Tuhin Kumar Gedela, J.

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 2nd respondent and Sri Kotipalli Bhanu Kumar, learned counsel for the 4th 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 5th 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 belongs to OC(W) category and that except the fact that she being selected, she is not aware of the ranking in the DSC-2000 since at no point of time, the rankings assigned to all the candidates were neither published nor made available to them and thereby the irregularities reckoning the seniority in the service of Secondary Grade Teachers were not arisen and with that factual background, the O.A. was filed to declare the proceedings of the 2nd respondent in preparing the final seniority of Secondary Grade Teachers in the schools administered by the 2nd respondent vide proceedings Roc.No.3848/2002/C2, dated 28.09.2004, being contrary to Rules 33 to 36 of A.P. State and Subordinate Service Rules and inter alia to fix the seniority directly in accordance with the merit ranking in DSC-2000. The Tribunal disposed of the said O.A. on 21.09.2012.

4. Negating the contentions of the writ petitioner, the 3rd respondent filed counter-affidavit, narrating the facts, which are not in dispute, and stress was laid on the proposition of law that as per Rule 33 (b) of the A.P.State and Subordinate Service Rules, 1996, the appointing authority may, at the time of passing an appointment order, appoint two or more persons simultaneously to a service, fix either for the purpose of satisfying the Rule of reservation of appointment or for any other reason the order of preference among them and where such order has been fixed.

5. The Tribunal while addressing the contentions in the counter affidavit and since the issue raised in the Original Application is no more res integra, disposed of the Original Application. Assailing the said order, the present Writ Petition is filed and he pressed to dismiss the Writ Petition, in view of the settled legal proposition of law.

6. On due appreciation, the question that arises for consideration of this Court is:

                  “Whether the determination of inter se seniority would depend upon the filling up of the vacancies so far as the reserved categories are concerned having regard to the roster points or not?”

7. As stated ibid, the facts are not meticulously disputed by either parties. When it comes to the legal conundrum, it is needless to reiterate the recent judgment of the Hon’ble Supreme Court in the case of Manoj Parihar and others v. State of Jammu and Kashmir and others (2022 LiveLaw (SC) 560) . The ratio regarding the fixation of seniority as per the merit/ranking in DSC and not otherwise and particularly following the roster while promoting the employees is settled and no more res integra. The principle of law is discernible from the various decisions that the roster system is only for the purpose of ensuring that the quantum of reservation reflected in the recruitment process and nothing to do with the inter se seniority among the recruited. In other words, the roster point does not determine the seniority of the appointees, who gain simultaneous appointments.

8. This proposition of law is succinctly discussed in the case of R.K. Sabharwal v. State of Punjab((1995) 2 SCC 745) , wherein the Hon’ble Supreme Court at paragraph No.5 held as follows:

                  “5. We see considerable force in the second contention raised by the learned counsel for the petitioners. The reservations provided under the impugned Government instructions are to be operated in accordance with the roster to be maintained in each Department. The roster is implemented in the form of running account from year to year. The purpose of “running account” is to make sure that the Scheduled Castes/Schedule Tribes and Backward Classes get their percentage of reserved posts. The concept of “running account” in the impugned instructions has to be so interpreted that it does not result in excessive reservation. “16% of the posts …” are reserved for members of the Scheduled Castes and Backward Classes. In a lot of 100 posts those falling at Serial Numbers 1, 7, 15, 22, 30 , 37, 44, 51, 58, 65, 72, 80, 87 and 91 have been reserved and earmarked in the roster for the Scheduled Castes. Roster points 26 and 76 are reserved for the members of Backward Classes. It is thus obvious that when recruitment to a cadre starts then 14 posts earmarked in the roster are to be filled from amongst the members of the Scheduled Castes. To illustrate, first post in a cadre must go to the Scheduled Caste and thereafter the said class is entitled to 7th, 15th, 22nd and onwards up to 91st post. When the total number of posts in a cadre are filled by the operation of the roster then the result envisaged by the impugned instructions is achieved. In other words, in a cadre of 100 posts when the posts earmarked in the roster for the Scheduled Castes and the Backward Classes are filled the percentage of reservation provided for the reserved categories is achieved. We see no justification to operate the roster thereafter. The “running account” is to operate only till the quota provided under the impugned instructions is reached and not thereafter. Once the prescribed percentage of posts is filled the numerical test of adequacy is satisfied and thereafter the roster does not survive. The percentage of reservation is the desired representation of the Backward Classes in the State Services and is consistent with the demographic estimate based on the proportion worked out in relation to their population. The numerical quota of posts is not a shifting boundary but represents a figure with due application of mind. Therefore, the only way to assure equality of opportunity to the Backward Classes and the general category is to permit the roster to operate till the time the respective appointees/promotes occupy the posts meant for them in the roster. The operation of the roster and the “running account” must come to an end thereafter. The vacancies arising in the cadre, after the initial posts are filled, will pose no difficulty. As and when there is a vacancy whether permanent or temporary in a particular post the same has to be filled from amongst the category to which the post belonged in the roster. For example the Scheduled Caste persons holding the posts at roster points 1, 7, 15 retire then these slots are to be filled from amongst the persons belonging to the Scheduled Castes. Similarly, if the persons holding the post at points 8 to 14 or 23 to 29 retire then these slots are to be filled from among the general category. By following this procedure there shall neither be shortfall nor excess in the percentage of reservation.”

