Central Administrative Tribunal - ErnakulamV.K. Lekshmanan vs Union Of India Represented By on 12 April, 2013CENTRAL ADMINISTRATIVE TRIBUNAL
                            ERNAKULAM BENCH

                    Original Application No. 146 of 2013

                     Friday, this the 12th day of April, 2013

CORAM:

        HON'BLE Mr. JUSTICE P.R. RAMAN, JUDICIAL MEMBER
        HON'BLE Mr. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER

V.K. Lekshmanan,
S/o. Krishnan Nampoothiripad,
Assistant Postmaster, Irinjalakuda H.O,
Irinjalakuda. Residing at "Vembliasmana",
Kanjirathode Road, Irinjalakuda,
Trichur District - 680 121.                               ... Applicant

(By Advocate Mr. Shafik M.A)

                    versus

1.     Union of India represented by
       The Chief Post Master General,
       Kerala Circle, Trivandrum.

2.     The Superintendent of Post Offices,
       Irinjalakuda Division,
       Irinjalakuda - 680 121.                           ...  Respondents

(By Advocate Mr. Sunil Jacob Jose, SCGSC )


       This application having been heard on 09.04.2013, the Tribunal on

12.04.13 delivered the following:


                                   O R D E RHON'BLE Mr. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER


       The applicant while working as Assistant Postmaster, Irinjalakuda HO

had declined his promotion as HSG-II in the year 2011.         He was again

promoted as HSG-II vide order dated 06.12.2012. In response to his letter

dated 05.01.2013 declining promotion, Annexure A-1 letter dated 13.02.2013

was issued       directing to relieve the applicant immediately to join     as

Postmaster, Koratti. The applicant was forced to handover the charge of the

Postmaster, Irinjalakuda, which he was holding as additional charge as well as

the charge of Assistant Postmaster on 15.02.2013, as per the say of the

applicant. Aggrieved, he has filed this O.A. for the following reliefs:(i) To call for the records relating to Annexure A-1 to A-7 and to
            quash Annexure A-1 and A-2;(ii)To declare that the applicant is at liberty to decline the
            promotion to HSG-II as per A-5 by submission of A-6 and to
            declare that the relinquishment of charges as per A-2 made
            forcibly is illegal and arbitrary;(iii)To direct the respondents to permit the applicant to continue
            in his post at Irinjalakuda HO prior to A-5;(iv)To issue such other appropriate orders or directions this
            Hon'ble Court may deem fit, just and proper in the
            circumstances of the case; and(v)To grant the costs of this Original Application.2.     The applicant contended that the refusal of the respondents to accept

his representation declining promotion and forcibly relieving him in order to

join the promoted post is not in accordance with any rules or instructions. As

per Annexures A-3 and A-5 orders , the applicant is at liberty to refuse

promotion. Annexure A-6 representation of the applicant is understood not to

have even been forwarded to the 1st respondent who is the competent

authority to consider it. No rule in the MACP Scheme envisages forcible

acceptance of promotion. The applicant is to retire in a short time.3.     Respondents in their reply statement submitted that the applicant was

granted the 3rd financial upgradation under the MACP Scheme on completion

of 30 years of service as PA and LSG vide oder dated 12.08.2010. The

applicant did not accept the promotion granted as HSG-II in the year 2011. He

was again promoted as HSG-II and posted as Postmaster, Koratty, vide order

dated 21.12.2012. He had submitted Annexure A-6 representation to the 1st

respondent declining the promotion due to personal inconvenience.           The

same was forwarded to the Office of the Postmaster General and after due

consideration of the same, with reference to Note 13 to Rule 11 of the CCS

(CCA) Rules, Annexure A-1 order was issued directing the applicant to join as

Postmaster, Koratty. But he has not joined the new post. It was further

submitted that when an official has been granted financial upgradation under

the MACP Scheme, he cannot refuse regular promotion and higher

responsibilities. There are 33 HSG-II posts in the Central Region, out of which

14 posts are lying vacant.      If every senior official  is allowed to decline

assumption of higher responsibilities, the administration will be left with no

choice but to run the public office with less experienced junior staff and this

will be caused not due to the non-availability of sufficient qualified hands but

due to the non-acceptance of promotion by the eligible officials.           The

impugned orders are in consonance with the rules and Government of India

instructions.    Each Regional Postmaster General including the Chief

Postmaster General has been delegated           all financial and administrative

powers of the the Head of the Department as spelt out in the delegation of

Financial Power Rules, General Financial Rules, Fundamental Rules and

Supplementary Rules.4.     In the rejoinder, the applicant submitted that there are abundant eligible

officials awaiting promotion in the department.       The respondents have not

cited the rules by which those who have been granted 3rd financial upgradation

under the MACP Scheme, cannot decline promotion. Even in respect of

promotion based on competitive examination, qualified candidates are given

the liberty to decline promotion as per Annexure A-8.5.      We have heard Mr. Shafik M.A, learned counsel for the applicant and

