Andhra Pradesh High Court - Amravati
C.Madhu Babu vs The State Of Andhra Pradesh on 28 August, 2024
IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI
HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
WRIT PETITION No.18135 of 2023
C. Madhu Babu, S/o C. Ravindranath Kumar and
another
... Petitioner
Versus
The State of Andhra Pradesh, Rep. by its
Principal Secretary and 9 others
... Respondents
Counsel for the petitioners : Sri Kavitha Gottipati
Counsel for respondents : GP for Services and Sri
P.A.V. Padmanabham
:: ORDER ::
This writ petition is filed to declare the proceedings issued by respondent No.2 vide Cr.No.12022/2/2023-CPE/B1 dated 03.07.2023, Ex.P2, integrated seniority list of Assistant Prohibition and Excise Superintendent, Multi Zones I and II for the years, 2018-19 and 2019-20 for promotion to the post of District Prohibition and Excise Officer and consequential gazette notification dated 03.07.2023, as illegal, arbitrary and contrary to Rule 36 of the Andhra Pradesh State and Subordinate Service Rules, 1996 (for short 'the Rules') and to set aside the same. Page 2 of 14
SRSJ WP No.18135 of 2023
2. The averments in the affidavit, in brief, are that petitioners 1 and 2 joined in service as Sub-Inspector on 02.11.1996. Later they were promoted as Excise Inspectors in the years, 2004-05 and 2005-06 respectively. On 04.07.2019, both the petitioners were promoted as Assistant Excise Superintendents (AES). Respondent No.2 issued gazette notification vide CR No.12022 / 2 / 2023/CPE/ B1 dated 05.06.2023, communicating provisional multi zonal seniority list in the cadre of Assistant Prohibition and Excise Superintendents (for short 'APES') of Multi Zone-I and II and integrated provisional seniority list for the years, 2018-19 and 2019-2020 and called for objections. Petitioners and others submitted objections.
b) The post of APES is multi-zonal, and the next higher promotion post is the District Prohibition and Excise Officer, a state cadre post. For the said post, the department must prepare a multi-zonal final integrated seniority list by following Rule 36 of the Rules. Respondent No.2 failed to prepare the seniority list between two multi zones as per Rule 36 (iii) of the Rules, which prescribes that in case the commencement of probation is the same, whoever is aged shall be the senior. In the final seniority Page 3 of 14 SRSJ WP No.18135 of 2023 list, the names of petitioners 1 and 2 are shown at serial Nos.36 and 39 and their dates of birth are 01.07.1964 and 05.06.1964 respectively. The date of their regularization is shown as 27.09.2018. Though the petitioners are older than other persons, petitioners' names are shown below their names, in the integrated / final seniority list. Hence, the writ petition.
3. On 21.07.2023 an interim order was granted directing the authorities not to effect promotions and the order is being extended from time to time. On 30.08.2023, the interim order was modified to the extent of directing respondent No.1 to proceed with promotions in the cadre of Assistant Excise Superintendents to the post of Excise Superintendents, if the candidates are otherwise eligible. It was made clear that promotions are subject to the result of the writ petition.
4. Counter affidavits and vacate stay petitions are filed by official and unofficial respondents. In the counter affidavit filed by respondent No.1, it was contended, inter alia, that petitioners were initially appointed as Prohibition and Excise Sub Inspectors in Zone III on 02.11.1996 and later they were promoted as Prohibition and Excise Inspectors. Respondents 3 and 4 belong Page 4 of 14 SRSJ WP No.18135 of 2023 to Zone-II, respondents 5 to 9 belong to Zone-I and respondent No.10 belongs to Zone-IV. The feeder category for the post of APES is Excise Inspector. Excise Inspector is a zonal post, whereas the APES is a multi-zonal post. To effect promotions to APES, seniority of the Prohibition and Excise Inspectors of the respective multi zones was prepared. Integrated seniority lists were issued for multi-zone-I and multi-zone-II, by following Rules 33(a), 33(b), 34, and 36(iii) of the Rules. The petitioners and respondent No.10 belong to multi zone-II (zones III and IV respectively) and their seniority was fixed according to their dates of regularization of services in the cadre of Prohibition and Excise Inspectors. Respondent No.10 and petitioners 1 and 2 were shown at serial Nos.198, 236, and 240 respectively. The same was published in the gazette dated 23.04.2019. A similar exercise was undertaken in respect of respondents 3 to 9 in multi- zone-I and their inter-se seniority was fixed and settled. Accordingly, promotions to the cadre of APES were affected on 02.07.2019 based on the inter-se seniority list of multi zone-II in the order of seniority in the feeder category and by following the rule of reservation. Later a provisional seniority list of APES for, Page 5 of 14 SRSJ WP No.18135 of 2023 2017-18 to 2019-20 was communicated to all stakeholders, and objections were called for. After disposing of the objections and conducting a review of DPC, a final seniority list of APES of multi zones-I and II and an integrated seniority list of APESs for the panel years, 2017-18 to 2019-20 were communicated and was published in the gazette No.81 dated 13.07.2023.
