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Himachal Pradesh High Court · body

2025 DIGILAW 868 (HP)

Muneesh Kumar v. State of H. P.

2025-05-01

JYOTSNA REWAL DUA

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JUDGMENT : Jyotsna Rewal Dua, J. The petitioner is holding a post from which more than one channel of promotion is available. He currently desires promotion through one specific channel. The respondents have declined his request on the ground that he had previously opted for another channel of promotion, was also promoted as such, but had forgone his promotion on that channel, therefore, he now cannot claim promotion through another channel. Hence, the dispute. 2. Following facts are not in dispute. 2(i). Petitioner joined as Clerk on 01.09.1997 on his appointment on compassionate ground. In the year 2002, he Whether reporters of Local Papers may be allowed to see the judgment? Yes was placed as Junior Assistant and promoted as Senior Assistant in June, 2016. He joined as Senior Assistant on 23.07.2016. 2(ii). Post of Senior Assistant held by the petitioner is feeder channel for promotion to the post of (i) Superintendent Grade-II and (ii) Assistant Public Relation Officer (‘APRO’). Department of Personnel of State of Himachal Pradesh has issued a circular on 03.12.2014 on the subject of inviting options for promotions from the post having more than one channel. The contents of this circular are extracted hereinafter: - “Subject: Promotion in respect of posts having more than one channel- instructions regarding. Sir, I am directed to invite your attention to the subject cited above and to say that the matter of promotion in respect of the posts having more than one channel was under consideration of the State Government. After considering and in supersession of this Department's letter No. Per (AP-II) A (3)-4/78 dated 24-12-1981 and letter of even number dated 1st September, 2010, it has been decided that henceforth in the case of posts having more than one channels of promotion from the feeder posts(s) to the next higher posts), the following procedure will be adopted:- (i) For the post having more than one promotional channel, the option will invariably be called for in every calendar year and officers/officials in zone of consideration and holding the feeder post will have to opt for one of the channels of promotion of his/her choice, which shall be final and irrevocable. (ii) Once a candidate is promoted as per the option exercised, such candidate will neither be entitled for consideration for promotion in the other channel nor will be allowed to withdraw the option, so exercised and his/her option shall be treated as final and irrevocable for entire service career. 2. These instructions may be brought to the notice of all concerned for strict compliance and the receipt of the same may also be acknowledged. Any departure from these instructions will be viewed seriously and liable for disciplinary action.” 2(iii). On 28.05.2021 (Annexure P-1), respondent No.2- Director, Information & Public Relations, Shimla, sought option from the petitioner and others eligible for promotion to the post of APRO. On 01.06.2021, the petitioner furnished his option for promotion to the post of APRO, which, inter alia, recited ‘the petitioner understood that in case of promotion to the post of APRO, he will lose his claim for promotion to the post of Personal Assistant/Superintendent Grade-II. The option exercised by the petitioner shall be treated as final.’ Although the petitioner had opted for promotion to the post of APRO, he was not promoted as available vacancy was filled in by promotion of a candidate belonging to Scheduled Caste category. 2(iv). On availability of more posts of APRO, the respondent-Department once again called for option from the petitioner and others for promotion to the post of APRO on 29.04.2022 (Annexure P-3). The petitioner opted for promotion to the post of APRO with the understanding that, upon such promotion, he would lose his claim to promotion to the post of Personal Assistant/Superintendent Grade-II, and that the option once exercised by him would be final and irrevocable. On the basis of the petitioner’s aforesaid option, he was promoted to the post of APRO on regular basis on 11.08.2022 (Annexure P-4). As per the said order, the officials promoted thereunder were to remain on probation for a period of two years; The orders were to be effective from the date of joining the post. The petitioner did not join the post of APRO pursuant to his promotion under office order dated 11.08.2022. Instead, he sent a letter to the respondents on 24.08.2022 (Annexure P-5), forgoing his promotion citing adverse family circumstances. The petitioner did not assume the duties on the promotional post of APRO and continued to serve as Senior Assistant. The petitioner did not join the post of APRO pursuant to his promotion under office order dated 11.08.2022. Instead, he sent a letter to the respondents on 24.08.2022 (Annexure P-5), forgoing his promotion citing adverse family circumstances. The petitioner did not assume the duties on the promotional post of APRO and continued to serve as Senior Assistant. Since, the petitioner had forgone his promotion to the post of APRO, the respondent-Department, vide office order dated 19.09.2022 (Annexure P-6), conveyed its decision that, as per applicable rules, the petitioner would not be considered for promotion in the next meeting of the Departmental Promotion Committee or for a period of one year, whichever is later. 