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2023 Supreme(All) 1719
IN THE HIGH COURT OF ALLAHABAD
Manish Mathur, J.
Hausilal – Petitioner
Versus
State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Revenue, Lko. And Others – Respondents
WRIT - A No. - 3935 of 2023
Decided On : 06-11-2023
Advocate Appeared:
For the Petitioner: Abhishek Mishra, Subhash Chandra Mishra
An employee has the right to waive a promotion, and any restriction on this right must comply with the conditions indicated in relevant judgments.
Headnote:
Promotion - Right to Forgo Promotion - 07.01.2022, 15.12.2022 - The court discussed the right of an employee to forgo a promotion, citing relevant legal provisions and interpretations from Rustom Cavasjee Cooper v. Union of India, K. S. Puttaswamy v. Union of India, and National Legal Services Authority v. Union of India. The court held that an employee has the right to waive a promotion, and any restriction on this right must comply with the conditions indicated in the judgments referred to.
Fact of the Case:
The petitioner challenged an order granting him a promotion to the post of Collection Amin and the rejection of his application to forgo the promotion, citing lack of provision under service regulations.
Finding of the Court:
The court found that the petitioner has the right to waive the promotion, and the rejection of his application was not justified under the service regulations.
Issues: The issues revolved around the petitioner's right to forgo the promotion and the validity of the rejection of his application under the service regulations.
Ratio Decidendi: The court held that an employee has the right to waive a promotion, and any restriction on this right must comply with the conditions indicated in relevant judgments.
Final Decision: The court quashed the impugned orders and issued a writ commanding the opposite parties to permit the petitioner to continue on the post of Collection Peon.
JUDGMENT :
1. Heard Mr. Abhishek Mishra, learned counsel for petitioner and Mr. Vikas Singh, learned State Counsel for opposite parties.
2. Petition has been filed challenging order dated 07.01.2022 whereby petitioner has been granted promotion on the post of Collection Amin. Also under challenge is order dated 15.12.2022 whereby petitioner's application to forgo aforesaid promotion has been rejected on ground that there is no such provision under law.
3. It has been submitted that earlier petitioner while performing his duties on post of Collection Peon was found eligible for promotion on post of Collection Amin with such promotion being granted vide impugned order dated 07.01.2022. It is submitted that on the basis of said order, petitioner joined and performed his duties without any complaint but since he was facing problems in effective discharge of his duties on the promotional post, he made an application dated 02.05.2022 with prayer that he may be permitted to forgo the said promotion. It is submitted that the aforesaid application has been rejected only on the ground that there is no such provisions under service Regulations applicable upon petitioner.
4. It has been submitted that since petitioner does not have any grievance with his demotion and even otherwise is not claiming any benefits in pursuance thereof, he would have a right to waive rights vested with regard to such promotions. It is also submitted that there is no bar either for petitioner forgoing his promotion. Learned counsel for petitioner has placed reliance on a Division Bench decision of High Court of Bombay at Goa rendered in Pradeep D. Signapurkar v. Union of India and others reported in 2019 SCC OnLine Bom 2608 to buttress his submissions.
5. Learned State Counsel on the basis of counter affidavit filed has refuted the submissions advanced by learned counsel for petitioner with submissions that since petitioner was found eligible and qualified for promotion on the post of Collection Amin, he was granted such promotion with effect from 07.01.2022 and has thereafter performed his duties without any complaint for almost one year now. It is submitted that since there is no provision under Service Regulations for an employee to forgo his promotion, his request was rightly rejected.
6. Upon consideration of submissions advanced by learned counsel for the parties and perusal of material on record, it is quite evident and admitted that petitioner who was earlier working on post of Collection Peon was granted promotion on post of Collection Amin vide order dated 07.01.2022. It is also submitted that in pursuance thereof, petitioner joined and performed his duties as a Collection Amin for a period of five months whereafter he submitted an application for forgoing promotion on 02.05.2022. His Application has been rejected solely on ground that there is no such provision under the Service Rules for an employee to forgo his promotion.
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 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
