THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR Writ Petition Nos.526 and 937 of 2007 ORDER : (per VVA, J.) Respondents 4 & 5 in O.A. No.5647 of 2004 seek to challenge the order of the Andhra Pradesh Administrative Tribunal, dated 28-09- 2006 in W.P.No.526 of 2007. Respondents 6 & 7 in the said O.A. have filed a separate Writ Petition No.937 of 2007. Thus, both Writ Petitions are directed against the order of the Tribunal in O.A. No.5647 of 2004 referred to above. The said O.A. was filed by the fourth respondent herein, who is the applicant. The issue involved in the O.A. relates to the seniority list prepared by the Commissioner, Bhimavaram Municipality, West Godavari District relating to Secondary Grade Teachers in the schools administered by the second respondent vide the impugned proceedings being Roc.No.3848/2002/C2, dated 28-09-2004. The case of the petitioners is that they were selected under DSC 2000, but while preparing the seniority list, the merit as per the selection is not followed. They relied upon the provisions of Rule 33 (b) of A.P. State and Subordinate Service Rules and contended that it is the prerogative of the appointing authority to determine the seniority when two or more persons are simultaneously appointed in service. The interpretation of Rule 33 (b) as well as proviso figuring in the said Rule together with Rule 31 of the A.P. State and Subordinate Service Rules and applicability of the said Rules to the facts and circumstances of the said case is in issue in this Writ Petition. The Tribunal, while considering the matter has allowed the O.A. in terms of the earlier order of the Tribunal in O.A.No.4991 of 2005 and batch, dated 12-09- 2006. The Tribunal has recorded a finding that the facts and circumstances obtaining in the present case are similar to the facts and circumstances obtaining in the earlier decision in the said O.A.No.4991 of 2005 and batch. The said order is assailed in these Writ Petitions. We have heard learned counsel appearing for the petitioners who has made several submissions to point out that the objections filed by the petitioners to the provisional seniority list were not properly considered and that the rejection of their objections while finalizing the seniority list under the impugned order is not in conformity with Rule 33 (b) referred to above. Learned counsel has also shown that the facts and circumstances of the O.A.No.4991 of 2005 and batch stand on a different footing than the facts and circumstances of the present case. The learned counsel distinguished the said earlier decision on the ground that the said case related to Teachers of the Government Schools where D.E.O. is the appointing authority, where as the present case deals with the Teachers i.e., petitioners working in the schools under the Bhimavaram Municipality and therefore the Commissioner alone is the appointing authority. Learned counsel, therefore, says that under Rule 33 (b) referred to above the appointing authority has discretion to assign seniority based upon the preference or merit as it deems fit and proper. So far as the facts and circumstances in O.A. No.4991 of 2005 are concerned, a copy of the order in the said O.A. shows that the subject matter of the said O.A. comprised of separate merit lists prepared by the DSC in respect of all selected persons and separate lists were prepared in respect of different categories like O.C., S.C., S.T., B.C. etc., - vide paras 33 and 34 of the order in the said O.A. In the said order, however, in para 35, the Tribunal had given a direction that seniority list has to be prepared with reference to merit list or order of preference given by the respective DSC, which is in accordance with the Rules, however, the further sentence in the said para that such list need not be with reference to roster points, however, appears to be incorrect. The operative portion of the order in the said O.A. directed in para 37 (1), however, directed that official respondents to prepare seniority list of all SGTs in terms of Rule 33 (a) read with Rule 33 (b) of A.P. State and Subordinate Service Rules based on the merit list prepared by the respective DSCs on the basis of marks obtained and to that extent the order is in accordance with the Rules, however, afterwards the phrase “without reference to the roster points” appears contrary to Rules. In direction (2), the Tribunal held that if there is no such seniority list of SGTs prepared by any of the DSCs and separate lists for different categories like O.C., S.C., S.T., B.C. etc., have been prepared, instead of a single merit list prepared in respect of all categories like O.C., B.C., S.C., S.T. etc., based on the marks contained in the respective DSCs. Again the phrase “without reference to roster points” appears contrary to Rules. In