Chemikala Lakshmi Devi vs The State Of Andhra Pradesh,
2022 Latest Caselaw 7291 AP

Citation : 2022 Latest Caselaw 7291 AP
Judgement Date : 22 September, 2022

Andhra Pradesh High Court - Amravati

Chemikala Lakshmi Devi vs The State Of Andhra Pradesh, on 22 September, 2022

        HON'BLE DR. JUSTICE K. MANMADHA RAO

              WRIT PETITION No.28804 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 3rd respondent in not including the petitioner name in the seniority list of School Assistant English/School Assistant Biological Science and in not considering her case for promotion to the said posts in the ensuing counselling 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 English / School Assistant Biological Science as per G.O.Ms.No.145 General Administration (Ser.D) Department, dated 15.06.2004 in the ensuing promotion counselling and pass such other order or orders......."

2. Heard Ms. Kavitha Gottipati, learned counsel

appearing for the petitioner and learned Government Pleader

for Services-III appearing for the respondents.

3. The case of the petitioner is that she is working as

Secondary Grade Teacher at M.P.P. School, II Ward, Potladurti,

Yerraguntla Mandal, YSR Kadapa District. While so, when the

department has taken up promotion counselling on 11.09.2019

and 20.10.2020, the petitioner has relinquished her promotion

on the ground that she was absent for the said two cousnellings

due to her health grounds. It is further case of the petitioner

that recently, the department has taken up the promotions in

the category of School Assistant (English) on 14.12.2021. in the

said process, a seniority list of Secondary Grade Teachers and

equivalent cadre for promotion to the post of School Assistant

(English) and in the said list, the petitioner name shows at

Sl.No.31. In this regard, she has attended and relinquished her

promotion. She stated that she has temporarily relinquished her

right of promotion only once i.e., on 14.12.2021 for School

Assistant (English). Despite her continuous persuasions and

representations, the respondents did not consider her claim for

promotion to the post of School Assistant (English)/ School

Assistant (Biological Science). It is further stated that the

petitioner has never relinquished her promotion permanently.

Therefore, she 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 both the categories i.e.,

School Assistant (English) and School Assistant (Biological

Science) and in both the lists, the petitioner name was not

included on the ground that she has relinquished her promotion

on earlier occasions.

4. On hearing, learned counsel for the petitioner, while

reiterating the contentions raised in the writ petition, inter alia

submits that the action of the respondents in not considering

the case of the petitioner for promotion is not sustainable in law

and contrary to the judgments of two Division Benches of the

erstwhile Common High Court of Andhra Pradesh at Hyderabad.

5. On the other hand, learned Government Pleader for

Services-III submits that since the petitioner had relinquished

her promotion on earlier occasions, and in the light of

G.O.Ms.No.145, dated 15.06.2004 abdG.O.Ms.No.227 dated

30.05.2014, her case cannot be considered for promotion.

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. 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

(English) / School Assistant (Biological Science) in the