Rajasthan High Court - Jodhpur
Aruna Sharma vs The State Of Rajasthan ... on 26 May, 2025
Author: Rekha Borana
Bench: Rekha Borana
[2025:RJ-JD:25855]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 8761/2025
Smt. Verma Lata W/o Shri Praveen Kumar, Aged About 46 Years,
R/o 35 Shastri Basti, District Sri Ganganagar.
----Petitioner
Versus
1. The State Of Rajasthan, Through Secretary, Education
Department, Government Of Rajasthan, Secretariat,
Jaipur.
2. The Director, Secondary Education, Bikaner.
3. The District Education Officer (Headquarter), Secondary
Education, District Sri Ganganagar.
4. The Principal, Government Senior Secondary School, 11
Lnp (Khyaliwala), District Sri Ganganagar.
----Respondents
Connected With
S.B. Civil Writ Petition No. 8424/2025
Rajkumar Verma S/o Shri Sitaram Verma, Aged About 39 Years,
R/o Bunkar Mohalla, Aamloda, Dhawali, Tehsil Shahpura, District
Jaipur, Rajasthan.
----Petitioner
Versus
1. The State Of Rajasthan, Through Principal Secretary,
School Education, Government Secretariat, Jaipur.
2. The Director, Secondary Education, Bikaner.
----Respondents
S.B. Civil Writ Petition No. 8652/2025
Mumtaj Ali S/o Shri Sannu Khan, Aged About 53 Years, R/o
Village Rasulpur Post Kayamsar Tehsil Rajgarh Tehsil Ramgarh
Shekhawati District Sikar, Rajasthan.
----Petitioner
Versus
1. The State Of Rajasthan, Through Principal Secretary,
School Education, Government Secretariat, Jaipur.
2. The Director, Secondary Education, Bikaner.
3. The Principal, Govt. Senior Secondary School, Lawanda
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Block Fatehpur District Sikar.
----Respondents
S.B. Civil Writ Petition No. 8669/2025
Rashmi Jain D/o Lal Chand Jain, Aged About 45 Years, R/o D-54,
Mahaveer Colony, Near Saraswati School, Jhilay Road, Newai,
District Tonk, Rajasthan.
----Petitioner
Versus
1. The State Of Rajasthan, Through Principal Secretary,
School Education, Government Secretariat, Jaipur.
2. The Director, Secondary Education, Bikaner.
----Respondents
S.B. Civil Writ Petition No. 8671/2025
Madhu Kothari W/o Ashok Bapna, Aged About 53 Years, R/o 1 D,
Shivaji Nagar, Udaipur, Rajasthan.
----Petitioner
Versus
1. The State Of Rajasthan, Through Principal Secretary,
School Education, Government Secretariat, Jaipur.
2. The Director, Secondary Education, Bikaner.
3. The Joint Director, School Education, Udaipur Division,
Udaipur.
----Respondents
S.B. Civil Writ Petition No. 8872/2025
Vikram Singh Meena S/o Ram Lal Meena, Aged About 37 Years,
R/o Village Chhoti Udei, Tehsil Wazirpur, District Sawaimadhopur,
Rajasthan.
----Petitioner
Versus
1. The State Of Rajasthan, Through Principal Secretary,
School Education, Government Secretariat, Jaipur.
2. The Director, Secondary Education, Bikaner.
----Respondents
S.B. Civil Writ Petition No. 8889/2025
Meera Swarnkar W/o Raju Lal Soni, Aged About 42 Years, R/o
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Teliyo Ki Gali, Sanjay Jewellars, Chota Takhta, Tonk, Rajasthan.
----Petitioner
Versus
1. The State Of Rajasthan, Through Principal Secretary,
School Education, Government Secretariat, Jaipur.
2. The Director, Secondary Education, Bikaner.
----Respondents
S.B. Civil Writ Petition No. 8890/2025
Raj Kumar Meena S/o Shankar Lal Meena, Aged About 45 Years,
R/o Vpo Garh, Tehsil Tunga, District Jaipur, Rajasthan.
----Petitioner
Versus
1. The State Of Rajasthan, Through Principal Secretary,
School Education, Government Secretariat, Jaipur.
2. The Director, Secondary Education, Bikaner.
----Respondents
S.B. Civil Writ Petition No. 8891/2025
Ramesh Soni S/o Prakash Soni, Aged About 43 Years, R/o Shiv
Nagar Colony, Merta City, District- Nagaur, Rajasthan.
----Petitioner
Versus
1. The State Of Rajasthan, Through Principal Secretary,
School Education, Government Secretariat, Jaipur.
2. The Director, Secondary Education, Bikaner.
----Respondents
S.B. Civil Writ Petition No. 8894/2025
Hamendra Singh S/o Radhey Shyam, Aged About 51 Years, R/o
B-66, Shipra Path, Mansarovar, Jaipur, Rajasthan.
----Petitioner
Versus
1. The State Of Rajasthan, Through Principal Secretary,
School Education, Government Secretariat, Jaipur.
2. The Director, Secondary Education, Bikaner.
----Respondents
S.B. Civil Writ Petition No. 8896/2025
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Arvind Upadhyay S/o Mohan Prasad, Aged About 57 Years,
R/oagrasen Vihar Colony, Jhalawar, District Jhalawar, Rajasthan.
----Petitioner
Versus
1. The State Of Rajasthan, Through Principal Secretary,
School Education, Government Secretariat, Jaipur.
