B. Madhava, vs State Of Andhra Pradesh
2024 Latest Caselaw 10568 AP

Andhra Pradesh High Court - Amravati

B. Madhava, vs State Of Andhra Pradesh on 22 November, 2024

APHC010255032022
                   IN THE HIGH COURT OF ANDHRA PRADESH
                                :: AMARAVATI
                                                                              3459

                       FRIDAY, THE TWENTY SECOND DAY OF NOVEMBER
                             TWO THOUSAND AND TWENTY FOUR


                                       PRESENT

       THE HON'BLE SMT. JUSTICE SUMATHI JAGADAM

                     WRIT PETITION (AT) No.139 OF 2022

Between:

B. Madhava.                                    ---           Petitioner
                                              and
The State of A.P.,
Rep. by Principal Secretary
to Government,
Home Department, Secretariat,
Velagapudi, Amaravathi,
Guntur District
and four others.                               ---           Respondents

Counsel for the petitioner : Mrs. K. Rajya Lakshmi.

Counsel for the respondents : Government Pleader for Services-I

The Court made the following Order:

This Writ Petition is filed seeking to set-aside the

proceedings of 5th respondent in Memo No.806/2010,

C.No.30/A1/2007-10, dated 22.12.2010, and consequently direct

the respondents to consider the case of petitioner for promotion as

Head Constable and grant the scales of Special Promotion Post-I

and Special Promotion Post-II on par with his colleague i.e., K.

JS,J

Naga Raju with all consequential benefits and to pass necessary

orders in the interest of Justice.

2. Brief facts of the case:

(i) On 01.01.2003, the petitioner was appointed as a Police

Constable in the 11th Andhra Pradesh Special Police Battalion,

Bhakarapet. Later, on 21.07.2009, the petitioner along with three

others was temporarily promoted as O/S Head Constable in the

existing vacancy in M.T. (Motor Transport) group purely with a

condition to submit his Heavy Vehicle Driving License within six

(6) months.

(ii) The 5th respondent vide Memo in Rc. No.30/MT-

14/2010 dated nil.05.2010 instructed the petitioner to produce

his Heavy Vehicle Driving License. As the petitioner did not

acquire the required driving licence as per the Memo, dated

nil.05.2010, the 5th respondent has reverted the petitioner from

the Post of Head Constable in MT group to the post of Police

Constable General Duty (GD) Line.

(iii) A plain reading of the reversion order, dated 22.12.2010,

shows that the petitioner is not eligible for any promotion and to

the Special Grade Post, SPP-I and SPP-II scales up to his

retirement.

JS,J

(iv) The Government, vide Circular Memo No.216-

A/2/A2/PC-II/2007-1, dated 23.03.2007, issued certain

clarifications for dealing with sanction of Special Grade Scale

posts where an employee is promoted to a higher post on regular

line but relinquishes his promotion or seeks reversion at his

request, he is not eligible for the benefit of sanction of the scales of

Special Grade Post, Special Promotion Post-I and II. The said

Circular reads as follows:

"The employee is not eligible for any kind of benefits under Automatic Advancement Scheme, because the main aim of the Scheme is to relieve the stagnation in Service. The employee has been given an opportunity for promotion but he relinquished it. Hence such of the employees are not eligible for Special Grade Post Scale/S.P.P-I/S.P.P-II under Automatic Advancement Scheme."

(v) Aggrieved by the action of the 5th respondent, the

petitioner made a representation on 16.10.2017 for the injustice

caused to him and requested to consider his case on par with

three other candidates, who were granted scales of Special Grade

Post, SPP-I and SPP-II.

3. The 5th respondent has filed a counter-affidavit inter-alia

contending that the petitioner has failed to submit his Heavy

JS,J

Vehicle Driving License within the stipulated period. The

impugned reversion order, dated 22.12.2010, was issued at the

petitioner's request. The petitioner has kept quiet for 8 years and

belatedly submitted his representation on 16.10.2017 and prayed

to dismiss the Writ Petition.

4. Heard Smt. K. Rajyalakshmi, learned counsel for the

petitioner, and learned Assistant Government Pleader for Services,

appearing on behalf of the respondents, and perused the record.

5. It is not disputed that the petitioner and three others were

temporarily promoted to the post of O/S. HCs in MT Group vide

order of the 5th respondent, dated 21.07.2009.

6. It is not disputed that a rider was incorporated in the

promotion order showing that the eligible candidates should

submit their heavy vehicle driving licenses within six months.

7. It is also not disputed that the reversion order, dated

22.10.2010, issued by the 5th respondent, reveals that the

petitioner is not eligible for any promotion in future up to his

retirement and for the scales of Special Grade Post, SPP-I and

SPP-II.

JS,J

8. It is not in dispute that the other three employees, who were

promoted along with the petitioner, were also reverted but without

any condition or rider and drawing more basic pay than the

petitioner were granted the scales of SGP and SPP-I and the

counter-affidavit is silent on this aspect.

9. A Division Bench of the erstwhile High Court of Andhra

Pradesh at Hyderabad, in G. Boyanna v. Registrar

(Administration), High Court of A.P., Hyderabad and

another1, held as follows:

"12. The learned Division Bench in that case, expressed its complete agreement with the above interpretation of the Rule and pointing out the fact that the right to be considered for promotion is a fundamental right under Article 16(1) of the Constitution of India, it was held that Rule 28 of the Rules of 1996 did not disentitle a member of a service from being considered for promotion in a future vacancy merely because he/she had relinquished his/her right for promotion earlier.

