Mahesh Chand v. Union of India and Ors.

1. The petitioner is aggrieved by an order dated 28.05.2013 of the Central Administrative Tribunal (CAT) in O.A. No. 2328/2012. The CAT had rejected the petitioner’s application questioning the rejection of his representation. He was selected to the post of SO/Gr-I Stenographer in the limited departmental examination conducted, the 2014:DHC:4160-DB W.P.(C) 5436/2014 Page 2 results of which were declared in March-April 2006. However, he refused the appointment on 11.07.2006.

2. Briefly the facts are that the petitioner, at the relevant time, was working as Personal Assistant. The next promotional grade is the post of SO/Grade-I Stenographer, in respect of which a limited departmental quota exists. The petitioner participated in the departmental test held in 2004. The results were declared in March- April 2006. He was successful and was offered appointment. However, he refused the appointment on 11.07.2006 due to some personal problems, i.e. illness of his mother. This refusal was accepted by the respondents on 02.08.2006. Thereafter, the petitioner appears to have had a change of heart and represented that he would like to resile from his refusal – which he did by letter dated 18.12.2006. By this, he sought for issuance of appointment letter to the promotional post. The petitioner contends that despite this representation, nothing was heard. In the meanwhile, he made several other representations between 05.01.2007 and 25.03.2008. Finally on 15.04.2008, the representation was rejected; however, no reasons were adduced. The petitioner contended – before the CAT as well as here, that the reply/rejection was dissatisfactory since no reasons were forthcoming and he applied to the concerned authorities under the RTI Act, 2005 upon which he was furnished with some replies, including file notings. His similar requests with respect to correspondence exchanged with the Union Public Service Commission (UPSC) were, however, not so successful. In these circumstances, he made a representation yet again, which was W.P.(C) 5436/2014 Page 3 rejected on 05.08.2010. This impelled him to issue a legal notice dated 15.12.2011 which was refuted. He, therefore, approached the CAT on 13.07.2012. The CAT, by its impugned order, after noting all these as well as considering the guidelines of the Department of Personnel and Training (DOPT), dealing with the subject of refusal of promotion which appear to have been taken into consideration by the respondents while rejecting his legal notice, was of the opinion that the decision to reject the representation was not arbitrary. The CAT’s reasoning is as follows: On the basis of the documents and submissions made on behalf of both the parties, the only issue to be decided is that whether the relief is being sought by right structure or within by that of conception. It is to be noted that the Office Memorandum dated 10.05.2006 vide which the result was published states that the inclusion of name of any officer in the selected list does not confer him to claim promotion on any particular date. However, the applicant had submitted his request for deletion of his name declining the promotion and the same was accepted vide the communication dated 02.08.2006. It has also to be clearly understood that there are no rules regarding the withdrawal of application and in absence of the same the advice of the DOP&T as quoted in the impugned order dated 16.05.2011 is that the Government employee refusing such promotion will have to withdraw the same within a period of 90 days that too prior to filling up the vacancy or till the next vacancy arises, which is later. In absence of any clear reason in this matter, this advice remains binding. The analogy extended to the withdrawal of resignation as it has rightly pointed out in the impugned order is misplaced as the period of 90 days had already elapsed. In any case, it is our considered opinion that where relief is being sought within legal right structure this W.P.(C) 5436/2014 Page 4 will not hold good. Unless, there were two specific provisions relating to that, once the applicant has declined to avail of the promotions and the same has been accepted, his rights to recall the same stands extinguished upto the date of acceptance i.e. 2.08.2006 and there are no rules under which the same could be revived. This Tribunal is still to be distinguished from the Hon’ble High Court and the Hon’ble Supreme Court. Since it is a court of law whose duty is to decide within the four structure of law and is not a court of equity, therefore, it lacks jurisdiction. We, further, fully endorse the stand of the learned counsel for the respondents that allowing such cases would open the Pandora box and numerous such requests that had been made in the past would become alive. This Tribunal would have without any hesitation ruled in favour of the applicant had his plea would have been in the right structure.

3. It is contended that the respondents’ action in refusing to give the offer of appointment despite the petitioner’s resiling from his rejection of promotion on 18.12.2006, is arbitrary. Learned counsel contended that none of the rejection letters furnished to him supplied any reasons and, in these circumstances, the mere submission that the post was subsequently filled, ought not to have weighed with the CAT. It is also submitted that besides, the guidelines noticed by the CAT were framed in 2006 itself.

4. This Court has carefully considered the submissions. Regardless of whether the DOPT circular existed or not – an issue sought to be raised by the petitioner, the fact remains that in this case the refusal was accepted by the respondents on 02.08.2006. This paved the way for them to take further steps to fill the vacancy which occurred on account of the refusal. This Court was informed by the petitioner’s W.P.(C) 5436/2014 Page 5 counsel that the very same vacancy, along with another vacancy arising on account of another selected candidate refusing promotion, were subsequently notified and a limited departmental test was conducted. This resulted in filling-up of the posts in 2009.

5. Having regard to these facts, the petitioner’s action in approaching the CAT, as late as in 2012 itself ought to have impelled the CAT to reject the application. We emphasize this aspect because it is not only the delay which is striking to this Court - on the face of the record, but also the fact of supervening events which remained unchallenged by the petitioner - in effect non-suiting his case altogether. Besides the respondents’ approach, confirmed by the CAT, is in conformity with sound administrative practice because if such requests are to be accepted after a certain point of time, the filling up of vacancies and cadre management would remain in a state of flux, to put it mildly, and ultimately it would result in chaos which cannot but affect efficient public administration.

6. For the above reasons, this Court is of the opinion that there is no infirmity in the impugned order of the CAT. The writ petition is accordingly dismissed along with the pending applications.

S. RAVINDRA BHAT

(JUDGE)

VIPIN SANGHI (JUDGE) AUGUST 26, 2014