. One CC to SRt VADAPALL| RAMESH, Advocate [OPUC] 8. Two CD Copies Telangana at Hyderabad. [OUT] w MP BS HIGH COURT DATED:2810512025 ZZfl--"'ft1,. H 17 JUlr 2ffi \=,:r? ORDER WP.No.12189 of 2020 @ Iiltlu- ALLOWING THE WRIT PETITION WITHOUT COSTS