Nafardeen vs State Of H.P. & Ors

Jyotsna Rewal Dua, J

Whether the petitioner can be allowed to change the option earlier exercised by him for availing one particular line of promotion out of available

promotional avenues, is a question raised in this petition.

2(i) Petitioner was appointed as a Trained Graduate Teacher (Non-Medical) in the respondent-Education department in the year 1990. Two channels

of promotion are available from the post of Trained Graduate Teacher (TGT). One is to the post of Lecturer/Post Graduate Teacher (PGT) and other

is to the post of Headmaster.

2(ii) Before proceeding to make promotions from the posts of TGT, the respondents sought an option from the petitioner. The petitioner submitted his

option for promotion to the post of PGT. The option was forwarded to the respondent department vide letter No. 280, dated June 2013. Around a

month before the issuance of actual promotion order of eligible TGTs as PGTs, the petitioner vide his letter dated 20.1.2014 addressed to the

respondents expressed his intention to withdraw the previous option submitted by him and to submit a fresh option for promotion to the post of

Headmaster. The prayer of the petitioner for change in the option was not considered by the respondents. Respondents issued an office order on

22.2.2014 (Annexure P-3) promoting various eligible Trained Graduate Teachers as PGTs who had opted for their promotion as PGTs. The name of

the petitioner figured at serial No. 1 in the list of those who were promoted as PGTs (Annexure P-3).

2(iii) Aggrieved by his promotion as Post Graduate Teacher and by non-consideration of his prayer seeking to change his previously exercised option,

the petitioner has preferred instant petition for the following substantive reliefs:

“(i) That a writ in the nature of certiorari may be issued and annexure P-3 dated 22.2.2014 may kindly be quashed and set aside qua the petitioner.

(ii) That writ in the nature of mandamus may be issued directing the respondents to consider the case of the petitioner for promotion to the post of

Headmaster in his turn whenever he becomes eligible as per his seniority.â€​

For continuity, it be noticed here that vide order dated 7.3.2014 passed in this petition, the implementation and execution of impugned order, Annexure

P-3 dated 22.2.2014 was stayed qua the petitioner.

Learned senior counsel for the petitioner argued that the option previously exercised by the petitioner for his promotion to the post of PGT had not

been implemented or acted upon by the respondents till 20.1.2014. Therefore, the prayer made by the petitioner on 20.1.2014 for withdrawing his

previously exercised option and to allow him to submit a fresh option for promotion to the post of Headmaster should have been favourably considered

by the respondents. The contention raised by learned senior counsel is that an option could be withdrawn till the time it was not acted upon. It is next

contended by the learned senior counsel that the Trained Graduate Teachers working in the department of Education, who were promoted as

Lecturers/PGTs were still being considered as eligible for promotion to the posts of Headmaster. The petitioner, therefore, cannot be discriminated

and he should also be allowed to change his previously exercised option and now to opt for promotion to the post of Headmaster.

On behalf of the respondents-State, learned Deputy Advocate General invited the attention to a judgment dated 26.7.2010 rendered in CWP(T) No.

14932/2008, titled as Neelam Kaushal versus State of H.P. and others, wherein it was held that once an employee gives an option, he will not be

permitted to change the option and further that once an employee opts to be promoted as Lecturer/Headmaster, he cannot claim that he should be

considered for the other post. Since the petitioner had opted for promotion as PGT, therefore, it is argued that he cannot be promoted as Headmaster

by allowing him to change his option.

4(i) What comes out from the record is that Lecturers who were promoted as such from the Trained Graduate Teachers were being considered by

the respondents as eligible for promotion to the posts of Headmaster. Legality of this action was examined in Neelam Kaushal versus State of H.P.

and others, CWP(T) No. 14932 of 2008. In the judgment rendered in this case on 26.7.2010, following instructions issued by the Government on

24.12.1981 providing for option from incumbent of posts having more than one avenue of promotion were noticed:

“6. Reference may now be made to the instructions issued by the Government vide department of personnel letter No. H.P. Govt. Deptt. Of

Personnel letter No. Per(AP-II)A(3)-4/78 dated 24.12.1981 (Annexure-16.14),which reads as follows:

“Options from incumbents of posts having more than one avenue of promotion.

