The Court made the following Order: (Per Hon’ble Sri Justice Tuhin Kumar Gedela)

Heard,

Learned counsel for the petitioner; learned Government Pleader for General Administration, appearing for respondent No.1; learned Government Pleader for Higher Education, appearing for respondent Nos.2, 3 and 5; Smt. Sireesha Rani Vallabhaneni, learned Standing Counsel for the 4^th respondent and learned counsel for the 6^th respondent.

1. The Writ Petition is filed assailing the orders of the Andhra Pradesh Administrative Tribunal (in short “the Tribunal”) passed in O.A.No.5374 of 2004, wherein the O.A. was disposed of, declaring that the applicant therein is entitled to be considered for promotion on the basis of DSC ranking, in preference to the people who got lesser rank in DSC-2000 and the unofficial respondents were directed to prepare the seniority list on the basis of DSC-2000 ranking and if any of the juniors to the applicant are promoted earlier to him, assign notional seniority to the applicant, in the post of School Assistant with all consequential benefits, unless he is not found eligible for such promotion.

2. The narration of the parties is as in the present writ petition.

3. The contour facts leading to the filing of the writ petition is as follows:

(i) The petitioner appeared in DSC-2000 examinations and got selected for the post of Secondary Grade Teacher (SGT) and was allotted to Bhimavaram Municipality. The next promotion from the post of SGT is School Assistant, which is based on seniority-cum-fitness. Thereupon, based on the seniority list, the petitioner was promoted as School Assistant on 25.02.2005.

(ii) Further, the arguments advanced by the petitioner that the appointing authority in his wisdom and discretion has taken the order of preference by following the roster while selecting the candidates for the posts of Secondary Grade Teachers for the purpose of determining inter se seniority and accordingly provisional seniority list dated 02.09.2004 in the cadre of Secondary Grade Teachers was prepared, thereby inviting objections and thereafter the final seniority list was published based on the roster. It is the submission of the Writ Petitioner that he stands at Serial No.8 and based on the said seniority, he was promoted as School Assistant on 25.02.2005, vide ROC.No.3848/2002/C2.

(iii) The further grievance is that the provision under Rule 33(b) of A.P. State and Subordinate Service Rules, 1996, is not applicable to the petitioner since he is the employee of Bhimavaram Municipality and governed by different set of rules. He further asserts that even as per Rule 33(b) of A.P. State and Subordinate Service Rules, discretion has been given to the appointing authority to fix the seniority based on the order of preference or merit while appointing two or more candidates simultaneously and, in consonance to that, the seniority list basing on the roster was prepared and since the petitioner belongs to category of PHC got promoted as School Assistant. The categorical submission of the Writ Petitioner was that the appointing authority has discretion as per Rule 33(b) of A.P. State and Subordinate Service Rules to assign seniority based upon the preference or merit as it deems fit and proper. Once a discretion is exercised, later cannot be reprobated.

(iv) In oppugnation, the 6th respondent/applicant in O.A.No.5347 of 2004 ventilated that those persons who got lesser marks in DSC-2000 were preferred over and above the persons who secured more marks in DSC-2000. The contention before the Tribunal was that the applicant is more meritorious than the persons promoted earlier to him and he is entitled to be considered on the basis of rank assigned in DSC-2000 for promotion to the post of School Assistant earlier than the juniors promoted by following roster seniority and with that factual background, the O.A. was filed to declare that the applicant as entitled for seniority in the cadre of Secondary Grade Teacher in Bhimavaram Municipalit