IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH
AT HYDERABAD
(Special Original Jurisdiction)
THURSDAY, THE THIRTIETH DAY OF OCTOBER
TWO THOUSAND AND EIGHT
PRESENT
THE HON'BLE MR JUSTICE GODA RAGHURAM
and
THE HON'BLE MR JUSTICE P.V.SANJAY KUMAR
WRIT PETITION NO : 24609 of 2007
Between:
G.Boyanna,
S/o.Late Sheshaiah
O/o. The PRincipal District & Sessions Judge Nellore District
O/o. The PRincipal District & Sessions Judge Nellore District
..... PETITIONER
AND
1 The High Court of
AP., rep.by its Registrar (Administration) Hyderabad
2 The Principal District & Sessions Judge, Nellore District
2 The Principal District & Sessions Judge, Nellore District
.....RESPONDENT(S)
Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue an appropriate writ order or direction more particualrly one in the nature of writ of mandmaus declaring the action of the respondent in rejecting the claim of the petitioner for promotion from process server to Record Assistatn/Reader/Amin by proceedings vide order Roc.No.1593/2004/C.1(1) dated 6.11.2004 as illegal, arbitrary, unjust and against the priciples of natural justice consequently directing the respondents to consider the claim of the petitioner for promotion from the post of process server to Record Assistant/Reader/Amin and pass
Counsel for the Petitioner:MR.G.JAGADEESWAR
Counsel for the Respondent No.: SMT.M.BHASKARA LAKSHMI (SC FOR APHC)
The Court made the following :
O R D E R
(Per
Sri Justice P.V.Sanjay Kumar)
Whether the petitioner, having
turned his back on the promotion given to him earlier, can lay a claim to be
considered for promotion thereafter is the short question arising for decision
in this writ petition.
The admitted facts of the case are
as hereunder:
The petitioner was originally appointed as a
Process Server in the Last Grade Service of the Judicial Department. He was appointed on transfer temporarily as a
Junior Assistant vide Proceedings in RCA No.35/95, dated 07.02.1995 of the
District and Sessions Judge, Nellore,
second respondent herein. He submitted
application dated 23.10.2000 to the District and Sessions Judge, Nellore, stating to the
effect that his parents had expired two years prior thereto, casting the entire
burden of the family upon him. He
further cited grounds of ill-health and his lack of understanding of the
English language as reasons for his facing difficulty in discharging the duties
of a Junior Assistant. He therefore
requested the District and Sessions Judge, Nellore, to revert him from the post of
Junior Assistant to that of Process Server, originally held by him. Acting upon the said representation, by
Proceedings in RCA No.273/2000, dated 19.12.2000, the District and Sessions
Judge, Nellore,
reverted the petitioner as requested.
After recovering from his illness,
the petitioner submitted several representations to the District and Sessions
Judge, Nellore,
seeking promotion to the post of Record Assistant/Reader/Amin. His request was rejected under the
Proceedings of the District and Sessions Judge, Nellore, dated 24.09.2003
holding that as the petitioner had relinquished his promotion, he was not
entitled to be considered for promotion as per Memo No.8/SER-A/84-1, dated
18.01.1984 of the General Administration (Services-A) Department, Government of
Andhra Pradesh. Thereupon, the
petitioner submitted an application to the High Court on the administrative
side, first respondent herein, reiterating his request to be considered for
promotion. Having called for and
considered the record and the remarks of the District and Sessions Judge,
Nellore, the High Court on the administrative side, passed orders in ROC
No.1593/2004-CI (I), dated 06.11.2004 rejecting the request of the petitioner
to be considered for promotion in the light of the aforestated Government Memo
dated 18.01.1984. Aggrieved thereby, the
petitioner approached this Court by way of the present writ petition.
A detailed counter-affidavit was
filed by the Principal District and Sessions Judge, Nellore, stating to the
effect that the case of the petitioner was squarely covered by the instructions
issued by the Government of Andhra Pradesh in its Memo dated 18.01.1984 and
also Rule-28 of the Andhra Pradesh State and Subordinate Services Rules, 1996
(for short, ‘the Rules of 1996’). It was
stated that the petitioner, having relinquished the promotion given to him
earlier, cannot seek review of the same in the light of the above mentioned
instructions and Rule.
