IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TENTH DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT PETITION NO : 24108 of 2008 Between: 1 The Govt of A.P rep.by its Special Chief Secretary to Government Revenue (Excise-1) Department Secretariat, Hyderabad 2 The Commissioner Prohibition & Excise Department Govt of A.P,Hyderabad 3 The Secretary To Government Of G.A.D Department(SPF) Secretariat,Hyderabad ..... PETITIONER(S) AND Pervar Gangadhar Prohibition and Excise Superintendent Presently working as Division Officer Mc Dowells Nacharam,Hyderabad .....RESPONDENT 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" calling for the records relating to the orders of the Hon'ble A.P Admn Tribunal,Hyderabad passed in O.A No.3981/2005 dt 19-12-2006 as being erroneous illegal and unreasonable and quash the same and pass Counsel for the Petitioner:GP FOR SERVICES II Counsel for the Respondent No.: MR.K.RAM REDDY WRIT PETITION NO : 25052 of 2008 Between: 1 The Government of Andhra Pradesh,Rep. by its Special Chief Secretary to Government, Revenue (Excise-I) Department, Secretariat, Hyderabad. 2 The Commissioner, Prohibition and Excise Department, Government of A.P. Hyderabad. ..... PETITIONER(S) AND Pervar Gangadhar, Prohibition and Excise Superintendent, Presently working as Distillery Officer, Mc. Dowells, Nacharam, Hyderabad. .....RESPONDENT 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 calling for the records relating to the Orders of the Hon'ble A.P. Admn., Tribunal, Hyderabad passed in OA NO. 2074/2005 dt. 19-12-2006 as being erroneous, illegal, and unreasonable and quash the same and pass such other order or orders Counsel for the Petitioner:GP FOR SERVICES II Counsel for the Respondent No.: MR.K.RAM REDDY The Court made the following : THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NOS.24108 AND 25052 OF 2008 COMMON ORDER: (Per GM,J) These two writ petitions seek to invoke our certiorari jurisdiction to quash the common order dated 19.12.2006 rendered by the Andhra Pradesh Administrative Tribunal (for brevity, ‘the Tribunal’), Hyderabad, in O.A.Nos.3981 of 2005 and 2074 of 2005. By the said decision, the Tribunal quashed Memo No.668/Excise(1)/2004-64 dated 30.03.2005 while holding that the applicant was entitled to regularization with effect from 01.08.1987 and directed his placement in the seniority list issued in G.O.Ms.No.501, Revenue (Excise.I) Department, 15.04.2005 in accordance therewith and to effect his further promotion to the next higher cadre by giving him notional seniority, if necessary. For the sake of convenience, the parties are referred to as per their array before the Tribunal. The brief facts of the case are as follows: O.A.No.3981 of 2005 was filed by the applicant challenging U.O. Note No.947/DPF.A/81-1 dated 25.09.1981 and the consequential U.O. Note No.555/DPF.A/91-1 dated 04.10.1991 issued by the respondents on the ground that they were illegal and violative of para 5(2)(c) of the Presidential Order and consequently seeking a direction to the respondents to restore the applicant’s original date of regularization as 01.08.1987 instead of 05.01.1989 and accordingly modify the seniority list of Assistant Excise Superintendents in Multi Zone-III. The prayer of the applicant in O.A.No.2074 of 2005 was to call for the records relating to Memo No.668/Excise(1)/2004-64 dated 30.03.2005 issued by the first respondent therein and also the final integrated seniority list and Multi Zonal Seniority list in respect of Assistant Excise Superintendents issued in G.O.Ms.No.501, Revenue (Excise.I) Department, dated 15.04.2005 which was published in A.P. Gazette No.228 dated 16.04.2005 and set aside the same insofar as the seniority position of the applicant is concerned as illegal and arbitrary and contrary to U.O. Note dated 20.11.1982 and para 5(2)(c) of the Presidential Order and further direct the respondents to fix the seniority of the applicant below Sl.No.223 in the integrated seniority list and below Sl.No.111 in the Multi Zone-III seniority list of Assistant Excise Superintendents respectively. The applicant was appointed as an Assistant Excise Superintendent and joined as such on 01.08.1987 in Multi Zone-II. Thereafter, he made a representation to the Government on 22.10.1988 requesting transfer from Multi Zone-II to Multi Zone-III as his spouse was working as a Lecturer in JNTU, Hyderabad. The Government, after considering his application in the light of the instructions contained in