2. The Director, Secondary Education, Bikaner.
----Respondents
S.B. Civil Writ Petition No. 8899/2025
Ramnivas Nirmal S/o Banwari Lal Nirmal, Aged About 47 Years,
Working At Govt. Sr. Secondary School, Chak Jod, Lunkaransar,
Bikaner.
----Petitioner
Versus
1. The State Of Rajasthan, Through Principal Secretary,
School Education, Government Secretariat, Jaipur.
2. The Director, Secondary Education, Bikaner.
----Respondents
S.B. Civil Writ Petition No. 8901/2025
Mahaveer Gautam S/o Banshi Lal, Aged About 58 Years, R/o 34-
A, Jagan Vihar, Thegada, Near Abdul Salam Khan Notery,
Borkhera, Kota, Rajasthan.
----Petitioner
Versus
1. The State Of Rajasthan, Through Principal Secretary,
School Education, Government Secretariat, Jaipur.
2. The Director, Secondary Education, Bikaner.
----Respondents
S.B. Civil Writ Petition No. 8909/2025
Jawana Ram S/o Shivdan Ram Jat, Aged About 57 Years, R/o
Geela Ki Dhani, Ratanpura Road, Borawar, Nagaur, Rajasthan.
----Petitioner
Versus
1. The State Of Rajasthan, Through Principal Secretary,
School Education, Government Secretariat, Jaipur.
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2. The Director, Secondary Education, Bikaner.
----Respondents
S.B. Civil Writ Petition No. 8931/2025
Kunj Bihari Khandavaliya S/o Prabhu Dayal Khandavaliya, Aged
About 41 Years, 60, Chok Mohalla, Dholam, Baran.
----Petitioner
Versus
1. The State Of Rajasthan, Through Principal Secretary,
School Education, Government Secretariat, Jaipur.
2. The Director, Secondary Education, Bikaner.
----Respondents
S.B. Civil Writ Petition No. 8932/2025
Manju Kumari Meghwal D/o Moti Ram, Aged About 39 Years, Vpo
Lakhlan, Bari, Tehsil Rajgarh, District Churu, Rajasthan.
----Petitioner
Versus
1. The State Of Rajasthan, Through Principal Secretary,
School Education, Government Secretariat, Jaipur.
2. The Director, Secondary Education, Bikaner.
----Respondents
S.B. Civil Writ Petition No. 8937/2025
Surekha Tyagi D/o Surendra Tyagi, Aged About 37 Years, Shastri
Nagar, Sector No. 5, G.t. Road, Dholpur, Rajasthan.
----Petitioner
Versus
1. The State Of Rajasthan, Through Principal Secretary,
School Education, Government Secretariat, Jaipur.
2. The Director, Secondary Education, Bikaner.
----Respondents
S.B. Civil Writ Petition No. 8944/2025
Hitendra Kumar Jain S/o Yogendra Kumar Jain, Aged About 43
Years, R/o Namak Katra Ki Gali, Basan Gate, Bharatpur,
Rajasthan.
----Petitioner
Versus
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1. State Of Rajasthan, Through Principal Secretary, School
Education, Government Secretariat, Jaipur.
2. The Director, Secondary Education, Bikaner.
----Respondents
S.B. Civil Writ Petition No. 8950/2025
Aruna Sharma D/o Shri Radheshyam Sharma, Aged About 41
Years, R/o Village Kishorpura Via Ajitgarh District Sikar
Rajasthan.
----Petitioner
Versus
1. The State Of Rajasthan, Through Principal Secretary,
School Education, Government Secretariat, Jaipur.
2. The Director, Secondary Education, Bikaner.
3. The Principal, Saheed Suva Lal Yadav Govt. Girls Sr.
Secondary School, Khatkar Block Ajitgarh District Sikar.
----Respondents
S.B. Civil Writ Petition No. 8962/2025
Pramod Kumar Garg S/o Shyam Lal Sharma, Aged About 57
Years, Mahajan Basti, Tapukara, Tehsil Tapukara, District
Khairthal- Tijara, Rajasthan.
----Petitioner
Versus
1. The State Of Rajasthan, Through Principal Secretary,
School Education, Government Secretariat, Jaipur.
2. The Director, Secondary Education, Bikaner.
3. The Principal, Saheed Ram Singh Govt. Sr. Secondary
School, Karoli, Khairthal- Tijara.
----Respondents
S.B. Civil Writ Petition No. 8972/2025
Shrawan Ram Rankawat S/o Shri Ramjeevan Rankawat, Aged
About 41 Years, R/o Ganpati Vihar Nagar, Basani Circle, Nagaur
District- Nagaur, Rajasthan.
----Petitioner
Versus
1. State Of Rajasthan, Through Principal Secretary, School
Education, Government Of Rajasthan, Secretariat Jaipur
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(Raj.).
2. The Director, Secondary Education Bikaner (Raj.).
----Respondents
S.B. Civil Writ Petition No. 9081/2025
1. Dinesh Kumar Sharma S/o Satyanarayan Sharma, Aged
About 57 Years, Bandikui, Tehsil Baswa, District Dausa
303327. At Present Posted Senior Teacher, Mahatma
Gandhi Govt. Sen. Sec. School, Baswa, Dist. Dausa.
Employee Id- Rjda199713017849.
