Central Administrative Tribunal - Mumbai
Vilas Hukumchand Jadhav vs Defence on 6 March, 2023
1 OA No.390/2022
CENTRAL ADMINISTRATIVE TRIBUNAL,
MUMBAI BENCH, MUMBAI
ORIGINAL APPLICATION No.390 OF 2022
Dated this Monday, the 06th day of March, 2023
CORAM: MS. HARVINDER KAUR OBEROI, MEMBER (J)
MR. SHRI KRISHNA, MEMBER (A)
Vilas Hukumchand Jadhav,
Residing at: Behind Satyavinayak Society,
Vijaynagar, Deololi Camp, Dist. Nashik 422 401.
Email ID: [email protected], Contact No.8888214004.
Working as Lower DIvision Clerk (LDC)
in the office of the Adm Branch (Coord),
under the Headquarter School of Artillery,
Deolali 422 201. - Applicants
(By Advocate Shri Anurag R. Saxena)
Versus
1. The Union of India, through Secretary to the Govt. of India,
Ministry of Defence, South Block, New Delhi - 110 001.
2. The Directorate General of Artillery (Arty-10),
Integrated Headquarters, Ministry of Defence (Army),
300 'C' Wing, Sena Bhawan, New Delhi 110 011.
3. The Commandant, Headquarters School of Artillery,
Deolali 422 401.
4. Officiating Administrative Officer, Adm Branch (Civil),
Headquarters School of Artillery, Deolali 422 401.
5. Adjutant, Adm. Branch (Coord), Headquarters School of
Artillery, Deolali 422 201. - Respondents
(By Advocate Shri R.R.Shetty)
Reserved on 15.02.2023
Pronounced on 06.06.2023
2 OA No.390/2022
ORDER
Per: Shri Krishna, Member (A)
Aggrieved by the impugned orders dated 04.05.2022 and 25.02.2022 (Annexures A-1 and A-2) rejecting his unwillingness request letter for accepting promotion from the post of LDC to the post of UDC by the respondent No.2, and the order enforcing on him the promotion from LDC to UDC at AC, Hyderabad even after acceding to the reasons given by the applicant which is in clear violation of the paragraph 4 of the DOPT OM dated 01.10.1981, the applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-
"8.1. The Hon'ble Tribunal may be pleased to call for the record which led to the passing of the impugned Orders dated 4.5.2022 (Annexure A-1) and 25.2.2022 (Annexure A-2) issued by the Respondent No.2 and after going through its propriety, legality and constitutional validity, the Hon'ble Tribunal may quash and set aside the same.
8.2. The Hon'ble Tribunal may be pleased to hold and declare that the Applicant is entitled to express his unwillingness and cannot be enforced to be promoted from LDC, Nashik Road Camp to UDC, Artillery Centre, Hyderabad, when the Respondents have acceded to his reasons for unwillingness for promotion, in the light of the DOPT OM dated 01.10.1981 (Annexure A-11).
8.3. To award costs and to pass any further order/s as the Hon'ble Tribunal may deem fit and proper in conspectus of facts and nature of the case."3 OA No.390/2022
2. The applicant has also prayed for interim relief which has already been granted ex-parte by the CAT Ahmedabad Bench on 11.05.2022 by keeping the impugned order dated 04.05.2022 (Annexure A-1) in abeyance till the next date and further directed the Registry to transfer this application to Mumbai Bench of this Tribunal with an instruction to place the matter before the Bench on the next date i.e. 09.06.20222 and to show the matter as disposed of on the record of CAT Ahmedabad Bench. The said ordergranting interim relief is as follows :
"9. The Applicant and his family are suffering mentally as well as physically in these times of hardship. The promotion of the Applicant from LDC, Nashik Road Camp to UDC, Artillery Centre, Hyderabad vide order dated 28.12.2021 has made their situation worse. The last nail on the coffin were when the Respondent No.2 rejected the Unwillingness of the Applicant for promotion vide impugned Orders dated 4.5.2022 (Annexure A-1) and 25.02.2022 (Annexure A-2). The promotion is enforced on Applicant even after the Respondent No.2 have acceded to the reasons given by the Applicant in his Unwillingness Letters dated 29.12.2022 and 19.03.2022. The Applicant has a prima facie case for admission and interim relief and balance of convenience is in his favour. In case, the interim relief is not granted, the Applicant will suffer an irreparable loss which cannot be compensated in terms of money in future. No prejudice will be caused to the Respondents if the interim Order is granted as the currency of the Promotion Order dated 28.12.2021 is valid for one year and can be extended also.
