Court No. - 2
Case :- WRIT - A No. - 33474 of 2017
Petitioner :- Siddharth Kumar Dwivedi
Respondent :- State Of U.P. And 5 Others
Counsel for Petitioner :- Sanjay Kumar Singh,Pankaj Kumar Asthana
Counsel for Respondent :- C.S.C.,M.N. Singh,Avneesh
Hon'ble Suneet Kumar,J.
Heard learned counsel for the parties.
The facts briefly stated is that petitioner was initially appointed Assistant Development Officer (Cooperative)/Cooperative Inspector, Group-2 on 22 February 1992, vide order dated 15 June 1999, services of the petitioner came to be regularized on the same post with effect from 1 September 1994. Pursuant to the seniority list finalized on 29 April 2000, petitioner was considered for promotion and vide order dated 30 June 2000, petitioner alongwith others came to be promoted on the post of Additional District Cooperative Officer. It appears that pursuant to the promotion order petitioner did not join the place of posting. In other words, petitioner had forgone his promotion. In the subsequent round, the candidature of the petitioner was again considered for promotion with other eligible officers and vide order dated 20 February 2007, petitioner came to be promoted. However, petitioner again did not comply the order and had forgone the promotion. Petitioner, thereafter, again came to be promoted vide orders dated 11 February 2010, 14 January 2013, 19 December 2014 and finally vide order dated 19 February 2016. Petitioner, this time accepted the promotion and joined the place of posting. The admitted facts reflect that petitioner since 2000 until 2016 had not accepted promotion for the reasons best known to him. In other words, petitioner declined appointment by way of promotion.
The case set up by the petitioner is that since he was not relieved at the time of first promotion in 2000 and pursuant to the subsequent orders, petitioner is entitled to seniority and promotion with effect from the order dated 30 June 2000.
Aggrieved, petitioner approached this Court by filing writ petition being Writ - A No.20857 of 2007 which came to be disposed of on 8 December 2016, directing the Registrar, Cooperative Societies, U.P., Lucknow, to consider the grievance of the petitioner and pass appropriate order. In compliance, the impugned order dated 27 April 2017, has been passed, rejecting the claim of the petitioner for promotion with effect from 30 June 2000. In the impugned order, it has been noted that the petitioner was granted repeated promotions, however, petitioner did not accept the promotion and preferred to continue on his post in the same district. It was only in 2016, petitioner accepted the promotion to the next higher post. In the circumstances, since petitioner had forgone earlier promotions, at this stage, in the opinion of the authority petitioner is not entitled to seniority or promotion from retrospective date.
Learned counsel for the petitioner submits that petitioner was willing to join the place of posting, however, the petitioner was not relieved, therefore, he could not join. On specific query, learned counsel for the petitioner is unable to explain as to why subsequent transfer orders were not accepted and complied by the petitioner until 2016.
In the counter affidavit, it has been categorically stated that petitioner had never approached the authorities to relieve him to join the place of posting. Further, it is submitted that petitioner was interested in continuing in Block Kon (Chilh), for which the petitioner made a representation on 7 August 2005 requesting that he may continue in the same Block, but had never made any application for being relieved pursuant to the promotion orders. It is further contended that petitioner at no point of time had accepted the initial promotion and the subsequent promotions granted to him. He chose to continue on the original post voluntarily on his own.
No employer can compel his subordinate to accept promotion or join the promotional post. Petitioner was considered under the Rules for promotion and found eligible, consequently, promoted, but, petitioner did not accept the promotion. Rather, he had abandoned his claim for promotion to the next higher post preferably for maintaining his choice place of posting, consequently, the juniors to the petitioner came to be promoted. Petitioner finally accepted the promotion order in 2016. Accordingly, petitioner came to be placed in the seniority list alongwith the promoted officers.
In the circumstances, petitioner cannot have any grievance by not accepting promotion granted to him from time to time, a situation created by his own conduct. An employee has right to forgo the promotional post. In the event, of an employee making a choice of not accepting the promotion, he subsequently cannot turn around and seek promotion from a retrospective date.
It is settled law that a Government servant cannot be termed as a slave, he has a right to abandon the service any time voluntarily by submitting his resignation and alternatively, not joining the duty and remaining absent for long. Absence from duty in the beginning may be misconduct but when absence is for a very long period, it may amount to voluntarily abandonment of service and in that eventuality, the bonds of service come to an end automatically without requiring any order to be passed by the employer.
In Jeewanlal (1929) Ltd, Calcutta v. Its Workmen1, the Apex Court held:
"........if an employee continues to be absent from duty without obtaining leave and in an unauthorised manner for such a long period of time that an inference may reasonably be drawn from such absence that by his absence he has abandoned service, then such long unauthorised absence may legitimately be held to cast a break in continuity of service..... We would like to make it clear that..... there would be class of cases where long unauthorised absence may reasonably give rise to an inference that such service is intended to be abandoned by the employee."
Similarly, in Shahoodul Haque v. Registrar, Co-Operative Societies, Bihar2, the Apex Court observed as under:-
"The undenied and undeniable fact that the appellant had actually abandoned his post or duty for an exceedingly long period, without sufficient grounds for his absence, is so glaring that giving him further opportunity to disprove what he practically admits, could serve no useful purpose. It could not benefit him or make any difference to the order which could be and has been passed against him. We do not think that there is any question involved in this case which could justify an interference by us "
The precedents are in cases where the employee has abandoned his service voluntarily for a prolonged period. The principle would apply upon an employee who chooses to forgo promotion voluntarily and prefers to continue on the same post. The decision is of the employee and the employer cannot compel an employee to accept appointment by way of promotion, unless the service rules provides so. In the facts of the given case petitioner had forgone his promotion repeatedly by his own conduct.
1 AIR 1961 SC 1567 2 AIR 1974 SC 1896 On specific query, learned counsel for the petitioner failed to point out any illegality, infirmity or jurisdictional error in the impugned order.
The writ petition being devoid of merit is, accordingly, dismissed. No cost.
Order Date :- 30.7.2019 Atul