Telangana High Court
M.Shiva Kumar Reddy vs The State Of Telagnana And 3 Others on 28 May, 2025
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No.4754 OF 2020
O R D E R:
Heard Sri D. Linga Rao, learned counsel for
petitioner as well as learned Government Pleader for Prohibition
& Excise.
2. This Writ Petition filed by petitioner is to set aside
the proceedings dated 12-02 2020 issued by the 4th 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 of
Hyderabad vide Proceedings dated 15-06-2015, as valid and
legal.
3. It the case of Petitioner that he was initially
appointed as A.P.S.P. Constable at 7th battalion at Dichpally,
Nizamabad District on 14-10-1995 and later he was deputed to
work in Prohibition and Excise Department and subsequently
absorbed as Prohibition and Excise Constable vide proceedings
dated 28-05-2005, based on G.O.Ms. No. 1103, Revenue
(Exercise-1) Department, dated 17-08-2007. Petitioner
submitted willingness for absorption as a Prohibition and Excise
Constable 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 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, petitioner was shown at serial No.13, based on
which, he was promoted as Head Constable vide proceedings
dated 29-12-2017 issued by the District Prohibition and
Exercise Officer, Hyderabad and he reported to duty as such on
02-01-2018. While matter stood thus, the 4th Respondent
issued Proceedings dated 12-02-2020 wherein the final seniority
list dated 15-06-2015 was revised. In view of the said issuance
of revised seniority list, Petitioner's position in the seniority list
had completely 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 dated: 27-04-2012, passed in OA No. 7103 of
2010 and batch, which has become final, 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
vide circular dated 20-05-2024, had categorically held that no
request for revision of seniority 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 of Punjab 1, 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
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 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 making such a grievance. This along was sufficient to decline
interference under Article 226 and to reject the Writ Petition".
4. Petitioner 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 and if the same is directed to
(1998) 2 SCC 523
2001 (3) ALD 649 (DB)
be done at this stage, it would amount to revocation of the order
of promotion.
5. No Counter/rebuttal is filed on behalf of
Respondents, thereby, pleadings of Petitioners remained
unchallenged in the 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 writ petitions, for
proper adjudication of the present Writ Petition. It is contended
that 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
(Expect 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 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, 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 in
Cr. No.17657/2007/CPE/H3, dated: 22-05-2009, 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 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".
6. 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 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 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.
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. 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".
8. From the counter it is evident that it is an
undisputed fact that the Government circular No.
57759/Ser.A/2004-1, of GA (Ser.A) Department, dated
20-05-2004 had clarified 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 Service 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
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. Bajwa's case
(supra) which 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 disturbing the settled position which is not
justifiable". In the Present case, the Seniority list was
Communicated on 17-11-2014, 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 seniority list 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 2018
and batch.
10. 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
dated 28-02-2018 and Writ Petition No. 26855 of 2019 seeking
to prepare seniority list on 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 final seniority list dated 07-04-2015 was issued
after a provisional seniority list was issued in Cr. No.
A2/166/2011, dated 17-10-2014 and after considering the
objections filed by the aggrieved parties, the final seniority 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
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 the 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 was
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, this Court also upheld the orders
issued in GOMs.No.1103 dated 17.08.2007, by order dated
26.03.2009 in Writ Petition No.8573 of 2008 and batch.
13. 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 the 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 the said Rules and considered
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.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 want to unsettle the
settled seniority of Excise Constables 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 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
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
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 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
24.02.2012 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 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., 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 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 1st 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, which include determination of seniority based on the
date of joining and age. Further, petitioner who is the affected
party was not arrayed as party respondent to the lis before this
Court in the earlier round of litigation. As such, orders passed
by this Court in Writ Petition No. 6701 and 31978 of 2018 are
not binding on petitioner.
17. 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 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
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.
18. This Court therefore, comes to a conclusion that
seniority list 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 holds 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. As a
consequence of the same, the Writ Petition is allowed setting
aside the impugned order dated 12.02.2020 of the 1st
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 15.06.2015. No costs.
19. Consequently, Miscellaneous Applications, if any
shall stand closed.
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NAGESH BHEEMAPAKA, J
28th May 2025
ksld
