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G.S.H. Pushpa Leela v. The State of Andhra Pradesh

Andhra Pradesh HC12 Sept 2022WP/27532/2022

Case brief

AI extract

What is this about?

This petition challenges the refusal to consider the petitioner for promotion after she had previously relinquished it. Relying on a Division Bench precedent, the court held that relinquishing a specific promotion does not permanently bar future consideration for vacancies.

What did the court decide?

Directing the respondents to consider the petitioner's case for promotion to the post of School Assistant (English) / (Social Studies) in existing or future vacancies.

G.S.H. Pushpa Leela Vs The State of… — Pension and Retirement Benefits | Andhra Pradesh HC (2022)

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THE HON’BLE Dr.JUSTICE K. MANMADHA RAO

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Writ Petition No.27532 of 2022

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ORDER:-

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Heard Ms. Kavitha Gottipati, learned counsel for the petitioner and learned Government Pleader for Services-III, appearing for the respondents. Perused the material on record.

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The writ petition is filed, under Article 226 of the Constitution of India, seeking the following relief:

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“......to issue a writ, order or direction more in the nature of Writ of mandamus declaring the impugned action of the respondents, particularly the 3^rd respondent in not including the petitioner name in the seniority list of School Assistant (English) / School Assistant (Social Studies) and in not considering her 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 (English) / School Assistant (Social Studies) as per G.O.Ms.No.145, General Administration (Ser.D) Department, dated 15.06.2004 in the ensuing promotion counseling.”

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The petitioner is working as Secondary Grade Teacher

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in M.P.U.P. School, K.K. Colony, Ananthapur, Ananthapur District. In the year 2015, when she was called for promotion counselling, she relinquished promotion temporarily. Subsequently, despite her continuous persuasion and

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representations, the respondents did not consider her claim for promotion to the post of School Assistant (English) / School Assistant (Social Studies) in the subsequent promotion counselling, though the 2^nd respondent issued proceedings dated 4.8.2022 for effecting promotions to the posts of Headmasters Grade-II and School Assistants on adhoc basis.

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While reiterating the contentions raised in the writ petition, the learned counsel for the petitioner 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.

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On the other hand, the learned Government Pleader for Services-III submits that, since the petitioner had relinquished her promotion on the 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, her case cannot be considered for promotion.

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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

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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 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:

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“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.

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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

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1 ) 2009 (1) ALT 462

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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.

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(emphasis added).”

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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. Accordingly, the inaction on the part of the respondents in considering the case of the petitioner for promotion is not just and tenable.

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In the result, this writ petition is allowed with a direction to the respondents to consider the case of the petitioner for promotion to the post of School Assistant (English) / School Assistant (Social Studies) in the existing or future vacancies. There shall be no order as to costs.

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Consequently, miscellaneous petitions pending, if any, shall stand closed.

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____________________________ Dr.JUSTICE K. MANMADHA RAO

Date: 12.09.2022.

THE HON’BLE Dr.JUSTICE K. MANMADHA RAO

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Writ Petition No.27532 of 2022

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Date: 12.09.2022

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G.S.H. Pushpa Leela v. The State of Andhra Pradesh

Case brief

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G.S.H. Pushpa Leela v. The State of Andhra Pradesh

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