HON'BLE DR. JUSTICE K. MANMADHA RAO
WRIT PETITION No.33031 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) and in not considering his case for promotion to the said post 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) 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 21.04.1998 in DSC
1996. At present, he is working as Secondary Grade Teacher at
M.P.P. School, Chinna Musalireddy Palli, Chintha Komma
Dinne Mandal, YSR Kadapa District. While so, when the
department has taken up promotions in the category of School
Assistant (Maths) on 14.12.2021, the petitioner has
relinquished his promotion and it is only on temporary and his 2
right of promotion only once i.e., on 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). 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) 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) and
further submits that the matter is squarely covered by the
order passed by this Court in W.P.No.28804 of 2022, dated 3
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
occasions and sought for promotion when the vacancies
arose in a particular Department. In the context of
1 2009 (1) ALT 462 4
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
in the submissions made by the learned counsel for the
petitioner. Therefore, the inaction on the part of the 5
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) 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.33031 OF 2022
Date : 11-10-2022
Gvl