9. In the case of Bimlesh Tanwar v. State of Haryana 3 , the Hon’ble Supreme Court at paragraph Nos.19, 24, 33 and 40 held as follows:

                  “19. It was submitted that having regard to the instructions issued by the Haryana Government in its circular letter dated 27-4- 1972, roster points cannot be considered as seniority points and further having regard to the fact that these instructions have been followed by the High Court for a long time, there is absolutely no reason as to why such a practice should be deviated from. The learned counsel contended that this Court in Ajit Singh (II) 5 having categorically held that roster points are not intended to determine seniority between general candidates and reserved candidates, the impugned judgment cannot be faulted with.

                  24. The Rules, therefore, indisputably lay emphasis on merit. It for all intent and purport excludes the applicability of rule of appointment in terms of roster points.

                  33. The question as to whether the determination of inter se seniority would depend upon the filling up of the vacancies so far as the reserved categories are concerned, having regard to the roster points, in our opinion, is no longer res integra.

                  40. An affirmative action in terms of Article 16(4) of the Constitution is meant for providing a representation of a class of citizenry who are socially or economically backward. Article 16 of the Constitution of India is applicable in the case of an appointment. It does not speak of fixation of seniority. Seniority is, thus, not to be fixed in terms of the roster points. If that is done, the rule of affirmative action would be extended which would strictly not be in consonance of the constitutional schemes. We are of the opinion that the decision in P.S. Ghalaut does not lay down a good law.”

10. In the case of G.P. Doval v. Government of U.P.( (1984) 4 SCC 329), the Hon’ble Supreme Court at paragraph Nos.16 and 17 held as follows:

                  “16. A grievance was made that the petitioners have moved this Court after a long unexplained delay and the Court should not grant any relief to them. It was pointed out that the provisional seniority list was drawn up on March 22, 1971 and the petitions have been filed in the year 1983. The respondents therefore submitted that the Court should throw out the petitions on the ground of delay, laches and acquiescence. It was said that promotions granted on the basis of impugned seniority list were not questioned by the petitioners and they have acquiesced into it. We are not disposed to accede to this request because Respondents 1 to 3 have not finalised the seniority list for a period of more than 12 years and are operating the same for further promotion to the utter disadvantage of the petitioners. Petitioners went on making representations after representations which did not yield any response, reply or relief. Coupled with this is the fact that the petitioners belong to the lower echelons of service and it is not difficult to visualise that they may find it extremely difficult to rush to the court. Therefore, the contention must be rejected.

                  17. In view of the discussion, these petitions succeed and are allowed and a writ in the nature of certiorari is issued quashing the impugned seniority list dated March 22, 1971 in respect of Khandsari Inspectors. The Respondents 1 to 3 are directed to draw up a fresh seniority list based on the principle of length of continuous officiation reckoned from the date of first appointment if the appointment is followed by confirmation i.e. selection/approval by the State Public Service Commission. We order accordingly, but in the circumstances of the case, there will be no order as to costs.”

