Promotion to the selection grade under the Last Grade Service Rules shall be made on the ground of seniority only, unless a member has suffered any penalty other than a censure during the three years immediately preceding the date of order of promotion.

JUDGMENT :

1. This application is to quash the order of the District Judge, Adilabad dated 28th June, 1974 appointing respondents 2 to 8 to the post of selection Grade under the Last Grade Government services (Office Attenders and process servers).

2. There are two petitioners in this case. The 1st petitioner is senior to respondents 2 and 8 and the 2nd petitioner is senior to respondents 7 and 8. - It is admitted that the petitioners 1 and 2 to 8 are all governed by the Andhra Pradesh Last Grade service Rules. In fact, category 5 of the Andhra Pradesh Last Grade service Rules includes Process Attenders of the Judicial Department also.

3. The main complaint of the petitioners is that since the petitioners 1 and 2 are seniors to respondents 2 to 8 they are entitled to be appointed to the post of selection Grade as against the respondents 2 to 8 who are juniors to them. The petition is resisted by the learned Government pleader on the ground that appointment to selection Grade are governed by the rule relating to seniority cum-efficiency as contemplated under the state and Subordinate service Rules, where, under sub-rule (5) of Rule 46-A, appointment to the selection Grade shall be made on the basis of seniority-cum-efficiency and that the petitioners were also considered and since they were found to be comparatively inefficient to the respondents, their claims were ignored. But it is contended by Sri C.P. Sarathy, learned counsel for the petitioners that the said subordinate rules do not apply to the persons governed by the last Grade Service Rules, and according to sub-rule. (5) of the Rule 5-A of the Andhra Pradesh Last Grade service Rules, promotion to the selection grade in any category shall be made on the ground of seniority other than a censure during the three years immediately proceeding the date of order of promotion. I find considerable force in this contention.It is true that under the state and subordinate service rules, appointment to selection Grade shall be made on the basis of seniority-cum-efficiency, but the petitioners and the respondents 2 to 8 are all governed by the Andhra Pradesh Last Grade Service Rules and Rule 3 of the said rules says that the Andhra Pradesh state and subordinate Service Rules shall not apply to the services except to the extent expressly provided in these rules. The learned counsel for the petitioners submits that there is no rule under the said Last Grade Service Rules making the state and subordinate service Rules applicable to the last Grade service Rules. The learned Government pleader also was unable to show any rule under the Andhra Pradesh Last Grade Service Rules which makes the Andhra Pradesh State and subordinate service rules applicable to the Andhra Pradesh Last Grade Service Rules. In view of Rule 3 read with Rule 5 of the Andhra Pradesh Last Grade Service rules promotions to the selection grade shall be made on the ground of seniority only unless a member has suffered any penalty other than a censure during the three years immediately preceding the date of order of promotion. In the present case, the petitioners have not suffered any penalty during the three years immediately preceding date of order of promotion. Nowhere in the counter-affidavit it is stated that the petitioners have suffered any such penalty. On the other hand the counter proceeded on the ground that sub-rule (5) of Rule 46-A of the Andhra Pradesh state and Subordinate service rule is applicable and that their case was considered on the basis of seniority-cum-efficiency. The order is therefore obviously illegal. Even if rule 5 of Andhra Pradesh Subordinate service Rules is applicable, the selections shall be made on the basis of seniority-cum-efficiency, unless there is something on record against the petitioners their seniority cannot be over-looked. There may be people who are more efficient but that does not mean that seniors can be omitted because they are less efficient and further the couter affi