Telangana High Court

The State Of Telangana vs C.S. Susheel Kumar on 20 June, 2024

Author: Abhinand Kumar Shavili

Bench: Abhinand Kumar Shavili

  HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI
                       AND
 HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

                 WRIT APPEAL No.293 of 2024


JUDGMENT:

(per Hon'ble Sri Justice Abhinand Kumar Shavili)

This Writ Appeal is filed aggrieved by the order passed

by the learned single Judge of this Court in W.P.No.21589 of

2022, dated 27.03.2023.

2. Heard learned Additional Advocate General for the

appellants and Sri G.Ravinder, learned counsel appearing for

Sri K.Lakshmi Manohar, learned counsel for the respondent on

record.

3. It has been contended by the appellant that respondent

was working as Senior Assistant and his case was considered

for promotion in the post of Office Superintendent on

31.08.2013, however, he declined to join the promotion post.

Again, his case was considered and he was again promoted to

the post of Office Superintendent vide proceedings dated AKS,J & LNA,J WA No.293 of 2024

07.09.2019. In the second instant also, he again relinquished

the promotion post due to his personal reasons. Later, the

respondent submitted a detailed representation on 15.06.2021

seeking promotion to the post of Office Superintendent.

Petitioners have considered the said representation and

rejected the same vide Memo dated 10.08.2021 as per Rule

11(b) of the Telangana State and State Subordinate Service

Rules, 1996 (for short, 'the Rules, 1996').

4. Aggrieved by the said rejection order dated 10.08.2021,

respondent approached this Court by filing W.P.No.21589 of

2022 and the learned single Judge was pleased to allow the

said writ petition vide order dated 27.03.2023 and directed the

petitioners to consider the case of the respondent for

promotion to the post of Office Superintendent, without

appreciating any of the contentions raised by the petitioners.

Therefore, appropriate orders be passed in the writ appeal

setting aside the order of the learned single Judge in

W.P.No.21589 of 2022 dated 27.03.2023 and allow the appeal.

AKS,J & LNA,J

5. Learned counsel for respondent had contended that the

issue was already adjudicated by the Division Bench of this

Court in M.V.R.L.S. Ravikanth vs. State of Andhra Pradesh

and others1, wherein the Division Bench has interpreted the

Rules and came to conclusion that there cannot be permanent

relinquishment and the learned single Judge was justified in

allowing the writ petition in favour of the respondent by

following the law laid down by the Division Bench of this

Court. Therefore, there are no merits in the writ appeal and

same is liable to be dismissed.

6. Having regard to the rival submissions made by the

learned counsel appearing for both the parties, this Court is of

the considered view that the Division Bench of this Court has

rightly considered the issue in M.V.R.L.S.Ravikanth (supra)

and held as under:

"11. The right to be considered for promotion is a fundamental right under Article 16(1) of the Constitution of India. The Rule 28 of the Rules of 1996 did not disentitle a member of a service from being considered

2018 (1) ALD 550 (DB) AKS,J & LNA,J

for promotion in a future vacancy merely because he/she had relinquished his/her right for promotion earlier. In the case on hand, the mere fact is that the petitioner's relinquishment for promotion on account of suffering from depression due to sustaining physical disability, loss of wife and son in the accident did not disentitle him from being considered for promotion in future vacancies.

12. The relinquishment of an opportunity for promotion, which arose for an employee occupying certain place in seniority list, in view of 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 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. 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. 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 was promoted to the vacancy relinquished by him in the promotion post and he cannot claim seniority over the said person.

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.

AKS,J & LNA,J

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 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 v. Shahnaz Begum, and, G. Boyanna v. Registrar (Administration), High Court of AP ((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, the rejection of the petitioner's request to be considered for promotion on the ground of his alleged relinquishment is unsustainable.

16. Accordingly, the Writ Petition is allowed, setting aside the judgment dated 06.04.2015 passed in OA. No. 1802 of 2015 by the Andhra Pradesh Administrative Tribunal, at Hyderabad and directing the third respondent to consider the case of the petitioner for promotion to the post of Senior Assistant in the existing vacancy as per rules, if he is otherwise qualified and eligible for the said post."

7. The Division Bench after interpreting the Rule 11(b)

proviso and also Rule 28 of the Rules, 1996, has rightly came

to conclusion that there cannot be permanent relinquishment

and the learned single Judge has followed the law laid down AKS,J & LNA,J

by the Division Bench of this Court. Therefore, the learned

single Judge was justified in allowing the writ petition in

favour of the respondent. Hence, this Court is not inclined to

interfere with the order passed by the learned single Judge in

W.P.No.21589 of 2022, dated 27.03.2023.

8. Writ Appeal is accordingly dismissed. There shall be no

order as to costs.

As a sequel, the miscellaneous applications pending, if