Para 5(2)(c) of the Presidential Order and U.O. Note dated 20.11.1982, issued G.O.Ms.No.880, Revenue (Ex.) Department, dated 26.12.1988, transferring him from Multi Zone-II to Multi Zone-III in public interest. The seniority of the applicant was shown as per the original date of regularization in the integrated seniority list prepared by the Commissioner of Excise in the years 1994 and 2001 and the Government in the year 1997. The Government earlier issued G.O.Ms.No.569, General Administration (Service.A) Department, dated 22.08.1977, framing adhoc rules for inter local cadre transfers. Thereafter, U.O. Note dated 03.10.1977 was issued instructing that the transfer of spouses of Government Servants from one local cadre to another is permissible under the definition of ‘public interest’. The Government also issued G.O.Ms.No.539, General Administration (Services.A) Department dated 15.10.1981 in view of the insertion of clause (d) to para 5(2) of the Presidential Order, amending the relevant adhoc rule for effecting local cadre transfers. The relevant portion of G.O.Ms.No.539 dated 15.10.1981 reads as follows: “NOTIFICATION In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India and of all other powers hereunto enabling, the Government of Andhra Pradesh hereby makes the following amendment to the adhoc rule issued in the notification in G.O.Ms.No.569, General Administration (Services-A) Department, dated the 22nd August, 1977, namely: AMENDMENT For the aid ad-hoc rule, the following ad-hoc rule, shall be substituted, namely: “Notwithstanding anything in the Andhra Pradesh State and Subordinate Service Rules, or the Special or the adh-hoc rules, transfer of a person holding post in a category organized into local cadre, under paragraph 3 of the Andhra Pradesh Public Employment (Organisation of Local Cadres and Regulations of Direct Recruitment) Order, 1975 as amended, from one local cadre to another may be made by the Government. (a) against a vacancy where no qualified or suitable person is available in the latter cadre or where such transfer is otherwise considered necessary in the public interest; and (b) on reciprocal basis, subject to the condition that transferee shall be assigned seniority with reference to the date of transfer in the cadre to which he is transferred.” In accordance with Para 5(2)(c) of the Presidential Order, the applicant was transferred in public interest. Para 5(2)(d) of the Presidential Order states that the transfer of a person from one local cadre to another local cadre on reciprocal basis can be made subject to the condition that the transferee shall be assigned seniority with reference to the date of his transfer in the cadre to which he is transferred. U.O. Note dated 25.09.1981, relied on by the respondents, relates to the instructions given with regard to transfer of spouses of Government Servants under the caption of public interest. The relevant instruction reads as follows: “3. The persons transferred should take last rank in the category in the cadre to which transfer is effected so that the local candidates may not be affected adversely, in direct recruitment, as far as possible.” In U.O. Note dated 04.10.1991, the relevant portion reads as follows: “(3) that the persons transferred should take last rank next to the last regular candidate in the category in the cadre to which transfer is effected and also forgo seniority in the local cadre from which transfer is sought.” However, the amended adhoc rule in G.O.Ms.No.539 dated 15.10.1981 clearly states that only if a person is transferred on reciprocal basis such transferee shall be assigned seniority with reference to the date of his transfer in the cadre to which he is transferred. When a person is transferred in public interest, such a condition does not apply. Therefore, the instructions given in U.O. Notes dated 25.09.1981 and 04.10.1991 extracted hereinabove are contrary to Para 5(2)(c) of the Presidential Order and the adhoc rule, whereunder the applicant’s transfer was considered and effected. The Tribunal considered this aspect, giving due regard to the non obstante clause used in the adhoc rule issued in G.O.Ms.No.539 dated 15.10.1981, and held that the executive instructions relied upon by the Government run contrary to the statutory rules framed in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India and the transfer of the applicant was held to have been made in public interest, permissible under the relevant Rules. The Tribunal