P. Haneef Khan, vs The State Of Andhra Pradesh
2021 Latest Caselaw 5473 AP

         THE HON'BLE SRI JUSTICE NINALA JAYASURYA

                WRIT PETITION No.29632 OF 2021
ORDER:

Heard learned counsel for the petitioners and learned

Assistant Government Pleader for Services-III appearing for

the respondents.

2. The writ petition is filed seeking to declare the action of

the respondents in not considering the claim of the

petitioners for promotion to the post of School Assistant in

English/Social /LFL Headmaster from the cadre of Secondary

Grade Teacher (SGT) in the present ensuing counseling on

the ground of relinquishment even after completion of one

year prescribed period under amended Section 11(b) of A.P.

State and Subordinate Service Rules, 1996 through

G.O.Ms.No.145, General Administration (Service-D)

Department, dated 15.6.2004 as illegal, arbitrary, unjust,

contrary to law, and consequently direct the respondents to

consider the case of the petitioners for promotion to the post

of School Assistant in English/Social/LFL Headmaster from

the cadre of Secondary Grade Teacher (SGT) in the ensuing

counseling, without reference to the earlier relinquishment

given by the petitioners.

3. The petitioners joined the service as Secondary Grade

Teachers (SGT) in the year 1997 and they have completed 24

years of service. The petitioners were promoted in February

2021 in pursuance of the counseling held during October

2020, but however, they relinquished their promotions.

Subsequently, the 4th respondent undertook the exercise of

promotions and the petitioners apprehend that their names

may not be considered and in such an event, in the present

counselling, their juniors will get promotion. On enquiry, the

petitioners were informed that since they had relinquished

their promotions in the earlier counseling, consideration of

their cases for promotion does not arise. The grievance of the

petitioners is that though their names were included in the

seniority list of PSHM-October 2021, and shown at Serial

Nos.32 & 6 respectively in the said list, the relinquishment

details were shown as February 2020 and July 2019, as such

they are entitled for promotion in the latest counseling, in

terms of G.O.Ms.No.145, dated 15.6.2004.

4. Learned counsel for the petitioners, while reiterating the

contentions raised in the writ petition, submits that the view

as taken by the 4th respondent is not sustainable in law. He

also submits that even if the employees did not avail the

opportunity of promotion on the earlier occasions, the same

would not bar or result in losing promotion chances

permanently. In support of his submissions, learned counsel

for the petitioners relies on the judgment of a Division Bench

of this Court in G.Boyanna v. Registrar (Administration),

High Court of A.P., Hyderabad1. 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......"

5. In the light of the above settled legal position, non-

consideration of the petitioners' cases for promotion on the

premise that they relinquished promotion on the earlier

occasion would not be tenable.

6. Accordingly, the writ petition is allowed. The

respondents are directed to consider the case of the

petitioners forthwith by including their names in the list of

promotions for the panel year 2021, in the ensuing

promotions counseling as and when fixed. No costs. The

miscellaneous applications, if any pending, shall stand

closed.

_________________________ NINALA JAYASURYA, J

1 2009 (1) ALT 462

December 24, 2021.

Note:

Dispatch order copy in one week.

(By order) vasu