Rule 28 of the A.P. State & Subordinate Service Rules, 1996 does not permanently extinguish an employee's right to be considered for promotion, in line with fundamental rights under Article 16(1) of the Constitution of India.

ORDER :

This Writ Petition is filed aggrieved by the impugned speaking order, vide Rc.No.264/C2/2022, dated 10.03.2022 of the 1st respondent, in rejecting the representation made by the petitioner by holding that the petitioner is not entitled for the promotion to the post of Senior Assistant, without considering Rule 28 of the A.P. State & Subordinate Service Rules, 1996 (for short ‘the Rules of 1996’) and G.O.Ms.No.145, dated 15.06.2004.

2. Heard the learned counsel for the petitioner as well as the learned Government Pleader for Medical, Health & Family Welfare.

3. Brief facts of the case are as follows :

The petitioner is working as Junior Assistant, Government General Hospital, Kadapa, YSR District. Initially, he was appointed as Record Assistant in the year 2009, later got promoted as Junior Assistant on 14.12.2016. Thereafter, he had been promoted to the category of Senior Assistant on 16.10.2019 and posted to Primary Health Centre, Roddam, Ananthapuram District. In view of the health conditions of the mother of the petitioner, he submitted a representation on 22.02.2020 requesting the 1st respondent to revert him to the post of Junior Assistant. Consequently, the petitioner was reverted to the post of Junior Assistant, vide orders in Rc.No.355/C2/2020, dated 10.03.2020. Thereafter, based on the family conditions and medical health of the mother of the petitioner, he made a representation, dated 13.11.2020 to the 1st respondent to consider his request for promotion to the post of Senior Assistant.

(ii) While his representation is pending, the Seniority list was prepared to effect promotions to the post of Senior Assistants for the panel year 2020-2021, wherein, the petitioner’s name was placed at Sl.No.93. Accordingly, seniority list was finalized, but in the relevant ‘remarks column’ it was mentioned as “promoted and reverted as Junior Assistant”. The petitioner was in fact under the hope that his case would be considered for promotion, but the same was not done on the ground that previously he relinquished his promotion and taken reversion to the post of Junior Assistant. Aggrieved by the same, the present writ petition is filed by the petitioner.

4. Learned counsel for the petitioner submitted that based on the health condition of the mother of the petitioner, petitioner requested the 1st respondent to revert him to the post of Junior Assistant. Subsequently, the petitioner was reverted to the post of Junior Assistant, vide orders in Rc.No.355/C2/2020, dated 10.03.2020. As per the request made by the petitioner only, reversion is made by the 1st respondent. He further states that the Rule 11 (b) as well as the Rule-28 of the Rules of 1996 are only applicable to those members, who cannot join in the promotional post within a stipulated joining time of ‘15’ days and once relinquishment is not opposed by the appointing authority, such relinquishment will be final and irrevocable, hence, those provisions could not be applicable in this case. He further submits that in similar circumstances, the Division Bench of the composite High Court in W.P.No.13624 of 2015, considered the issue on the ground that 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.

5. Learned Government Pleader for Services-IV, while reiterating the averments in the counter filed by the 1st respondent No.1 contended that as per the declaration given by the petitioner, he was reverted to Junior Assistant, accepting the conditions laid down in the reversion orders, dated 10.03.2020 and joined as Junior Assistant and now, he cannot claim for promotion without challenging the said conditions laid down in the said reversion orders. He further submits that the Regional Director of Medical and Health Services, Kadapa, obtained an undertaking from the petitioner at the time of reverting him as Junior Assistant that he would not claim any further promotion in future as per law