13. We find ourselves in consensus with the opinion of the learned Division Bench in the above judgment. The mere fact that the petitioner sought reversion earlier on personal grounds did not disentitle him from being considered for promotion thereafter. The reliance placed upon the memo, dated 18.01.1984, was utterly misconceived as pointed out

1 2009 (2) ALD 402 (DB)

JS,J

hereinabove and Rule 28 of the Rules of 1996 does not have the effect of extinguishing the right of the petitioner to be considered for promotion permanently. This being the legal position, the rejection of the petitioner's request to be considered for promotion on the ground of his alleged relinquishment is unsustainable."

10. In a Division Bench decision of the erstwhile High Court of

Andhra Pradesh at Hyderabad in M.V.R.L.S. Ravikanth v. The

State of Andhra Pradesh and two others2, it was held as

follows:

"13. In the light of the above discussion, we have no hesitation to hold that relinquishment of right or privilege of promotion to a particular vacancy would amount to permanent relinquishment of right or privilege of promotion to that particular vacancy. Rule 28 of the A.P. 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 interpretation would lead to frustration and unrest in the service defeating the object of promoting efficiency and harmonious functioning.

14. The Tribunal by interpreting Rules 28 and 11(b) of the A.P. State and Subordinate Service Rules, 1996 held that the petitioner cannot be considered for promotion for the third time since he has failed to join his promotion post twice within fifteen days and ultimately came to the

JS,J

conclusion that the petitioner is not entitled to be offered promotion for third time, which is illegal and arbitrary.

15. In the facts and circumstances discussed hereinabove, we find ourselves in consensus with the opinion expressed in the two decisions in Writ Petition No.26654 of 2005 (The District Educational Officer, Kurnool & Ors Vs. Shahnaz Begum and G. Boyanna v. Registrar (Administration), High Court of AP and another {2009 (2) ALD 402 (DB)}. The mere fact that the petitioner sought reversion earlier on personal grounds did not disentitle him from being considered for promotion thereafter. Rule 28 of the A.P. State and Subordinate Service Rules does not have the effect of extinguishing the right of the petitioner to be considered for promotion permanently. This being the legal position, rejection of the petitioner's request to be considered for promotion on the ground of his alleged relinquishment is unsustainable."

(emphasis supplied)

11. The Government has issued G.O.Ms. No.92 (General

Administration (Services-D) Department, dated 28.08.2023,

amending Rule 28 of the A.P. State and Subordinate Service Rules,

which is extracted hereunder:

"Explanation: (i) In respect of promotion to a member of service, who has exercised relinquishment of promotion due to any reason, Rule 28 does not disentitle him/her from being considered for promotion in a future vacancy merely because he/she had relinquished his/her right under the Rules for promotion earlier.

JS,J

(ii) Relinquishment of right or privilege of promotion to a particular vacancy would not amount to permanent relinquishment of right of privilege for promotion to that particular vacancy. The Rule-28 cannot be read or interpreted to mean that his/her right to be considered for promotion to any vacancy arising in future also is permanently extinguished.

(iii) The relinquishment of an opportunity for promotion, which arose for an employee occupying certain place in seniority list in the panel year, in view of a vacancy that arose then, in view of the fact that he/she was eligible for promotion in the light of the criteria laid down in the Rules, would mean that the extent the privilege has been relinquished is confined to the privilege related to that particular vacancy/panel year which was available to him/her by virtue of the above mentioned circumstances.

The Rule cannot be interpreted to mean that the relinquishment was in respect of future vacancies also. Therefore, the right of the Member of Service shall be considered in future vacancy for promotion, if otherwise eligible."

12. The petitioner was appointed as a Police Constable in the

year 2003 and transferred to the newly raised 14th A.P.S.P.

Battalion, Anantapur, vide D.O. No.208/2008 in

C.No.30/A1/2007-08, dated 27.04.2008.

13. The Commandant of the 14th Battalion A.P.S.P, Anantapur,

had included the Police Constables who have not completed five

JS,J

years of service and granted service relaxation as a one-time

measure. Accordingly, the petitioner's name was included in M.T.

List-2.

14. The petitioner was promoted on 21.07.2009, purely

temporarily, subject to the condition that he submit his Heavy

Vehicle Driving License within six months. If he fails to do so, he

will be reverted without any notice. A plain reading of the

promotion order explicitly shows that the promotions are purely

temporary and that the orders were issued only to facilitate the

temporary administration of M.T. Group.

15. Therefore, this Court believes that the petitioner's temporary

promotion cannot be construed as a regular promotion. The 5th

respondent, without proper application, has debarred him for

promotion throughout his service, which is against Rule 28 of the

A.P. State and Subordinate Service Rules. The right to be

considered for promotion is a fundamental right under Article 16(1)

of the Constitution of India. Rule 28 of the A.P. State and

Subordinate Service Rules does not disentitle a service member

from being considered for promotion in a future vacancy merely

because he has relinquished his right to promotion.

JS,J

16. In view of the law laid down by the High Court of Andhra

Pradesh at Hyderabad in G. Boyanna (1st supra), M.V.R.L.S.

Ravikanth (2nd supra) and by virtue of amendment as per G.O.Ms.

No.92, dated 28.08.2023, this Court is inclined to allow the Writ

Petition.

17. Accordingly, the Writ Petition is allowed by setting aside the

reversion order, dated 22.12.2010, directing the respondents to

consider the case of the petitioner for promotion, as per the Rules

in vogue, in terms of his eligibility and qualification as and when

the suitable vacancy arises. Further, the petitioner is directed to

make a fresh representation to the respondents, for grant of scales,

within a period of two (2) weeks from the date of receipt of a copy of

this order and, on such representation, the respondents shall

consider the same and pass appropriate orders within a period of

two (2) weeks thereafter. No order as to costs.

Consequently, Miscellaneous Applications pending, if any,

shall stand closed.

_______________________________ JUSTICE SUMATHI JAGADAM Date: 22.11.2024 DSH