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

Heard,

Sri K.S.V.Subba Rao, learned counsel for the petitioner; learned Government Pleader for Higher Education, appearing for respondent Nos.1 and 3; Smt. Sireesha Rani Vallabhaneni, learned Standing Counsel for the 2^nd respondent and Sri Kotipalli Bhanu Kumar, learned counsel for the 4^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.5647 of 2004, wherein the O.A. was allowed in similar lines as passed in O.A.No.5374 of 2004, wherein it was declared 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 on the basis of the said O.A., 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 by the 5^th respondent in the O.A. are as follows:

(i) The petitioner completed his M.Sc. Degree from Andhra University in 1991; thereafter obtained B.Ed. degree from Andhra University in 1998 and thereafter secured a decent rank in DSC-2000 selections for the post of Secondary Grade Teacher and was allotted to Bhimavaram Municipality. The Commissioner, Bhimavaram Municipality, appointed the petitioner as Secondary Grade Teacher on 30.11.2000 and later promoted him as School Assistant on 25.02.2005 based on the seniority in the feeder category of Secondary Grade Teacher.

(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 in the cadre of Secondary Grade Teachers was published on the roster on 18.08.2004, thereby inviting objections and thereafter the final seniority list dated 02.09.2004 was published based on the roster. It is the submission of the Writ Petitioner that he stands at Serial No.6 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 BC-A 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 4th respondent/applicant in O.A.No.5647 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 and further emphasized that the names of the unofficial respondents were selected and later promoted to the post of School Assistant as per the roster points. The contention before the Tribunal was that she