b) The regularization date of respondents 3 to 9 in multi-zone - I as well as respondent No.10 and the petitioners in multi-zone - II, is the same, i.e. 27.09.2018. The petitioners were placed on probation on 14.05.2003 whereas respondent No.10 was placed on probation on 01.09.2000, in the feeder category i.e. Excise Inspector. In the same order of preference, the unofficial respondents and petitioners were promoted to the cadre of APES. The date of regularization of respondent No.10 in multi zone-II and the date of regularization of respondents 3 to 9 in multi zone-I is 27.09.2018. Therefore, by following the procedure mandated under Rule 36 of the Rules, respondent No.10, whose date of birth is 12.06.1969, being the youngest among all the unofficial respondents, was placed below unofficial respondent No.9, whose date of birth was 25.08.1967. Petitioners, who were Page 6 of 14 SRSJ WP No.18135 of 2023 juniors to unofficial respondent No.10 were placed below respondent No.10. Eventually, prayed to dismiss the writ petition.
5. Counter affidavits and vacate stay petitions were also filed by unofficial respondents with similar pleadings.
6. Reply affidavit was filed on behalf of the petitioners. It was contended that petitioners and unofficial respondents belong to different multi zones and are in the cadre of Assistant Excise Superintendent which is a feeder category for the next level promotion post as Excise Superintendent. The petitioners and unofficial respondents were regularized on 27.09.2018, in the cadre of Assistant Excise Superintendent. The next promotion is Excise Superintendent. The interpretation of the respondents by placing reliance on Rules 33 and 34 is erroneous. Since the petitioners and unofficial respondents were appointed to the grade of APES on the same dates, the seniority has to be considered from the date of their appointment in that grade. Thus, prayed to allow the writ petition.
7. Heard Smt. Kavitha Gottipati, learned counsel for the petitioner, and Sri P.A.V. Padmanabham, learned counsel for Page 7 of 14 SRSJ WP No.18135 of 2023 respondent No.9, and Sri R.S. Manidhar Pingali, learned Assistant Government Pleader for Services for the official respondents.
8. Learned counsel for the petitioners reiterated the contentions as per the averments of the writ and reply affidavits. Learned counsel appearing on behalf of official and non-official respondents reiterated the contentions as per the averments of respective counter-affidavits.
9. The point for consideration is whether the final seniority list in the cadre of APES for multi zones I and II and integrated seniority of APESs for the years, 2017 -18 to 2019-20, prepared by respondent No.2 vide CR.No.12022/2/2023/CPE/B1 dated 03.07.2023 and published in gazette No.81 dated 13.07.2023 are as per the Rules? If not, they are liable to be set aside?
10. Shorn of the details, the posts of Sub-Inspector of Excise and Excise Inspector are zonal. The post of APES is multi-zonal and the post of Excise Superintendent is state-level. The Petitioners were borne in the cadre of Prohibition and Excise Sub-Inspector in zone-III, on 02.11.1996 and later they were Page 8 of 14 SRSJ WP No.18135 of 2023 promoted to Prohibition and Excise Inspectors and to Assistant Excise Superintendents. Respondent No.10 was borne in the cadre of Prohibition and Excise Sub-Inspector in Zone IV and later was promoted as Prohibition and Excise Inspector. Respondents 5 to 9 belong to zone-I and respondents 3 and 4 belong to zone-II. The petitioners and respondents 3 to 10 except respondents 4 and 9 were borne in the cadre of Prohibition and Excise Superintendent in their respective zones. The feeder category for the post of APES is Excise Inspector. Since APES is multi zonal post, an integrated seniority list was prepared by clubbing zones I and II as multi-zone-I and zones III and IV as multi-zone-II. Multi-zone seniority list was published in AP Gazette dated 23.04.2019. Petitioners were shown at serial Nos.236 and 240, whereas respondent No.10 was shown at serial No.198 basing on their regularization as Prohibition and Excise Inspectors. Admittedly respondent No.10 is younger than the petitioner, however, given his entry earlier to the petitioners he was shown above the petitioners, when the multizone seniority list was prepared.
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SRSJ WP No.18135 of 2023
11. The date of birth of respondent No.10 is 12.06.1969 and his date of regularization as Prohibition and Excise Inspector is 01.09.2000. The dates of birth of petitioners 1 and 2 are 01.07.1964 and 05.06.1964 respectively and their date of regularization is 14.05.2003. Thus, based on their regularization as Prohibition and Excise Inspectors, multi-zone seniority list was prepared and the same was settled. The petitioners never challenged the said seniority list. However, when it comes to the Excise Superintendent, the petitioners are claiming to place them even above respondent No.10, who is admittedly above the petitioners in the multizone seniority list.
