1 D.B.Civil Writ Petition No.5091/2014 Union of India and ORS.V/s Mani Ram Bijarnia 16.7.2014 Hon'ble the Chief Justice Mr.Amitava Roy Hon'ble Mr.Justice Vijay Bishnoi Mr.Vinit Kumar Mathur, Assistant Solicitor General of India for the petitioneRs.Heard Mr.Mathur, learned Assistant Solicitor General of India for the petitioneRs.For the order proposed to be passed, we do not consider it essential to issue formal notice to the respondent.
The brief facts are that the respondent, who was initially appointed as Postal Assistant in the petitioners-Department on 22.2.1978, earned his promotion to the post of LSG(NB) by a composite order of transfer-cum-promotion dated 25.6.2013 issued by the office of the Postmaster General, Rajasthan Western Region, Jodhpur.
He was posted on promotion to the post of HSG-II (NB) as APM (A/C) Sriganganagar HPO in the pay scale of Rs.9300- 34800 with grade pay of Rs.4200/-.
The order also contained the following clause:- “In case any of the officials is not interested to assume promoted post, he may decline the offer of promotion within 7 days from date of issue of posting orders otherwise he may be relieved by concerned Divisional Head positively.”
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The respondent submitted his representation dated 29.6.2013 2 foregoing his promotion.
This request was declined by the competent authority on the ground that the reasons offered by him were not acceptable.
A direction was issued that he be relieved to be posted as ordered.
Being aggrieved, the respondent approached the learned Central Administrative Tribunal, Jodhpur Bench, Jodhpur (for short, hereinafter referred to as “the Tribunal”.) with OA No.339/2013 assailing the rejection of his request forgoing his promotion.
The petitioners-Department in their return pleaded that the respondent had been granted maximum number of financial upgradations and that he had rendered his service mostly near his native place prior to his promotion and that his non-acceptance of promotion was without any justifiable reason.
It was averred as well that he had no right to have his request declining promotion accepted by the competent authority.
Reference was made to the policy guidelines contained in a memorandum issued by the DoPT dated 1.10.1981 to the effect that where the reasons adduced by an officer for his refusal of promotion were not acceptable to the competent authority, promotion could be enforced and if the officer still refused to abide thereby, even a disciplinary action could be taken against him.
The learned Tribunal, after hearing the parties and on a consideration of the pleaded facts and the documents on record, accepted the challenge and interfered with the order of rejection of the respondent's request to forego his promotion by relying on 3 the order dated 10.9.2012 passed by the learned Central Administrative Tribunal, Allahabad Bench in OA No.149/2012 on the same issue drawing sustenance from the decision rendered by the Madras Bench of the Tribunal in OA No.72/2012 on 22.6.2012.
Mr.Mathur has argued that as the respondent in law has no right though given an option to refuse promotion to have such refusal accepted by the competent authority in the face of the policy guidelines contained in the DoPT memorandum dated 1.10.1981, the learned Tribunal had grossly erred in interfering with the order of the competent authority declining to accept the respondent's request to forego his promotion as ordered.
We have considered the pleaded facts with the documents on record and have also applied ourselves to the arguments advanced.
Noticeably, a similar challenge against an identical decision of the learned Tribunal had been laid before this Court in a batch of writ petitions led by D.B.Civil Writ Petition No.4313/2014 Union of India & ORS.V/s S.R.Prajapati (decided on 4.7.2014) wherein transfer/promotion was made by the same order dated 27.6.2013.
A Coordinate Bench of this Court referring to the office memorandum dated 1.10.1981 declined to sustain the plea raised on behalf of the petitioners-Union of India, observing that it lacked statutory force to enforce the promotion even if not accepted by the officer concerned.
Absence of statutory rule ratifying the impugned action of the competent authority was recorded as well.
It was observed further that the employer like the petitioners 4 therein though could offer promotion, there was no universal rule that the incumbent concerned was obliged to accept the same.
The determination made by the learned Tribunal was left uninterfered.
Upon hearing the learned counsel for the petitioners and on a consideration of all relevant aspects factual and legal, we see no reason to take a different view.
Significantly, a consistent view has been taken by the Allahabad as well as Madras Bench of the Central Administrative Tribunal on the issue in the similar lines, which has since been sustained and endorsed by a Coordinate Bench of this Court as adverted to hereinabove.
The petition lacks in merit and is dismissed.
(Vijay Bishnoi)J.
(Amitava Roy)CJ Parmar