In view of the aforesaid facts and circumstances, the operation of impugned order dated 4.5.2022 (Annexure A-1) may be stayed till the disposal of this application in the interest of justice."
3. Brief facts as narrated in the OA are as follows:
3.1 that the applicant was appointed on 23.11.2013 on the post of Lower Division Clerk (LDC) in the office of the 4 OA No.390/2022 respondent No.3 i.e.Admn Branch (Coord) under the Headquarter School of Artillery, Deolali, Distt. Nashik in the state of Maharashtra. The applicant lives with his family which includes his widowed mother Smt. Suman H. Jadhav, aged 68 years, his wife Smt. Ashwini V. Jadhav, his son Master Viraj V. Jadhav aged 4 years and his daughter Ms. (Baby) Anushri V. Jadhav aged 1 year 2 months and he is only sole bread winner for the family and he is the only child of his mother and has no siblings.
3.2. The applicant submits that his mother visited the Cantonment General Hospital, Deolali due to health related problems and as per report dated 24.11.2011, the Doctor has recommended the applicant's mother for Right eye cataract operation. The applicant was also suffering from mental issues from quite sometime due to heavy work load and family circumstances so he was also advised by the Psychiatrist of the said hospital to start taking treatment and take medicines for the said issues.
3.3. Applicant also consulted Dr.Mahajan' Eye Hospital and Lasik Centre for second opinion of his mother' right eye cataract operation on 10.12.2021 and same was diagnosed and recommended for right eye cataract operation. 5 OA No.390/2022 3.4. When the applicant was about to arrange the finances for the said operation of his mother, in the meantime, he received promotion order which has been issued by the respondent No.3 from the post of LDC to the post of Upper Division Clerk (UDC) to Artillery Centre, Hyderabad vide promotion order dated 28.12.2021 (Annexure A-3) and the date of applicant's promotion depended upon the date of occurrence of vacancy at Hyderabad. In the paragraph No.2 of the applicant's promotion order stated that the certificate of willingness/unwillingness to accept the promotion by an individual was to be submitted to the respondent No.3 by 30.12.2021.
3.5. The applicant further submits that his mother is suffering from old age health issues and he has to look after her for complete two months after the operation of her right eye cataract. The applicant, therefore, submitted his duly unwillingness certificate in triplicate format to the respondent No.3 i.e. Commandant, Headquarter School of Artillery, Deolali on 29.12.2021 (Annexure A-4). He has shown and put forward his reasons for unwillingness to accept the promotion because his old aged mother was suffering from 6 OA No.390/2022 various medical issues and also that he is not in a position to shift his whole family to a new place of posting. 3.6. The applicant further states the incident of minor son Master Viraj V. Jadhav who is four years of age that when his son was standing on the side of the road with his grandmother who was sitting on the gate of house around 11:07 AM on 06.02.2022, his son was run over by the Scooter in speed. The boy vomited twice at the accident site and he was immediately taken to Nashik Municipal Corporation Hospital for first aid and CT Brain scan. It is seen from the report of CT Scan that the child has suffered from bleeding in the brain, temporal bone fracture along with blood clots and other brain related serious and grievous injuries. He has moved his child immediately to the District Civil Hospital, Nashik as the previous Nashik Municipal Corporation hospital has no Neurologist in the panel to diagnose the severe brain injuries and the said hospital has discharged the applicant's son on 10.02.2022 but with many restrictions and his treatment is still going on. 3.7. The applicant further states that he has filed F.I.R. in the local Police Station against the person who has injured his son as he faced grievous brain injuries at such tender 7 OA No.390/2022 age. Till date applicant has received no decision and he is still pursuing the said F.I.R.