therefore allowed the O.As. filed by the applicant and issued consequential directions to the respondents, as aforestated. Challenging the same, the present writ petitions are filed. Heard the learned Government Pleader for Services-II for the petitioners and Sri D.Prakash Reddy, learned senior counsel representing Sri K.Ram Reddy, counsel for the respondent/applicant. The learned Government Pleader submitted that the Tribunal committed a serious error and irregularity in allowing the O.As. and directing the respondents to modify the seniority list insofar as the applicant is concerned as the final seniority list issued in G.O.Ms.No.501 dated 15.04.2005 has to be accepted in toto or rejected in toto and the Tribunal ought not to have given a positive direction to modify the seniority of the applicant. All the more so, as the matter is seized by the Supreme Court in SLP (Civil) No.9135 of 2004. The learned Government Pleader drew our attention to the order dated 24.12.2003 passed by this Court in W.P.No.4272 of 2001 and batch and particularly the portion of the said order which inter alia reads as follows: “Therefore, in order to put a quietus to the matter, we issue the following directions: (i) The Government shall prepare a panel of Assistant Proh. & Excise Superintendents Zone-Wise for the year 1982-83 onwards basing on the principles of merit and ability as already assessed by the D.P.C. and final seniority list shall be prepared after giving opportunity to the concerned persons. (ii) Multi-zonal panel for Multi-zones I, II and III shall be prepared from 1982-83 onwards keeping in view the provisions contained in the relevant General Rules or Special Rules as the case may be and finalise the same after giving opportunity to the persons concerned.” He further contended that the applicant joined in service on 01.08.1987 and made a request for transfer from Multi Zone-II to Zone- III on the ground that his spouse was working as a Lecturer in JNTU and his request was acceded to and G.O.Ms.No.880 dated 26.12.1988 was issued. He contended that the applicant had sought for transfer without completing the requisite two years period of probation in Multi Zone-II but nonetheless he had been transferred at his own request and such request transfer cannot be said to have been made in public interest. He contended that when objections were called for, some objections were received and considering the same, the seniority list in question was prepared and issued. He accordingly submitted that the applicant was liable to take the last rank among the regular candidates in the transferred Zone with reference to the date of his transfer but not from the original date of his regularization and that the Tribunal had overstepped its jurisdiction in giving a direction to modify the seniority of the applicant under the impugned common order, which was liable to be set aside. On the other hand, the learned senior counsel, Sri D.Prakash Reddy, vehemently contended that the petitioner joined in service on 01.08.1987 in Multi Zone-II and as his spouse was working as a Lecturer in JNTU, he had made a representation to the Government to transfer him from Multi Zone-II to Multi Zone-III and the Government, after careful consideration of his representation and Para 5(2)(c) of the Presidential Order, issued G.O.Ms.No.880 dated 26.12.1988 transferring him to Multi Zone-III in public interest. He argued that when the transfer was made in public interest, the applicant does not lose his seniority from the original date of regularization and his seniority continues to be reckoned from that date even in the transferred zone, namely, Multi Zone-III. He submitted that the present case has nothing to do with the matter pending before the Supreme Court wherein the issue of seniority as opposed to merit and ability is involved. He drew our attention to G.O.Ms.No.569 dated 22.08.1977 and G.O.Ms.No.539 dated 15.10.1981 and submitted that the transfer made on the basis of the spouse working elsewhere was treated as a transfer made in public interest and once the subject transfer was made in public interest, the seniority of the applicant remained unaltered unlike in the case of a transfer made on reciprocal basis in which case the transferee was liable to take the last rank among regular candidates in the transferred zone. He further submitted that in the earlier seniority lists prepared by the Commissioner of Excise in the years 1994 and 2001 and by the Government in the