A Vs. B

JUDGEMENT

(1.) Writ Petition Nos.23932, 23931, 25398 and 23152 of 2010 are filed challenging the order, dated 08.09.2010, in O.A.No.3143 of 2010 and batch on the file of the Andhra Pradesh Administrative Tribunal, Hyderabad (for short 'the Tribunal'). Writ Petition No.30110 of 2010 is filed challenging the order, dated 26.10.2010, in O.A.No.6301 of 2010 on the file of the Tribunal, dismissing as directly covered by the order, dated 08.09.2010, in O.A.No.12968 of 2009 and batch (includes O.A.No.3143 of 2010).

(2.) All the Writ Petitions are directed to be disposed of through this common order as the facts as well as the questions are identical.

(3.) The brief averments made in the writ petitions are as follows: The Commissioner of Prohibition & Excise by letter dated 22.06.1993 has submitted a proposal to the Government for sanction of additional staff for strengthening the Excise Department to cope up with new task under the new Excise policy with effect from 01.10.1993 i.e. imposition of partial prohibition in the State and the Government has issued G.O.Ms.No.927, Revenue (Excise -III) Department, dated 21.09.1993 and accepted the said proposal by sanctioning 3613 additional posts of Excise Constables in addition to the existing cadre strength and further directed the Director General to release 1200 Armed Reserve Constable posts with arms and ammunition, and also directed the Inspector General (Home Guards) to release 2000 Home Guard posts to serve the Excise Department and further directed the Additional Director General (Recruitment) to recruit 3000 Armed Reserve Constables and after that they would be deputed to the Excise Department. Subsequently, the Government has modified the aforesaid G.O.Ms.No.927, dated 21.09.1993 to the effect that instead of recruiting 3000 Armed Reserve Constables to recruit 3000 APSP Constables as per the additional sanction of posts in temporary cadre of Excise Constables and G.O.Ms.No.467, Revenue (Excise -III) Department, dated 23.05.1994 also indicated regarding recruitment of number of vacancies in the IX Battalion in the State. The Government clearly discloses that recruitment should be done only in A.P. Police Battalion and those people have to be recruited temporarily in the Excise Department to cope up with the new task and for that task, they should come back to their parent department, and therefore, the posts are also created in the A.P. Police Department, which posts are required for every year. Subsequently, the Commissioner of Prohibition & Excise by Proceedings dated 14.07.1994 has informed to the Government that despite creation of aforesaid 3613 new posts of Excise Constables besides permitting to convert 539 other posts in the department, there were large number of vacancies of Excise Constables in the department remained unfilled and he had sought permission to recruit 2366 posts of Excise Constables in the Excise Department. In pursuance of such request and information given by the Commissioner of Prohibition & Excise, the Government issued G.O.Ms.No.1303, Revenue (Excise.I) Department, dated 31.08.1994, permitting the Commissioner, Prohibition & Excise to fill up 1751 posts of Excise Constables which are regular and permanent in the cadre. In pursuance of the aforesaid decision taken by the Government, the Commissioner of Prohibition & Excise has issued a notification for recruitment to the posts of Prohibition & Excise Constables in the State indicating number of posts in various districts in the State and also given schedule for selection process which would commence from 12.09.1994 and completed by 31.10.1994 i.e. issuing appointment orders. On 22.10.1994, the General Election Code came into force. Therefore, the Commissioner of Prohibition & Excise has telephonically informed all the selection authorities to the effect that the selection process should be completed for the posts of Excise Constables but not to issue any appointment orders which are supposed to be issued by 31.10.1994. However, the election code is not at all concerned for the said selection inasmuch as the recruitment process was commenced prior to commencement of Code and announcement of election schedule. Even otherwise, the authorities have got liberty to seek permission from the Chief Election Officer inasmuch as recruitment process started long back and there is a need of services of Excise Constables even during the election time when partial prohibition was in force. But, the authorities without exercising such options have decided not to issue appointment orders which are supposed to be issued by 31.10.1994. Though the entire process was completed, the authorities