3.8. The applicant's son was further diagnosed for his brain injuries by taking him to the Paediatric of SMBT Institute of Medical Sciences and Research Centre. Vide OPD case paper dated 16.02.2022, some improvement in his son'shealth could be seen, but applicant's son was referred to a Neurologist for the expert opinion.
3.9. The applicant further submits that his unwillingness for the promotion post of UDC has not been accepted by the respondent No.2 i.e. Integrated Headquarters of Ministry of Defence (Army) and the applicant received the said order on 04.03.2022 issued by the respondent No.2 on 25.02.2022. The applicant preferred representation to the Defence Civilian Welfare Committee, School of Artillery, Deolali on 02.03.2022 (Annexure A-5) mentioning all his above family problems and difficulties but no communication has been received by the applicant from their end on his representation. Due to all this scenario and circumstances, applicant suffered from headache and he was diagnosed by visiting the Neurologist of the Cantonment General Hospital Deolali, and he was prescribed medicines and treatment for the same. 8 OA No.390/2022 3.10. The applicant further states that due to the present circumstances, he had no other option but to again forward his duly countersigned Unwillingness Certificate dated 07.03.2022 (Annexure A-6) to the respondent No.3 but without any reasons mentioned, the said certificate was not processed by the respondent No.3 i.e. Administrative Branch (Civil).
3.11. Due to old age and other medical issues of his mother, the applicant submits that he has visited SMBT Institute of Medical Sciences and Research Centre with his mother where OPD Case Paper dated 17.03.2022 prescribed her pain killers, medical belt for back along with prescribed medicines and also advised her for X-Ray of lateral spine for reduced disc-space in the lower spine and X-Ray of knee for knee-joint pain issues. The eyes of the applicant's mother was examined by the Ophthalmology Department vide report dated 17.03.2022 and advised her for cataract operation of left eye, after one month of operation of the cataract operation of the right eye. According to the reports, further tests to be conducted before the operation for the treatment of cataract of the applicant's mother. The applicant was prescribed medicines and further advised for MRI of brain 9 OA No.390/2022 because of his prolonging mental stress due to ongoing circumstances by Dr. Dhananjay Dubhekar, Neurologist as diagnosed on 17.03.2022.
3.12. The applicant further stated that when he came to know that his Unwillingness Certificate dated 07.03.2022 was not processed by the Respondent No.4, then he himself with his countersigned Unwillingness Certificate explained his reasons and situations to the respondent No.3 on 19.03.2022 (Annexure A-7) which has been considered by the said respondent No.3 and above mentioned certificate has been forwarded to the respondent No.2 for consideration. 3.13. The applicant further states that the Respondent No.2 further issued letter on 11.04.2022 (Annexure A-8) which was received by him on 21.04.2022 by stating that the respondents do understand the domestic issues of the applicant but it is not feasible to post any other suitable volunteers UDC from AC (Artillery Centre), NRC (Nashik Road Camp), School of Artillery. If the said post of UDC is kept vacant at Artillery Centre, Hyderabad then it would result in getting deemed abolished which would be difficult to revive subsequently. The said letter further mentioned that the 10 OA No.390/2022 applicant should be motivated to accept promotion and move to new place of posting.
3.14. On 15.04.2022 (Annexure A-9), he visited to Dr.Chandratej Kadam, Neurologist clinic along with his son for further diagnosis of his brain injuries. As per the advice of the report, another CT Brain scan for resolving of haematoma and also advised to admit immediately to Hospital for any seizure.
3.15. The applicant further submits that the respondent No.5 i.e.Adm Branch (Coord) informed the respondent No.4 i.e. Adm Branch (Civ) vide letter dated 29.04.2022 (Annexure A-10) that the applicant was interviewed on 28.04.2022 but again applicant has once again shown his unwillingness to accept the promotion from LDC to UDC by giving priorty to his son's and mother's health conditions.