2. Satyaveer Singh S/o Het Singh, Aged About 49 Years,
Village Khangri, District Bharatpur -321642. At Present
Posted Senior Teacher, Govt. Sen. Sec. School, Khedi Devi
Singh, Nadbai, Dist. Bharatpur. Employee Id-
Rjbp201207010835.
3. Amar Singh S/o Daluram, Aged About 50 Years, Village
Naya Bas, Tehsil Baseri, District Dholpur 328022. At
Present Posted Senior Teacher, Govt. Sen. Sec. School,
Mal Baseri, Dist. Dholpur. Employee Id-
Rjdh200514013435.
4. Sandhya Swarnkar W/o Vijay Kumar Swarnkar, Aged
About 54 Years, Nichla Chowk, Mohangarh Nathdwara,
Rajsamand, District Rajsamand -313301. At Present
Posted Senior Teacher, Govt. Girls Sen. Sec. School,
Rangbadi, Kota, Dist. Kota. Employee Id-
Rjbw199808007148.
5. Pemaram S/o Gordhan Ram, Aged About 44 Years, Village
Nimbaniyon Ki Dhani, Madpura Barwala, Barmer, District
Barmer -344035. At Present Posted Senior Teacher, Govt.
Sen. Sec. School, Godaniyo Ki Dhani, Barmer Dist.
Barmer. Employee Id- Rjbm201505013133.
6. Rinku Kumar Koli S/o Daruram Koli, Aged About 44 Years,
Shekh Pada, Near Old Hindaun City District Karauli -
322230. At Present Posted Senior Teacher, Govt. Sen.
Sec. School, Gavdameena, Karauli, Dist. Karauli.
Employee Id- Rjka201226007618.
7. Sangeeta Jain W/o Yogesh Sharma, Aged About 53 Years,
Chandkhedi Road, Khanpur, Sub District Khanpur, District
Jhalawar -326038. At Present Posted Senior Teacher,
Govt. Sen. Sec. School, Baisar, Dist. Jhalawar. Employee
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Id- Rjjw200522023974.
8. Om Prakash Khileree S/o Roop Ram Khileree, Aged About
44 Years, Ward No. 9, Amarpura Jatan, Manaksar, District
Sri Ganganagar- 335804. At Present Posted Senior
Teacher, Govt. Sen. Sec. School, Sidhuwala, Dist. Sri
Ganganagar. Employee Id- Rjga200635002615.
9. Anjali Chottora W/o Abhishek Chittora, Aged About 36
Years, 3-B-28, Mahavir Nagar Extension, Dadabadi, Kota,
District Kota -324009. At Present Posted Senior Teacher,
Govt. Sen. Sec. School, Gordhanpura, City Kota, Dist.
Kota. Employee Id- Rjbr201104014738.
10. Munesh Kumari W/o Sunil Kumar, Aged About 40 Years,
Jakhron Ka Bass, Khatehpura, Jhunjhunu, Tehsil And
District Jhunjhunu -333001. At Present Posted Senior
Teacher, Govt. Sen. Sec. School, Bakhtawarpura, Dist.
Jhunjhunu. Employee Id- Rjjj200823037222.
11. Shubhankani Sharma D/o Manak Chand Sharma, Aged
About 45 Years, 3-F- 18, Mahavir Nagar Extension,
Dadabadi, Kota, District Kota -324009. At Present Posted
Senior Teacher, Govt. Sen. Sec. School, Basant Vihar,
Kota, Dist. Kota. Employee Id- Rjko200527006669.
12. Suman Agarwal D/o Chhote Lal Agarwal, Aged About 43
Years, 3-R- 6, Anandpura, Phoota Talab, Talwandi, Kota,
District Kota -324005. At Present Posted Senior Teacher,
Mahatma Gandhi Govt. Sen. Sec. School, Kaithoon, Dist.
Kota. Employee Id- Rjbr201204006611.
13. Deepa Meena D/o Mohan Lal Meena, Aged About 39
Years, House No. 2-C-30, Vikas Nagar, Bundi, District
Bundi - 323001. At Present Posted Senior Teacher,
Mahatma Gandhi Govt. Sen. Sec. School, Matoonda, Dist.
Bundi. Employee Id- Rjbu201210037494.
14. Atikurrahman S/o Sharifurrahman, Aged About 43 Years,
Janta Kirana Store, Jhalawar Road, Khanpur, Jhalawar
District - Jhalawar -326038. At Present Posted Senior
Teacher, Govt. Sen. Sec. School, Gadreta, Baran, Dist.
Baran. Employee Id- Rjjw201222006078.
15. Ashok Kumar Atri S/o Mahaveer Prasad Atri, Aged About
52 Years, Mori Gate, Main Market, Sadulpur, District
Churu. At Present Posted Senior Teacher, Mggs Gandhi
Basti, Sujangarh, Dist. Churu. Employee Id-
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Rjcr199612023529.
16. Bhairun Lal Khateek S/o Prabhu Lal Khateek, Aged About
45 Years, Ward No. 4, Kothari School Ke Pass, Gram
Soda, Tehsil Malpura, District Tonk, 304504. At Present
Posted Senior Teacher, Govt. Sen. Sec. School,
Sitarampur, Malpura, Dist. Tonk. Employee Id-
Rjto201236039981.
----Petitioners
Versus
1. State Of Rajasthan, Through The Joint Secretary,
Department Of Education, Govt. Of Rajasthan, Secretariat
Jaipur.