have not issued appointment orders by 31.10.1994. The election notification was issued on 01.11.1994 and election code was in force till 15.01.1995 when the entire election process was completed after formation of new Government by the then Chief Minister of the State. Therefore, the Government ought not to have taken any policy decision either cancelling the recruitment process or taking fresh recruitment or any kind of major decisions inasmuch as the election code which came into effect from 23.10.1994 was in force upto 15.01.1995. Admittedly, the appointments were withheld only because of announcement of general elections for the State Assembly and existence of election code during that period. But, the Government has no power to take any decision either cancelling the recruitment or any decision except executing day -to -day administration. After enactment of Right to Information Act by the Government of India, the petitioners came to know certain facts pertaining to recruitment of Excise Constables and cancellation of Excise Constable selection, which clearly discloses how the officers have not only denied their appointments but also deprived their fundamental rights guaranteed under Articles 14, 16 and 21 of the Constitution of India. It is a classic example of how small error or mistake committed by the authorities who are having more powers and how the persons who are entitled to certain rights are deprived. The Joint Secretary to the Government had sent a D.O. Letter on 13.12.1994 to the then Commissioner of Excise to review all major decisions taken from 01.10.1994 like recruitment in large scale, etc. When the election code was in force, the Government ought not to have issued such a memo taking major decision. The contents of the above letter clearly discloses that to froze the recruitment, there should be two conditions, viz., 1) if the decision regarding major recruitment has taken from 01.10.1994, and 2) that such recruitment is not yet conducted by the date of issuing letter i.e. 13.12.1994. The decision to fill up 1751 posts of Excise Constables was taken by the Government by issuing G.O.Ms.No.1303, dated 31.08.1994 i.e. prior to 31.10.1994. Similarly, the process of recruitment was started from 12.09.1994 and completed by 31.10.1994. Even as per the above letter, the Commissioner of Prohibition & Excise ought not to have frozen much less cancel or countermand the selection. Basing on the said letter, the Commissioner of Prohibition & Excise has sent a letter to the Secretary to Government on 15.12.1994 stating that the process of recruitment in large scale in respect of 1667 Excise Constables was started on 31.08.1994 with issuance of G.O.Ms.No.1303, dated 31.08.1994 and the process has been completed with conducting interviews by 31.08.1994, but the results of the interview have not been declared and the appointment orders have not been issued. As per the schedule, the candidates are subjected to physical efficiency test and written test. According to such schedule, the process of selection has been completed after conducting interviews by 31.10.1994. However, results of interviews have not been declared and appointment orders have not been issued. The Commissioner of Prohibition & Excise ought not to have informed regarding recruitment of 1751 posts of Excise Constables inasmuch as the Government has never asked this information and the Commissioner ought to have submitted information which consists of two conditions imposed by the Government i.e. taking decision to take major recruitment after 01.10.1994 and if not completed by 13.12.1994. But, unfortunately and unnecessarily, the Commissioner has sent that report and further, the Government without any application of mind committed a grave error, as such the petitioners were deprived of their appointment for the last 14 years without any fault on their part. After receiving the letter, the Government has issued a Memo No.67587/Ex -1/94 -3, dated 21.12.1994 informing the Commissioner of Prohibition & Excise that due to introduction of total prohibition, orders issued in G.O.Ms.No.927, dated 21.09.1993 are kept in abeyance and the Commissioner of Prohibition & Excise is requested to countermand the process of recruitment of 1751 posts of Excise Constables referred to in G.O.Ms.No.1303, dated 31.08.1994. But, the Government has directed to countermand the selection of 1751 posts of Excise Constables without keeping abeyance of G.O.Ms.No.1303, dated 31.08.1994. The Memo issued by the Government is nothing but illogical, irrational and perverse and such Memo was not brought to the notice of any Court for the last 14 years and the petitioners