Andhra Pradesh High Court - Amravati

Smt.Indira vs The Divisional Forest Officer on 17 December, 2021

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                 WRIT PETITION NO.11255 OF 2019

ORDER:

This writ petition is filed under Article 226 of the

Constitution of India, claiming the following relief:

"To issue writ of Mandamus to declare the Orders passed by the Respondents in not considering my case for promotion to the post of Senior Assistant after my relinquishment in the 1999 keeping in view of law laid down by 3 Division Bench Judgements of this Court in W.P No.26654/2005 dated 9.5.2006; 2009 (2) ALT 403 and W.P.No.13624 of 2015 dated 2.6.2017 and passing orders and issuing Memo by Government No 5145/SECV/20161 dated 30.3.2017 as Illegal arbitrary and violates the Articles 14, 16 and 21 of Constitution of India and consequently declare that the petitioner is entitled for promotion in the next panel year of the relinquishment."

The case of the petitioner in nut-shell is that, the petitioner

was appointed as Junior Assistant and promoted as Senior

Assistant vide orders of the Conservator of Forest, Kurnool dated

24.08.2017. Her services were regularized with effect from

10.02.1998 and on promotion, she was posted to Velugodu range,

Atmakuru Division and she joined duty on 06.10.1999. Thereafter,

considering the difficulties the petitioner was transferred to

Nandyal vide order dated 24.03.1999. To her misfortune, due to

abolition of TGP posts, the petitioner was again transferred and

allotted to the office of Field Inspector and Conservator of Forests,

Tiger Project, Srisailam. Since the petitioner's husband is working

in A.P. Transco, Nandyal, and due to family problems, the

petitioner was unable to join at Srisailam and she requested the

Conservator of Forests to consider her for relinquishment as Senior MSM,J WP.No.11255 of 2019

Assistant and requested to post her at Junior Assistant at

Nandyal. On 18.12.2019, the Conservator of Forests accepted the

request of the petitioner. Thereafter, the petitioner made several

representations to consider her candidature for promotion as

Senior Assistant in Kurnool Circle.

It is the case that on 19.01.2015 and 19.08.2018 the

petitioner made representations to the Principal Chief Conservator

of Forests and the Chief Conservator of Forests was asked to

submit proposals. On 02.03.2018, the Chief Conservator of Forests

submitted proposal stating that the petitioner did not request for

permanent relinquishment. Thereafter, vide Memo No.5145/Sec.V

/2016-1 dated 30.03.2017, the Government clarified that,

relinquishment once made will be final and irrevocable. Aggrieved,

the petitioner filed the present writ petition to consider her case for

promotion to the post of Senior Assistant after relinquishment.

The main grievance of this petitioner is that, the petitioner

relinquished her promotion temporarily, but not permanently and

it is only a temporary relinquishment. Therefore, the respondents

cannot deny promotion to the petitioner on the ground that she

relinquished promotion by submitting a letter to the Conservator of

Forests. Hence, the inaction of the respondents is illegal, arbitrary

and requested to set-aside the same.

Respondents filed no counter affidavit.

During hearing, Sri P.V. Ramana, learned counsel for the

petitioner contended that the issue is squarely covered by the

judgment of Division Bench in G. Boyanna v. Registrar MSM,J WP.No.11255 of 2019

(Administration), High Court of Andhra Pradesh, Hyderabad1

and therefore, by following the principle laid down in the above

judgment, requested to issue a direction as claimed above.

Learned Government Pleader for Services-I contended that,

the claim of the petitioner is barred on the ground of delay and

relied on the judgment of the Division Bench of High Court of

Judicature at Hyderabad for the State of Telangana and State of

Andhra Pradesh in Mohammed Yakub Ali v. State of Telangana

and others2 and requested to dismiss the writ petition.

The petitioner is undisputedly promoted as Senior Assistant

and later, she was post in Tiger Project, Srisailam. Thereafter, on

account of her difficulties she relinquished her promotion by

submitting letter and the same was accepted by the Conservator of

Forests on 18.12.2019. The Chief Conservator of Forests, Kurnool

circle addressed a letter to the Principal Chief Conservator of

Forests, Guntur vide Rc.No.270/2015/M1 dated 02.03.2018,

wherein it is specifically stated as follows:

"In this connection it is submitted that it is a fact that the individual nowhere in her letter of offering the relinquishment has requested for permanent relinquishment. But, the Conservator of Forests, Kurnool has ordered that she is not entitled for promotion until her retirement in terms of Rule 28 of Andhra Pradesh State & Subordinate Service Rules, 1996. Further, the above Junior Assistant in her representation while referring the cases of Smt. Surya Kumar, Vizag Circle and Smt. Padmavathi, Kurnool Circle is contending that the Prl. Chief Conservator of Forests (HoFF), AP, has considered the cases of the said individuals for re-promotion. but she has not enclosed any documents in support of her contention for examination.

2009 (2) ALD 402 (D.B)

2016 (3) ALD 251 (D.B) MSM,J WP.No.11255 of 2019

In view of the above, it is requested to examine the request of the above Junior Assistant for re- consideration of her case for promotion as Senior Assistant and pass appropriate orders in this regard as per Rules."