our view, therefore, the direction given in the said O.A. that ignoring the roster points and a direction given to prepare single merit list out of the separate lists prepared by DSC is not in accordance with law. So far as ignoring the roster points are concerned, the APPSC or the selecting authority is empowered to prepare the merit list based on marks or on the preferential basis, but not, in any case, ignoring the roster points. The aforesaid power of the selecting authority to prepare the list on the basis of the merit or order of preference, therefore, is evident from proviso to Rule 33 (b) and in the absence of such power being exercised by the selecting authority, it is the appointing authority, which has to exercise the said power under sub-clause (b) of Rule 33 for the purpose of preparing seniority list. Though we are not sitting in judgment over the said decision of the Tribunal in O.A. No.4991 of 2005, in the present case, since the impugned order is based upon and following the said judgment, we are expressing our view with respect of the direction given to ignoring the roster points in the operative portion of the order in the said O.A. Even otherwise, it is evident that in the aforesaid O.A. there was no common seniority list prepared by the selecting authority and on the contrary there are separate list for each category. It is in those circumstances the Tribunal had given directions to prepare a common seniority list following the Rule 33 of the Rules referred to above. In the present case, however, DSC had prepared a seniority list, which is evident from the manner in which the objections of the petitioners were dealt with by the second respondent in the impugned proceedings, dated 28-09-2004. So far as the objection of the applicant is concerned, it was stated in the remarks of the reply thereto that “every recruitment shall be made from the last roster point where the last roster recruitment ended and subsequent recruitment shall be taken up including backlog vacancies, so that recruitment was taken up in DSC 2000 for the current vacancies including backlog vacancies. The backlog vacancies are over and above the current vacancies and hence the candidate selected in DSC 2000 were placed in appropriate roster points according to their merit as per the instructions issued by the D.E.O., West Godavari District, Eluru, vide proceedings No.29/A1/2004, dated 26-05-2004 of the District Educational Officer, West Godavari District, Eluru.” Again with respect to another objection of one, R.Narsi Reddy, the impugned proceedings states as follows : “The merit cum roster seniority list has been prepared on the merit order list which was communicated by the D.E.O., West Godavari District, Eluru. The D.E.O. while sending the merit order list requested to fix the merit candidates in the roster register against the roster points as notified and communicated the seniority list as per the roster register.” The above, therefore, clearly shows that the selecting authority had prepared a seniority list and had sent the same to the appointing authority. In that view of the matter, the facts and circumstances of the present case are quite different from the facts and circumstances as in O.A. No.4991 of 2005 referred to above. Therefore, we are of the view that the Tribunal has committed an error in disposing of the present O.A. No.5647 of 2004 in terms of O.A.No.4991 of 2005 as both cases stand on factually different footing. As mentioned above, the interpretation of Rule 33 (b) and the proviso thereunder read with Rule 36 of the Rules referred to above would arise in the present matter and the said issue has to be gone into with reference to the facts of the present case. Since there is no discussion by the Tribunal on merits of the matter and it has only chosen to follow the earlier decision of the Tribunal in O.A. No.4991 of 2005, we are of the view that in the interest of justice it is necessary to remand the present O.A. No.5647 of 2004 to the Tribunal for reconsideration and disposal in accordance with law. These Writ Petitions are accordingly allowed. The impugned order is set aside and the O.A. No.5647 of 2004 is remitted to the Tribunal for fresh consideration. The Tribunal shall hear all the parties and dispose of the O.A. in accordance with law uninfluenced by any of the observations made herein. There shall be no order as to costs. _________________ V.ESWARAIAH, J. __________________________ VILAS V. AFZULPURKAR, J. 05th November, 2009. skmr THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR Writ Petition Nos.526 and 937 of 2007 Date : 05-11-2009 Writ Petition Nos.526 of 2007 Between : S.Manohar and another .. Petitioners And The Commissioner and Director of School Education, Andhra Pradesh, Hyderabad and 5 others .. Respondents