Lamboo Shameem Banu vs The State Of Andhra Pradesh
2021 Latest Caselaw 4661 AP

       THE HON'BLE SRI JUSTICE NINALA JAYASURYA

               WRIT PETITION No.26182 OF 2021
ORDER:

Heard learned counsel for the petitioner and learned

Assistant Government Pleader for Services-III appearing for the

respondents.

2. The writ petition is filed seeking to declare the

proceedings issued by the 3rd respondent-District Educational

Officer, Kurnool in Rc.No.5418/B1/2021, dated 29.10.2021 in

rejecting the request of the petitioner to include her name in

the seniority list for promotion to the post of School Assistant

Mathematics as illegal, arbitrary, contrary to G.O.Ms.No.145,

General Administration (Ser.D) Department, dated 15.6.2004,

and for a consequential direction to include the name of the

petitioner in the seniority list for promotion to the post of

School Assistant Mathematics in the promotion counseling

scheduled to be held in the month of November, 2021.

3. The petitioner joined the service as Secondary Grade

Teacher (SGT) in the year 1998 and she has completed 23

years of service. Her name was included in the seniority during

the year 2019, but however she did not appear for the

counseling held during the month of July, 2019, due to health

issues. Thus, she has relinquished her promotion for the first

time. Subsequently during October, 2020, the 3rd respondent

undertook the exercise of promotions, but did not include the

petitioner's name for the panel year 2020. As the petitioner's

name was not included, it appears that she made enquiries

and she was informed that since she had relinquished her

promotion in the year 2019, her promotion shall be kept in

abeyance for a period of one year and thereafter in the year

2021, her name would be considered for promotion. The

grievance of the petitioner is that though her name was

included in the seniority list published on 16.10.2021, in the

final seniority list for promotions for the panel year 2021, her

name was not included. Under the said circumstances, the

petitioner made a representation dated 19.10.2021 requesting

the 3rd respondent to include her name in the seniority list for

promotion to the post of School Assistant Mathematics for the

counseling scheduled to be held in the month of November,

2021. However, the 3rd respondent issued proceedings dated

29.10.2021 wherein the petitioner's request was rejected on the

ground that as she relinquished her promotion in the year

2019 and even thereafter did not make any request / appeal

for inclusion of her name in the seniority list in the year 2020,

she has forgone her promotion chance permanently. Aggrieved

by the said proceedings dated 29.10.2021, the present writ

petition is filed.

4. Learned counsel for the petitioner, while reiterating the

contentions raised in the writ petition, submits that the view as

taken by the 3rd respondent is not sustainable in law. He also

submits that on the earlier occasions even if the petitioner did

not avail the opportunity of promotion the same would not bar

or result in losing promotion chances permanently. In support

of his submissions, learned counsel for the petitioner 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, the view

taken by the 3rd respondent is not sustainable in law. Though

the learned Assistant Government Pleader placed the

proceedings of the Director of School Education in

Rc.No.ESE02-13021/7/2019-EST 3-CSE, dated 14.10.2021,

wherein it is provided for appeal provision against the orders of

the District Educational Officers etc., this Court is not inclined

to consider the submission of learned Assistant Government

Pleader to the effect that the petitioner has an alternative

1 2009 (1) ALT 462

remedy of appeal, more particularly in view of the settled legal

position.

6. Accordingly, the writ petition is allowed. The respondents

are directed to consider the case of the petitioner forthwith by

including her name in the list of promotions for the panel year

2021, as it is submitted that the promotions counseling is

scheduled to be held during the course of November, 2021. No

costs. The miscellaneous applications, if any pending, shall

stand closed.

_________________________ NINALA JAYASURYA, J November 16, 2021.

Note:

Dispatch order copy in two days.

(By order) vasu