Mr. Sunil Jacob Jose, learned SCGSC appearing for the respondents and

perused the records.6.      The applicant was promoted as HSG-II for the 2nd time vide Annexure

A-5 dated 06.12.2012. Paras 5, 8 and 10 of the said order are extracted as

under:"5. Those who are placed financial upgradation under TBOP/BCR
      and MACP are not entitled for further fixation of pay under FR22(I)(a)
      (1) on account of this promotion. Officials declining promotion shall
      not be considered for MACP placement or further promotion to HSG-I
      cadre.6.     xxxxxxx        xxxxxxx7.     xxxxxxx        xxxxxxx8.   Those who refuse HSG-II promotion now offered will not be
      eligible for regular/officiating promotion to HSG-II cadre for one year
      from the date of such refusal. Such officials if officiating in HSG-II/HSG-I posts, on adhoc basis will be reverted immediately.9.     xxxxxxx        xxxxxxx10. In case any official is not willing to accept promotion, his/her
      representation declining the promotion offered should be received in
      this office within 30 days from the date of issue of posting orders."(third emphasis supplied)7.      The officials declining promotion shall not be considered for MACP

placement or further promotion to HSG-I cadre and will not be eligible for

regular/officiating promotion to HSG-II cadre for one year as per the above

order.   Further, it is provided that if any official is not willing to accept

promotion, his representation declining the promotion offered should be

received in the office of the Assistant Postmaster General (staff) within 30

days. The point raised by the applicant that he is at liberty to refuse promotion

is not refuted by the respondents in their reply statement. The respondents

cannot close their eyes to clause 10 of the promotion order and pretend that it

is not there.     Annexure A-5 order provides scope for not accepting the

promotion offered.     Accordingly, the applicant responded to the offer of

promotion vide Annexure A-6, which is reproduced as under:"Irinjalakuda,
                                                                  05.01.2013
    From

           V.K. Lekshmanan
           Postmaster (offg)
           Irinjalakuda HO - 680 121.To1. The chief Postmaster General
               Kerala Circle
               Thiruvananthapuram - 695 001.2. The Postmaster General
               Central Region
               Kochi.Sir,

           Sub:-    Promotion to HSG-IIRef:- 1) Memo. No. ST-3-4/2012 dated 06.12.2012 of CPMG
                     Kerala TVM2) Memo. No. ST/42-22/2010 dated 21.12.2012 of PMG
                      Kochi.With reference to the above Memos, I may kindly be permitted to
    submit that due to personal inconvenience, now I am not accepting the
    promotion offered vide Memo. under reference (1) above, I may kindly be
    permitted to continue in the LSG cadre at present.Yours faithfully,
                                                                          Sd/-(V.K. Lekshmanan)"The applicant had declined promotion due to personal inconvenience.8.    Clause 10 in both Annexures A-3 and A-5 orders does not indicate any

administrative exigency that compels the respondents to force promotion on

the officers who are offered promotion but just the opposite.           They beckon

the applicant and others who are inclined to forego promotion for whatever

reason, to send representations within 30 days of the order of promotion. The

applicant precisely did so on two occasions of promotion.9.    Relevant extract from Annexure A-1 letter dated 13.02.2013 is

reproduced as under:"Please refer to the letter cited above endorsing the letter dated
       05.01.13 received from the above official declining his promotion to
       HSG-II and posting as PM Koratti MGD.The competent authority has not accepted the letter dt. 05.01.13
       received from Sri V.K. Lekshmanan LSG APM Irinjalakuda HO declining
       the promotion and posting as HSG-II PM Koratti. When an official has
       been granted financial upgradation under MACP-III, he/she cannot
       decline regular promotion and higher responsibilities.      As such, the
       official may please be relieved immediately under office arrangement
       and directed to join as PM Koratti. Please report compliance."The applicant has been informed that his letter dated 05.01.2013

declining promotion and posting as Postmaster, Koratti, is not accepted. The

ground for rejection of his letter is that as he has been granted 3rd financial

upgradation under the MACP Scheme,he cannot decline regular promotion

and higher responsibilities.10.   Para 25 of the MACP Scheme, reads as under:"25.     If a regular promotion has been offered but was refused by the
      employee before becoming entitled to a financial upgradation, no
      financial upgradation shall be allowed as such an employee has not

       been stagnated due to lack of opportunities. If, however, financial
       upgradation has been allowed due to stagnation and the employees
       subsequently refuse the promotion, it shall not be a ground to
       withdraw the financial upgradation. He shall, however, not be eligible
       to be considered for further financial upgradation till he agrees to be
       considered for promotion again and the second the next financial
       upgradation shall also be deferred to the extent of period of
       debarment due to the refusal."(emphasis supplied)


As per the above clause, financial upgradation cannot be withdrawn even if

the employee refuses promotion subsequently. He will not be eligible to be

considered for further financial upgradation till he agrees to be considered for

promotion again.      There is no provision in the MACP Scheme to force

promotion upon an employee who has been granted financial upgradation.

