WP/15986/2007 of The Government of Andhra Pradesh, Rep. by its Secretary, Vs Syed Shabir Pasha, Head Constable, Prohibition and on 31 December 2007

1. The Government of Andhra Pradesh,represented by its Secretary, Prohibitionand Excise, Secretariat Buildings, Hyderabad.

2. The Commissioner of Prohibition & Excise,Government of A.P., M.J. Road, Hyderabad.

3. The Deputy Commissioner of Prohibitionand Excise, Warangal.

versus

… Petitioners

Syed Shabir Pasha, Head ConstableProhibition & Excise, Singareni Station,Khammam District and permanentR/o 5-2-219/3, Mustafa Nagar, Khammam.

… Respondent

ORDER:(per the HON’BLE SRI JUSTICE K.C.BHANU)

This Writ Petition is filed to issue a writ of Certioraricalling for the records in O.A. No.7720 of 2006 on the file of theA.P. Administrative Tribunal, Hyderabad, (for brevity ‘the Tribunal’)and quash or set aside the order therein, dated 21.02.2007.

2. The brief facts that are necessary for disposal of thepresent Writ Petition, may be stated as follows:

The Government of Andhra Pradesh issuedG.O.Ms.No.165, dated 22-04-1997, in exercise of powersconferred by the proviso to Article 309 of the Constitution of India, exempting from passing departmental test, insofar as theincumbents who have completed 45 years of age for the nextpromotion. Subsequently, the same was re-considered inG.O.Ms.No.225, General Administration (Services-C) Department,dated 18-05-1999, whereunder and whereby Rule 11(b) of the A.P.Prohibition & Excise Subordinate Service Rules, 1998, wasrelaxed eternally. The applicant said to have made arepresentation to consider his case for promotion to the higherpost viz. Prohibition and Excise Sub Inspector, but the concernedauthorities were bent upon to promote the juniors. It is furtherstated that the Tribunal held that the relaxation can be made, evenin the case of second promotion and hence, he filed the O.A.

3. The respondents in the O.A. filed counter stating that theapplicant has not passed requisite departmental test as prescribedunder the rules and therefore, he is not eligible for promotion asProhibition and Excise Sub Inspector as per the Ad hoc Ruleamended. G.O.Ms.No.225, General Administration (Services-C),Department, dated 18-05-1999, applies only to the persons whocould not get one promotion, after their initial appointment. Therefore, the applicant is not eligible for exemption from passingdepartmental test for promotion to the post of the Prohibition andExcise Sub Inspector.

4. The Tribunal, by its impugned order, dated 21-02-2007 allowed the O.A. in terms of the order in O.A. 68 of2007 and batch, dated 15-02-2007, directing the respondents toconsider the case of the applicant for promotion, if he is in thezone of consideration, along with seniors. Challenging the same, the present Writ Petition is filed.

5. Learned Government Pleader for Services II contendedthat the respondent herein was initially given promotion asProhibition and Excise Head Constable on 09-07-1984, that exemption from passing the requisitedepartmental tests cannot be given for promotion to the nextpromotion post, that the matter is squarely covered by thedecision of this Court in W.P.No.4337 of 2007, dated 18-07-2007 and hence, he prays to allow the Writ Petition.

6. None appears for the respondent, in spite of service ofnotice.

7. When the Tribunal order is vitiated by the error of lawapparent on the face of the record, Writ of Certiorari can beissued. We are conscious of the fact that the object of Certiorariis to keep the exercise of powers by inferior Judicial and QuasiJudicial Tribunals within the limits of jurisdiction assigned to themby law and to restrain them from acting in excess of theirauthority.

8. It is not in dispute before this Court that the respondentherein was initially appointed as Prohibition and Excise Constableon 12-05-1974. Thereafter, he was promoted as Head Constableon 09-07-1984. The next category of promotion from the categoryof Head Constable is Prohibition and Excise Sub Inspector. Rule5 of A.P. Prohibition and Excise Subordinate Service Rules, 1998,prescribes passing of certain departmental tests as prescribedthereunder. Admittedly, the respondent herein did not pass therequisite departmental tests to become eligible for promotion to the next higher post i.e. Prohibition and Excise Sub Inspector. Relevant ad hoc Rule in G.O.Ms.No.225, dated 18.05.1999 issuedby the General Administration (Services-C), Department reads asfollows:

“Notwithstanding anything contained in the Andhra PradeshState and Subordinate Service Rules or in the Special Rulesor in ad hoc rules, the Government Employees who havecrossed 45 (forty five) years of age shall be exempted frompassing the departmental tests prescribed in the special rulesof the ad hoc rules for the purpose of promotion to the nexthigher category i.e, promotion or appointment by transferinvolving promotion to a post above the one held, by him orher, if they could not get even one promotion after their initialappointment.

