Allahabad High Court
Imran Ali And Another vs State Of U P And 2 Others on 17 August, 2022
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 36
Case :- WRIT - A No. - 11963 of 2022
Petitioner :- Imran Ali And Another
Respondent :- State Of U P And 2 Others
Counsel for Petitioner :- Prabhakar Awasthi,Dharmendra Kumar Dwivedi
Counsel for Respondent :- C.S.C.
Hon'ble Saurabh Shyam Shamshery,J.
1. The issue involve in this writ petition that, once an employee opted to forego his promotion on an option sought by the respondents on certain grounds cannot be transferred without considering the said grounds, has been considered by this Court in Writ-A No. 10297 of 2022 (Sunil Kumar Mishra vs. State of U.P. and others), decided on 26.07.2022 and the relevant paragraphs are mentioned hereinafter:
"The basis of submission of learned counsel for the petitioner is based upon the circular and the affidavit whereby the petitioner has forgo his right for promotion and he is ready to face the consequence which may be in the nature of finance as well as stagnation. Counsel for petitioner heavily relied upon Union of India & Ors Vs. Manju Arora & Anr, (2022) 2 SCC 151. For reference, paragraphs 17 and 18 of it are mentioned hereinafter:
" 17. We are quite certain that if a regular promotion is offered but is refused by the employee before becoming entitled to a financial upgradation, she/he shall not be entitled to financial upgradation only because she has suffered stagnation. This is because, it is not a case of lack of promotional opportunities but an employee opting to forfeit offered promotion, for her own personal reasons. However, this vital aspect was not appropriately appreciated by the High Court while granting relief to the employees.
18. It may also be observed that when an employee refuses the offered promotion, difficulties in manning the higher position might arise which give rise to administrative difficulties as the concerned employee very often refuse promotion in order to continue in his/her own place of posting."
Both the aforesaid paragraphs have to be read conjointly and not in isolation.
In above referred paragraph 18, the Supreme Court has also observed that when an employee refuses the offered promotion, difficulties in manning the higher position might arise which give rise to administrative difficulties as the employee concerned very often refuses promotion in order to continue in his/her own place of posting, therefore, above observations goes against the petitioner.
The petitioner while joining the service has accepted that his services be governed by the relevant service rules and he was aware that he may be promoted on the higher post, therefore, at the stage when his promotion is due and an affidavit is sought regarding his willingness for promotion cannot be construed that he has a right to forego promotion. However, in a case where the petitioner or a employee has personal difficulty of genuine in nature, respondent authority has a obligation to consider his grievance which includes forgo promotion but option to forgo promotion shall not be submitted with the object to continue at one place. Therefore, even the unwillingness for promotion is accepted, still any employee may be transferred to any other place as it is trite law that transfer is an incident of service. I find merit in submission of learned counsel for State that promotional post has to be filled by cadre only and there is no direct recruitment, therefore, willingness sought be accepted without any good reason, promotional post will remain vacant and it will adversely affect the administration, which cannot be permitted.
If the submission of petitioner is accepted that it is his right to forego promotion, it will also hamper legitimate expectation of a candidate to appear in the recruitment process for direct recruitment as the number of post will be reduced. The argument of the petitioner sans merit and accordingly rejected.
Considering that there is no order on record where the problem or difficulty mentioned in the affidavit was considered or not, therefore, without interfering in the impugned order, this writ petition is disposed of with the direction that in case the difficulties mentioned in the affidavit by the petitioner were not yet considered, same will be considered by the respondents and it is expected that appropriate order will be passed in this regard preferably within a period of three weeks from today.
It is further expected from the authorities that if the petitioner is not relieved till date, he may not be relieved for a period of three weeks and appropriate orders in terms of the direction of this Court be passed within stipulated time."
2. Sri Prabhakar Awasthi, learned counsel for petitioners, fairly submits that petitioners have not been relieved till date, therefore, this writ petition may be disposed of in terms of judgment passed in Sunil Kumar Mishra (supra) and with the liberty granted in last para of the order.
3. The writ petition is accordingly disposed of in terms of the judgment passed in Sunil Kumar Mishra (supra) with the observation that it is expected from the authorities that if the petitioners are not relieved till date, they may not be relieved for a period of three weeks and appropriate orders in terms of the direction of this Court be passed within stipulated time.
Order Date :- 17.8.2022
AK