3.16. It has been further submitted by the applicant that in an arbitrary manner, respondent No.2 vide its letter dated 04.05.2022 directed the respondent No.3 that the applicant should be relieved from his duties immediately and be despatched to Artillery Centre, Hyderabad otherwise he shall be deemed to have been relieved with effect from 20.05.2022 (afternoon) and he will be treated on unauthorized absence 11 OA No.390/2022 thereafter and will not be entitled to draw any pay and allowances in view of the instructions contained in paragraph No.4 of the DOPT OM No.22034/3/81-Estt (D) dated 01.10.1981 (Annexure A-11). He submits that according to paragraph No.4 of the said DOPT OM, the respondents could enforce the promotion on an individual when they are not acceded to his reasons. But in this case, respondents have acceded to the reasons and still they are forcing the applicant to join the duty in Artillery Centre, Hyderabad by leaving his poor family behind in order to safeguard their own selfish interest of reviving a post of UDC which could be clearly established because the respondents have accepted previous unwillingness of the employees which might be not genuine. But now respondents want to compensate their own mistakes keeping at stake the life of the applicant's family by enforcing him to join the post of UDC at a new place of posting i.e. Artillery Centre, Hyderabad which is not at all possible for him to join there at this juncture of time. Therefore, the applicant has filed this present Original Application for adjudication and appropriate directions by allowing the said application by the Hon'ble Tribunal. 12 OA No.390/2022
4. On notice, the respondents resisted the OA by a reply dated 07.10.2022 and denied all the allegations and averments raised therein and submitted that the impugned orders passed by the respondents are fully justified and there are no merits in the case filed by the applicant. The applicant has been informed that he is liable to be transferred to any of the stations in India vide appointment letter dated 25.01.2022 (Annexure R-1) also Recruitment Rules of LDC and UDC published vide SRO No.23 dated 11.04.2012 (Annexure R-2) is applicable to Lower Formations of Army i.e. Artillery Centre, Nasik Road Camp, Artillery Centre Hyderabad and School of Artillery, Delhi.
4.1. The grievance of the applicant that his unwillingness has not been accepted by the Competent Authority (i.e. DG Artillery) vide their letter No.A/10059/DPC/GS/Arty-10B dated 25.02.2022 and his promotion from LDC to UDC was enforced and he was ordered to move to Artillery Centre, Hyderabad. They drew our attention on clear violation of the paragraph No.4 of the above mentioned DOPT OM No.22034/3/81-Estt(D) dated 01.10.1981. The common seniority of UDC and LDC exists within Lower Establishment of Regiment of Artillery w.e.f. 2014. Finally, the DPC was 13 OA No.390/2022 approved by the Directorate General of Artillery (DG Arty). The applicant was promoted from LDC to UDC with effect from 01.01.2022 for the calendar year 2022 against the vacancy of Artillery Centre, Hyderabad dated 23.12.2021 (Annexure R-3). It has also been instructed by Artillery Directorate that in case of unwillingness to accept the promotion, an unconditional unwillingness certificate be obtained and they are liable to be penalized by denying further promotion for one year as per Ministry of Home Affairs OM No.22034/3/81-Estt(D) dated 01.10.1981 (Annexure R-
4). As applicant was unwilling for promotion due to his family problems, his unwillingness certificate was submitted to Artillery Directorate vide letter No.7404/DPC LDC to UDC/ADM/24 dated 31.12.2021 (Annexure R-5). However, Artillery Directorate directed vide its letter No.A/10059/DPC/GS/Arty-10B dated 18.01.2022 (Annexure R-6) that as per the list of seniority of LDCs, two LDCs of School of Artillery, Deolali are eligible for promotion from LDC to UDC for the calendar year of 2023. The same issue could emerge during the next DPC leading to the vacancy at the Artillery Centre, Hyderabad remaining unoccupied and which may result in the vacancy to be in deemed abolished 14 OA No.390/2022 category as per Ministry of Finance OM No.7(1)/E.Coord- I/2017 dated 12.04.2017 (Annexure R-7). Artillery Directorate has requested to explore the feasibility if any other UDC of School of Artillery, Deolali willing to proceed to Artillery Centre, Hyderabad so that applicant can be retained at School of Artillery, Deolali. This was circulated to all concerned UDCs of School of Artillery, Deolali on 20.01.2022, however, no UDCs of this establishment was willing to proceed at Artillery Centre, Hyderabad and the same was intimated to Artillery Directorate on 29.01.2022 (Annexure R-8).