Sri G.Jagadeeswar, learned counsel
appearing for the petitioner, contended that merely because the petitioner
sought reversion to his original post earlier, it cannot be construed that he
had given up his right to be considered for promotion for all times to
come. He submitted that the petitioner
had relinquished his right for promotion due to certain unavoidable
circumstances and as he was now in a position to further his career interests,
he is entitled to be considered for promotion.
On the other hand, Smt.M.Bhaskara
Laxmi, learned standing counsel appearing for the respondents, contended that
the petitioner having relinquished his right of promotion earlier, is bound by
the same and in the light of Rule-28 of the Rules of 1996 the said
relinquishment is deemed to be irrevocable.
She submitted that the writ petition was devoid of merit and deserved to
be dismissed.
It is relevant to note at this point
that the petitioner was not promoted to the post of Junior Assistant but was
appointed by transfer. In fact, he could
not have been so promoted, as the post of Process Server is not in the feeder
category for promotion to the post of Junior Assistant. In this view of the matter, it is doubtful
whether the act of the petitioner in seeking reversion from the post of Junior
Assistant can be said to be one of relinquishment of his right to be considered
for promotion. However, this is how the
respondents have treated the matter and the petitioner also abided by it. Therefore, for the purpose of this case, it
shall be presumed that the petitioner relinquished his right for promotion when
he sought reversion to the post of Process Server.
Memo No.8/SER-A/84-1, dated
18.01.1984 issued by the Government of Andhra Pradesh, General Administration
(Services-A) Department, reads as follows:
“Rule 45 of the
General Rules for Andhra Pradesh State and Subordinate Service Rule, lays down
that nothing contained in the said rules or 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. The expression
“to the extent to which it has been so relinquished” occurring in the said
rules admits of a temporary relinquishment of any right. If any individual had temporarily
relinquished his right it cannot be said that his right for promotion is
permanently extinguished. There is,
therefore, no legal objection to consider him for promotion subsequently. But any promotion subsequently made, will not
give him any right for seniority over the persons who have been promoted in the
mean-time during the period when the temporary relinquishment was in force.
2.
Instances have come to the
notice of Government that this provision is being put to mis-use and some
persons are relinquishing their right of promotion “temporarily” on domestic
grounds and coming up again with a request to re-consider their case for
promotion as and when it is convenient for them. In order to curb this tendency, it has been
decided that in future when any one seeks to relinquish such right temporarily,
General Rule 45 shall be invoked and a view taken that such relinquishment
“temporarily” is opposed to public interest and, therefore, not acceptable.
3. … …”
The
said memo was issued in the backdrop of Rule-45 of the State and Subordinate
Rules, 1962 (for short ‘the Rules of 1962’) issued in G.O.Ms.No.418, General
Administration (Rules) Department, dated 07.03.1962. Rule-45 of the Rules of 1962 reads as
hereunder:
“45. Relinquishment of rights by members:
Any person may, in
writing, relinquish any right or privilege to which he may be entitled under
these rules or the special rules if, in the opinion of the appointing
authority, such relinquishment is not opposed to public interest; and nothing
contained in these rules or 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.”
The
Rules of 1962 were superseded by the Rules of 1996, whereby Rule-45 has been
substituted by Rule-28. Rule-28 of the
Rules of 1996 reads as hereunder:
“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 rules or 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.”
The respondents relied upon the Memo dated
18.01.1984 in rejecting the request of the petitioner to be considered for
promotion. However, as the first
paragraph of the said Memo would indicate, Rule-45 of the Rules of 1962 did not
hold to the effect that once an individual had temporarily relinquished his
right for promotion, such right stood permanently extinguished. It is in fact made clear that there could be
no legal objection to consider such an individual for promotion subsequently,
though the same would not entitle the individual to claim seniority over
persons promoted during the period of his temporary relinquishment. Losing sight of the first paragraph in the
Memo dated 18.01.1984, it appears that the respondents blindly relied upon the
second paragraph which only states to the effect that temporary relinquishments
should not be accepted, being against public interest.
Insofar as Rule-28 of the Rules of 1996 is
concerned, it is in sum and substance, a replication of the earlier Rule-45 of
the Rules of 1962. The only addition in
the new rule is that the relinquishment once made is to be treated as final and
irrevocable and a proviso is added stating to the effect that no conditional or
temporary relinquishment shall be permitted.