2. Director, Secondary Education, Government Of Rajasthan,
Bikaner.
----Respondents
S.B. Civil Writ Petition No. 9119/2025
Madan Lal Meghwal S/o Ramrikh Ram Meghwal, Aged About 38
Years, R/o Vpo Jaleu, Tehsil Ratangarh, District Churu,
Rajasthan.
----Petitioner
Versus
1. The State Of Rajasthan, Through Principal Secretary,
School Education, Government Secretariat, Jaipur.
2. The Director, Secondary Education, Bikaner.
----Respondents
S.B. Civil Writ Petition No. 9141/2025
Sunit Kumar S/o Devi Singh, Aged About 56 Years, R/o Girraj
Colony, District- Dholpur, Rajasthan.
----Petitioner
Versus
1. The State Of Rajasthan, Through Principal Secretary,
School Education, Government Secretariat, Jaipur.
2. The Director, Secondary Educatuion, Bikaner.
----Respondents
S.B. Civil Writ Petition No. 9153/2025
Shashi Prabha D/o Brajendra Singh, Aged About 41 Years, R/o
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Village Dehra, Post Dehra, Tehsil Nadbai District Bharatpur,
Rajasthan.
----Petitioner
Versus
1. The State Of Rajasthan, Through Principal Secretary,
School Education, Government Secretariat, Jaipur.
2. The Director, Secondary Education, Bikaner.
----Respondents
S.B. Civil Writ Petition No. 9163/2025
Mahendra Kumar Meena S/o Nanak Ram, Aged About 42 Years,
Village Bahadurpur, Post Bhopur, Tehsil Todabhim, District
Karauli, Rajasthan.
----Petitioner
Versus
1. The State Of Rajasthan, Through Principal Secretary,
School Education, Government Secretariat, Jaipur.
2. The Director, Secondary Education, Bikaner.
----Respondents
S.B. Civil Writ Petition No. 9211/2025
Arjun Ram Kumawat S/o Shri Dulla Ram, Aged About 49 Years,
R/o Village And Post Bhadla, Tehsil Nokha District Bikaner
Rajasthan.
----Petitioner
Versus
1. The State Of Rajasthan, Through Principal Secretary,
School Education, Government Secretariat, Jaipur.
2. The Director, Secondary Education, Bikaner.
3. The Principal, Mahatma Gandhi Govt. School Bhamatsar
District Bikaner.
----Respondents
S.B. Civil Writ Petition No. 9835/2025
Sawai Ram Darji S/o Shri Ratan Lal Darjiv, Aged About 39 Years,
R/o Village Hadvecha, Tehsil Shiv, District Barmer, Rajasthan.
----Petitioner
Versus
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1. State Of Rajasthan, Through Principal Secretary, School
Education, Government Of Rajasthan, Secretariate Jaipur
(Raj.).
2. The Director, Secondary Education Bikaner (Raj.).
----Respondents
For Petitioner(s) : Mr. Vishal Jangid.
Mr. Divik Mathur.
Mr. Vikram Singh Bhawla.
Mr. Hans Raj Nimbar.
Mr. Ram Pratap Saini through VC.
Mr. Kapil Kumar Khandelwal through
VC.
Mr. VLS Rajpurohit.
Ms. Anjali Gehlot.
Ms. Deepika Soni.
Mr. Mahaveer Bhanwariya.
Mr. Pramendra Bohra with
Mr. Dhanraj Khichi.
Mr. Himanshu Choudhary.
Mr. Amit Kumar Sharma.
For Respondent(s) : Mr. N.K. Mehta, Dy. G.C. with
Mr. Vaibhav Bang.
HON'BLE MS. JUSTICE REKHA BORANA
Order
26/05/2025
1. The present writ petitions have been filed with the prayer
that the petitioners be permitted to forego their promotion from
the post of 'Sr. Teacher' to 'Lecturer (School Education)', granted
vide order dated 17.12.2024, and they be permitted to continue to
work as 'Sr. Teacher' at their present place of posting.
2. The facts are that the petitioners herein were/are working as
'Sr. Teacher' at their respective place of posting. The regular DPC
for the promotion from the post of 'Sr. Teacher' to 'Lecturer
(School Education)' was conducted and as per the resolutions of
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meeting dated 20.11.2024, select list dated 13.12.2024 as per the
seniority, was issued.
