Andhra Pradesh High Court - Amravati
P.Suryakumari vs The Principal Secretary To Govt. on 17 October, 2024
1
APHC010090652021
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3310]
(Special Original Jurisdiction)
THURSDAY ,THE SEVENTEENTH DAY OF OCTOBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE DR JUSTICE K MANMADHA RAO
WRIT PETITION NO: 5865 OF 2021
Between:
P.Suryakumari ...PETITIONER
AND
The Principal Secretary To Govt and Others ...RESPONDENT(S)
Counsel for the Petitioner:
1. M CHINNAPA REDDY
Counsel for the Respondent(S):
1. GP FOR SERVICES I
The Court made the following:
ORDER:
This Writ Petition is filed under Article 226 of the Constitution of India,
seeking the following relief:
".....to issue a Writ, Order or direction more particularly one in the nature of Writ of
st
Mandamus declaring the action of the 1 Respondent in not considering
ng the case of
the petitioner for notional seniority with retrospective effect promotion to the post of
Senior Assistant for further promotion post of Superintendent and higher posts out of
nd
available
le vacancies in Zone
Zone-1 under the Administrative control of the 2 Respondent,
st
set asiding the rejection orders passed by the 1 Respondent in Memo
No.1764/Sec.V/20171
V/20171 EFS
EFS&T Department, dated 20.07.2017 and
d consequential
nd
orders dated 29.10.2020
2020 of the 2 Respondent and be pleased to pass orders/
directions to the Respondents in pursuant to the Rc.No.11751/2015/HR2 dt
nd
21.04.2017 of the 2 Respondent recommending the case of the petitioner which has
considered as arbitrary, illegal, unreasonable, unjust. It is also necessary in the
interest of justice that this Hon'ble Court may be pleased to direct the Respondents to
consider the case of the petitioner for according notional seniority with retrospective
effect promotions as Senior Assistant and to other higher posts of Superintendent etc
in Zone-1 by quashing the rejection orders issued in Memo No.1764/Sec/2017-1, dt
st nd
20.07.2017 of the 1 Respondent and reference dated 29.10.2020 of the 2
Respondent and pass such other orders.
2. Heard Mr. M. Chinnapa Reddy, learned counsel for the petitioner and
Ms. P. Sudeepti, learned Assistant Government Pleader, Services-I for the
respondents.
3. Learned counsel for the petitioner would contend that she was
appointed as Junior Assistant-cum- Typist, working in Zone from 24.11.1986
as per orders issued by the 3rd respondent by regularization of services and
as per the placement of the appointment orders out of the seniority list drawn
up by the 3rd respondent, the petitioner is above Mr. A. Chandra Rao, who
was recently retired from service on voluntary basis by 30.11.2020 as
Superintendent, Office of the District Forest Officer, Vizianagaram of Zone-I.
The petitioner had worked for a short period as Senior Assistant on promotion
from 01.09.1992 to 21.11.1992 and reverted back as Junior Assistant-cum-
Typist for want of vacancy as per the order of the 3rd respondent. Later, she
tendered relinquishment for promotion to the post of Senior Assistant dated
24.06.1996 on personal grounds, which was accepted by the 3rd respondent
vide orders dated 27.07.1996 treating it as permanent relinquishment by
manipulating the application of the petitioner with word as permanent by
adding in it by manuscript working the subject matter with malafide intention.
The request made by the petitioner to withdraw her relinquishment application
was also not accepted by the 2nd respondent and rejected by its order
26.01.2008 and finally with orders dated 07.11.2012 which attracted the court
of law and the learned Tribunal suspended the orders of the 2nd respondent
dated 07.11.2012 on 20.06.2013 vide O.A.No.4615 of 2013 and holding that
the petitioner is entitled to be considered promotion to the post of Senior
Assistant and declared the rejection of the petitioner as illegal and arbitrary on
the part of the respondents. Pursuant to the directions of the learned Tribunal
final promotion orders were issued to the petitioner as Senior Assistant by the
3rd respondent dated 04.06.2014. Thus, the petitioner is eligible for all
consequential future prospects such as promotions etc., as per the original
placement right from feeder category in preference over her juniors in all
aspects in view of the order of the learned tribunal. The petitioner made
representations dated 05.06.2015 and 01.06.2016 to the 2nd respondent
requesting to restore the seniority with effect from 24.07.1998 as Senior
Assistant allowing notional seniority with retrospective effect for promotion in
both Senior Assistant and Superintendent categories over and above Mr.
A.Chandra Rao, who is the immediate junior to the petitioner in the feeder
category with consequential benefits in terms of Rule 36(ii) of A.P.State and
Subordinate Service Rules, 1996 and though the 2nd respondent
recommended the case of the petitioner, the 1st respondent in its proceedings
dated 21.04.2017 rejected the claim of the petitioner and issued Memo dated
20.07.2017. Assailing the same, a revision has been preferred on 16.08.2019
for reconsidering her request, which was rejected on 29.10.2020, which is
contrary to the earlier opinion of the 2nd respondent, which is in favour of the
petitioner. Therefore, inaction of the respondents is questioned in this writ
petition and requested to allow the same.
