IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE THIRTIETH DAY OF JUNE TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE C.V.RAMULU WRIT PETITION NO : 22806 of 2007 Between: The Director of Insurance Medical Services, Government of Andhra Pradesh, Dr.No.6-4-6/8, Opp: Gandhi General Hospital (New), Hyderabad. ..... PETITIONER AND S.Devraj E.S.I. Hospital, Sirpurkagaznagar, Adilabad. .....RESPONDENT 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 or direction more particularly one in the nature of Writ of Certiorari, calling for the records relating to and connected with order dated 23.7.2007 in O.A.No.8662 of 2005 on the file of the Andhra Pradesh Administrative Tribunal, Hyderabad and to quash or set aside the same by holding the same as erroneous and contrary to law and pass such order or further orders. Counsel for the Petitioner: GP FOR SERVICES I Counsel for the Respondent No.: MR.P.V.RAMANA ORDER: (Per Sri Justice GHULAM MOHAMMED) This Writ Petition has been filed seeking a direction in the nature of writ of Certiorari calling for the records relating to and connected with order-dated 23.7.2007 in O.A.No. 8662 of 2005 on the file of the Andhra Pradesh Administrative Tribunal, Hyderabad and to quash the same as illegal, arbitrary. Respondent herein is the applicant in O.A.No. 8662 of 2005. O.A. was filed by the respondent, seeking promotion to the post of Senior Assistant as per G.O.Ms.NO. 145, General Administration (Ser.D) Department dated 15.6.2004 as the respondent-applicant earlier relinquished his post on certain domestic grounds and that the petitioner herein has passed the proceedings dated 4.9.2000, cancelling the promotion given as Senior Assistant for the present and for future and informing the respondent-applicant that his right for promotion as Senior Assistant for the present and future is forfeited. That application was opposed. The Tribunal after hearing both the parties disposed of the O.A with a direction to the respondent therein and petitioner herein to consider the claim of the applicant-respondent for promotion to the posts of Senior Assistants in future vacancies. It further held that as far as the seniority of the applicant-respondent is concerned, the applicant-respondent cannot claim with retrospective effect as he had relinquished on earlier occasion. The learned Government Pleader appearing for the petitioner contended that the respondent himself had given the statement that he is foregoing his promotion presently as well as in future, therefore, the petitioner herein made him disentitled for promotions. On the other hand, the learned counsel appearing for the respondent submits that Rule 28 of the A.P. State and Subordinate Service Rules, as distinct from Rule 11(b) thereof, did not disentitle a government servant from being considered for promotion permanently, merely because he had relinquished his right to claim promotion earlier. We have heard the learned counsel appearing for both sides and perused the order impugned. Before going into the merits of the case, it is relevant to observe Rule 28 of the A.P. State and Subordinate Service Rules (hereinafter referred to as “the Rules”), which reads as under: “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.” It is also relevant to see that a bare reading of judgment dated 9.8.2006 rendered by this Court in W.P.No. 26654 of 2005, shows that this Court examined the constitutional validity of Rules 28 and 11(b) of the Rules. The Rule 11(b) reads as under: “(b) Time to join a post on appointment otherwise than by direct recruitment:- A person appointed to a post, otherwise than by direct recruitment shall be allowed joining time of 15(fifteen) days from the date of receipt of the order of appointment sent to the candidate by Registered Post with acknowledgement due or by any other means. If a person fails to join the post within the stipulated period of 15(fifteen) days or evades to join the post by proceeding on leave, the offer of appointment shall be treated as automatically cancelled and the name of the candidate shall be deemed to have been omitted from the list of the approved candidates and she/he shall forfeit his right of appointment both for the present and in future for the post”. In AJIT SINGH II VS. STATE OF PUNJAB[1], DELHI JAL BOARD VS. MAHINDER SINGH[2] and OLGA TELLIS VS. BOMBAY MUNICIPAL CORPORATION[3], the Supreme Court held that rule 28 does not prohibit consideration of the applicant’s case for promotion forever, for a right to be considered for promotion, if an employee is otherwise eligible, is a fundamental right under Article 16(1) of the Constitution of India. The Supreme Court also held that fundamental rights cannot be waived. While the respondent-applicant 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 in service from being considered for promotion in a future vacancy merely because he/she had relinquished his/her right under the Rules for promotion. In view of the above we are of the opinion that there are no reasons to exercise discretionary jurisdiction under Article 226 of the Constitution of India to interfere with the order under challenge. Therefore, the Writ Petition is liable to be dismissed. Accordingly, the Writ Petition is dismissed. No order as to costs. _____________________________ GHULAM MOHAMMED ,J ___________________________ C.V.RAMULU, J Dt. 30.06.2008 KA ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1. CC to G.P. for Services-I, High Court of A.P. Hyderabad. 2. 2CD copies [1] 1999(7) SCC 209 [2] 2000(7) SCC 210 [3] AIR 1986 SC 180