A learned Division Bench of this Court had
occasion to deal with the construction and interpretation of Rule-28 of the
Rules of 1996 in its unreported judgment in THE DISTRICT EDUCATIONAL
OFFICER, KURNOOL
V/s. SHAHNAZ BEGUM[1][1]. Therein, the learned
Division Bench quoted with approval the observations made by the A.P. State
Administrative Tribunal in SMT.S.SWARNA KUMARI V/s. DEPUTY COMMISSIONER
OF PROHIBITION AND EXCISE (O.A.No.715 of 2004, dated 23.03.2004). The observations extracted by the learned
Division Bench are replicated hereunder:
“……….A
careful perusal of Rule-28, extracted above, would reveal the following:
(1) An option is given to any member of a
service to relinquish any right or privilege to which he may be entitled to,
under the relevant rules (this includes right or privilege of promotion).
(2) Such relinquishment is subject to
acceptance of the appointing authority, who must be satisfied before acting
upon such relinquishment that such relinquishment was not opposed to public
interest.
(3) Such relinquishment once made will be
final and irrevocable.
(4)
Once such relinquishment has
come into force, the authorities concerned shall not be required to recognise
any right or privilege to the extent to which it has been so relinquished.
The proviso to this Rule
contemplates that conditional relinquishment or relinquishment of a right for a
temporary period shall not be permitted…….
……..Viewed in this context, a
relinquishment of a right or privilege to promotion would only mean that his
right to be considered for promotion, while he was occupying a particular place
in the seniority list, at a time when he was eligible for promotion by virtue
of passing of the tests etc., as
required under the then existing rules and in respect of a vacancy, that has
arisen at the relevant time has been relinquished. This relinquishment may be permanent.
It is true that conditional
relinquishment is not permissible. What
is means is that in respect of that particular opportunity for promotion a
member of a service cannot relinquish with a rider that he would claim that
privilege of promotion on the happening of certain contingency. For example, if a member of a service has relinquished
his right or privilege of promotion on the ground of his sickness, he cannot be
allowed to claim that offer of promotion may be revived after he is cured of
his sickness.
Similarly, the provision that he
cannot be permitted to relinquish temporarily would mean that in respect of a
particular opportunity for promotion, the employee cannot be allowed to claim
that the offer of promotion may be kept open for him for a particular period.
The real question is what
privilege or right has been relinquished ?
This assumes significance in
view of the language used in Rule-28 of the State and Subordinate Service Rules
which is to the following effect:
“Nothing
contained in these rules or 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.”
This
would indicate that the authorities concerned are not required to recognise any
right or privilege of a member of a service to the extent to which it as been
so relinquished. The words “to the
extent to which it has been so relinquished” appear significant.
So,
the question, therefore, is where a member of a service, who had a privilege or
a right to be considered for promotion, at a particular stage, has relinquished
his right, the relinquishment has to be interpreted in the background of what
has been stated above that a privilege or right of promotion depends on
concatenation of several circumstances. The
extent of relinquishment has to be determined in the context of that particular
occasion when the right or privilege for promotion had arisen for a member of a
service. The relinquishment of an opportunity for promotion, which arose for an
employee occupying certain place in seniority list in the year 2001, in view of
a vacancy that arose then, in view of the fact that 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 her by virtue of the
abovementioned circumstances. The Rule
cannot be interpreted to mean that the relinquishment was in respect of future
vacancies also.
The learned Government Pleader
seeks to contend that such an interpretation would render the provision in the
Rule that such relinquishment will be permanent nugatory. We are unable to accept this contention.
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 inspite 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 fro 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 promoting efficiency and harmonious functioning……” (emphasis added).
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.
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.
--------------------------------
GODA RAGHURAM,
J.
----------------------------------
P.V.SANJAY
KUMAR, J.
_____ OCTOBER, 2008.
PGS
WRIT PETITION NO.24609 OF 2007
(Pre-delivered
order of the Bench prepared by
the
Hon’ble Sri Justice P.V.Sanjay Kumar)
FOR
CIRCULATION TO:
THE HONOURABLE SRI JUSTICE GODA RAGHURAM
FOR KIND
PERUSAL AND CONSIDERATION.
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