“Various complications arise in cases where according to the Recruitment and Promotion Rules as category of post has more than one channels of

promotion in-as-much as an incumbent promoted to one category of post after observing all formalities indicates that he has preference for being

promoted against the second channel of promotion. To prevent this from occurring, options should invariably be obtained from the persons concerned

and kept in the record before he is considered for promotion against one of the channels provided in the rules.â€​

After noticing the above instructions, the Court observed in the following para that once a preference is indicated, the same cannot be withdrawn or

changed:

“7. It is apparent that as per these instructions when there is more than one channel of promotion available for a particular category of post(s) then

at the time of consideration of the candidates for such post(s), the candidate must indicate his/her preference and once preference is indicated the

same can not be withdrawn or changed. Pursuant to these instructions, a letter dated 23rd April, 1998 was issued by the Director of Education H.P,

relevant portion of which reads as follows :

“As per the R & P Rules 50% of the posts of School cadre Lecturers are filled up from the TGT teachers who are MA/MSc qualified and have

got their names entered in the PGT list for the purpose of promotion.

You should apprise al TGT teachers working under you that those of the TGT teachers who are promoted to the post of Lecturer shall not be

promoted to the post of Headmaster. The TGTs shall either be promoted to the post of Lecturer or to the post of Headmaster.

Before sending cases to this Directorate for inclusion of names in the PGT list option may be obtained from the concerned teacher that he wants to be

promoted to the post of Lecturer and not to the post of Headmaster. Hence, it may be ensured that the TGTs should get their names included in the

list of PGT because once a person is promoted to the post of Lecturer he shall not be afforded opportunity to change the option.â€​

After taking note of all the instructions holding the field including the one referred to in para-7(extracted above), it was held in following para that once

an option is exercised for a particular promotional category, then the same cannot be withdrawn:

“11. A perusal of the rules and instructions set out in detail above clearly show that what was envisaged in the rules and instructions was that when

there are two avenues of promotion, the person in the feeder category must be asked to exercise his option as to for which promotional category he

wants to be considered. Once such option is exercised then the same can not be withdrawn. If options are taken then even if lien is retained that will

not help the employee. However, if no options are taken then the promoted employee would be justified in claiming that he can be considered against

the other post.â€​

The writ petition was disposed of as under:

“13. In view of the aforesaid discussion, this petition is disposed of with the following directions:

a. That no promotions made prior to 26th April 2010 shall be affected by the outcome of this petition. However, since the promotions made after 26th

April,2010 were made expressly subject to the result of this petition they shall abide by the following directions.

b. That henceforth and w.e.f 26th April,2010 before making any promotions to the post of Lecturers or Head Masters an option shall be sought from

the concerned employee .

c. Once an employee gives an option he/she will not be permitted to change the option.

d. Once an employee opts to be promoted as Lecturer/ Head Master he can not claim that he should be considered for the other post.

e. The Principal Secretary (Education) to the Government of Himachal Pradesh, the Director of Higher Education and Director of Elementary

Education i.e respondents No. 1 to 3 are made personally responsible for compliance of these directions in letter and spirit.

f. All promotions, if any, made after 26th April,2010 shall be reviewed and after seeking options of the employees in terms of the aforesaid directions

the promotions shall be made.â€​

It is not in dispute that LPA No. 147/2010 filed by the respondent-State against the above judgment was disposed of on 13.1.2015 having been

rendered infructuous.

4(ii) The judgment in Neelam Kaushal’s case is very specific that henceforth i.e. from 26.4.2010 onwards, before making any promotion of the

TGT to the post of Lecturer or Headmaster, the option will be sought from the concerned employee. Once an employee gives his option, he then shall

not be permitted to change the option. Further once an employee opts to be promoted as Lecturer or as Headmaster, he thereafter cannot claim

consideration for promotion for the other post. In the instant case, subsequent to passing of above referred judgment, the respondents sought an option

for promotion from the petitioner. Admittedly, the petitioner opted for promotion to the post of PGT. He was accordingly promoted as PGT vide office

order dated 22.2.2014. The argument advanced on behalf of the petitioner that he had expressed his intention to withdraw his previously exercised

option and had submitted fresh option for promotion to the post of Headmaster before the passing of office order dated 22.2.2014, does not carry

substance in view of the clear observations made and directions given in Neelam Kaushal’s case supra. The option once given for availing a

particular channel of promotion could not be withdrawn in terms of the directions issued in Neelam Kaushal’s case, as extracted above.

4(iii) In their reply, the respondents while resisting petitioner’s case have also relied upon the Department of Personnel letter No. Per(AP.B)B(1)-

2/2004 dated 1.9.2010, which has been appended alongwith instructions dated 28.4.2021 (placed on record by the respondent pursuant to order dated

9.4.2021). This letter was issued subsequent to the passing of the judgment in Neelam, Kaushal’s case. The letter reads as under:

“I am directed to invite a reference to this Department letter No. Per(AP.B)A(3)-4/78 dated 24-12-1981 (copy enclosed for ready reference) on

the subject cited above, which stipulates that if there is more than one channel of promotion from the feeder post(s) to the next higher post(s), at the

time of promotion, options should invariably be obtained from the concerned and kept in the records before he is considered for promotions against one

of the channels provided in the rules. Of late references are being received from certain Departments seeking clarification in the matter. It has also

come to the notice of the Government that various Departments are interpreting these instructions in different manners at their own level.

