C.W.P. No.11 of 1989 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.11 of 1989 Date of Decision.26.04.2010 K.S. Jhamb, Assistant Manager, Officer Incharge, Punjab National Bank, Indira Market, Jagadhari ........Petitioner Versus The Punjab National Bank through its Chairman-cum-Managing Director, 7, Bikhaji Cama Place, Head Office, New Delhi and another ....Respondents Present: None for the parties. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest? Yes -.- K. KANNAN J.(ORAL) 1. The matter is of the year 1989 and there is no representation for either the petitioner or the respondent. Having regard to the long pendency of the case, the case is being examined from the records placed before the Court and I hasten to pass the following orders on merits. The petitioner seeks for issuance of writ of mandamus to direct the respondent Bank to promote the petitioner to Middle Management Grade Scale-II with effect from the date when he was selected and his juniors were promoted. He also seeks for a direction that Clause 9(e) of the promotion policy that provides for consequence of refusal of the promotion when it was offered as stated therein as illegal. 2. It is an admitted case that the petitioner had been appointed as a Clerk in July 1973 and he had been posted as an C.W.P. No.11 of 1989 -2- Accountant w.e.f. 1979 and thereafter, posted as Assistant Manager in the year 1982. The petitioner had been approved for promotion by the 2nd respondent vide letter dated 21.12.1985 (Annexure P-1) and he had been allocated to Bihar Zone. It is an admitted case that the petitioner represented against the posting vide his letter dated 24.12.1985 and he also pleaded his personal sickness for his inability to report at the place in Bihar. Subsequently, by a letter written on 28.12.1985, he had clearly stated that he was not accepting the posting at Bihar and it could be treated that he had declined the promotion. Consequently, the letter relieving him from duty at Chandigarh for reporting at Patna could not be brought to effect and the petitioner was merely contending that he was unable to join at Bihar. The clause of the promotion policy, which the petitioner had challenged in the writ petition gives out the following consequences arising if a person decline for promotion: “An officer who refuses posting as Officer Incharge/Assistant Manager or in the Empanelled position or refused to accept promotion or seeks reversion after accepting promotion will be debarred from appearing in the next two successive selections whether for posting as officer incharge/Assistant Manager or in the Empanelled position or that of next scale.” 3. Promotion is normally issued on seniority-cum-merit basis by drawing up seniority list depending on the entry into service and age and if a person who is offered the promotion does not accept the same, a rule providing for a bar for fresh consideration for particular length of time cannot be said to be unreasonable, for it C.W.P. No.11 of 1989 -3- cannot be left to an employee to decide when he will accept the promotion. A refusal by a person to accept the promotion post cannot force the management to keep the post vacant indefinitely. A re-adjustment will have to be made by getting another person suitable although he may be lower in the rung, when the promotion is refused by a person to whom it is offered. A clause, therefore, providing that the consideration for promotion will not be undertaken, for a particular length of time has a basis in allowing the management to make suitable adjustments and organise its own cadre to carry on with the work at the promotional level. A challenge in this rule is also the basis for prayer in the writ petition that he should be promoted from the day when the juniors were promoted. In this case, a junior had been promoted, which was on account of the fact that the petitioner refused to accept the promotion that was offered to him. When in his own turn again he was considered for promotion and when he had been promoted by invoking the very same clause 9(e), he accepted the promotion and then he has challenged the promotion policy. The petitioner cannot approbate and reprobate. He cannot challenge a provision through which he has ultimately gained even the promotion post. It should again be noticed that the writ petition itself has been filed only far later than when the promotion was originally offered and later withdrawn on his declining the promotion post and to report at Bihar zone where he was posted. The respondent has also filed a written statement referring to the fact that an officer of the Bank is liable to be posted in any part of India and that is one of the terms of the employment. His unwillingness to report at the place where he was C.W.P. No.11 of 1989 -4- posted meant that he forfeited his right to be considered for promotion for a term of two years which was provided under Clause 9(e). 4. The clause in the promotion policy is just and reasonable and it is not liable to be quashed in the manner canvassed by the petitioner in his writ petition. The plea for consideration as having been promoted even from the day when the initial order of promotion was offered to him which was refused and his juniors were promoted cannot be acceded to the petitioner. In N.C. Singhal (Dr.) Vs. Union of India (1980) 3 SCC 29, the Hon'ble Supreme Court held, "If an employee eligible for promotion is offered a higher promotion by way of promotion, his refusal to accept the same would enable the employer, the Central Government in this case, to fill in the post by offering it to a junior to the government refusing to accept the post and in so acting there will be no violation of Article 16. Further the Government servant who refuses to accept the promotional post offered to him for his own reasons cannot then be heard to complain that he must be given promotional post from the date on which the avenue for promotion opened to him." This decision is a complete answer to the untenability of the petitioner's claim. 5. The writ petition fails and it is dismissed. (K. KANNAN) JUDGE April 26, 2010 Pankaj*