4.2. Further, Artillery Directorate vide its letter No.A/10059/DPC/GS/Arty-10B dated 25.02.2022 (Annexured A-9) that the application of the applicant regarding unwillingness for the promotion post of UDC has not been accepted by the Competent Authority i.e. Directorate General of Artillery (DG Arty). Applicant's promotion be enforced and he has been ordered to move to Artillery Centre Hyderabad and this was intimated to the applicant on 02.03.2022 (Annexure R-10). But the applicant again submitted his unwillingness along with application dated 19.03.2022 regarding his family problems of mother and son medical 15 OA No.390/2022 issues. The same was again forwarded to Artillery Directorate for reconsideration on extreme medical grounds vide letter dated 23.03.2022 (Annexure R-11). Consequently, Artillery Directorate mentioned in their letter dated 11.04.2022 (Annexure R-12) that the applicant be motivated to accept the promotion and move to Artillery Centre, Hyderabad because the vacant post of UDC at Artillery Centre Hyderabad may result in getting deemed abolished which would impact promotional avenues of the other in future and this was informed to the applicant on 21.04.2022 (Annexure R-13). 4.3. It is further submitted by the respondents that in spite of the regular orders issued by the Artillery Directorate, applicant did not move to Artillery Centre Hyderabad on the promotion post of UDC, therefore, the same Directorate had issued immediate relieving order in respect of applicant on 04.05.2022 (Annexure R-14) to despatch the applicant to Artillery Centre Hyderabad by 20.05.2022, or otherwise, applicant will be treated on unauthorized absence and he will not be entitled to draw any pay and allowances from School of Artillery, Deolali. This has been informed to the applicant and Accounts Branch vide letter dated 06.05.2022 (Annexure 16 OA No.390/2022 R-15) and reminder has also been sent to applicant on 10.05.2022 for collection of movement order by 13.05.2022. 4.4. The learned counsel for the respondents submits that the Artillery Directorate has also instructed that in case of unwillingness to accept the promotion, an unconditional unwillingness certificate be obtained and they are liable to be penalized by denying further promotion for one year as per Ministry of Home Affairs/DOPT OM dated 01.10.1981 (Annexure R-4) and this has been informed to all concerned eligible personnel on 28.12.2021.
4.5. The respondents further submits that the applicant's unwillingness certificate dated 07.03.2022 was not processed due to the order of Artillery Directorate dated 25.02.2022 was put up to higher authority in channel of this establishment for necessary direction. The same has been returned on 10.03.2022 with remarks as "Individual (Applicant) to be dispatched as per directions". However, applicant's unwillingness certificate dated 19.03.2022 has been forwarded again to Artillery Directorate for reconsideration on extreme medical grounds vide letter dated 23.03.2022 (Annexure R-11).
17 OA No.390/2022Shri R.R. Shetty, the learned counsel for the respondentsvehemently argued thatthe applicant should be directed to join at Hyderabad, the ex-parte ad-interim relief granted to the applicant should be vacated and the present Original Application should be dismissed with costs since the applicant has an All India service liability to transfer.
5. In rebuttal, applicant has filed rejoinder on 20.10.2022 to the reply filed by the respondents on 26.09.2022. The applicant's counsel submits that the applicant's grievance is against the impugned order passed by the respondent No.2 on 04.05.2022 and 25.02.2022 (Annexures A-1 and A-2). It is pertinent to note that the respondent No.2 issued non- speaking order without even considering the contentions of the applicant's unwillingness letter dated 29.12.2021 for promotion to the post of UDC from LDC. Due to medical and accident issues of his mother and son, applicant submitted his unwillingness letter dated 19.03.2022 to the respondent No.3. Respondent No.2 issued impugned punitive order dated 04.05.2022 ordering respondent No.3 to relieve the applicant from his duties from School of Artillery, Deolali, otherwise, he shall be deemed to be relieved from 20.05.202 (afternoon) and thereafter, he will be treated on unauthorized 18 OA No.390/2022 absence and he will not be entitled to draw any pay and allowances from previous place of posting and this order has been issued by the respondent No.2 without initiating any enquiry proceedings or even addressing to any of the applicant's contentions of the unwillingness letter dated 19.03.2022.
