Ganesh Dutt Joshi vs State of Uttarakhand and Others

Sudhanshu Dhulia, J.—Heard Mr. Alok Mehra, Advocate for the Petitioner and Mr. N.P. Sah, Standing Counsel for the State of Uttarakhand.

The Petitioner is an administrative officer. Since the Petitioner was denied promotion to the post of Senior Administrative Officer and Administrative Officers much junior to the Petitioner have been promoted to the post of Senior Administrative Officers vide order dated 2.7.2010 (Annexure No. 6 to the writ petition), the Petitioner is aggrieved and has filed the present writ petition claiming the following relief:

(i) issue a writ, order or direction in the nature of certiorari to quash the order dated 8.12.2009 issued by the Respondent No. 2 in so far as it relates to the Petitioner.

(ii) issue a writ, order or direction in the nature of mandamus commanding the Respondents to grant promotion to the Petitioner on the post of Senior Administrative Officer from the date when juniors to him were promoted.

(iii) Any other writ, order or direction which this Hon''ble Court may deem fit and proper under the facts and circumstances of the case.

(iv) Award the cost of the petition in favor of the Petitioner.

Admittedly the promotion from the post of Administrative Officer to the post of Senior Administrative Officer depends upon seniority subject to rejection on unfit. The Petitioner has stated in the writ petition that earlier the Petitioner was promoted to the post of Administrative Officer Grade -I on 14.9.2007 but due to personal difficulties with the Petitioner he declined the promotion, as he was to be sent outside Lohaghat where he at the relevant time was posted. The second promotion came in his way on 9.2.2009 which the Petitioner again declined for the same reasons. However, when the Petitioner was ignored for promotion, for the third time, as persons junior to him were promoted, ignoring him vide order dated 20.7.2010, he challenged the same. The Petitioner contends that he was aware of the earlier circular dated 3.7.2007 according to which if a person declines the promotion "thrice" then only he will not be considered for promotion and since he was only aware of this circular he took his chances in declining promotions twice. He has not declined promotion "thrice" so that he may not be considered for promotion for all times to come. The Petitioner hence moved a representation before the concerned authority to this effect which was rejected on 29.10.2010. The grounds for rejection are that circular dated 10.6.2009 was already in operation whereby if a person refuses the promotion "twice" he will not be promoted in future. Relying upon this circular the Petitioner has been denied promotion. The case of the Petitioner, on the other hand, is that at the time of his second refusal for promotion dated 9.2.2009 the condition was that if a person refuses promotion "thrice" he will not be promoted in future.

It is an admitted case that the Petitioner has declined his two promotions, first on 15.9.2007 and second on 9.2.2009. It is also true that when the Petitioner declined his promotion for the second time, the first circular i.e. circular dated 3.7.2007 was in force whereby if an employee declined promotion "thrice" he was not liable to be promoted in future. The second circular dated 10.6.2009 came after the Petitioner already declined his promotion for the second time. Hence it would not operate retrospectively. What would operate at the relevant time is circular dated 3.7.2007 whereby the condition was that if a person declines promotion "thrice" he will not be promoted in future. Admittedly the Petitioner has declined the promotion only twice and therefore it is not correct on the part of the Respondent not to consider him for further promotion and therefore the action of the Respondent for not considering the Petitioner for promotion to the post of Administrative Officer to Senior Administrative Officer while the persons junior to the Petitioner have been promoted is patently illegal.

In the counter affidavit, State has taken stand that second circular has been passed as this was the demand of the ministerial association of which the Petitioner was also a member. As such the Petitioner cannot claim the promotion.

Be that as it may, the fact of the matter is that at the relevant time when the Petitioner could decline promotion for a maximum of three times. Therefore the Petitioner cannot be denied promotion particularly when he now wants to be promoted.

Therefore writ petition is allowed. The Respondent is directed to consider the promotion of the Petitioner from Administrative Officer to the post of Senior Administrative Officer as has been done regarding his juniors vide order dated 20.9.2010. This Court has been informed at the bar that promotion from Administrative Officer to the post of Senior Administrative Officer depends upon seniority subject to rejection on unfit. In case there is nothing against the Petitioner, the Petitioner is liable to be promoted from the date his junior, as referred above, have been promoted. The authority concerned shall consider all the aspects and pass appropriate order.

No order as to costs.