IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE FIFTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE G.BHAVANI PRASAD WRIT PETITION NO : 19234 of 2008 Between: R.Lakshmana Murthy S/o.R.Krishna Murthy O/o. Director of Distilleries & Brewaries, R/o. Flat No.111, 'B' Block, Dattasai Apartments, RTC 'X' Roads, Hyderabad. ..... PETITIONER AND 1 The Government of Andhra Pradesh, rep. by its Special Chief Secretary, Revenue (Ex.I) Department, Secretariat Buildings, A.P., Hyderabad. 2 The Commissioner of Prohibition and Excise, A.P., Hyderabad. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to to issue a writ, order or direction more particularly one in the nature of Writ of Certiorari call for the records leading upto and inclusive of the orders dt. 4.4.2007 in O.A.No.674/2007 as conﬁrmed in Review M.A.No.1322/2007 dt. 18.7.2008 on the ﬁle of A.P. Administrative Tribunal, at Hyderabad, and set aside the same as illegal, arbitrary and consequently allow the O.A. as prayed for and pass such other order or orders. Counsel for the Petitioner:MR.T.V.S.KUMAR Counsel for the Respondent No.: GP FOR SERVICES II ORDER: (Per Sri Justice GHULAM MOHAMMED) This Writ Petition has been ﬁled seeking a direction in the nature of writ of Certiorari calling for the records relating to and connected with order-dated 4.4.2007 in O.A.No. 674 of 2007 as conﬁrmed in Review M.A.No. 1322/2007 dated 18.7.2008 on the ﬁle of A.P. Administrative Tribunal, Hyderabad and set aside the same as illegal, arbitrary. Petitioner herein is the applicant in O.A.No. 674 of 2007 and Review M.A.No. 1322 of 2007 on the ﬁle of the A.P. Administrative Tribunal, Hyderabad. Brief facts of the case are that the petitioner herein was appointed as LDC consequent to selection by the Madras Public Service Commission on 21.12.1942 in the oﬃce of the Inspector General of Police, Composite Madras State and in 1946, he was transferred to Madras Excise and Prohibition Department and was conﬁrmed as LDC and promoted as UDC from 2.3.1949. Consequent to merging of Excise Prohibition staﬀ into Police, he was posted as UDC in the oﬃce of the Deputy Inspector General of Police, Railways and CID, Kurnool. Further, the said oﬃce was merged in the oﬃce of the Additional Inspector General of Police, Railway and CID. The case of the petitioner- applicant was conﬁrmed as UDC with eﬀect from 1.11.1956. When the integration of states took place, the cadres of both the regions UDCs were equated with second grade clerks and seniority list was prepared vide G.O.Ms.No. 1998 GAD (SR) dated 9.12.1957 and applicant was shown at serial number one. As he was denied promotion, on the basis of seniority which is in breach of Rule 115 of S.R.Act, he approached the Review Committee constituted under the said Act. The said body after considering all the facts and circumstances was pleased to issue G.O.Ms.No. 334 Home Pol.(A) dated 4.8.1993 and sent the same to the Director General of Police and Additional Director General of Police CID for compliance of orders. As the said G.O was not implemented the petitioner ﬁled O.A. No. 3251/94 seeking a direction to the respondents to implement the said G.O. It is stated that the ﬁrst respondent in the O.A.No. 674 of 2007 was also respondent in the said O.A.No. 3251/94. The matter ultimately went up to the Supreme Court and the Supreme Court conﬁrmed the said orders conferring all the consequential beneﬁts. It is further stated that when the respondents partially implemented the said orders the petitioner was constrained to ﬁle O.A.No. 1651 of 2000 seeking for a direction to the respondents to promote the petitioner as P.A. to S.P on par with that of his juniors and the Tribunal allowed the said O.A and the Police Department implemented the said orders by giving him notional promotion as PA to SP with all beneﬁts vide proceedings dated 18.11.2002. It is submitted that he was given notional beneﬁts in the Police Department up to 31.1.1961, but from 31.1.1961 to 31.1.1975 though he rendered service in the Excise Prohibition Department, he was not given further notional promotion in the Excise Department by placing him in the equal scale of pay of PA to SP. It is also submitted that the petitioner submitted a representation seeking notional promotion as well in the Excise Department to the second respondent herein and he in turn issued proceedings dated 22.1.2004 rejecting his claim. Aggrieved by the same, he ﬁled O.A.No. 2121 of 2004, which was initially dismissed by Tribunal by an order dated 26.8.2004, there after the petitioner ﬁled Review M.A.No. 2956 of 2004 in O.A.No. 2121 of 2004 which was disposed of by an order dated 23.3.2005 by reviewing the earlier order directing the respondents to verify the relevant records and if any person who is a non-graduate and similarly placed persons as the petitioner, was promoted as Excise Inspector or to the higher post, the case of the petitioner also shall be considered for such notional promotion. Since the orders of the Tribunal were not complied with, the petitioner ﬁled C.A.No. 482 of 2005 and after service of notice in C.A, the respondents have produced memo dated 10.8.2005 rejecting the claim of the petitioner. The Tribunal observed that as the said order dated 10.8.2005 is not in compliance of the order of the Tribunal in M.A.No. 2956/2004 in O.A.No. 2121/2004 further directed to pass orders within 4 weeks. It is also submitted that the ﬁrst respondent issued proceedings dated 10.11.2005 rejecting the claim of the petitioner on the same grounds as mentioned in Memo dated 10.8.2005. Aggrieved by the same, the petitioner ﬁled O.A.NO. 674 of 2006 seeking to set aside the order dated 10.11.2005. The Tribunal dismissed the O.A. by an order dated 4.4.2007. Being aggrieved by the same, he ﬁled the present Writ Petition. The learned counsel appearing for the petitioner vehemently contended that the case of the petitioner comes under the purview of Rule 115 of Service Rules and