came to know about the said Memo very recently. The Commissioner of Prohibition & Excise without examining the contents of the said Memo has mechanically issued Circular, dated 22.12.1994 instructing all the recruitment agencies to countermand and cancel the process initiated for recruitment of 1751 Excise Constables referred in G.O.Ms.No.1303, dated 31.08.1994. The petitioners after obtaining the information under Right to Information Act about the Memo, challenged the said Memo before the Tribunal and some of the candidates approached this Court seeking a direction to appoint them as Excise Constables, but they could not succeed on the ground that the Government informed the Court that because of introduction of total prohibition in the State, they do not want to fill up all the vacancies, but now the fact remains that 1751 vacancies of Excise Constables, which were sought to be filled up in pursuance of the permission given by the Government in issuing G.O.Ms.No.1303, were neither cancelled nor reduced and further the vacancies of 3000 APSP Constables which were temporarily created in G.O.Ms.No.927, dated 21.09.1993 were kept in abeyance by Memo, dated 21.12.1994, but on the contrary the recruitment of 3000 posts was completed and the selected candidates were appointed in APSP battalions and came to Excise Department on deputation. The Tribunal, while disposing of O.A.No.215 of 1995 and batch by order dated 16.03.1998, observed that the Excise Constables, who underwent selection process by properly constituted selection committee against which no mala fides are attributed by anyone, shall be given preference over fresh candidates and directed the State Government to consider the request of the Excise Constables in preference to raw recruits for any future fresh selection if they are eligible for such posts. The said order was neither challenged nor set aside by any Court. The High Court by order, dated 24.09.2009, in W.P.No.29109/2008, directed the Chief Secretary to Government to order an enquiry into the circumstances in which the selection of 1751 Excise Constables was cancelled instead of cancelling the selection of 3000 APSP Constables. Accordingly, the Chief Secretary issued G.O.Rt.No.5500, General Administration (Spl.A) Department, dated 13.11.2009 by appointing the 1st respondent as the Enquiry Officer. The petitioners came to know how the Government committed injustice only to do favour to APSP Constables. The petitioners not only passed the written test and physical test but also qualified in the interview in the year 1994, but only the process of issuing the appointment orders was withheld because of election code, otherwise the authorities would have issued the appointment orders to the petitioners by 31.10.1994. The petitioners were agitating for the last 14 years to consider their case for appointment as Excise Constables by giving exemption to age and physical test. Despite orders being passed by the High Court, the authorities have not given any relaxation and issued G.O.Ms.No.1217, Revenue (Excise.I) Department, dated 30.11.2009 directing that all the 1994 selected Excise Constables also should qualify in the physical test and take steps to make fresh recruitment instead of appointing the selected Excise Constables in pursuance of earlier selection process initiated in pursuance of G.O.Ms.No.1303, dated 31.08.1994. Further, the orders in G.O.Ms.No.1217, dated 30.11.2009 are not communicated to the petitioners and similarly, the Memo dated 21.12.1994 was not brought to the notice of any Court of law. After having knowledge of the said proceedings, the petitioners compelled to challenge the same. The very cancellation of Excise Constables vide Memo dated 21.12.1994 instead of cancelling the selection of 3000 APSP Constables, is illegal and arbitrary. The Government made undue favour to APSP Constables who are appointed in the existing vacancies and now they have occupied the vacancies reserved for Excise Constables under the direct recruitment quota by way of deputation contrary to the Presidential Order. Therefore, the petitioners prayed the Court to direct the respondents to appoint the petitioners as Excise Constables in the existing vacancies before resorting to fresh recruitments in the department and to set aside the impugned orders passed by the Tribunal and to appoint them in pursuance of the notification issued in Proceedings Cr.No.28888/93/CE/H3, dated 12.09.1994 by the 2nd respondent w.e.f. 31.10.1994 with all consequential benefits such as pay fixation, increments, seniority and arrears of pay before resorting fresh recruitment in pursuance of G.O.Ms.No.1217, dated 30.11.2009.