Telangana High Court
K.Ashok vs The State Of Telagnana on 28 May, 2025
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No.4004 OF 2020
O R D E R:
Heard Sri M. Bharat Shah, learned counsel for
petitioners as well as learned Government Pleader for
Prohibition & Excise for Respondents 1 to 4 and Sri Vadapalli
Ramesh, learned counsel for Respondents 5 to 8.
2. This Writ Petition is filed to set aside the
proceedings dated 12-02-2020 issued by the 4th Respondent
and consequently, direct Respondents to continue Petitioners as
Prohibition and Excise Head Constables at their respective place
duly holding the final inter se seniority of Prohibition & Excise
Constables of Hyderabad vide Proceedings dated 15-06-2015, as
valid legal.
3. It the case of Petitioners that they were initially
appointed as A.P.S.P. Constables at 1st battalion at Yousufguda,
Hyderabad appointed on 14-10-1995, 15-10-1995,
15-10-1995, 15-10-1995 respectively and later, were deputed to
work in Prohibition and Excise Department and were
subsequently absorbed as Prohibition and Excise Constables
vide proceedings dated 28-05-2009, based on G.O.Ms. No. 1103
dated 17-08-2007. Petitioners submitted willingness for
absorption as Prohibition and Excise Constables and after their
deputation on the strength of the orders of the Commissioner of
Prohibition and Excise and after obtaining options and
willingness from Petitioners that they would abide by the
seniority list, final seniority list was issued by the department
after considering the objections vide proceedings dated
15-06-2015 by the Superintendent of Prohibition and Excise,
the said list was issued after considering the objections. In the
final seniority list for the period 01-01-2008 to 31-12-2012,
and petitioners are shown at serial Nos.12, 15, 16, 17 and 18.
Basing upon the seniority list, Petitioners were prompted as
Head Constable vide proceedings dated 29-12-2017, issued by
the District Prohibition and Exercise Officer Hyderabad. Basing
on the said proceedings, petitioners reported to duty as
Prohibition and Excise Constables on 02-01-2018 and
continued to work till date. While matter stood thus, the 4th
Respondent had issued Proceedings dated 12-02-2020, which is
enclosed with the revised provisional list of absorb of A.P.S.P.
Constables of 1995 batch of Hyderabad District, wherein the
final seniority list dated 15-06-2015 was revised. In view of
issuance of revised seniority list, Petitioners' position in the
seniority list had completely changed which action of the
Respondent No.4 is without any jurisdiction, unauthorized and
illegal. In view of the revised seniority list, Petitioners' seniority
was shifted to Serial Nos. 40, 38, 25, 27 and 33 and the revised
list is impugned.
4. Altering the status of final seniority list does not
arise by way of the order dated 27-04-2012 in OA No. 7103 of
2010 and batch and the said order became final, thereby the
question of reopening the issue which was decided in the
aforesaid OA and batch is nothing but re-litigating the same
matter after lapse of three years. Furthermore, there is specific
assertion that has been made by Petitioners that Government
vide circular memo dated 20-05-2024. It has been categorically
held that no request for revision of seniority for a period which
is more than three years old shall be considered. Petitioners rely
upon a judgement passed by the Hon'ble Supreme Court
reported in B.S. Bajwa v. State of Punjab 1, the relevant
portion is hereunder:-
(1998) 2 SCC 523
" During the entire period of more than one decade thereby all
along treated as junior to the other aforesaid persons and the rights
interse had crystalized which ought not to have been reopened after
the lapse 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 matters the
question of seniority should not be reopen in such situation after the
lapse of a reasonable period because that results in disturbing the
settled position which is not justifiable. There was inordinate delay in
the present case for making such a grievance. This alone was
sufficient to decline interference under Article 226 and to reject the
Writ Petition".
5. Petitioners had also relied upon another judgment
in Narravula Kotam Raju v. Regional Deputy Director of
Fisheries, Kakinada 2 wherein it has been held that seniority
fixed after notice to all the employees concerned cannot be
reopened after a long lapse of time if the same is directed to be
done at this stage, it would amount to revocation of the order of
promotion.
6. No Counter/rebuttal is filed on behalf of
Respondents, thereby, the pleadings of Petitioners remained
unchallenged in the present Writ Petition. However, this Court
is taking judicial notice of the counter filed on behalf of
Respondent No.4 in Writ Petition No. 4717 of 2020 and other
2001 (3) ALD 649 (DB)
Writ Petitions, for proper adjudication. Respondent No.4 had
filed counter to Writ Petition contending that the Commissioner
of Prohibition and Excise, Telangana had communicated the
merit list of A.P.S.P Constables recruited during 1995 furnished
by the I.G., Battalions (Recruiting Agencies) pertaining to the
1st, 2nd, 4th, 7th and 8th Battalions (Except 9th Battalion) and
instructed to re-fix the seniority in terms of the orders issued by
the this Court in Writ Petitions No. 31978 and 6701 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 to ensure that notices are issued to all
the individuals affected by the process, calling for objections, if
any. All the objections filed shall be listed and disposed of as per
rules by issuing a proper speaking order. From the counter of
Respondent No.4 it is evident that government had issued
G.O.Ms.No.1103, dated 17-08-2007 and instructions of the
Commissioner of Prohibition and Excise, A.P., Hyderabad dated
22-05-2009, wherein the Constable deputed to Prohibition and
Excise Department, working in Medak District have absorbed as
Prohibition and Excise constables subject to following
conditions:-
"1. Andhra Pradesh Public Employment (Organization of Local 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 fixed commencing from the last candidate
in the existing seniority list of Prohibition and Excise Constables.