Thus, it is evident from the correspondence that the

petitioner did not relinquish her right for promotion permanently,

but, she relinquished only for a limited period. The same issue was

considered by the Division Bench of High Court of Andhra Pradesh

in The District Educational Officer, Kurnool vs. Shahnaz

Begum, Gr.II Urdu Munshi, Govt. Boys High School, Atmakur,

Kurnool3, wherein the Court considered permanent

relinquishment of right of promotion with reference to Rule 28 of

the Andhra Pradesh State and Subordinate Service Rules, 1996,

which reads as follows:

                   "28. RELINQUISHMENT           OF    RIGHTS     BY
                   MEMBERS:-

                   Any member of a service may, in writing,

relinquish any right or privilege to which he may be entitled to, under these rules or the special rules, if, in the opinion of the appointing authority such relinquishment is not opposed to public interest. Such relinquishment once made will be final and irrevocable. Nothing contained in these or the special rules shall be deemed to require the recognition of any right or privilege to the extent to which it has been so relinquished. Provided that no conditional relinquishment or relinquishment of right for a temporary period shall be permitted."

Relying on various judgments of various Courts, the High

Court concluded that, relinquishment is not forever and it is for

the particular panel year. When the petitioner did not specifically

waive her right to be considered for promotion, no such waiver can

be said to have been made by necessary implication either. Rule 28

2009 (2) ALD 402 (DB) MSM,J WP.No.11255 of 2019

does not disentitle a member of a service from being considered for

promotion in a future vacancy merely because she had

relinquished her right under the Rules for promotion earlier. The

jurisdiction of this Court under Article 226 of the Constitution of

India is supervisory and not appellate.

In G. Boyanna v. Registrar (Administration), High Court

of Andhra Pradesh, Hyderabad (referred supra), the Division

Bench of the High Court considered the issue and held as follows:

"We find ourselves in consensus with the opinion of the learned Division Bench in the above judgment. The mere fact that the petitioner sought reversion earlier on personal grounds did not disentitle him from being considered for promotion thereafter. The reliance placed upon the Memo dated 18.01.1984 was utterly misconceived as pointed out herein above and Rule-28 of the Rules of 1996 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.

Accordingly, the writ petition is allowed directing the second respondent herein to consider the case of the petitioner for promotion as per rules and in terms of his eligibility and qualification, as and when a suitable vacancy arises. There shall be no order as to costs."

If these principles are applied to the present facts of the

case, keeping in view the correspondence between the Chief

Conservator of Forests, Kurnool Circle and the Principal Chief

Conservator of Forests, Guntur vide Rc.No.270/2015/M1 dated

02.03.2018, the petitioner did not relinquish her right

permanently, but the relinquishment is only for a particular panel

year and Rule 28 will not come in the way of the respondents to

promote the petitioner to the post of Senior Assistant. As the

petitioner was facing certain problems during particular period, MSM,J WP.No.11255 of 2019

due to personal problems, she relinquished her promotion as

Senior Assistant only for a limited purpose and that cannot be

considered as a permanent relinquishment of right for promotion

in future panel years.

Learned Government Pleader for Services-I contended t5hat,

there is an abnormal delay in filing the writ petition and placed

reliance on the judgment of the Division Bench of High Court of

Judicature at Hyderabad for the State of Telangana and State of

Andhra Pradesh in Mohammed Yakub Ali v. State of Telangana

and others (referred supra), where the Court held as follows:

"Be that as it may, the Tribunal has rendered its order in O.A.No.4829 of 2008 instituted by this very petitioner as long back as on 22.08.2008. The present writ petition is preferred on 22.09.2014, i.e. more than 6 years after the said order is passed. No explanation worth the consideration was offered in this writ petition as to why the writ petitioner is approaching this Court after lapse of six years. Though, no period of limitation is prescribed for preferring a writ petition under Article 226 or 227 of the Constitution, but nonetheless, a writ petition is liable to be instituted within a reasonable and proximate period of one year. At any rate, a period of three years, which is a reasonable period for anyone to ventilate his grievance, and seek enforcement of one's legal rights, appears to be the spirit behind prescribing the said three years period as the period of limitation under the Limitation Act, 1961, for various causes of action. Therefore, taking a clue there from, if a party to a proceeding before the Andhra Pradesh Administrative Tribunal does not approach the High Court concerned, within one year period or at any rate within the three year period, such writ petitions cannot be entertained in normal course, unless an exceptional case is made out for entertaining any such writ petition."

But, the principle laid down in the above judgment cannot

be applied to the present facts of the case, for the reason that, dely

and latches has no place in service law, when a writ petition is

directly filed before this Court. In the facts of the case in

Mohammed Yakub Ali v. State of Telangana and others

(referred supra), the petitioner caused substantial delay of six MSM,J WP.No.11255 of 2019

years in preferring a writ petition, challenging the order passed in

O.A. Hence, the principle laid down in the above judgment has no

direct application to the present facts of the case.

In view of the law declared by the Courts in The District

Educational Officer, Kurnool vs. Shahnaz Begum, Gr.II Urdu

Munshi, Govt. Boys High School, Atmakur, Kurnool (referred