3. Vide office order dated 17.12.2024, all the incumbents were
promoted and it was directed as under:
Þi)- mDr vkns'k fnukad 20-11-2024 }kjk foHkkxh; inksUufr
lfefr }kjk p;fur lHkh çkè;kid vius i`Fkd ls vkns'k tkjh gksus
rd muds uke ds lEeq[k vafdr fjfDr dh frfFk ls inksUufr ds
ik= gSA
ii)-inksUur çkè;kid vius orZeku in dks vLFkkbZ :i ls ;Fkk
vko';drkuqlkj ØeksUur ekurs gq, vkns'k tkjh gksus ds frfFk ds
i'pkr dk;Zxzg.k dj vfxze vkns'kksa rd ;Fkkor dk;Zjr jgsaxs ,oa
dk;Zxzg.k fjiksVZ bl foHkkx dh bZesy vkbZ-Mh-
[email protected] ij çsf"kr djsaxsA inksUufr dk okLrfod
uxn ykHk dk;Zxzg.k djus dh frfFk ls gh ns; gksxkA
iii)-lacafèkr dkfeZd dks fnukad 23-12-2024 rd inksUufr ij
dk;Zxzg.k fd;k tkuk vfuok;Z gksxk vU;Fkk fLFkfr esa Lor% inksUufr
ifjR;kx eku fy;k tkdj inksUufr ifjR;kx lacaèkh vkns'k tkjh
fd;s tkus gsrq foHkkx Lora= gksxkA mDr p;u dkfeZd foHkkx dh
larku lacaèkh vfèklwpuk fnukad% 16-03-2023 ds fo#) ekuuh; mPp
U;k;ky; us nk;j Mhchlh ;kfpdk la[;k 13218@2024 o vU; esa
ekuuh; mPp U;k;ky; }kjk ikfjr vfUre fu.kZ; ds vè;èkhu jgsxk
,oa mDr çdj.k esa ikfjr vkns'kksa dh ikyuk esa inksUufr ij
inLFkkiu vkns'k i`Fkd ls tkjh fd;s tk;saxsAß
4. Meaning thereby, the petitioners were directed to join at
their present place of posting considering the post of 'Sr. Teacher'
itself to be a promotional post of 'Lecturer (School Education)' till
the appropriate orders of posting being passed qua them.
5. So far as the place of posting is concerned, it was observed
vide the said order that the posting orders on promotion would be
passed independently and separately. As per the above order, all
the employees were directed to join till 23.12.2024 and in absence
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of same, it was to be deemed that the employee has foregone his/
her promotion. It was observed that in the said instance, the
Department would be at liberty to pass appropriate orders qua the
foregoing of the promotion by the concerned employee.
6. Subsequently, after counselling process been undertaken,
vide orders of different dates, posting places as 'Lecturer (School
Education)' were provided to all the selected candidates. After the
place of posting been provided, the petitioners did not wish to join
at the said place and hence opted to forego their promotion on the
post of 'Lecturer (School Education)'.
7. However, the said request of the petitioners was declined by
the respondent-Department on the premise that once they joined
on the promoted place, may be at their then place of posting, as
per office order dated 17.12.2024, it would be deemed that they
have accepted the promotion. As per the respondent-Department,
those who joined in pursuance to order dated 17.12.2024, had
waived their right to forego the promotion.
8. It is aggrieved of the said orders of posting and the rejection
of the request of the petitioners to forego their promotion that the
present writ petitions have been filed.
9. Learned counsels for the petitioners submit that the action of
the respondent-Department in declining to accept the request of
the petitioners and not giving them the option to forego their
promotion after posting orders been passed, is against the basic
principles of service jurisprudence.
10. Counsels submit that order dated 17.12.2024 itself is in
contravention to the basic principles whereby a condition was
imposed on the employees to join till 23.12.2024 on the promoted
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post else the same would be deemed to be a forego of his/her
promotion.
11. It is submitted that the said Clause itself is a void clause,
being an unconscionable term of contract. The inclusion of the
aforesaid Clause in office order dated 17.12.2024 amounts to an
inclusion of unconscionable term which as per the service
jurisprudence is void.
12. In support of the above submission counsels relied upon the
Hon'ble Apex Court judgments in I.K. Merchants Pvt. Ltd. &
Ors. vs. State of Rajasthan & Ors.; 2025 SCC OnLine SC
692; Central Inland Water Transport Corporation Limited &
Anr. Vs. Brojo Nath Ganguly & Anr.; (1986) 3 SCC 156 and
the Division Bench judgment of Madras High Court in S.
Padmavathy vs. Registrar General; Writ Petition
No.12346/2016 (decided on 08.02.2017).
13. Learned counsels further, while relying upon Rule 33 of the
Rajathan Educational (State and Subordinate) Service Rules, 2021
(hereinafter referred to as 'the Rules of 2021') submitted that
although none of the service laws/statutes define the term 'forego'
but then it definitely provides for an option to forego a promotion
by a Government employee. Rule 33 of the Rules of 2021
prescribes of the repercussions on an employee foregoing his
promotion.
14. A bare perusal of the said provision would clarify that an
option of foregoing, if to be exercised by an employee, can only be
after the order of promotion being passed and after the process of
counselling been completed, that is, after a place of posting been
provided to the employee after he being promoted.
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15. Counsels submit that there can be only two instances when
an employee would forego his/her promotion. Firstly, it can be
because of his/her personal reasons i.e. family condition, medical
condition etc. and secondly, when an employee does not wish to
join on the place of posting as provided to him/her.
Meaning thereby, the option in the first instance although
can be exercised before the place of posting been provided but the
second option cannot be exercised before a place of posting is
provided. It is only after the place of posting been specified that
an employee can exercise his/her option as to whether he/she
wishes to join on that place of posting or not. Any conclusion other
than that would be foreign to the service jurisprudence.
16. Counsels further submitted that Rule 33 of the Rules of 2021
itself provides for repercussions/consequences of an employee
foregoing his/her promotion. When the statute itself provides for
the consequences, there can be no additional
self-consequences/restraints imposed by the State authority in the
form of a penalty.
17. Counsels further submitted that even otherwise the complete
exercise of the respondent-Department in the present matters is
totally discriminative. Vide the impugned action/order, the
respondent-State has created two classes in one class which is
totally discriminatory. As per order dated 17.12.2024, those
employees who did not join on the promotional post at their
original place of posting were to be termed to have foregone their
promotion. But subsequently, the department gave those
employees also an option to join at their promoted place of
posting.
