Dharam Pal vs State of Haryana

Rajiv Narain Raina, J.—The case of the petitioner is that for the first time in his service career he was offered promotion as a Water Pump Operator-II (WPO-II) in higher pay scale vide order dated 25.4.2013. He did not accept the offer since he was working as a Mali-cum-Chowkidar and being close to retirement was happy doing that work. This was also for the reason that Note 4 of the order of promotion laid down that the orders will be effective from the date the official joins duty on the promotional post. By not accepting the offer, the petitioner had rendered the promotion order infructuous qua him and he continued to work as Mali-cum-Chowkidar. A Mali-cum-Chowkidar is a Class-IV post where the age of retirement is 60 years whereas on the promotional post of WPO-II which is a Class-Ill post the age of retirement, if he were to accept the promotional post, is 58 years. Now vide impugned order passed by the Sub Divisional Engineer, Public Health Mechanical, Sub Division, Ladwa, Kurukshetra, the petitioner has been relieved from the post of Mali-cum-Chowkidar without notice or hearing on 29.11.2013 and has been directed to submit his joining report as WPO-II in his office. If the petitioner is not willing to accept the promotional post and wants to forego it, no law can compel promotion on an unwilling person. In such cases, rule prohibits for certain period revival of claims for promotion to the same post to discourage people to forego promotion when offered. However, the impugned order dated 29.11.2013 compels the petitioner to act contrary to his will and therefore, is oppressive to his nature.

Notice of motion.

Mr. Harish Rathee, Sr. DAG, Haryana accepts notice on behalf of the respondents and waives service on them. Mr. Singla has handed over one copy of the paperbook to Mr. Rathee in Court today.

If it is not disputed that the petitioner did not accept the offer by exercise of choice, there is little anybody can do anything about it and therefore, Mr. Rathee appreciates this legal and factual position and does not insist that in this case, the State must contest the case by filing its reply.

The prayer is innocuous as it would not disturb anyone muchless the Government. In case, the respondents still want to utilize the services of the petitioner as WPO-II, he will be taken to hold his substantive rank of Mali-cum-Chowkidar with right to retire at the age of 60 years. Merely because, the services of the petitioner may have been utilized throughout as WPO-H will not be taken as a waiver of his right to hold the substantive post of Mali-cum-Chowkidar and to retire peacefully from there when he attains the age of superannuation meant for Class-IV employees at 60 years.

This order will not be seen as a compulsion or direction to the respondents to deploy the petitioner as WPO-II and they may continue to utilize his services wherever they choose without bringing him to any unnecessary discomfort by coercion. He will be seen as one who has by his own act extinguished his right to promotion to a class III post.

Accordingly, the impugned order is modified that it will not confer any promotion right on the petitioner as WPO-II and would be read only as employer''s right to take work out of the petitioner on any post they choose without affecting his right of retirement as Mali-cum-Chowkidar at the age of 60 years. The writ petition is allowed to the extent indicated above.