Provided that the persons who already got a promotion oncewhere no tests are prescribed for the higher post, theexemption is not applicable to him or her if he or she is to beconsidered for further promotion to next higher categorywhere tests are prescribed (This ad hoc rule is applicablefrom the panel year 1997-98).

Provided further that the exemption is applicable in case ofdepartmental tests or special tests only, where they areprescribed as a pre-requisite for promotion and this exemptionshall not be applicable where like technical or academicqualifications are prescribed for promotion to the next highercategory of posts.”

From the above Rule, it is clear that it applies to all theposts whether selection grade or non-selection grade. The aboveRule is also clear that exemption can be granted from passing thedepartmental tests only in case where the incumbent could not gethis promotion after his initial appointment. It also clearlyindicates that the exemption shall not be applicable wheretechnical or academic qualifications are prescribed for promotion to the next higher category posts.

9. As per Rule 5 of the A.P. Prohibition and ExciseSubordinate Service Rules, 1998, for the post of Prohibition andExcise Sub Inspector, the Government has prescribed passing ofthe following tests:

“1) Test-A: Civil and Criminal law:- To make the Prohibitionand Excise Sub-Inspector develop knowledge on detection,investigation and successful prosecution of crimes.

2) Test-B: Excise Acts & Rules:- To make the Prohibition &Excise Sub-Inspector acquire full knowledge on dealing withthe Excise crimes and the section under which the case hasto be registered.

3) Test–C: Technical Excise Manual:- This is to make theProhibition & Excise Sub-Inspector acquire knowledgeregarding the Manufacture, Blending etc., of spirit.

4) Test-D: Distillery Manual:- This is to make the Prohibition &Excise Sub-Inspector acquire regarding knowledge on thefunctioning of a distillery and duties to be performed there in.”

10. Admittedly, the respondent herein did not pass requisitedepartmental tests for his promotion to the post of Prohibition &Excise Sub Inspector. He already availed one promotion asProhibition and Excise Head Constable, on 09-07-1984, whereas his initial appointment was on 12-05-1974 as Prohibition and Excise Constable. So, a personwho crossed 45 years of age shall be exempted from passing therequisite departmental test for his promotion, if he could not geteven one promotion after his initial appointment. On this aspect, itis pertinent to refer a Full Bench decision of this Court in W.P.No.4337 of 2007, dated 18.07.2007 between GOVERNMENTOF A.P. & ANOTHER AND M.VENKATESWARLU, wherein it was heldas follows:

“In the result, we answer the reference holding that the firstproviso to the ad hoc rule notified in G.O.Ms.No.225, dated18-05-1999,restricting the benefit of exemption, only to thosewho have not been promoted even once after their initialappointment in public service, would apply both to selectionand non-selection posts and the contrary view expressed bythe Division Bench in Rednam Satyanarayana Murthy Vs TheDistrict Tribal Welfare Officer, East Godavari District, doesnot lay down correct law.”

11. So from the above decision, it is clear that the ad hoc rule notified in G.O.Ms.No.225, dated 18-05-1999 wouldapply to both selection and non-selection posts. In view of the FullBench judgment, the decision in Rednam Satyanarayana Murthy VThe District Tribunal Welfare Officer, East Godavari District inW.P.No.24912 of 2005, dated 22-02-2006, is no longer correctlaw. The Tribunal allowed O.A.No.68 of 2007 and batch, dated 15-02-2007, by following the Division Bench judgment of this Court. Hence, there is an error of law apparent on the face of record inallowing the impugned O.A., calling for interference by this Court,and hence the impugned order is liable to be set aside.

12. Accordingly, the Writ Petition is allowed, setting asidethe impugned order of the A.P. Administrative Tribunal,Hyderabad, dated 21-02-2007 in O.A.No.7720 of 2006. There shallbe no order as to costs.

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DATED:31-12-2007Hsd

JUSTICE D.S.R.VARMA

------------------------------JUSTICE K.C.BHANU