[2025:RJ-JD:25855] (16 of 27) [CW-8761/2025]
Meaning thereby those employees who flouted order dated
17.12.2024 of the Department and did not join on the promotional
post, were given both the options-either to join on the posting
place provided after promotion, or to forego the promotion and
not join on the place of posting. Whereas those employees who
joined at the original place of posting in pursuance to order dated
17.12.2024 have not been given the right to exercise their option
to forego the promotion. This clearly means creating a class
different in a class.
18. Counsels further submitted that the action of the
respondent-Department being discriminatory is further evident
from the fact that qua the other posts of PTI, librarian etc. which
are also governed by the Rules of 2021, the employees have been
given the right to exercise their option to forego their promotion
even after the place of posting been provided to them. To
substantiate the submission, counsels placed on record several
orders dated 02.01.2025, 10.02.2025 & 12.02.2025 pertaining to
PTIs and librarians whereby the employees were not only granted
the option to forego the promotion but even their applications for
the said purpose were accepted.
19. Per contra learned counsel for the respondent-Department
submitted that office order dated 17.12.2024 is very clearly
worded and it can be interpreted in no other manner than that
those employees who joined in pursuance to the said order on the
promotional post and availed the financial benefits thereof, could
not be permitted to forego their promotion subsequently.
20. Counsel submits that it was a clear case of acquiescence as
the petitioners joined on their promotional post without raising
[2025:RJ-JD:25855] (17 of 27) [CW-8761/2025]
any grievance/objection and without moving any application in
writing to forego their promotion. Once they accepted the
promotional post and joined thereof, they subsequently cannot
turn back and request to forego their promotion.
21. Counsel further submitted that had the petitioners intended
to forego their promotion, they would definitely have refrained
from joining on the promotional post in pursuance to order dated
17.12.2024. Had it been so, it could have been deemed that they
have foregone their promotion. That having not been done, the
petitioners cannot now be permitted to forego their promotion.
22. So far as the orders as relied upon by counsels for the
petitioners qua the PTIs and librarians are concerned, counsel is
not in a position to refute the same. He however submitted that in
all those cases the employees had preferred an application in
writing and did not join on the promotional post and hence their
applications were rightly accepted by the respondent-Department.
But then, counsel is not in a position to justify the fact as to how
those people who did not join in pursuance to order dated
17.12.2024 were given an option to join at their promoted place
of posting despite order dated 17.12.2024 specifically providing
that non-joining at the first instance would be deemed to be
foregoing of the promotion.
23. Heard the counsels and perused the record.
24. The first issue which arise is - Whether in absence of any
specific provision entitling a government employee to forego
his/her promotion, he/she is entitled to do so?
25. It is an admitted position that the term 'forego' has not been
defined in any Statute. But then, the Statute does recognize the
[2025:RJ-JD:25855] (18 of 27) [CW-8761/2025]
term 'forego' in so far as Rule 33 of the Rules of 2021 provides for
repercussions on an employee foregoing promotion. Meaning
thereby, law does recognize foregoing of the promotion by a
Government employee. Therefore, the only conclusion which can
be drawn from Rule 33 of the Rules of 2021 is that an employee
does have a right to forego his/her promotion. Had that right not
been intended by the legislature, the repercussions or the
consequences of such foregoing would not have been a part of the
legislation. Providing for the consequences of foregoing of a
promotion clearly implies a deemed right of an employee to forego
the promotion. It is only when such a right is deemed to be
available to an employee that he/she would exercise the same,
and it is only after such exercise of option that the repercussions
or the consequences as provided under Rule 33 of the Rules of
2021 would come into play.
26. This Court, therefore, is of the clear opinion that although
there is no specific provision in the Statute entitling an employee
to forego his/her promotion, Rule 33 of the Rules of 2021
incorporates in it a deemed entitlement to the effect that an
employee does have a right to forego his/her promotion. The said
view of this Court is substantiated by the view of the Allahabad
High Court (Lucknow Bench) in Hausilal Vs. State of U.P.; Writ
-A No.3935 of 2023 (decided on 06.11.2023) wherein, while
dealing with an identical issue, the Court held as under:
"7. In the considered opinion of this Court, an employee
may have a fundamental right to be considered for
promotion but at the same time he would also have an
inalienable right to forgo such promotion for which
[2025:RJ-JD:25855] (19 of 27) [CW-8761/2025]
purpose, there is no requirement for any specific
stipulation in Service Regulations. Such Service
Regulations do provide a provision for reversion of an
employee to a lower post on fulfilment of condition
required for such reversion. However, in case an
employee seeks to forgo his promotion waiving his
rights for such promotion, it would definitely come
within purview of his right to waive such promotion
particularly since Service Regulations are also in the
nature of contractual obligations between an employer
and an employee. Such rights accrued to an employee
can definitely be waived in case they do not adversely
affect any public policy. Since right to forgo promotion is
in nature of a personal right of an employee, this Court
finds substance in submission of learned counsel for
petitioner that he would have a right to waive such
promotional aspect.
8. This Court is also of the considered opinion that an
employee has an inherent right to waive promotion
accorded to him. In Rustom Cavasjee Cooper v.