Hence, the petitioner contention is true".
7. It is admitted by the 4th Respondent that the
Commissioner of Prohibition and Excise, A.P., Hyderabad in
Cr.No.36071/2011/CPE/H3, dated: 13-06-2011 instructed to
prepare the seniority list of Prohibition and Excise Constables 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 and final seniority list of A.P.S.P. Constables/
Prohibition and Excise Constables up to 31-07-2012 was
prepared subject to outcome of O.As/WP/Govt.Orders/Orders
of Commissioner Prohibition and Excise, Hyderabad and
communicated vide Cr. No. A2/166/2011, dated: 07-04-2015.
8. Respondent No.2 admitted that after finalizing the
seniority list of 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. The above Promotion is subject to outcome of O.A's/W.Ps
pending before the Hon'ble APAT/High Court/Supreme Court.
3. The above promotion is also subject to finalization of
seniority list on part with the Commissioner of Prohibition and
Excise, A.P.., Hyderabad".
9. It is contended by Respondent No.4 that seniority
list in the present case was communicated on 17-11-2014 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 & Excise
Officers, 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 filed Writ Petition No. 6701 of 2018 and
Writ Petition No. 26855 of 2019 to prepare seniority list on merit
basis. In the common order dated 18-09-2018, this Court gave a
direction 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".
10. The 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
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.1103 dated
17.08.2007, 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 prohibition and Excise
during 2009, in terms of GOMs.No.1103 dated 17.08.2007.
Though the said exercise was challenged by the interested
persons, the same were dismissed by the Tribunal by filing
OA.No.3335 of 2004 and batch. The Tribunal upheld the orders
issued in GOMs.No.1103 dated 17.08.2007, 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.1103 dated 17.08.2007, in its order dated 26.03.2009
in Writ Petition No.8573 of 2008 and batch.
11. 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. It is apparent from the pleadings
and record that when the merit list of APSP Battalion
constables, who were deputed to Excise Department is not
available as informed by the DG APSP Battalion, vide
proceedings dated 24.02.2012, 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 Rules 33 and 36 of the Andhra
Pradesh State 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 Rules 33 & 36 and considered
promotions to the next higher cadre of prohibition and excise
head constable in some Districts where there were vacancies.
12. 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 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 wants to unsettle the
settled seniority of Excise Constables issued by the 2nd
Respondent in the seniority list dated 15.06.2015 which was
prepared based on the date of joining on deputation in the
Prohibition & Excise Department and date of birth. Based on
the list of APSP Constables absorbed as Prohibition and 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
Rules 33 to 36 of APSSS Rules. Based on the list of absorbed
APSP Constables, the Nodal Prohibition and Excise
Superintendents concerned have prepared the seniority list of
Prohibition & Excise Constables based 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.
13. 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
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 notify any category to be excluded from
organization of 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/E, excluding all
categories of posts in the Special 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 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 Battalion or any unit. As per Rule 8(1)(a)
of the Presidential Order, 80% of the posts are to be filled by
direct recruitment from the local area of the unit and only 20%
can be recruited from outside the unit i.e., District. The Director
General, APSP Battalions vide C.No.363/A6/2012 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. Accordingly, an exercise
has been taken up for implementing the Presidential Order
taking the number of locals absorbed in the District and
proportional 20% 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., 80%.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 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 Constables in some
Districts where there are vacancies. Thereby the 1st Respondent
had grossly erred in issuing the impugned proceedings.
14. From the facts and the pleadings, this Court comes
to a clear conclusion that earlier, seniority list was prepared as
per the provisions of Rules 33 to 38 of the APSSS Rules which
include 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.
15. In the present case, it appears that seniority list
dated 15.06.2015 was prepared as per the provisions of Rules
33 to 38, which include the determination of seniority based on
the date of joining and age. Further, petitioners who are the
affected parties were not arrayed as party respondents to the lis
before this Court in the earlier round of litigation. As such,
orders passed by this Court in Writ Petitions No. 6701 and
31978 of 2018 are not binding on petitioners. 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 seniority list based on the merit obtained
in APSP Battalions as per Rules 33 of APSSS Rules. Therefore,
the settled final seniority list prepared and confirmed earlier
cannot be interfered with at this stage by the 1st 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 finds
that the 1st 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, without any
appeal being filed and without setting aside the said final
seniority lists prepared in various Districts.
16. This Court comes to a conclusion that seniority lists
dated 15.06.2015 prepared is as per the provisions 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 hereby
held that 1st 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 Writ Petition is therefore, allowed, setting aside
the impugned order dated 12.02.2020 of the 1st Respondent and
directing Respondents to continue Petitioners as Prohibition and
Excise Head Constables in accordance with the proceedings
dated 15.06.2015. No costs.
18. Consequently, Miscellaneous Applications, if any
shall stand closed.
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NAGESH BHEEMAPAKA, J
28th May 2025
ksld
