Telangana High Court
State Of Telangana, vs V Ashok, on 28 June, 2024
Author: Abhinand Kumar Shavili
Bench: Abhinand Kumar Shavili
HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI
AND
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
WRIT PETITION No.43954 of 2016
ORDER:
(per Hon'ble Sri Justice Laxmi Narayana Alishetty) This writ petition is filed aggrieved by the order of the A.P. Administrative Tribunal, Hyderabad, (for short, 'the Tribunal') in O.A.No.3161 of 2015, dated 29.06.2015.
2. Heard learned Government Pleader for Services-I for petitioners and Sri C.Raja Sekhar Reddy, learned counsel for respondent no.1.
3. Brief facts of the case are that respondent no.1 was working as Secondary Grade Teacher and his case was considered for promotion in the post of School Assistant (Social)/LFL Headmaster during the year, 2010. However, respondent no.1 relinquished the same due to personal reasons. Subsequently, during the year 2013, promotion to the post of LFL Headmaster was taken up and in the said AKS,J & LNA,J WP No.43954 of 2016 2 counseling, respondent no.1 submitted representation on 28.05.2013 before the 3rd petitioner to include his name in the seniority list for promotional post counseling. However, the authorities rejected his request for promotion on the sole ground that he has already relinquished his promotion earlier in the year 2010. Subsequently, the petitioners were going to conduct promotional counseling to the post of School Assistant/LFL Headmaster in the month of July, 2015.
4. In the above circumstances, respondent no.1 approached the Tribunal by filing O.A.No.3161 of 2015 contenting that action of the petitioners in not considering his case for promotion to the post of School Assistant (Social)/ LFL Headmaster, though he is fully eligible and entitled to hold the said post, as illegal and arbitrary. The Tribunal vide order dated 29.06.2015, disposed of the said O.A., by directing the petitioners herein to consider the case of the respondent no.1 for promotion to the post of School Assistant (Social)/LFL Headmaster on par with the junior, who was AKS,J & LNA,J WP No.43954 of 2016 3 promoted in the year 2013 and further directed that respondent no.1 is entitled for notional benefits till the date of filing of the said O.A., and for monetary benefits from the date of that order.
5. Aggrieved by the order dated 29.06.2015 passed by the Tribunal in O.A.No.3161 of 2015, petitioners approached this Court by filing the present writ petition.
6. It has been contended by the learned Government Pleader for petitioners that the name of the respondent no.1 was listed for promotional post during the year 2010, however, he has relinquished his promotion due to personal reasons and subsequently, counseling was taken up for promotional post during the year 2013 and in the said counseling, the name of the 1st respondent was not included since he has not made any representation seeking promotion and also not asked for inclusion of his name in the list of promotion. In the meanwhile, the respondent no.1 approached the Tribunal by filing O.A.No.3161 of 2015 and AKS,J & LNA,J WP No.43954 of 2016 4 the Tribunal was pleased to dispose of the said O.A. vide order dated 29.06.2015 and granted the relief to the respondent no.1 beyond the prayer sought by him.
7. It has been contended by the petitioners that Tribunal failed to consider that the respondent no.1 has not made the effected persons i.e., who got promotion during 2013 and 2015, as parties to O.A., and therefore, he could not be considered for promotion retrospectively. It has been further contended that respondent no.1 has not made any representation before the authorities and there was no acknowledgement by the authorities for such representation. However, the Tribunal failed to consider the same. Therefore, the respondent no.1 is not entitled to the promotion in the year 2013 and his case will be considered in future vacancies and prayed to set aside the Tribunal order and allow the writ petition.
8. Learned counsel for the respondent no.1 had contended that mere relinquishment for promotion on one occasion will AKS,J & LNA,J WP No.43954 of 2016 5 not deprive the employee from considering the case for promotion on later occasions and therefore, the Tribunal had rightly passed the order directing the petitioners to consider the case of the respondent no.1 to the post of School Assistant (Social)/LFL Headmaster with effect from the date of promotion of his junior in the year 2013.
9. Learned counsel for respondent No.1 had further contended that the similar issue was already adjudicated by the Division Bench of this Court in M.V.R.L.S. Ravikanth vs. State of Andhra Pradesh and others1, wherein the Division Bench has interpreted the Rules and came to conclusion that there cannot be permanent relinquishment and the learned Tribunal was justified in disposing of the O.A.No.3161 of 2015 in favour of the respondent No.1 by following the law laid down by the Division Bench of this Court. Therefore, there are no merits in the writ petition and same is liable to be dismissed.