11. In the case of Kuldip Chand v. Union of India((1995) 5 SCC 680), the Hon’ble Supreme Court at paragraph Nos.4 and 5 held as follows:

                  “4. It is next contended by Mr. M.M. Kashyap, learned counsel for the appellant, that Ashok Kumar disputed the correctness of the seniority list made on 23-12-1982 in his representations dated 10-1- 1983 and 1-8-1983 which were duly considered and rejected. He allowed it to become final as he did not challenge the same till post of accountant became vacant. When it was rejected, he filed the writ petition in the High Court. There is a considerable delay in claiming his seniority over the appellant. It is true that the seniority list was prepared as early as on 23-12-1982 but no vacancy had arisen thereafter and, therefore, the mere rejection of the claim for seniority does not disentitle him to claim his seniority over the appellant for consideration by the respondent-Union.

                  5. When the aforesaid facts are taken into consideration, it would be obvious that the preparation of seniority list per se was illegal. Therefore, the mere fact that he did not challenge the seniority list, which was illegally prepared, till he was aggrieved for non- consideration of the claim to the post of accountant, his legitimate right to be considered cannot be denied. Under these circumstances, the delay is of no consequence for considering the claims of Ashok Kumar for the post of accountant.”

12. In the case of Ajit Singh v. State of Punjab ((1999) 7 SCC 209) , the Hon’ble Supreme Court at paragraph Nos.40 to 42 held as follows:

                  “40. “It must be noted that whenever a reserved candidate goes for recruitment at the initial level (say Level 1), he is not going through the normal process of selection which is applied to a general candidate but gets appointment to a post reserved for his group. That is what is meant by “reservation”. That is the effect of “reservation”.

                  41. Now in a case where the reserved candidate has not opted to contest on his merit but has opted for the reserved post, if a roster is set at Level 1 for promotion of the reserved candidate at various roster points to Level 2, the reserved candidate, if he is otherwise at the end of the merit list, goes to Level 2 without competing with general candidates and he goes up by a large number of places. In a roster with 100 places, if the roster points are 8, 16, 24 etc. at each of these points the reserved candidate if he is at the end of the merit list, gets promotion to Level 2 by side-stepping several general candidates. That is the effect of the roster-point promotion.

                  42. It deserves to be noticed that the roster points fixed at Level 1 are not intended to determine any seniority at Level 1 between general candidates and the reserved candidates. This aspect we shall consider again when we come to Mervyn Continho v. Collector of Customs (1966) 3 SCR 600 lower down. The roster point merely becomes operative whenever a vacancy reserved at Level 2 becomes available. Once such vacancies are all filled, the roster has worked itself out. Thereafter other reserved candidates can be promoted only when a vacancy at the reserved points already filled arises. That was what was decided in R.K. Sabharwal v. State of Punjab (1995) 2 SCC 745.”

13. In Ajit Singh’s case (cited supra), the decision of the Hon’ble Supreme Court in R.K. Sabharwal case was explained as under:

                  “P.S. Ghalaut v. State of Haryana [(1995) 5 SCC 625] relied upon by Dr. Chauhan, is a decision rendered by a two Judge bench. In that case Rule 13 of the Rules envisaged that the seniority inter se of members of the service shall be determined by the length of continuous service on any post in the service; provided further that in the case of two or more members appointed by direct recruitment, the order of merit determined by the Commission shall not be disturbed in fixing the seniority. Despite the said Rule, it was held as under:

                  “Take for instance Vacancies Nos. 1 and 6, as pointed out in the Chief Secretary's letter have admittedly been reserved for Scheduled Castes. Suppose recruitment was made to fill up ten vacancies, three candidates from Scheduled Castes were selected on the basis of reserved quota. The question is whether the first candidate will be put in the quota allotted to the Scheduled Castes in the roster. Having been selected as a general candidate, though he is more meritorious than the second and third candidates, he will not get the placement in the roster, reserved for Scheduled Castes i.e. Nos. 1 and 6 points. Consequently candidates Nos. 2 and 3 will get the placement at Nos. 1 and 6 and the first candidate will get the placement in the order of merit along with the general candidates according to the order of merit maintained by the Selection Committee or the Public Service Commission. He cannot complain that having been selected in the merit, he must be placed in the placement reserved for Scheduled Castes at Point No. 1 in the roster. Equally, though general candidate is more meritorious in the order of merit prepared by the Public Service Commission or the Selection Committee, when the appointments are made and the vacancies are filled up according to the roster, necessarily and inevitably the reserved candidates though less meritorious in the order of merit maintained by the Public Service Commission would occupy the respective places assigned in the roster. Thereby they steal a march over some of the general candidates and get seniority over the general candidates. This scheme is, therefore, constitutional, valid and is not arbitrary.”