the Excise Rules are not applicable and as such the petitioner is entitled for protection of his service and incidental beneﬁts. It is further contended that the promotion given to the petitioner up to 11.2.1961 till he worked in the police department and thereafter he was not given any promotion in the excise department and as such he is entitled for promotion as a matter of right in the Excise Department. It is further contended that there are no rules framed prior to 16.2.1961 and as such the qualiﬁcation prescribed vide G.O.Ms.No. 108 dated 25.1.1961 cannot be made applicable to the petitioner since he has joined in the Excise Department on 31.1.1961 from the Ministrial Staﬀ. The Rules issued in G.O.Ms.No. 202 dated 16.2.1961 governed in respect of ministerial staﬀ. Therefore, the Tribunal missed this aspect while considering the case. On the other hand, the learned Government Pleader contended that pursuant to the order passed by the Tribunal dated 10.11.2005 the Government have examined the matter, rejected the case of the petitioner saying that he has not passed the departmental test, which is one of the requisite qualiﬁcations for appointment of Excise Superintendent and Deputy Commissioner and also contended that they have veriﬁed the record and the applicant was in Excise and Prohibition Department with eﬀect from 31.1.1961 and retired on 31.1.1975 and he was given notional promotion as PA to SP with all consequential beneﬁts and he was given notional beneﬁts in the police department up to 31.1.1961 but from 31.1.1996 to 31.1.1975 even though he has rendered service in the Excise and Prohibition Department he was not given notional promotion in the said department. The A.P. Excise Service Rules were issued in G.O.Ms.NO. 108 GAD dated 25.1.1961 and the said rules have been given retrospective eﬀect from 1959 and according to the said rules one must hold a decree of a University and should have put in three years of service in the feeder cadre. As the applicant was not qualiﬁed his request was rejected for notional promotion as Assistant Excise Superintendent vide memo dated 10.11.2005. Heard the learned counsel for the petitioner as well as the learned Government Pleader for Services II. We have perused the order impugned. It is not in dispute that the applicant ﬁled O.A. against memo dated 10.11.2005, through which, his claim for notional promotion to the post of Assistant Excise Superintendent was rejected. The Tribunal after considering the claim of the applicant dismissed the O.A holding that the respondents have examined the claim of the applicant with reference to the rules and have granted notional promotion in the police department, which is perfectly legal and valid. Against that order, he ﬁled a review and the same was dismissed holding that the order of the Tribunal does not suﬀer from any error apparent on the face of the record and it was also held that if the contentions of the applicant are to be accepted it would lead to a situation where the applicant would be able to claim promotion either notional or actually in two departments separately. Admittedly, the applicant is working in ministerial establishment of the department. The post of Assistant Excise Superintendent has to be ﬁlled up from the category of Oﬃce Superintendents. The requirement under the Rules of A.P. Excise Service were framed under the proviso to Article 309 of the Constitution of India vide G.O.Ms.No. 108 GAD dated 25.1.1961. The said rules have been given a retrospective eﬀect from 1.1.1959. It is necessary to extract the qualiﬁcation prescribed for the post of Assistant Excise Superintendent, which is as followed: “----(2) By transfer- (a) from the category of Circle Inspectors and Assistant Inspectors of Excise. (i) Must have put in atleast three years of service in the category; and (ii) Must have passed the following tests: A. Criminal Law. B. Account Test for Subordinate Officers, Part-I C. Third Class Language Test in any two of the following languages of which one shall be Telugu:- Telugu, Hindi or Urdu. (b) From the category of Oﬃce Superintendents:- (i) Must possess the degree of B.A., or B.Sc., of University in the State; (ii) Must have put in at least three years of service in the category; (iii) Must be at least 165 cm in height and alteast 81 cm round the chest on full expiration with a chest expansion of at least 5 cm. (iv) Must have passed the following tests; A. Criminal Law. B. Account Test for Subordinate Officers, Part-I C. Third Class language Test in any two of the following languages of which one shall be Telugu. Telugu, Hindi or Urdu.” The requirement under the aforesaid rule is that one must possess a degree of B.A., or B.Sc., of University in the state and one must have put in at least three years of service in the category of Oﬃce Superintendent. In this case the petitioner-applicant does not possess graduation qualiﬁcation, therefore, rejected the claim of the petitioner. Even on review petition ﬁled by the petitioner, the Tribunal dismissed the review petition holding that if the contentions of the applicant are to be accepted, it would lead to a situation where the applicant would be able to claim promotion either notional or actually in two departments separately. Therefore, we do not ﬁnd any inﬁrmity in the order under review and there is no error committed by the Tribunal in rejecting the review petition, so as to set aside the same. Accordingly, the Writ Petition fails and the same is dismissed. No order as to costs. _____________________________ GHULAM MOHAMMED ,J ___________________________ G.BHAVANI PRASAD, J Dt. 05.09.2008 KA ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 The Government of Andhra Pradesh, rep. by its Special Chief Secretary, Revenue (Ex.I) Department, Secretariat Buildings, A.P., Hyderabad. 2 The Commissioner of Prohibition and Excise, A.P., Hyderabad. 3. CC to G.P. for Services-II, High Court of A.P. Hyderabad. 2. 2CD copies