IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE THIRD DAY OF AUGUST TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH & THE HON'BLE MR JUSTICE G.KRISHNA MOHAN REDDY WRIT PETITION No.20545 of 2004 Between: Government of A.P. rep.by its Principal Secretary EFES&RT Dept. Secretariat, Hyderabad and 3 others ..... PETITIONERS AND S.Damoder .....RESPONDENT The Court made the following: THE HON'BLE SRI JUSTICE V.ESWARAIAH & THE HON'BLE SRI JUSTICE G.KRISHNA MOHAN REDDY WRIT PETITION No.20545 of 2004 ORDER: (per Hon’ble Sri Justice V.Eswaraiah) This writ petition is filed by the State aggrieved by the order of the A.P.Administrative Tribunal, Hyderabad in O.A.2695/1993 dated 29.10.2002 in disposing of the application of the respondent herein. The parties are hereinafter referred to as arrayed before the Court below. The applicant has filed O.A.2695/1993 before the Tribunal below to declare that he is entitled for promotion to the post of Draughtsman Grade-I and also entitled for 22 years promotional scale with all consequential benefits such as pay, seniority etc., and also to declare instructions issued by the Government, General Administration (Services- A) Department in Memo No.8/Ser.A/84-1 dated 18.01.1984 with regards to temporary relinquishment under A.P.State and Subordinate Services Rules, as illegal. It is the case of the applicant that he was appointed as Draughtsman Grade-II with effect from 07.04.1967 and he is eligible for promotion to the post of Draughtsman Grade-I. While he was working as Draughtsman Grade-II in the office of the Divisional Forest Officer, Warangal North, Warangal District, he made a representation dated 28.03.1985 relinquishing his promotion on the ground that he had to look after his old parents, and if he was to be transferred on promotion, he would be put to hardship. The said application was accepted by the Principal Chief Conservator of Forests in Reference No.19749/85/T2 dated 05.08.1985 under Rule-45 of the A.P.State and Subordinate Services Rules on permanent basis, and informed the applicant that he would not have any right or any claim for promotion in the category of Draughtsman Grade-I in future. After lapse of five years thereafter, the applicant made a representation dated 16.11.1990 before the Principal Chief Conservator of Forests to permit him to withdraw his earlier relinquishment and to consider him for promotion to the post of Draughtsman Grade-I. The said representation dated 16.11.1990 was rejected by the Principal Chief Conservator of Forests in Reference No.84659/90/T2 dated 07.01.1991. Again the applicant made a representation but to the Government on 06.04.1992, requesting the Government to permit him to withdraw his earlier relinquishment. The Government also rejected his representation vide orders dated 15.02.1993 on the ground that once the relinquishment was given, he would not be permitted to withdraw the same, and the said proceedings were also communicated to the applicant by the Principal Chief Conservator of Forests, vide Proceedings No.20221/92/T2 dated d24.02.1993. It is stated that acceptance of the relinquishment was on permanent basis, and therefore, the applicant cannot be permitted to withdraw his earlier relinquishment. It is the case of the applicant that Rule-45 of the A.P.State & Subordinate Services Rules, 1962 would not prohibit the employee to withdraw the relinquishment subsequently. Rule-45 of the A.P.State & Subordinate Services Rules, 1962 (hereinafter referred to as “old Rules”) is as follows:- “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 the 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 relinquished.” A careful reading of the aforesaid Rule-45 of the Old Rules discloses that the appointing authority has a discretionary power to reject the relinquishment, if it is opposed to the public interest. If it is not opposed to public interest, such relinquishment shall not be rejected. Merely because the relinquishment of the applicant given on the ground that he had to look after his old parents and if he was to be transferred on promotion he would be put to hardship, was accepted, it cannot be said that the Department accepted such relinquishment permanently. The said State and Subordinate Services Rules 1962 have been superseded and new Rules have been framed under A.P.State & Subordinate Service Rules, 1996 (hereinafter referred to as “new Rules”). The corresponding rule in new Rules is Rule-28. Rule-28 is as follows: “Rule-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” Under the proviso to Rule-28 of new Rules, once the right of promotion is relinquished, such relinquishment is final and irrevocable. Therefore, it cannot be said that the applicant got right to withdraw the relinquishment of his right earlier made, if it was made after the said Rule-28 came into force. The Government vide its Memo dated 18.01.1984 issued the instructions with regards to Rule-45 of old Rules, in which it is clarified that if any individual has temporarily relinquished his right of promotion, it cannot be said that his right for promotion is permanently extinguished. Therefore, there shall be no legal objection to consider such individual for promotion subsequently. But, it is stated that some individuals are misusing the power of right of relinquishment of promotion temporarily on domestic grounds. Therefore, the aforesaid instructions have been issued not to permit the individuals to relinquish right of promotion temporarily in future. We are of the opinion that the instructions issued could not run contrary to Rule-45 of old Rules, and if any amendment to the statutory rules is proposed, it shall be by way issuing a Government Order only. As the relevant rule which was operating at the relevant point of time was not prohibiting to withdraw the relinquishment of right subsequently, we are of the opinion that the Tribunal below rightly directed the petitioners herein to consider the case of the applicant for promotion to the post of Draughtsman Grade-I subsequent to the date of 07.01.1991 i.e. three months after filing his application to withdraw the relinquishment which was filed on 16.11.1990, as per his seniority and eligibility. We do not see any infirmity, legal or otherwise, to interfere with the impugned order. The Writ Petition is accordingly dismissed. No order as to costs. ________________ V.ESWARAIAH,J ___________________________ G.KRISHNA MOHAN REDDY,J Dated: 03.08.2011 Dsr