THE HON'BLE SRI JUSTICE GHULAM MOHAMMED and THE HON'BLE SRI JUSTICE G.BHAVANI PRASAD W.P.No.4043 of 2010 ORDER: (Per Sri Justice Ghulam Mohammed, J) This writ petition is filed assailing the order dated 11.02.2010 passed by the Andhra Pradesh Administrative Tribunal, Hyderabad (for short ‘the Tribunal) allowing O.A.No.6401 of 2008 filed by the 4th respondent herein seeking to set aside the proceedings, dated 30.07.2008 and 01.08.2008, issued by the 2nd and 3rd respondents respectively, promoting the petitioner herein as Technical Assistant. 2. Facts, in brief, are that the petitioner was appointed as Sub- Inspector on 04.04.1984 in the Police Transport Organization. His probationary period was completed by 03.04.1986 and his name was placed in ‘A’ list on 04.04.1986. Thereafter, he was promoted to the post of Inspector on 07.05.1992, and also to the post of Technical Assistant in the cadre of Deputy Superintendent of Police vide proceedings dated 30.07.2008 and 01.08.2008, which were challenged by the 4th respondent by filing O.A.No.6401 of 2008 stating that he belongs to Scheduled Caste community and his name was placed above the name of the petitioner in the probation proceedings of the Director, Police Transport, Andhra Pradesh, Hyderabad, dated 12.02.1987, and also in the promotion proceedings as Inspector of Police, Police Transport Organization, dated 05.05.1992. The Tribunal allowed the said O.A. setting aside the proceedings impugned therein and directed the official respondents to re-constitute the Departmental Promotion Committee (DPC) for the purpose of promotion to the post of Deputy Superintendent of Police (Technical Assistant) in respect of the 4th respondent and the petitioner showing the 4th respondent as senior to the petitioner and issue appropriate orders within a period of eight weeks from the date of receipt of the said order. Aggrieved by the same, the petitioner filed the present writ petition. 3. Learned counsel for the petitioner contended that the petitioner is an approved probationer and promoted to the post of Technical Assistant, which is a selection post, pursuant to the selection made by the DPC and that the petitioner was appointed on 04.04.1984, whereas the 4th respondent was appointed on 05.04.1984 and his probation period was completed on 03.04.1986 and his name was put in ‘A’ list on 04.04.1986 earlier to the 4th respondent and therefore, he was promoted to the post of Inspector and thereafter as Technical Assistant on 30.07.2008. He further contended that the 4th respondent without challenging the ‘A’ list and the promotion proceedings of the petitioner as Inspector straightway challenged the proceedings of the petitioner as Technical Assistant, which is illegal and arbitrary. He also contended that as against the promotion proceedings of the petitioner, the 4th respondent has an alternative remedy of appeal, revision and review under Rule 23 of the Andhra Pradesh State and Subordinate Services Rules, 1996 and without availing such remedy, he approached the Tribunal. 4. On the other hand, Sri K.R.Srinivas, learned counsel for respondent No.4 vehemently contended that the 4th respondent, who belongs to Schedule Caste Community, is fully qualified and eligible for promotion to the post of Technical Assistant on regular basis and since inception, he is senior to the petitioner. He further contended that though the post of Technical Assistant is a selection post, the seniority list has to be placed before the DPC. He also contended that the respondents without altering their positions and inviting any objections from the 4th respondent, promoted the petitioner to the post of Technical Assistant and that the Tribunal after taking into all the facts into consideration, allowed the O.A., which need not be interfered with by this Court. He has drawn the attention of this Court to the judgment of the Apex Court in AJIT SINGH v. THE STATE OF PUNJAB[1] wherein it was held as under: “where promotional avenues are available, seniority becomes closely interlinked with promotion provided such a promotion is made after complying with the principle of equal opportunity stated in Article 16(1). For example, if the promotion is by rule of ‘seniority-cum- suitability’, the eligible seniors at the basic level as per seniority fixed at that level and who are within the zone of consideration must be first considered for promotion and be promoted if found suitable. In the promoted category they would have to count their seniority from the date of such promotion because they get promotion through a process of equal opportunity. Similarly, if the promotion from the basic level is by selection or merit or any rule involving consideration of merit, the senior who is eligible at the basic level has to be considered and if found meritorious in comparison