12. Rule 33(a), 34 and 36 (i)(iii) which are relevant for the discussion are extracted hereunder:
Rule 33(a) : The seniority of a person in a category shall be determined by the date of his first appointment. Rule 34 : Where as integrated or common seniority list of a particular class, or category or grade in any service belonging to different units of appointment has to be prepared, for the purpose of promotion or appointment by transfer to a class or category, having different units of appointment or for any other purpose, such an integrated or common seniority list shall be prepared with reference Page 10 of 14 SRSJ WP No.18135 of 2023 to the provision of sub-rule (a) of rule 33, provided that the seniority list of the persons inter-se belonging to the same units shall not be disturbed. (emphasis is mine) Rule 36 (ii): In respect of the persons promoted or appointed by transfer (involving promotion), the dates from which they were placed on their probation;
(iii) In respect of persons covered under item (ii) above, in case the date of commencement of probation is the same, whoever is aged shall be the senior;
13. Thus, Rule 36 speaks about inter-se seniority; Rule 34 speaks about the preparation of an integrated or common seniority list of persons belonging to different units of appointment. Both the rules operate at different levels.
14. In fact, while preparing an integrated or common seniority list of persons belonging to different units of appointment, as mandated under Rule 34 of the Rules, the seniority list of persons inter-se, belonging to the same units shall not be disturbed. One should not be oblivious to the same.
15. When the multi-zone seniority list was prepared, respondent No.10, who belongs to zone IV was shown at serial Page 11 of 14 SRSJ WP No.18135 of 2023 No.198 and petitioners were shown at 236 and 240 respectively, based on their regularization as Prohibition and Excise Inspectors. It is also pertinent to mention here that, as seen from the material on record, petitioner No.2 is older than petitioner No.1 by 26 days. However, petitioner No.1 was shown at 236 and petitioner No.2 was shown at serial No.240. The said seniority list of multi-zone-I was fixed and settled. Keeping that in mind, without disturbing the inter-se seniority list, the seniority list impugned in the writ petition was prepared. In the multi-zonal integrated final seniority list, petitioners were placed at serial Nos.36 and 39, and unofficial respondents were placed above the petitioners. While preparing the integrated seniority list, the official respondents, in fact, considered the objections of the petitioners, and by adhering to the procedure mandated under Rule 34 of the Rules, the list was prepared. Respondent No.10 herein, who is above petitioners at serial No.198 in multi zone-II seniority list, is placed at serial No.32. The petitioners are shown below respondent No. 10.
16. Regularization of respondents 3 to 9 in multi zone-I and regularization of respondent No.10 in multi zone-II is on Page 12 of 14 SRSJ WP No.18135 of 2023 27.09.2018. By taking the dates of birth of the individuals, into consideration and without disturbing the inter se seniority list, the final integrated seniority list was prepared by following Rules 34 and 33(a) of the Rules.
17. It is pertinent to mention here that when a multi-zone seniority list was prepared, based on the date of regularization in the cadre of Prohibition and Excise Inspector, respondent No.10 is shown as serial No.198 and petitioners 1 and 2 are shown at serial Nos.236 and 240 respectively. If this Court had to accept the contention of learned counsel for the petitioners that the seniority list must be prepared based on feeder category, respondent No.10, who stood at serial No.198 in the multi-zone seniority list would be placed below the petitioners because of his age, though his date of regularization is before the regularization of the petitioners.
18. Indeed, the date of regularization of respondent No.10 and other respondents is the same. Therefore, considering their dates of birth, respondent No.10 was placed below respondent No.9. Thus, official respondents strictly adhered to the procedure mandated under Rules 33(a), and 34. Therefore, this Court does Page 13 of 14 SRSJ WP No.18135 of 2023 not find any illegality in preparing the integrated seniority list impugned in the writ petition. During the arguments learned counsel for the petitioners would submit that one of the petitioners was promoted and the other is yet to be promoted based on the integrated seniority list. The said submission is placed on record.
19. Given the discussion supra, this court doesn't find merit in the writ petition and thus, the writ petition is dismissed. However, No costs.
As a sequel, pending miscellaneous petitions, if any, shall stand closed.
___________________________ JUSTICE SUBBA REDDY SATTI Date : 28.08.2024 IKN Page 14 of 14 SRSJ WP No.18135 of 2023 IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI HONOURABLE SRI JUSTICE SUBBA REDDY SATTI WRIT PETITION No.18135 of 2023 Date : 28.08.2024 ikn