                  We have not been able to persuade ourselves to the aforesaid view.”

14. The Hon’ble Supreme Court in Manoj Parihar’s case (cited supra), at paragraph Nos.25 and 28 held as follows:

                  “25. It will be of interest to note that the hypothetical situation taken up by this Court in P.S. Ghalaut (supra) where two reserved category candidates were pitted against each other, was actually extracted by this Court in para 36 of the report in Bimlesh Tanwar (supra) and this Court recorded that the same was not correct. In para 40 of the report this Court eventually held as follows:-

                  “40. An affirmative action in terms of Article 16(4) of the Constitution is meant for providing a representation of class of citizenry who are socially or economically backward. Article 16 of the Constitution of India is applicable in the case of an appointment. It does not speak of fixation of seniority. Seniority is, thus, not to be fixed in terms of the roster points. If that is done, the rule of affirmative action would be extended which would strictly not be in consonance of the constitutional schemes. We are of the opinion that the decision in P.S. Ghalaut does not lay down a good law.””

                  “28. Therefore, it is clear that anything done as a consequence of the decision of this Court in P.S. Ghalaut (supra), cannot stand since this Court did not apply the doctrine of prospective overruling in Bimlesh Tanwar (supra) in express terms. It goes as follows:-

                  “(i) In Union of India v. Virpal Singh [(1995) 6 SCC 684] , this Court upheld the stand taken by the Railways that reserved category candidates who got promotion at roster points would not be entitled to claim seniority at the promotional level as against senior general category candidates who got promoted at a later point of time to the same level. The Court held that the State was entitled to provide, what came to be known in popular terms as the “catch up rule” enabling the senior general category candidates who got promoted later, to claim seniority over and above the rosterpoint promotee who got promoted earlier.

                  (ii) The catch up rule formulated in Virpal was approved by a three member Bench in Ajit Singh Januja v. State of Punjab [(1996) 2 SCC 715]. This case came to be known as Ajit Singh (I).

                  (iii) But, another three member Bench took a different view in Jagdish Lal v. State of Haryana [(1997) 6 SCC 538] and held that while the rights of the reserved candidates under Article 16(4) and 16(4-A) were fundamental rights, the right to promotion was a statutory right and that therefore, the roster point promotees have to be given seniority on the very same basis as those having continuous officiation in a post.

                  (iv) Since Jagdish Lal took a view contrary to the views expressed in Virpal Singh and Ajit Singh (I), the State of Punjab filed Interlocutory Applications before this Court, seeking clarifications. These Interlocutory Applications were placed before a Constitution Bench comprising of 5 Judges, in view of the fact that two Benches of coordinate jurisdiction (both three member Benches) had taken diametrically opposite views. The decision rendered by the larger Bench of 5 Judges on these Applications came to be known as Ajit Singh (II), in Ajit Singh v. State of Punjab [(1999) 7 SCC 209].

                  (v) Eventually, the Constitution Bench held in Ajit Singh (II) that the roster point promotes cannot count their seniority in the promoted category, from the date of their continuous officiation in the promoted post, vis-a-vis the general category candidates who were senior to them in the lower category and who were later promoted. As a consequence, Virpal and Ajit Singh (I) were declared to have been decided correctly and Jagdish Lal was declared to be incorrect.”

15. The confessional verbatim averments in the writ petition by the unsuccessful candidate are categorical that the appointing authority fixed the seniority as per the roster points, which bestows attention, as the very sentence is in the teeth of the above ratio laid down by the Hon’ble Supreme Court, ipso facto.

16. In the light of legion of Hon’ble Supreme Court pronouncements, we are convinced that there is neither legal infirmity nor illegality in the order passed by the Tribunal warranting interference at our end. Therefore, the order of the Tribunal is upheld, inter alia the Writ Petition is dismissed, directing the authorities to implement the order of the Tribunal as it is, within a period of three (03) months from the date of receipt of a copy of this order. There shall be no order as to costs.

17. As a sequel, miscellaneous applications pending, if any, shall stand closed.