Therefore, the reliance of the respondents on the MACP Scheme to force

promotion upon him is misplaced.11.    In the reply statement, the respondents have pointed out that out of 33

HSG-II posts in the Central Region, 14 posts are lying vacant and it may not

be possible for them to run the administration smoothly if all eligible officials

decline promotion.       They did not state that all officials have declined

promotion.     If a few officials declined promotion, there are other eligible

officials who can be promoted.        The respondents have not stated that there

are no eligible officials who can be promoted.       Therefore, the administrative

exigency projected by the respondents is not convincing. If there was an

administrative exigency, clause 10 would not have found a place in the

promotion order.12.    Further, the respondents have relied on Note-13 of Rule 11 of the CCS

(CCA) Rules, 1965, which is extracted as under:"(13) Action on refusal of promotion - In cases where the
          reasons adduced by an officer for his refusal of promotion are not
          acceptable to the Appointing Authority, then he should enforce the
          promotion of the officer and in case the officer still refuses to be
          promoted, then even disciplinary action can be taken against him for
          refusing to obey orders."The instruction of the Government of India is that where the reasons adduced

by the official for his refusal of promotion are not acceptable to the appointing

authority, then he should enforce the promotion and disciplinary action can be

taken against him for refusing to obey the orders. In the instant case, the

respondents have not referred to Note-13 to Rule 11 of the CCS (CCA) Rules

in Annexures A-1, A-3 and A-5 orders.         The respondents have no case that

the reasons adduced by the applicant are not acceptable to the appointing

authority. Instead, they have relied wrongly on the MACP Scheme for rejecting

his representation declining promotion.13.    The respondents cannot approbate and reprobate at the same time.

They are barred from invoking the Government of India instruction No. 13 to

Rule 11 of the CCS (CCA) Rules, 1965, after calling for representation from

officials who decline promotion.     If they had any intention of invoking the said

instruction, they should have mentioned the same in the order of promotion,

instead of calling for representation from those who decline promotion.         In

fact, there is no mention of Government of India instruction No. 13 in the

impugned Annexure A-1 order, which is relied upon by the respondents in

their reply statement.14.    The Annexure A-2 order is not in consonance with paras 5, 8 and 10 of

the promotion order at Annexure A-5 in so far as it imposes promotion on the

applicant.   Both Annexures A-1 and A-2 orders are made without due

application of mind to relevant factors. The respondents have not taken into

consideration the fact that the applicant is to retire in a short time while

imposing on him a promotion involving transfer. The calling of representation

declining the promotion gives rise to the legitimate expectation of fair

consideration of the same as per rules. The rejection of the representation of

the applicant declining promotion is not on the basis of any rules/instructions.

If otherwise, the respondents should have mentioned the relevant rule or

instruction in the impugned order.     We have already found that the MACP

Scheme does not force promotion on the beneficiary.By Justice P.R.Raman,Judicial Member:15.    I have gone through the order rendered by my learned Brother and I

fully concur with the views as expressed above. However, I would like to add

a few lines of my own.16.    Govt. of India instructions only indicates that there is no inherent right

to refuse promotion     and if the reasons     for declining promotion   is not

convincing the authorities can impose promotion unless otherwise specified

and take disciplinary action in case it is refused.     In the present case the

promotion order issued itself gives him an option to refuse promotion but

the consequence is that he will not get future promotion for one year from

the date of refusal. Further he will not be considered for MACP placement.

Thus by declining promotion the employee forfeits his claim for promotion

as also future MACP placement. Thus a right is conferred on him to refuse

promotion subject to the above condition. If those clauses are absent, the

matter is different and the Govt. of India instructions come in to play. But in

the present case and going by the order of promotion issued asking the

employee to indicate within 30 days as to whether he refuses promotion,

he could not have been relieved imposing promotion.By Order of the Court:17.   In the conspectus of the facts and circumstances and the legal issues

involved, we are of the considered view that the impugned orders are legally

not tenable and accordingly, the O.A is allowed as under.18.   Annexures A-1 and A-2 orders are quashed.           The respondents are

directed to issue appropriate orders restoring the status quo ante the quashed

orders as early as possible, at any rate, within two weeks from the date of

receipt of a copy of this order. No order as to costs.(Dated, the 12th April, 2013)




  (K. GEORGE JOSEPH)                                  (JUSTICE P.R. RAMAN)
ADMINISTRATIVE MEMBER                                   JUDICIAL MEMBER



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