Union of India (1970) 1 SCC 248, Hon'be the Supreme
Court has clearly held that the enunciation of rights
does not follow a uniform pattern but one single thread
which runs through all of them is that they seek to
protect rights of the individuals against infringement
within specific limits and that Part-III of the Constitution
weaves a pattern of guarantees on the texture of basic
human rights."
27. The second issue would now be - Whether an employee who
has once joined in pursuance to an order of promotion is entitled
to forego the same at a subsequent stage?
28. The answer to the above issue would definitely depend on
the facts and circumstances of each case and in the opinion of this
Court, there cannot be a set formula or a standard guideline to
[2025:RJ-JD:25855] (20 of 27) [CW-8761/2025]
decide the same. It would also always depend on the facts of a
particular case.
29. Herein, order dated 17.12.2024 whereby the petitioners
were promoted, itself contained a specific stipulation to the effect
that the incumbents shall be at a liberty to consider the post on
which they were working at that point of time to be a promotional
post and continue to work on the said post considering them to be
promoted. The said order further contained a specific stipulation
that the employees would be under an obligation to join the
promotional post till 23.12.2024 and if they do not join within the
said period, it would be deemed that they have foregone their
promotion and the department would be at liberty to pass orders
qua their foregoing the promotion. But then, the same order also
stipulated that the posting orders of the incumbents would be
passed subsequently.
30. Meaning thereby, at that point of time, the situation as to
whether an incumbent wishes to join the promotional place of
posting did not even arise. At that point of time, as the place of
posting was not provided, the incumbent was not even aware of
the fact as to where he/she would be posted. In normal parlance,
the option to forego a promotion is exercised by an employee
when it is not all practicable for him/her to join at the place where
he/she has been posted after promotion. Law does recognize
foregoing of promotion in various circumstances such as the
medical condition of the employee himself/herself, the medical
condition of his/her family members, the status/studies of their
children, or some practical difficulty of the distance from his/her
place of residence etc. But, in the present matters, that situation
[2025:RJ-JD:25855] (21 of 27) [CW-8761/2025]
did not even arise on 17.12.2024 when the order granting
promotion to the petitioners was passed. Therefore, on that day,
the petitioners were not even required to exercise their option to
forego the promotion.
31. Further, the order reflected a clear mandate directing the
petitioners to join till 23.12.2024 on the promotional post at their
present place of posting itself and in absence of the same, the
promotion was deemed to be foregone by the employee.
In the specific opinion of this Court, a stipulation to that
effect is totally contrary to the basic principles of law. The same
definitely was an unconscionable term imposed by the State, it
being in an advantageous position. The employees, definitely, at
that point of time, could not have been in a position to decide
whether to accept it or deny it. Had the orders of posting also
been passed along with order dated 17.12.2024, definitely, the
employees would have been in a position to exercise their right to
accept or forego the promotion. The same having not been done
at that stage, it could not have been expected that the employees
who wished to forego their promotion because of the practicable
problems in joining at the posting place, could have exercised
their option in advance.
32. Further, the order clearly reflected that the employees would
be at a liberty to join on the promotional post at the same place of
posting where they were working at that point of time.
In the said circumstances, no government employee, without
knowing the future place of posting, could have opted to forego
his/her promotion.
[2025:RJ-JD:25855] (22 of 27) [CW-8761/2025]
33. The Hon'ble Apex Court while dealing with an issue as to
when a condition can be termed to be an unconscionable bargain,
in the case of Central Inland Water Transport Corporation
Limited (supra), observed as under:
"The word "unconscionable" is defined in the
Shorter Oxford English Dictionary, Third Edition,
Volume II, page 2288, when used with reference to
actions etc. as "showing no regard for conscience;
irreconcilable with what is right or reasonable". An
unconscionable bargain would, therefore, be one
which is irreconcilable with what is right or
reasonable."
Therein, the Court, while taking into consideration the
provisions of American Law of Contract, observed as under:
"80... A bargain is not unconscionable merely
because the parties to it are unequal in bargaining
position, nor even because the inequality results in
an allocation of risks to the weaker party. But gross
inequality of bargaining power, together with terms
unresonably favourable to the stronger party, may
confirm indications that the transaction involved
elements of deception or compulsion, or may show
that the weaker party had no meaningful choice, no
real alternative, or did not in fact assent or appear
to assent to the unfair terms."
34. Applying the above ratio to the present matter, this Court is
of the clear opinion that the conditions/stipulations as imposed by
the respondent authorities vide order dated 17.12.2024 definitely
were unconscionable terms and hence, bad in the eyes of law. It is
clear on record that the employees who joined in pursuance to
order dated 17.12.2024, in fact did not have any other option as
the stipulation clearly directed them to join till 23.12.2024. The
strict adherence to the same definitely disentitled the employees
[2025:RJ-JD:25855] (23 of 27) [CW-8761/2025]
to exercise the right which was otherwise available to them in
terms of law.
35. The last issue would now be - Whether the petitioners can be
permitted to forego the promotion even after they have
acquiescenced with order dated 17.12.2024 in the manner that
they joined on their promotional post?
36. The answer to the above issue also lies in the conclusion on
Issue no.2. Once this Court has reached to the conclusion that the
condition/stipulation as imposed in order dated 17.12.2024 was
bad in the eyes of law, the natural consequence of the same would
be to hold that the petitioners were entitled to forego their
promotion after their posting orders been passed. Meaning
thereby, the right to forego promotion could be exercised by the
employees even after the place of posting been provided to them.