4. Per contra, 3rd respondent filed counter-affidavit denying all material
allegations made in the writ affidavit and mainly contended that the petitioner
has joined as Senior Assistant on 04.06.2014 AN represented to considered
her case to restore her seniority as Senior Assistant notionally in the category
of Senior Assistant from 1998 and notional promotion as Superintendent over
Juniors and the representations of the petitioner were submitted to the 2nd
respondent, who passed order as per Rule 45 of A.P.State and Subordinate
Service Rules, 1962 and A.P. Service and Subordinate Rules, 1996, ( in short
"the rules") which deals with relinquishment of rights by members. The
Government/ Head of the Department are the competent authority to take a
provisional decision under rule 24 of A.P.State and Subordinate Service
Rules, 1996 for giving retrospective promotion to the petitioner and to assign
notional date of promotion to the petitioner. As per order of the learned
tribunal, the petitioner is working as Senior Assistant from 04.06.2014,
therefore her seniority is maintained with effect from 04.06.2014 AN onwards
in Zone-I, as per Rule 36(ii) of A.P.State and Subordinate Service Rules,
1996. Therefore, there is illegality in rejecting the claim of the petitioner on
20.07.2017, 08.04.2019 and 29.10.2020 i.e twice by the Government and
once by the 2nd respondent. The rejection of the claims each time was
intimated to the petitioner. Therefore, the petitioner is not entitled for claim of
notional seniority in the category of Senior Assistant on par with Mr. A.
Chandra Rao, formerly Senior Assistant from 1998 and presently retired
voluntarily on 30.11.2020 and quashing the rejection orders passed by the
Government dated 20.07.2017 does not arise as per rules. The relief sought
by the petitioner cannot be granted, since she herself relinquished her
promotion and she approached the learned tribunal to the extent of
considering her case for promotion, but no direction is given for extend the
notional benefit. Hence, this writ petition is not maintainable and same is liable
to be dismissed.
5. Perused the record.
6. During hearing, learned counsel for the petitioner reiterated the
contents urged in the writ petition and relied on a decision of this Court in
W.P.No. 11255 of 2019, dated 17.12.2021, wherein learned Single Judge of
this Court discussed various decisions viz., "The District Educational
Officer, Kurnool v. Shahnaz Begum, Gr.II Urdu Munshi, Govt. Boys High
School, Atmakur, Kurnool"1,wherein it was held as follows:-
"28. Relinquishment of rights by members:-
Any member of a service may, in writing, relinquish any right or privilege to which he
may be entitled to, under these rules or the special rules, if, in the opinion of the
appointing authority such relinquishment is not opposed to public interest. Such
relinquishment once made will be final and irrevocable. Nothing contained in these or
2009(2) ALD 402 (DB)
the special rules shall be deemed to require the recognition of any right or privilege to
the extent to which it has been so relinquished. Provided that no conditional
relinquishment or relinquishment of right for a temporary period shall be permitted."
7. Wherein relinquishment is not forever and it is for the particular panel
years. When the petitioner did not specifically waive her right to be considered
for promotion, no such waiver can be said to have been made by necessary
implication either Rule 28 does not disentitle a member of a service from
being considered for promotion in future vacancy merely because she had
relinquished her right under the Rules for promotion earlier. In "G. Boyanna
v. Registrar (Administration) High Court of Andhra Pradesh,
Hyderabad2", wherein it was held as follows:-
""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 herein above 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. Accordingly, the writ petition is allowed directing the second
respondent herein to consider the case of the petitioner for promotion as per rules
and in terms of his eligibility and qualification, as and when a suitable vacancy arises.
There shall be no order as to costs.
8. If these principles are applied to the present facts of the case, the
petitioner did not relinquish her right permanently, but the relinquishment is
only for a particular panel year and Rule 28 will not come in the way of the
respondents to promote the petitioner to the post of Senior Assistant. As the
petitioner was facing certain problems during particular period, due to
2009(2) ALD 402 (D.B)
personal problems, she relinquished her promotion as Senior Assistant only
for a limited purpose and that cannot be considered as a permanent
relinquishment of right for promotion in future panel years.
9. The petitioner also relied on a decision of this Court in W.P.No.19831
of 2020, dated 22.10.2020, wherein this Court directed the respondents to
consider the case of the petitioner therein for promotion, without having
regard to the earlier relinquishment made by the petitioner, as per the final
seniority list. In "The Government of Andhra Pradesh v. Anala Udaya
Niagara Rao"3, the Hon'ble Division Bench of erstwhile High Court of Andhra
Pradesh has categorically discussed G. Boyanna's case (2nd cited supra),
which is squarely applicable to the facts of this case that Rule 28 of the Rules
of 1996 did not disentitle a member of the Service from being considered for
promotion in future vacancy merely because he relinquished her right for
such promotion earlier.
10. In view of the foregoing discussion and following the decisions cited
supra, this Court is inclined to allow the writ petition, declaring the vide Memo
dated 20.07.2017 issued by the 1st respondent and 29.10.2020 issued by the
2nd respondent as illegal, arbitrary and same is hereby set aside, while
directing the respondents to consider the case of the petitioner for notional
seniority with retrospective effect promotion to the post of Senior Assistant
and to other higher posts of Superintendent etc., in Zone-I.
http://indiankanoon.org/doc/131880695/
11. With the above direction, this Writ Petition is allowed. There shall be
no order as to costs.
12. The miscellaneous applications pending, if any, shall also stand
closed.
______________________________
DR. JUSTICE K. MANMADHA RAO
Date: 17.10.2024.
KK
