HON'BLE DR. JUSTICE K. MANMADHA RAO
WRIT PETITION No.33036 of 2022
ORDER :
This petition is filed under Article 226 of the Constitution of India for the following relief:-
"...to issue a Writ Order or Direction more particularly one in the nature of Writ of Mandamus declaring the action of the respondents particularly the 3 rd respondent in not including the petitioner name in the seniority list of School Assistant (Maths)/ School Assistant (P.S.) and in not considering his case for promotion to the said posts in the ensuing counseling, is illegal, arbitrary, unjust, improper in violation of fundamental rights guaranteed under Article 14, 16 and 21 of the Constitution of India and consequently hold that the petitioner is entitled for promotion to the post of School Assistant (Maths)/School Assistant (P.S.) as per G.O. Ms.No.145, General Administration (Ser.D) Department, dated 15.06.2004 in the ensuing promotion counseling and pass such other order or orders......."
2. The case of the petitioner is that initially he was appointed as Secondary Grade Assistant on 09.04.1998 in DSC 1996. At present, he is working as Secondary Grade Teacher at M.P.P. School, Rachinnaya Palli, Chennur Mandal, YSR Kadapa District. While so, when the department has taken up promotions in the category of School Assistant (Maths)/ School Assistant (P.S.) on 13.12.2021 and 14.12.2021 respectively, the petitioner has relinquished his promotion and it is only on 2 temporary and his right of promotion only once i.e., on 13.12.2021 and 14.12.2021. It is further case of the petitioner that, despite his continuous persuasions and representations, the respondents did not consider his claim for promotion to the post of School Assistant (Maths)/School Assistant (P.S.). It is further stated that the petitioner has never relinquished his promotion permanently. Therefore, he is eligible to be considered for promotion to the aforementioned post in the ensuing counseling. The respondents have prepared the seniority list of Secondary Grade Teachers for promotion to the post of School Assistant (Maths)/School Assistant (P.S.) and in the said list, the petitioner name was not included on the ground that he has relinquished his promotion on earlier occasion.
3. Heard Ms. Kavitha Gottipati, learned counsel appearing for the petitioner and learned Government Pleader for Women Development Child Welfare appearing for the respondents.
4. Learned counsel for the petitioner submitted that the respondents are going to finalize the counseling for the promotions to the post of School Assistant (Maths)/School 3 Assistant (P.S) and further submits that the matter is squarely covered by the order passed by this Court in W.P.No.28804 of 2022, dated 22.09.2022, and hence, requests this Court to pass similar order in this petition also.
5. On the other hand, learned Government Pleader submits that since the petitioner had relinquished his promotion on earlier occasion, and in the light of G.O.Ms.No.145, dated 15.06.2004 and G.O.Ms.No.227 dated 30.05.2014, his case cannot be considered for promotion. Further, learned Government Pleader requests short pass over for getting instructions with regard to any charges are pending against the petitioner. After sometime, while calling the matter, he reported that he has not received any information from the concerned respondents.
6. This Court has considered the submissions made by the learned counsel and perused the judgments on which reliance is placed. In G.Boyanna v. Registrar (Administration), High Court of A.P., Hyderabad and another1, the Division Bench of the erstwhile Common High Court of Andhra Pradesh at Hyderabad, considered the issues where an employee foregone promotions on the earlier 1 2009 (1) ALT 462 4 occasions and sought for promotion when the vacancies arose in a particular Department. In the context of interpreting Rule 28 of the Andhra Pradesh State and Subordinate Service Rules, 1996, the Division Bench while referring to the judgment rendered by another Division Bench held that a member of service is not disentitled for being considered for promotion in a future vacancy, merely because he/she had relinquished his/her right of promotion on the earlier occasion. The relevant portion of the judgment of the Hon'ble Division Bench reads as follows:
"11..........As far as that particular vacancy is concerned, the employee's relinquishment is final. He cannot claim later that he may be deemed to have been promoted to that particular vacancy and that his seniority may be fixed as if he was promoted to that vacancy. Accepting such interpretation would mean that if a member of service, who has relinquished his promotion, at one stage, is promoted subsequently when another vacancy arose, he will be junior to a person, who in spite of being junior to this member, was promoted to the vacancy relinquished by him in the promotion post.
In the light of the above discussion, we have no hesitation in holding that relinquishment of right or privilege of promotion to a particular vacancy would amount to permanent relinquishment of right of privilege for promotion to that particular vacancy. The Rule 28 of the State and Subordinate Service Rules cannot be read or interpreted to mean that his right to be considered for promotion to any vacancy arising in future also is permanently extinguished. Such an interpretation would lead to frustration and unrest in the service defeating the object of promotion efficiency and harmonious functioning.
(emphasis added)."
7. In the light of the judgment of the Hon'ble Division Bench, which is a binding precedent, this Court finds merit 5 in the submissions made by the learned counsel for the petitioner. Therefore, the inaction on the part of the respondents in considering the case of the petitioner for promotion is not just and tenable.
8. Having regard to the facts and circumstnaces of the case and upon perusing the entire material available on record, this Court deems fit to allow the present writ petition in terms of the order dated 22.09.2022 passed by this Court in W.P.No.28804 of 2022.
9. Accordingly, the Writ Petition is Allowed, at the stage of admission with the consent of both parties, with a direction to the respondents to consider the case of the petitioner for promotion to the post of School Assistant (Maths)/School Assistant (P.S.) in the existing or future vacancies. There shall be no order as to costs.
Miscellaneous petitions pending, if any, in this Writ Petition shall stand closed.
______________________________ DR. K. MANMADHA RAO, J.
Date : 11-10-2022 Gvl 6 HON'BLE DR. JUSTICE K. MANMADHA RAO WRIT PETITION No.33036 OF 2022 Date : 11-10-2022 Gvl