37. The right to be exercised by the employees to forego the
promotion, in the opinion of this Court, would also survive for the
reason that those employees who did not join in pursuance to
order dated 17.12.2024, were permitted to exercise their option to
forego promotion even subsequently. Meaning thereby, those
employees who adhered to the directions of the respondent-
Authorities while joining till 23.12.2024, have been held
disentitled to exercise their option whereas those employees who
did not join in pursuance to order dated 17.12.2024, have not
only been granted option to forego their promotion but have also
been given a liberty to join at the place of posting after being
promoted.
38. Meaning thereby, the condition that the employees who do
not join in pursuance to order dated 17.12.2024 would be deemed
[2025:RJ-JD:25855] (24 of 27) [CW-8761/2025]
to have foregone their promotion, stood waived by the department
itself. Vide the subsequent orders, those employees have been
given the liberty to join the promotional post. The said action of
the respondent Authorities is clearly discriminatory and has in fact
created a separate class in a class. Such discriminatory act on part
of the State cannot be permitted where the employees who did
not join in pursuance to order dated 17.12.2024 have been given
the liberty to join on the promotional post subsequently despite
there being a stipulation to the contrary, while the employees who
did join in pursuance to order dated 17.12.2024 have not been
given an option to forego the promotion. The State authority could
not have curtailed the inherent right of the employees who
complied with order dated 17.12.2024.
39. The discrimination of the State is also crystal clear from
orders dated 02.01.2025, 10.02.2025, 12.02.2025 etc., as placed
on record which pertain to one other set of employees being the
Physical Training Instructors, Librarians etc. Therein too, in similar
circumstances, the employees who did not join in pursuance to the
promotional order were subsequently given the chance not only to
join the promotional post but also to exercise the option to forego
the promotion. The said fact has not even been disputed, rather
admitted by counsel for the respondents.
40. In view of the above action of the State, allowing one set of
employees to exercise their option to forego the promotion at a
subsequent stage and disallowing the other, being discriminatory
on the face of it, cannot be upheld. The principle of equity
warrants equal treatment for employees in comparable situations.
The State has created an arbitrary distinction between different
[2025:RJ-JD:25855] (25 of 27) [CW-8761/2025]
set of employees without any reasonable justification which clearly
amounts to hostile discrimination.
41. This Court is hence, of the clear opinion that in the present
matters too, the State is under an obligation to provide an option
to the petitioners to exercise their right to forego the promotion.
The joining on the promotional post in pursuance to order dated
17.12.2024 cannot be termed to be a waiver of the right of the
petitioners to forego the promotion. The said right definitely could
have been exercised not only at the first stage itself but even
subsequently, after the posting place been provided to them.
42. In view of the above overall analysis and observations, order
impugned dated 17.12.2024 to the extent it stipulates that non-
joining on the promotional post till 23.12.2024 would be termed to
be an acceptance of the promotion, is hereby quashed and set
aside. The further rejection of the request of the petitioners to
forego their promotion deeming it to be a waiver of their right, is
also held to be bad and discriminatory.
43. It is hereby declared that the petitioners would be entitled to
exercise their option to forego the promotion inspite of they
having joined on the promotional post in pursuance to order dated
17.12.2024.
44. The writ petitions are therefore, disposed of with the
following directions:
(i) The petitioners shall be at liberty to file an application in
writing, exercising their option to forego the promotion, within a
period of 15 days from now.
(ii) The application shall be filed in writing clearly indicating the
option to forego the promotion. The consequences of the said
[2025:RJ-JD:25855] (26 of 27) [CW-8761/2025]
exercise of option, in terms of Rule 33 of the Rules of 2021, would
follow.
(iii) The petitioners shall, along with their application, be under
an obligation to file a specific undertaking to the effect that they
would be governed by Rule 33 of the Rules of 2021 and would not
raise any grievance qua the same, in future.
(iv) The petitioners shall also be under an obligation to file a
specific undertaking to the effect that they will not claim any
monetary or other benefit of the promotional post on which they
had joined in pursuance to order dated 17.12.2024.
(v) The petitioners shall further undertake that any benefit, if
any, availed by them because of their joining on the promotional
post, shall be refunded back by them whenever called upon to do
so by the respondents-Authorities.
(vi) The decision on the applications as filed by the petitioners
would be taken by the competent Authority positively within a
period of four weeks of filing of the applications.
(vii) Till the applications as filed by the petitioners are decided,
the petitioners shall continue on their present place of posting
deeming them to be working on the post of 'Sr. Teacher', as they
were working before being promoted.
(viii) Those petitioners who have been relieved after the orders of
posting been passed, would also be entitled to file an application
in writing to forego their promotion and the said applications shall
also be decided in terms of the above directions.
The said petitioners shall, till the date their application is
decided, be entitled to be reverted back to their original place of
[2025:RJ-JD:25855] (27 of 27) [CW-8761/2025]
posting i.e. on the post which they were working before being
promoted.
Needless to observe that they would be reverted only if the
said seat is vacant as of date.
ix) Those petitioners who, after having been provided the place
of posting, joined in pursuance to the same, would also be entitled
to move an application in writing in terms of direction No.1 and
the consequences shall follow.
45. Stay petitions and pending applications, if any, stand
disposed of.
(REKHA BORANA),J
233-260-KashishS/-
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