year 1997, the seniority of the applicant was rightly shown, taking into account his original date of regularization as 01.08.1987 and only in the seniority list prepared and issued in G.O.Ms.No.501 dated 15.04.2005, the seniority of the applicant was changed taking into account the date of his transfer to Multi Zone-III. He submitted that the Tribunal had considered all these aspects in detail and rightly allowed the O.As. filed by the applicant and the findings given by the Tribunal did not call for any interference by this Court. In view of the rival contentions raised by either side, the question that arises for our consideration is as to whether the impugned common order rendered by the Tribunal suffers from any jurisdictional error? We have perused the impugned common order passed by the Tribunal and the material placed on record. The contention of the learned Government Pleader, that the Tribunal ought to have either upheld the seniority issued in G.O.Ms.No.501 dated 15.04.2005 in toto or quashed the same in toto and quashing the same qua the applicant alone is not legal, does not find favour with this Court. When the applicant clearly sought in his prayer for a direction to modify the seniority list insofar as he is concerned and to issue consequential directions, there is no illegality in the order passed by the Tribunal. The petitioner made a request for his transfer on the ground that his spouse was working as a Lecturer in JNTU. Considering his representation and the Rules governing the issue, the Government issued G.O.Ms.No.880 dated 26.12.2008 transferring him from Multi Zone-II to Multi Zone-III in public interest. A perusal of the said G.O. shows that the rules mentioned in U.O. Note dated 20.11.1982 were relaxed and as per Para 5(2)(c) of the Presidential Order and in public interest, the transfer of the applicant was considered and effected. Therefore, the applicant’s original date of regularization cannot be taken away for the purpose of his seniority in the transferred zone and the other U.O. Notes relied on by the respondents which run contrary to Para 5(2)(c) of the Presidential Order and the adhoc rule issued in G.O.Ms.NO.539 dated 15.12.1981, cannot be sustained as the statutory rules made in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India would govern and operate to the exclusion of the aforesaid U.O. Notes. All the more so, as the seniority of the applicant from the date of his original regularization was shown in the earlier seniority lists prepared by the Commissioner of Excise in the years 1994 and 2001 and the Government in the year 1997 and only in the seniority list prepared and issued in G.O.Ms.No.501 dated 15.04.2005, the seniority of the applicant was modified taking into account the date of his transfer to Multi Zone-III on the ground that some objections were received and considered. It appears that those objections were not made in respect of the applicant’s placement shown in the integrated seniority list and the respondents without taking into the account the same issued Memo No.668/Excise(1)/2004-64 dated 30.03.2005 and consequently modified the placement of the applicant in the integrated seniority list and issued G.O.Ms.No.501, Revenue (Excise-I) Department, dated 15.04.2005. However, on the earlier three occasions, the seniority of the applicant was shown correctly in the integrated seniority list taking into account his original date of regularization. The Tribunal considered these aspects in their proper perspective and rightly allowed the O.As. filed by the applicant, quashing Memo No.668/Excise(1)/2004-64 dated 30.03.2005 and consequently declaring inter alia that the applicant was entitled to the original date of his regularization i.e. 01.08.1987 and placement in the seniority list issued in G.O.Ms.No.501 dated 15.04.2001 with reference to his original date of regularization i.e. 01.08.1987. We do not find any substance in the contention that the Tribunal has overstepped or exceeded its jurisdiction; or committed any error or irregularity while passing the order impugned, so as to warrant the exercise of certiorari jurisdiction by this Court. In the circumstances, we are not inclined to disturb the findings arrived at by the Tribunal. For the foregoing reasons, both the writ petitions fail and are dismissed. In the circumstances, there shall be no order as to costs. __________________________ GHULAM MOHAMMED, J. ____________________ SANJAY KUMAR, J. 10th February, 2009. VGSR