2(v). On 18.11.2023, the respondents again called for option from the petitioner as to whether he was willing to accept promotion to the post of APRO (Annexure P-8). Petitioner in his response dated 20.11.2023 (Annexure P-9) expressed his unwillingness for promotion to the post of APRO. Petitioner’s response was followed by his representation dated 13.12.2023 (Annexure P-10) to the effect that: - (a) He had exercised option during calendar year 2022 for promotion to the post of the APRO. He was promoted to the post of APRO, but due to his family circumstances, he had forgone promotion to the post of APRO. He never joined as APRO. His request for forgoing the promotion to the post of APRO was accepted by the department on 19.09.2022. (b). He was willing for his promotion to the post of Superintendent Grade-II. In case of availability of vacancy in the cadre of Superintendent Grade-II, petitioner’s name be considered for promotion to that post. Petitioner reiterated his request for promotion to the post of Superintendent Grade-II on 23.02.2024 (Annexure P-11). 2(vi). The respondent-Department 01.05.2024 (Annexure P- 12), conveyed its decision that in view of para (ii) of the instructions/circular dated 03.12.2014 issued by Department of Personnel to the State of Himachal Pradesh, the petitioner having once exercised his option for promotion to the post of APRO and having been promoted as APRO cannot be allowed to withdraw the option, the said option is final and irrevocable for his entire service career and thus, declined to consider him for promotion to the post of Superintendent Grade-II. 2(vii). In the aforesaid background, the petitioner has instituted this writ petition seeking following substantive reliefs: - “a). 2(vii). In the aforesaid background, the petitioner has instituted this writ petition seeking following substantive reliefs: - “a). That the impugned rejection vide Annexure P-12 dated 1.5.2024, whereby the claim of petitioner for considering him for promotion to the post of Superintendent Grade-Il has been rejected, may kindly be quashed and set aside; b) That the respondent department may be directed to consider the petitioner for promotion against the vacancy(s) in the cadre of Superintendent Grade-II which may arise during this calendar year on in subsequent calendar years) by entertaining his claim to opt for such promotion, with all consequential benefits;” 3. Heard learned counsel for the parties and considered the case file. In order to avoid repetition, the submissions made by learned counsel for the parties are been discussed hereinafter. 4. Consideration. 4(i). Admittedly, petitioner is serving on the post of Senior Assistant in the respondent-Department and has more than one channel of promotion available to him being, (i) APRO and (ii) Superintendent Grade-II. It is also not in dispute that petitioner had exercised his option on 02.05.2022 for promotion to the post of APRO and based on his option, respondents had issued office order on 11.08.2022 promoting the petitioner to the post of APRO. However, the fact remains that petitioner never joined as APRO. It is borne out from the record that on 24.08.2022, i.e. 13 days later from the date of his promotion as APRO, the petitioner had represented to the respondents for forgoing his promotion as APRO. The respondents have not denied that petitioner’s representation was accepted by them on 19.09.2022. Consequently, petitioner kept on serving as Senior Assistant. The option exercised by the petitioner for the post of APRO, which had been acted upon by the respondents in promoting him to the said post, thus stood cancelled for all intents and purposes. In this regard, reference can be profitably made to Fundamental Rule-17, which reads as under: - “F.R. 17. Consequently, petitioner kept on serving as Senior Assistant. The option exercised by the petitioner for the post of APRO, which had been acted upon by the respondents in promoting him to the said post, thus stood cancelled for all intents and purposes. In this regard, reference can be profitably made to Fundamental Rule-17, which reads as under: - “F.R. 17. (1) Subject to any exceptions specifically made in these rules and to the provision of sub-rule (2), an officer shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date when he assumes the duties of that post, and shall cease to draw them as soon as he ceases to discharge those duties: Provided that an officer who is absent from duty without any authority shall not be entitled to any pay and allowances during the period of such absence. (2) The date from which a person recruited overseas shall commence to draw pay on first appointment shall be determined by the general or special orders of the authority by whom he is appointed.” As per above Rule, an officer will draw the pay & allowances attached to the post from the date he assumes duties of that post. Petitioner had not joined on the promotional post. He had surrendered his promotion. He cannot be construed to have been promoted as APRO. Government of West Bengal & Ors. vs. Dr. Amal Satpathi & Ors., 2024 SCC OnLine SC 3512 was the case where respondent No.1 therein had been recommended for promotion to the post of Chief Scientific Officer before his retirement. He, however, could not assume the duties and superannuated. Applicable Rule 54(1)(a) of the West Bengal Service Rules, stipulated that an employee must assume the responsibilities of a higher post to draw the corresponding pay, preventing posthumous or retrospective promotions in the absence of an enabling provision. Hon’ble Apex Court held that promotion becomes effective only upon assumption of duties on the promotional post and not on the date of occurrence of the vacancy or the date of recommendation for promotion. Respondent No.1 therein had superannuated before his promotion was effectuated, therefore, he was not held entitled to retrospective financial benefits associated to the promotional post of Chief Scientific Officer, as he did not serve in that capacity. Relevant paras from the judgments read as under: - “20. Respondent No.1 therein had superannuated before his promotion was effectuated, therefore, he was not held entitled to retrospective financial benefits associated to the promotional post of Chief Scientific Officer, as he did not serve in that capacity. Relevant paras from the judgments read as under: - “20. In the instant case, it