with others, he will have to be promoted first. If he is not found so meritorious, the next in order of seniority is to be considered and if found eligible and more meritorious than the first person in the seniority list, he should be promoted. In either case, the person who is first promoted will normally count his seniority from the date of such promotion. (There are minor modifications in various services in the matter of counting of seniority of such promotees but in all cases the senior most person at the basic level is to be considered first and then the others in the line of seniority). That is how right to be considered for promotion and the ‘seniority’ attached to such promotion become important facets of the fundamental right guaranteed in Article 16(1). Right to be considered for promotion is not a mere statutory right”. He has further drawn the attention of this Court to the judgment of the Apex Court in BADRINATH V. GOVT. OF T.N.[2] “Unless there is a strong case for applying the Wednesbury doctrine or there are mala fides, Courts and Tribunal cannot interfere with assessments made by Departmental Promotion Committees in regard to merit or fitness for promotion. But in rare cases, if the assessment is either proved to be mala fide or is found based on inadmissible or irrelevant or insignificant and trivial material - and if an attitude of ignoring or not giving weight to the positive aspects of one's career is strongly displayed, or if the inferences drawn are such that no reasonable person can reach such conclusions, or if there is illegality attached to the decision, - then the powers of Judicial review under Article 226 of the Constitution are not foreclosed. While the Courts are to be extremely careful in exercising the power of judicial review in dealing with assessment made by Departmental Promotion Committees, the executive is also to bear in mind that, in exceptional cases, the assessment of merit made by them is liable to the scrutinised by Courts, within the narrow Wednesbury principles or on the ground of mala fides. The judicial power remains but its use is restricted to rare and exceptional situations. We are making these remarks so that Courts or tribunals may not by quoting this case as an easy precedent - interfere with assessment of merit in every case. Courts and Tribunals cannot sit as appellate authorities nor substitute their own views to the views of Departmental Promotion Committees. Undue interference by the Courts or Tribunals will result in paralysing recommendations of Departmental Committees and promotions. The case on hand can be a precedent only in rare cases. Every officer has a right to be considered for promotion under Article 16 to a higher post subject to eligibility provided he is within the zone of consideration. But the question is as to the manner in which his case is to be considered. This aspect is a matter of considerable importance in service jurisprudence as it deals with 'fairness' in the matter of consideration for promotion under Article 16. We shall therefore refer to the current legal position. 5. It is not in dispute that both the petitioner and the 4th respondent joined duty on 04.04.1984 and 05.04.1984, their probationary period was declared on 03.04.1986 and 04.04.1986 and their names were included in the ‘A” list on 04.04.1986 and 05.04.1986 respectively. Admittedly, the 4th respondent was placed at Sl.No.2 and the petitioner was placed at Sl.No.3 in the selection list and that their appointment order dated 28.03.1984 does not reveal the particular date of joining. Even in their probation proceedings dated 12.02.1987 and promotion proceedings as Inspector, the name of the 4th respondent is shown at Sl.No.2 and the petitioner is shown at Sl.No.3. Since those proceedings with regard to his placement have not been challenged by the petitioner claiming that he is senior to the 4th respondent, the placement of the persons in the seniority list has become final, as rightly held by the Tribunal. Further, the Tribunal, prior to the consideration of the contention of the petitioner that he is meritorious than the fourth respondent, sought for production of DPC file, wherein it was noted the awards and appreciations received by the fourth respondent, but there was no such appreciation to the petitioner and that the name of the petitioner was recommended only on the basis of his placement and not on merit. Therefore, we are of the view that the Tribunal having observed the said aspects has rightly passed the order impugned and the same does not warrant any interference by this Court. 6. The Writ Petition fails and is, accordingly, dismissed. No order as to costs. _____________________ GHULAM MOHAMMED,J _____________________ G.BHAVANI PRASAD, J Date:02.03.2010. sj [1] AIR 1999 SC 3471 [2] AIR 2000 SC 3243