M V Subba Reddy vs The State Of Ap
2022 Latest Caselaw 7601 AP

Citation : 2022 Latest Caselaw 7601 AP
Judgement Date : 11 October, 2022

Andhra Pradesh High Court - Amravati

M V Subba Reddy vs The State Of Ap on 11 October, 2022

        HON'BLE DR. JUSTICE K. MANMADHA RAO

               WRIT PETITION No.33036 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)/ School Assistant (P.S.) and in not considering his case for promotion to the said posts 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)/School Assistant (P.S.) 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 09.04.1998 in DSC

1996. At present, he is working as Secondary Grade Teacher at

M.P.P. School, Rachinnaya Palli, Chennur Mandal, YSR Kadapa

District. While so, when the department has taken up

promotions in the category of School Assistant (Maths)/ School

Assistant (P.S.) on 13.12.2021 and 14.12.2021 respectively, the

petitioner has relinquished his promotion and it is only on

temporary and his right of promotion only once i.e., on

13.12.2021 and 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)/School Assistant (P.S.). 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)/School Assistant (P.S.) 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)/School

Assistant (P.S) and further submits that the matter is

squarely covered by the order passed by this Court in

W.P.No.28804 of 2022, dated 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

2009 (1) ALT 462

occasions and sought for promotion when the vacancies

arose in a particular Department. In the context of

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

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.