Although these instructions are quite clear yet it is clarified that in the cases where more than one channels of promotion from the feeder post(s) to

the next higher post(s) is available, option will be called for invariably at the time of the promotion, as here-to-fore and option once exercised by an

officer/official will be final and irrevocable.

These instructions may kindly be brought to the notice of all concerned for strict compliance and the receipt of the same may also be

acknowledged.â€​

The gist of the above instruction is that in cases where more than one channel of promotion from the feeder post(s) to the next higher post(s) is

available, then option will be called from the employees at the time of the promotion and further that an option once exercised by an official will be

final and irrevocable. It is not in dispute that these instructions were also in-force at the time of calling of option from the petitioner and at the time of

issuance of office order dated 22.2.2014.

4(iv) Learned senior counsel for the petitioner next relied upon an office order issued by the respondent on 5.3.2019 promoting certain TGTs and

promotee Lecturers (school cadre) who were promoted as Lecturers prior to 26.4.2010 without option, to the post of Headmasters. On the strength of

this office order, a factual contention was raised by learned senior counsel for the petitioner that even after the passing of the judgment in Neelam

Kaushal’s case supra, the promotee Lecturers (school cadre) were still being promoted to the post of Headmasters. On this analogy, petitioner

should also be permitted to change his previously exercised option for promotion to the post of PGT and to substitute it with a fresh option for

promotion to the post of Headmaster. In response to this point the respondents have relied upon first part of direction as contained in para 13(a) of the

judgment rendered in Neelam Kaushal’s case supra. Additionally following observations given by a division Bench of this court in Vinod Kumar

vs. State, CWP No. 1545/2011, decided on 5.7.2012 have been pressed into service, whereby judgment in Neelam Kaushal’s case was clarified:-

“16. A combined reading of the judgment leaves no manner of doubt that if no option was taken from the TGTs who were promoted as Lecturers

they would be justified in claiming that they should be considered for being appointed against the post of Headmaster. It has been brought to our notice

that the Law Department has been giving contradictory opinion as to what is to be done. In our opinion, there is no ambiguity in the judgment and any

law officer who tried to draw a different meaning from the judgment probably did not understand the judgment or gave the opinion for extraneous

reasons. To set the record straight, we are clarifying that as per this judgment any TGT promoted as Lecturer prior to 26.4.2010 without obtaining

option from him would be entitled to be considered for promotion against the post of Headmaster and can be promoted to the post of Headmaster on

the basis of his position in the seniority list in the cadre of TGTs. Therefore, the State while making efforts to fill up the posts on the basis of promotion

shall also consider the names of those TGTs who are promoted as Lecturers and from whom no option was taken.â€​

TGTs promoted as Lecturers prior to 26.4.2010 without exercise of option have been held entitled to be considered for promotion to the posts of

Headmaster. Office order dated 5.3.2019 is in furtherance of this very direction. The contention of discrimination meeted to the petitioner is, therefore,

of no significance.

4(v) Learned senior counsel for the petitioner also raised a plea that since the petitioner had not joined pursuant to the office order dated 22.2.2014

whereunder he was promoted as PGT, it has to be construed that he had foregone his promotion as PGT and, therefore, in terms of the recent

instructions issued by the State government on 3.12.2014 a fresh option was to be given to him for his further promotion. This argument also lacks

merit in view of the binding directions contained in the judgment passed in Neelam Kaushal’s case supra as well as the instructions dated

1.9.2010, which were applicable at the time of issuance of the office order dated 22.2.2014.

It is not a case where the petitioner did not have any promotional avenue. Two channels of promotions were available to the petitioner as TGT.

Petitioner is a literate man. He opted for one specific channel of promotion. In terms of the judgment passed by this Court in Neelam Kaushal’s

case supra, his option was acted upon and the petitioner was promoted as Post Graduate Teacher vide order dated 22.2.2014. In the facts and

circumstances of the case, he cannot be permitted to change his option.

Therefore, for all the aforesaid reasons, the reliefs prayed for by the petitioner cannot be granted to him. Accordingly, I find no merit in the petition

and the same is dismissed. Pending application(s), if any, shall also stand disposed of.

It goes without saying that office order dated 22.2.2014 promoting the petitioner as Post Graduate Teacher shall be acted upon by the respondents for

granting him applicable benefits flowing from this office order in accordance with law.