THE HON'BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE K.G.SHANKAR W.P.No.9318 of 2009 ORDER (Per Sri Justice Ghulam Mohammed) The petitioner filed this writ petition with the following prayer: “to issue an appropriate writ, order or direction more in the nature of writ of mandamus declaring that the seniority of the petitioner shall have to be fixed strictly in accordance with General Rule 33(a)of the State and Subordinate Service Rules read with Sub-Rule(2) of Rule 2 and Rule 36(ii) of the State and Subordinate Service Rules with effect from 03.10.1998 the date on which she commenced probation in that category and consequently declare that the petitioner is senior to all those who commenced probation thereafter and to promote the petitioner to the post of Deputy District Extension and Media Officer from the date from which the petitioner’s juniors were promoted with all consequential benefits by setting aside the order dated 31.03.2009 in O.A.No.478 of 2007 on the file of the Andhra Pradesh Administrative Tribunal, Hyderabad and also the seniority list published with Rc.No.B2/1828/2002 dated 24.01.2004 and also with Rc.NO.2946/BV2/2004 dated 03.10.2006 of the first respondent and the promotion of 5th respondent ordered in Rc.No.2946/B2/2005 dated 03.10.2005 and the promotions of the 4th and 6th respondents, with all consequential benefits holding that the order of the Tribunal and the orders of the first respondent do not stand the scrutiny of law and pass such other orders or order”. 2. The brief facts are that the petitioner was appointed as Multipurpose Health Assistant (MPHA) (F) on 24.10.1992 and was promoted thereafter as Health Educator along with the unofficial respondents and others vide proceedings dated 26.09.1998, of the first respondent and is working as such. In the provisional seniority list dated 24.01.2004, of Health Educators working in Zone IV, her name was shown at Sl.No.17. Since the names of her juniors were shown above her name, she made a representation to the first respondent seeking to revise the said seniority list, but no orders thereon have been passed. Hence, she filed O.A.No.4170 of 2005 before the Tribunal, which in turn directed the respondents to finalise and publish the final seniority list in the category of Health Educators taking into consideration the provisions of the relevant rules and the representation filed by the petitioner. The petitioner states that in spite of the said directions, the official respondents promoted 4th and 5th respondents vide proceedings dated 03.10.2006. Challenging the said promotions, she filed another O.A.No.6618 of 2005 before the Tribunal. During the pendency of the said O.A., a final seniority list dated 12.12.2006, was prepared by the first respondent mentioning her name at Sl.No.20 without rectifying the defects in the provisional seniority list. Challenging the said final seniority list, she filed M.A. in the pending O.A. Through order dated 22.01.2007, the Tribunal dismissed the same giving liberty to her to file fresh O.A. Accordingly, she filed O.A.No.478 of 2007 before the Tribunal, which in turn dismissed the same on 31.03.2009. Aggrieved by the same, the petitioner filed the present writ petition with the prayer as specified supra. 3. The 1st and 2nd respondents filed counter stating that the matter regarding the seniority list was already settled and the name of the petitioner was placed at Sl.Nos.17 and 20 vide proceedings dated 24.01.2004 and 12.12.2006, duly followed by Rule 33(a) of the Andhra Pradesh State and Subordinate Service Rules, 1996 (for short ‘the Rules’) and as per the date of joining into the service of the initial post i.e., MPHA (Female) and (Male), which is feeder post to the Health Educator as per ad hoc rules issued in G.O.Ms.No.281 dated 21.07.1998 and therefore, the Tribunal dismissed O.A.No.478 of 2007 filed by the petitioner. It is further stated that respondent Nos.4 and 5 were originally appointed as MPHA (Male) on 25.04.1980 and 02.08.1980 respectively, whereas the petitioner was appointed as MPHA (Female) on 23.10.1992. As such, the petitioner is junior to them in the cadres of MPHA and Health Educator and hence, her case for promotion to the post of Deputy DEMO was not considered. 4. The 7th and 8th respondents also filed counter stating that they were initially appointed as Multipurpose Health Assistants on 14.09.1982 and 10.01.1982 respectively, whereas the petitioner was appointed in the same cadre on 24.10.1992 and as such, she is junior to them. They were promoted as Health Educator vide proceedings dated 26.09.1998, as per which, they joined within 30 days from the date of receipt of the said order. They stated that when the persons were promoted from the lower category to the non-selection post, their seniority is to be fixed basing on their seniority in the feeder category. 5. Heard the learned counsel for the petitioner and the learned Government Pleader for Services-I appearing for the official respondents and the learned counsel for the unofficial respondents. 