1 2018 (1) ALD 550 (DB) AKS,J & LNA,J WP No.43954 of 2016 6
10. Having regard to the rival submissions made by the learned counsel appearing for both the parties, this Court is of the considered view that the Division Bench of this Court has rightly considered the issue in M.V.R.L.S.Ravikanth (supra) and held as under:
"11. The right to be considered for promotion is a fundamental right under Article 16(1) of the Constitution of India. The Rule 28 of the Rules of 1996 did not disentitle a member of a service from being considered for promotion in a future vacancy merely because he/she had relinquished his/her right for promotion earlier. In the case on hand, the mere fact is that the petitioner's relinquishment for promotion on account of suffering from depression due to sustaining physical disability, loss of wife and son in the accident did not disentitle him from being considered for promotion in future vacancies.
12. The relinquishment of an opportunity for promotion, which arose for an employee occupying certain place in seniority list, in view of vacancy that arose then, in view of the fact that he/she was eligible for promotion in the light of the criteria laid down in the Rules, would mean that the extent the privilege has been relinquished is confined to the privilege related to that particular vacancy which was available to him/her by virtue of the above mentioned circumstances. The Rule cannot be interpreted to mean that the relinquishment was in respect of future vacancies also. 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 AKS,J & LNA,J WP No.43954 of 2016 7 particular vacancy and that his seniority may be fixed as if he was promoted to that vacancy. 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 was promoted to the vacancy relinquished by him in the promotion post and he cannot claim seniority over the said person.
13. In the light of the above discussion, we have no hesitation to hold that relinquishment of right or privilege of promotion to a particular vacancy would amount to permanent relinquishment of right or privilege of promotion to that particular vacancy. Rule 28 of the A.P. 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 interpretation would lead to frustration and unrest in the service defeating the object of promoting efficiency and harmonious functioning.
14. The Tribunal by interpreting Rules 28 and 11(b) of the A.P. State and Subordinate Service Rules, 1996 held that the petitioner cannot be considered for promotion for the third time since he has failed to join his promotion post twice within fifteen days and ultimately came to the conclusion that the petitioner is not entitled to be offered promotion for third time, which is illegal and arbitrary.
15. In the facts and circumstances discussed hereinabove, we find ourselves in consensus with the opinion expressed in the two decisions in Writ Petition No. 26654 of 2005 (The District Educational Officer, Kurnool v. Shahnaz Begum, and, G. Boyanna v. Registrar (Administration), High Court of AP ((2009) 2 ALD 402 (DB)). The mere fact that the petitioner sought reversion earlier on personal grounds did not disentitle him from being considered for AKS,J & LNA,J WP No.43954 of 2016 8 promotion thereafter. Rule 28 of the A.P. State and Subordinate Service Rules does not have the effect of extinguishing the right of the petitioner to be considered for promotion permanently. This being the legal position, the rejection of the petitioner's request to be considered for promotion on the ground of his alleged relinquishment is unsustainable.
16. Accordingly, the Writ Petition is allowed, setting aside the judgment dated 06.04.2015 passed in OA. No. 1802 of 2015 by the Andhra Pradesh Administrative Tribunal, at Hyderabad and directing the third respondent to consider the case of the petitioner for promotion to the post of Senior Assistant in the existing vacancy as per rules, if he is otherwise qualified and eligible for the said post."
11. The Division Bench after interpreting the Rule 11(b) proviso and also Rule 28 of the A.P. State and Subordinate Service Rules, 1996, has rightly came to conclusion that there cannot be permanent relinquishment and the learned Tribunal has followed the law laid down by the Division Bench of this Court. Therefore, the Tribunal was justified in allowing the O.A.No.3161 of 2015 in favour of the respondent No.1. This Court is in complete agreement with the decision rendered by the Division Bench of this Court in M.V.R.L.S.Ravikanth (supra). Hence, this Court is not AKS,J & LNA,J WP No.43954 of 2016 9 inclined to interfere with the order passed by the Tribunal in O.A.No.3161 of 2015, dated 29.06.2015.
12. Writ Petition is accordingly dismissed. There shall be no order as to costs.
As a sequel, the miscellaneous applications pending, if any, shall stand closed.
__________________________________ ABHINAND KUMAR SHAVILI,J ___________________________________ LAXMI NARAYANA ALISHETTY ,J Date: 28.06.2024 KKM