5.1. The learned counsel for the applicant submitted that not only the applicant, but all employees working under the respondents are liable to be transferred to any of the stations in India but he has given his unwillingness from LDC to UDC, and in the past there has been no transfer order issued to that effect in respect of any other employees, that the respondents could raise this contention that the applicant has given his unwillingness from being transferred to any other location which is absolutely arbitrary, incorrect and bad in law and it is to be noted that in the said appointment order dated 25.11.2013 nowhere it has been mentioned that the applicant shall have no right to give his unwillingness for the promotion offered to him by the respondents.
5.2. The learned counsel for the applicant denied the contention of the respondents that the OM of Ministry of Home Affairs(DOPT) dated 01.10.1981 (Annexure A-11) 19 OA No.390/2022 stipulates that in the case of unwillingness of the officers to accept the promotion, they are liable to be penalized for further promotion for one year. He further states that the contention of above-mentioned OM dated 01.10.1981 is clarified in paragraph No.1 of the said OM, which states that when the officer refuses promotion purely to gain monetary benefit specially in cases where the increment of the officer is shortly due in the lower grade. Such denial causes hardship to many Government employees due to the chain reaction and then in such situations, the department should take action against such officer in pursuance to the said OM. But this is not the factual position in the present case as the applicant has compelling reasons due to which he has submitted his unwillingness certificates to the respondents and secondly, he shall not be getting any monetary benefit by not accepting the said promotion.
5.3. The learned counsel for the applicant submits that the respondents only requested the UDCs of School of Artillery, Deolali that whether they are willing to proceed to Artillery Centre, Hyderabad. Though, no UDC was willing to proceed to Artillery Centre Hyderabad, it is not understood as to why the respondents cannot transfer any other UDC from any of 20 OA No.390/2022 the Unit to the said post of UDC, Artillery Centre, Hyderabad as the work of UDC is not of that specific nature that any other UDC apart from the applicant cannot do so. This action of the respondents of not transferring any of the UDC under their organization to the Artillery Centre, Hyderabad on the same post and forcing the applicant to join the said post of UDC at Artillery Centre, Hyderabad by issuing impugned orders dated 04.05.2022 and 25.02.2022 which is a clear case of discrimination and violation of Articles 14 and 16(1) of the Constitution and principles of natural justice and abuse of power on the part of the respondents where on one hand they are giving options to the other UDC employees whether they want to move to Hyderabad or not and on the other hand forcing the applicant to accept promotion to the post of UDC from LDC and move to Artillery Centre, Hyderabad by passing punitive orders without any enquiry proceedings even though the applicant has compelling reasons to submit his unwillingness.
5.4 The learned counsel for the applicant has submitted vide para 8 of his rejoinder that the applicant has obtained information under the RTI Act and found that till date, the respondents have not taken any punitive action or any other 21 OA No.390/2022 action under the Ministry of Home Affairs OM No. 22034/3/81-Estt(D) dated 1-10-1981 against any unwillingness letters rendered by employees irrespective of the post whether they belonged to LDC or UDC. All the unwillingness certificates rendered by the employees in the posts of LDC and UDC were accepted by the respondents. Now the respondents can not take the defence of chain reaction for the situations created by themselves. The applicant has submitted a compilation of the said information obtained under RTI vide letters dated 8-7-2022, 20-7-2022 and 31-8-2022 annexed and marked as Annexure A-12 of the said compilation to his rejoinder.
5.5. The learned counsel for the applicant further states that in the conspectus of facts and circumstances of the case, the original application deserves to be allowed with heavy costs on the respondents for issuing both the impugned orders dated 04.05.2022 and 25.02.2022 (Annexure A-1 and A-2) without considering the contention of the applicant in the unwillingness letters, de hors the rules and in gross violation of the Articles 14 and 16(1) of the Constitution of India.