6. Learned counsel for the petitioner placed reliance upon Rules 2(2), 36(ii) and 16(b) of the Rules and contended that as per the definition of Rule 2(2) of the Rules, the appointment to service commences from the date of discharging the duty and as per Rule 36(2) of the Rules, seniority will commence from the date of probation, which commenced from the date of discharging the duty and as such, the petitioner is entitled to seniority from the date of probation i.e., 03.10.1998 in the cadre of Health Educator. Rules 2(2), 36(ii) and 16(b) of the Rules read as under: Rule 2(2) ‘Appointed to a service’ means a person is said to be appointed to a service when, in accordance with these rules, except under Rule 10 and in accordance with the Special Rules or adhoc rules applicable to such service he discharges for the first time, the duties of a post borne on the cadre of such service or commences the probation, instruction or training prescribed for members thereof. “Rule 36(ii) in respect of the persons promoted or appointed by transfer (involving promotion), the dates from which they were placed on their probation. Rule 16(b) Minimum service for commencement of probation:- A person appointed to a service, class or category, in accordance with the rules, otherwise than by direct recruitment, shall, if he is required to be on probation in such service, class or category, be deemed to have commenced his probation in such service, class or category from the date from which he has been continuously on duty in such service class or category, for a period of not less than 60 days from the date of joining duty after having been appointed to such service, class or category on a regular basis in accordance with rules: Provided that this rule shall not apply to a person appointed to a post in a service, class or category whose appointment is made in consultation with the Andhra Pradesh Public Service Commission or DPC or any other agency for recruitment specified by Government’. He further contended that the respondents ought to have prepared the seniority list in accordance with the above said Rules and that the promotions of the petitioner and others to the post of Health Educators were not made either prescribing the order of preference or assigning ranking. 7. Learned counsel for the unofficial respondents submitted that as per the first appointment in the initial post of MPHA, the petitioner was assigned seniority at Sl.No.17 and that she was promoted thereafter as Health Educator along with her seniors vide proceedings dated 26.09.1998, wherein her name was shown at Sl.No.14. He contended that there is no rule relating to date of joining, but the date of appointment is only the criterion and he placed reliance under Rule 33(b) of the Rules, which reads as under: “The appointing authority may, at the time of passing an order appointing two or more persons simultaneously to a service, fix either for the purpose of satisfying the rule of reservation of appointments or for any other reason the order of preference among them; and where such order has been fixed, seniority shall be determined in accordance with it”. 8. Learned Government Pleader for Services-I submitted that the promotion will be given based on the seniority and if it is on seniority basis, seniority has to be reflected in the promotion list and if it is based on selection, seniority need not be reflected. 9. The material on record shows that the petitioner was appointed as MPHA (Female) on 24.10.1992 and subsequently, she was promoted as Health Educator vide proceedings dated 26.09.1998, and her services were regularized with effect from 03.10.1998. In the provisional and final seniority lists dated 24.01.2004 and 12.12.2006, her name was shown at Sl.Nos.17 and 20 respectively. Since the petitioner is junior to the unofficial respondents in the feeder category i.e., MPHA, her seniority was fixed as per her date of joining in service in the said post. Though she was promoted along with her seniors to the post of Health Educator, vide proceedings dated 26.09.1998, she cannot claim for further promotion along with the seniors, as the said post is a non- selection post. The date of her joining, as Health Educator, is not the criterion for fixing the seniority, as she is junior in the feeder category, as rightly held by the Tribunal. Since the petitioner and the un-official respondents were not appointed on the same date, they were not assigned common ranks in the seniority list and as such, the Rules relied upon by the learned counsel for the petitioner are not applicable to the case of the petitioner. 10. In view of the above, we do not find any infirmity in the order impugned warranting interference by this Court. Accordingly, the Writ Petition is dismissed. No costs. _____________________ GHULAM MOHAMMED, J _______________ K.G.SHANKAR, J Date:27.07.2011 sj