is evident that while respondent No. 1 was recommended for promotion before his retirement, he could not assume the duties of the Chief Scientific Officer. Rule 54(1)(a) of the West Bengal Service Rules, clearly stipulates that an employee must assume the responsibilities of a higher post to draw the corresponding pay, thus, preventing posthumous or retrospective promotions in the absence of an enabling provision 21. While we recognize respondent No.1’s right to be considered for promotion, which is a fundamental right under Articles 14 and 16(1) of the Constitution of India, he does not hold an absolute right to the promotion itself. The legal precedents discussed above establish that promotion only becomes effective upon the assumption of duties on the promotional post and not on the date of occurrence of the vacancy or the date of recommendation. Considering that respondent No. 1 superannuated before his promotion was effectuated, he is not entitled to retrospective financial benefits associated to the promotional post of Chief Scientific Officer, as he did not serve in that capacity.” Petitioner never worked as APRO. He did not draw the pay, allowances etc. attached to the post of APRO. He had forgone his promotion as APRO. That being the case, it cannot be said that petitioner had accepted his promotion as APRO. Petitioner did opt for promotion to the post of APRO, but at penultimate hour backed out and did not accept the promotion given to him as per his option. He was permitted to do so by the respondents. Penalty for his act was imposed upon him. He was not to be considered for promotion in the next meeting of Departmental Promotion Committee/one year, whichever was later. 4(ii). For the respondents, it has been contended that in terms of instructions/circular dated 03.12.2014, the petitioner having once exercised his option for promotion to the post of APRO, having been promoted as such, cannot be permitted to withdraw his option and exercise fresh option for promotion to the post of Superintendent Grade-II. 4(ii). For the respondents, it has been contended that in terms of instructions/circular dated 03.12.2014, the petitioner having once exercised his option for promotion to the post of APRO, having been promoted as such, cannot be permitted to withdraw his option and exercise fresh option for promotion to the post of Superintendent Grade-II. The option exercised by the petitioner for promotion to the post of APRO has to be treated as final and irrevocable for his entire service career. The above contention lacks substance. As per instructions/circular dated 03.12.2014, in case of availability of more than one channel of promotion, the concerned employees are to be given options. The options are to be given to officers falling in the zone of consideration and holding the feeder post, in every calendar year. When an incumbent is promoted as per the option exercised, he will neither be entitled to promotion in the other channel nor will be allowed to withdraw the option so exercised and his option will be treated final and irrevocable for his entire service career. It is on the basis of aforesaid office instructions that respondents-Department had sought option from the petitioner for his promotion to the post of APRO. The petitioner had furnished his option, giving consent for promotion to the post of APRO, with the understanding and knowledge that once the option was exercised, and he was promoted as APRO, he would not be entitled to be promoted on the other available channel, i.e., Superintendent Grade-II. The office circular dated 03.12.2014 cannot be construed to debar an employee from exercising fresh option for the other available channel of promotion if he has not accepted the promotional post pursuant to his previously exercised option. More so, in the facts of the instant case, where the option submitted by the petitioner for the post of APRO on 02.05.2022 though was acted upon by the respondents by promoting him as APRO on 11.05.2022, but the petitioner’s representation for foregoing his promotion as APRO submitted on 24.08.2022, was accepted by the respondents on 19.09.2022. The petitioner never joined the promotional post. The option for all practical purposes did not materialize. It is for this reason that petitioner continued to serve and is still serving as Senior Assistant and that’s why the respondents subsequently called for fresh option from the petitioner for his promotion. The petitioner never joined the promotional post. The option for all practical purposes did not materialize. It is for this reason that petitioner continued to serve and is still serving as Senior Assistant and that’s why the respondents subsequently called for fresh option from the petitioner for his promotion. Petitioner’s fresh exercise of option now cannot be restricted solely for promotion to the post of APRO, as doing so would render the meaning of the word "option" redundant. In that case, it would become a compulsion, rather than an option, for the petitioner to be promoted from the post of Senior Assistant to the post of APRO. In the given facts, the option exercised by the petitioner on 02.05.2022 for promotion to the post of APRO, his promotion as such on 11.08.2022, which did not materialize in law, will not pose any fetter upon petitioner’s exercise of fresh option for promotion to the post of Superintendent Grade-II. 5. In view of the above, this writ petition is allowed. The impugned decision of the respondents conveyed in office letter dated 01.05.2024 (Annexure P-12) is quashed. The respondents are directed not to restrict the option to the petitioner for his promotion from the post of Senior Assistant only to the post of Assistant Public Relation Officer. The petitioner shall be given the option for promotion to both the promotional channels, i.e. for the post of APRO as well as Superintendent Grade-II in accordance with law. Pending miscellaneous application(s), if any, also stand disposed of.