6. We have heard the learned counsels for both sides and perused the pleadings and documents filed on record. 22 OA No.390/2022 We find that the applicant filed his rejoinder to the reply submitted by the respondent on 20-10-2022. On 23-11-2022, the proxy counsel for the respondents sought time to file sur- rejoinder as according to him new points were raised in the rejoinder. The court granted time till 07-12-2022 with the direction that if sur-rejoinder is not filed on or before 07-12- 2022, the right to file sur-rejoinder shall stand forefeited. The matter was listed for 07-12-2022. The respondents failed to file any sur-rejoinder. Therefore, the right to file sur-rejoinder stood forfeited and the matter was listed for final hearing on 15-02-2023.
6.1. The applicant was appointed on 23.11.2013 on the post of Lower Division Clerk (LDC) in the office of the respondent No.3 i.e. Admn Branch (Coord) under the Headquarter School of Artillery, Deolali, Distt. Nashik in the state of Maharashtra. It is not in dispute that the applicant lives with his family which includes his widowed mother aged 68 years, his wife, his son aged 4 years and his daughter aged 1 year 2 months. It is also not in dispute that he is only sole bread winner for the family and he is the only child of his mother and has no siblings.
23 OA No.390/20226.2. The applicant was promoted from LDC to UDC with effect from 01.01.2022 for the calendar year 2022 against the vacancy of Artillery Centre, Hyderabad dated 23.12.2021. It was instructed by Artillery Directorate that in case of unwillingness to accept the promotion, an unconditional unwillingness certificate is required to be submitted. As applicant was unwilling for promotion due to his family problems, his unwillingness certificate was submitted to Artillery Directorate vide letter No.7404/DPC LDC to UDC/ADM/24 dated 31.12.2021. However, Artillery Directorate directed vide its letter No.A/10059/DPC/GS/Arty- 10B dated 18.01.2022 (Annexure R-6) that as per the list of seniority of LDCs, two LDCs of School of Artillery, Deolali are eligible for promotion from LDC to UDC for the calendar year of 2023. The same issue could emerge during the next DPC leading to the vacancy at the Artillery Centre, Hyderabad remaining unoccupied and which may result in the vacancy to be in deemed abolished category as per Ministry of Finance OM No.7(1)/E.Coord-I/2017 dated 12.04.2017. Artillery Directorate has requested to explore the feasibility if any other UDC of School of Artillery, Deolali is willing to proceed to Artillery Centre, Hyderabad so that is applicant can be 24 OA No.390/2022 retained at School of Artillery, Deolali. This was circulated to all UDCs concerned of School of Artillery, Deolali on 20.01.2022. However, no UDCs was willing to proceed to Artillery Centre, Hyderabad and the same was intimated to Artillery Directorate on 29.01.2022.
6.3. It is also not in dispute that the applicant's mother visited the Cantonment General Hospital, Deolali due to health related problems and as per report dated 24.11.2011, the Doctor has recommended the applicant's mother for Right eye cataract operation. The applicant was also suffering from mental issues from quite some time due to heavy work load and family circumstances so he was also advised by the Psychiatrist of the said hospital to start taking treatment and take medicines for the said issues. It is also not disputed that the applicant consulted Dr. Mahajan' Eye Hospital and Lasik Centre for second opinion of his mother's right eye cataract operation on 10.12.2021 and same was diagnosed and recommended for right eye cataract operation. It is also not in dispute that the applicant's mother is suffering from old age related health issues and he has to look after her for complete two months after the operation of her right eye cataract. Under these circumstances the applicant submitted 25 OA No.390/2022 his unwillingness certificate in triplicate format to the respondent No.3 i.e. Commandant, Headquarter School of Artillery, Deolali on 29.12.2021 (Annexure A-4). He has shown and put forward his reasons duly supported by documentary evidence for his unwillingness to accept the promotion because his old aged mother was suffering from various medical issues and also that he is not in a position to shift his whole family to a new place of posting. 6.4. It is also not in dispute that the applicant's minor son who is four years of age was run over by the Scooter in speed. The boy vomited twice at the accident site and he was immediately taken to Nashik Municipal Corporation Hospital for first aid and CT Brain scan. The CT Scan report of the child showed that he suffered from bleeding in the brain, temporal bone fracture along with blood clots and other brain related serious and grievous injuries. He has moved his child immediately to the District Civil Hospital, Nashik as the previous Nashik Municipal Corporation hospital has no Neurologist in the panel to diagnose the severe brain injuries and the said hospital has discharged the applicant's son on 10.02.2022 but with many restrictions and his treatment is still going on. It is also not in dispute that the applicant has filed 26 OA No.390/2022 F.I.R. in the local Police Station against the person who has injured his son as he faced grievous brain injuries at such tender age. The applicant's son was further diagnosed for his brain injuries by taking him to the Paediatric of SMBT Institute of Medical Sciences and Research Centre. The applicant's son was referred to a Neurologist for the expert opinion. 6.5. The respondents were very well aware of these circumstances of the applicant and respondents 3,4, and 5 forwarded his request to the respondents No.2 twice for sympathetic consideration. Once, respondent No.2 directed the authorities at Deolali to ascertain if any other UDC is willing to go to Hyderabad which did not receive any positive response as no UDC was willing to go to Hyderabad. The respondent No. 2 issued the order on the ground that if the post of UDC remains vacant for two years, it may get abolished as same situation may occur in the year 2023. They have also taken recourse to the punitive action against the applicant by referring to the Ministry of Home Affairs OM No. 22034/3/81-Estt(D) dated 1-10-1981.
