IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/S) No. 1126 of 2010 Om Prakash ……….Petitioner. Versus State of Uttarakhand and others …….Respondents Present : Mr. Davesh Ghildiyal, Advocate for the petitioner. Mr. N.P. Sah, Standing Counsel for the State of Uttarakhand. Hon’ble Sudhanshu Dhulia, J. (oral) Heard Mr. Davesh Ghildiyal, Advocate for the petitioner and Mr. N.P. Sah, Standing Counsel for the State of Uttarakhand. The petitioner is a Head Assistant in Public Works Department. Since the petitioner was denied promotion to the post of Administrative Officer-II and Head Assistants much junior to the petitioner have been promoted to the post of Administrative Officers-II vide order dated 23.12.2009 (Annexure No. 7 to the writ petition), the petitioner is aggrieved and has filed the present writ petition claiming the following relief :- “I. Issue a writ order or direction in the nature of Certiorari quashing the notice dated 8.12.2009 (Annexure -5) issued by respondent no. 2. II. Issue a writ order or direction in the nature of mandamus directing the respondents to give promotion to the petitioner on the post of Administrative Officer w.e.f. 23.12.2009 i.e. the date from when the junior to the petitioners have been promoted on the said post and accordingly the petitioner be further considered for promotion on the post of Senior Administrative Officer. III. Issue any other order or direction which this Hon’ble Court may deem fit and proper in the circumstances of the case. IV. Award cost of the petition.” Admittedly the promotion from the post of Head Assistant to the post of Administrative Officer-II depends upon seniority subject to rejection on unfit. The petitioner has stated in the writ petition that earlier the 2 petitioner was promoted to the post of Administrative Officer Grade –II on 24.10.2007 but due to personal difficulties with the petitioner he declined the promotion. The second promotion came in his way on 19.12.2008 which the petitioner again declined for the same reasons. However, when the petitioner was ignored for promotion, for the third time, as persons junior to him were promoted, ignoring him vide order dated 23.12.2009, he challenged the same. The petitioner contends that he was aware of the earlier circular dated 3.7.2007 according to which if a person declines the promotion “thrice” then only he will not be considered for promotion and since he was only aware of this circular he took his chances in declining promotions twice. He has not declined promotion “thrice” so that he may not be considered for promotion for all times to come. The grounds for not considering the petitioner for promotion are that circular dated 10.6.2009 was already in operation whereby if a person refuses the promotion “twice” he will not be promoted in future. Relying upon this circular the petitioner has been denied promotion. The case of the petitioner, on the other hand, is that at the time of his second refusal for promotion dated 19.12.2008 the condition was that if a person refuses promotion “thrice” he will not be promoted in future. It is an admitted case that the petitioner has declined his two promotions, first on 24.10.2007 and second on 19.12.2008. It is also true that when the petitioner declined his promotion for the second time, the first circular i.e. circular dated 3.7.2007 was in force whereby if an employee declined promotion “thrice” he was not liable to be promoted in future. The second circular dated 10.6.2009 came after the petitioner 3 had already declined his promotion for the second time. Hence it would not operate retrospectively. What would operate at the relevant time is circular dated 3.7.2007 whereby the condition was that if a person declines promotion “thrice” he will not be promoted in future. Admittedly the petitioner has declined the promotion only twice and therefore it is not correct on the part of the respondent not to consider him for further promotion and therefore the action of the respondent for not considering the petitioner for promotion from the post of Head Assistant to the post of Administrative Officer-II while the persons junior to the petitioner have been promoted is patently illegal. Be that as it may, the fact of the matter is that at the relevant time the petitioner could decline promotion for a maximum of three times. Therefore the petitioner cannot be denied promotion particularly when he now wants to be promoted. Therefore writ petition is allowed. The respondent is directed to consider the promotion of the petitioner from Head Assistant to Administrative Officer-II as has been done regarding his juniors vide order dated 23.12.2009. This Court has been informed at the bar that promotion from Head Assistant to the post of Administrative Officer- II depends upon seniority subject to rejection on unfit. In case there is nothing against the petitioner, the petitioner is liable to be promoted from the date his juniors, as referred above, have been promoted. The authority concerned shall consider all the aspects and pass appropriate order. No order as to costs. (Sudhanshu Dhulia, J.) 26.7.2011 Avneet