6.6. We have perused the above referred OM. We find that that the above-mentioned OM dated 01.10.1981 was issued in respect of the persons who refuses promotion 27 OA No.390/2022 purely to gain monetary benefit specially in cases where the increment of the officer is due in the lower grades shortly. Such denial causes hardship to many Government employees due to the chain reaction and then in such situations, the department should take action against such officer in pursuance to the said OM. But the applicant's case is totally different as he is not refusing his promotion to gain any monetary benefit to avail any increment in lower grade but because of the compelling reasons duly supported by the documentary evidence and these compelling reasons have not been disputed by the respondents. If these reasons are not acceptable to the respondent No. 2, we really wonder what more compelling reasons a person can have. Therefore, the provisions of the OM dated 01.10.1981 are not applicable to the applicant's case and they have been wrongly invoked by the respondents.
6.7. We have also perused the compilation of information submitted by the applicant vide para 8 of his rejoinder which he has obtained under the RTI Act. We find that from the year 2015 to 2020, 4 LDCs have refused their promotion for the post of UDCs and 7 UDCs have refused promotion to the post of OS. In all these 11 cases, their refusal has been 28 OA No.390/2022 accepted by the respondents and no punitive action has been taken against any of them. It is all the more interesting to note that out of total 11 cases, 8 were from the Artry centre, Nashik itself where the applicant is working. It is also interesting to note that out of above 8 cases, 6 were given posting in Deolali, Nashik itself but still they refused the promotion and their refusal was accepted without taking any punitive action against them. Thus, the above facts make it evidently clear that the applicant's case has been discriminated by the respondents.
6.8. The submission of Shri R.R. Shetty, learned counsel for the respondent that an employee can be transferred anywhere in India and if the post of UDC at Hyderabad remains vacant for two years the post may get deemed abolished and will be difficult to revive and same situation may prevail for the vacancy year in 2023 also, and that the organisational interest should prevail over individual interest, we are of the considered opinion that the interest of the employee and the organisation have to be balanced. The applicant is only a Lower Divisional Clerk (LDC). The post does not involve any such work of specialised nature which cannot be done by any other person. The RTI information 29 OA No.390/2022 discussed above makes it evident that 11 persons have refused promotion from the year 2015, which include 8 from the Nashik alone. Request of refusal in all cases have been accepted and no punitive action has been taken against any of them. The argument that an employee can be transferred anywhere is applicable to all employees. It cannot be a pick and choose policy for one person alone.
6.9. In view of the above discussion and facts and circumstances of the case, we are of the considered view that the action of the respondent No. 2 in refusing to accept the applicant's request of refusal of promotion despite proved compelling reasons and to order punitive action vide impugned orders dated 25-02-2022 and also order dated 04-05-2022 are arbitrary, unreasonable, discriminatory and de-hors of rules, violative of Article 14 and are liable to be quashed, and accordingly are quashed. The OA is allowed. There shall be no order as to the costs.
(Shri Krishna) (Harvinder Kaur Oberoi) Member (A) Member (J) kmg*