# Hausilal v. State of U.P. & Ors

- **Citation:** (2023) 12 ILRA 581
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-06
- **Case number:** Writ-A No. 3935 of 2023
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hausilal-v-state-of-u-p-ors-49481
- **Pages:** 6

## Headnote

protected under Article 21 of the Constitution.
Absence of an express provision in service rules
does not preclude an employee from waiving
the benefit of promotion. Such a right, being
personal
and
fundamental
in
nature,
is
enforceable unless expressly restricted by law.
Rejection of the petitioner's request solely on
technical grounds is unsustainable. Promotion
cannot be imposed upon an unwilling employee
if it adversely affects their capacity to work
effectively.

Writ Petition Allowed.

Case Law Discussed:

## Text

12 All. Hausilal Vs. State of U.P. & Ors.
581

(vi) In case, the appellant misuses
the liberty of bail during trial, in order to
secure his presence, proclamation under
section 82 Cr.P.C. is issued and the
appellant fails to appear before the court on
the date fixed in such proclamation, then,
the trial court shall initiate proceedings
against him, in accordance with law, under
Section 174-A of the Indian Penal Code.

(vii) The appellant shall remain
present, before the trial court on the dates
fixed for (i) opening of the case, (ii)
framing of charge and (iii) recording of
statement under Section 313 Cr.P.C. If in
the opinion of the trial court absence of the
appellant is deliberate or without sufficient
cause, then it shall be open for the trial
court to treat such default as abuse of
liberty of bail and proceed against him in
accordance with law.

19. It is clarified that the observations,
if any, made in this order are strictly
confined to the disposal of the prayer for
bail and must not be construed to have any
reflection on the ultimate merit of the case.

20. The trial court is also directed to
expedite the trial of the aforesaid case by
following the provisions of Section 309
Cr.P.C., strictly without granting any
unnecessary adjournments to the parties, in
case there is no other legal impediment.
----------
(2023) 12 ILRA 581
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.11.2023

BEFORE

THE HON'BLE MANISH MATHUR, J.

Writ-A No. 3935 of 2023

Hausilal ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Abhishek Mishra, Subash Chandra Mishra

Counsel for the Respondents:
C.S.C.

Held-
Right to forgo promotion is a facet of an
individual's personal autonomy and privacy
protected under Article 21 of the Constitution.
Absence of an express provision in service rules
does not preclude an employee from waiving
the benefit of promotion. Such a right, being
personal
and
fundamental
in
nature,
is
enforceable unless expressly restricted by law.
Rejection of the petitioner's request solely on
technical grounds is unsustainable. Promotion
cannot be imposed upon an unwilling employee
if it adversely affects their capacity to work
effectively.

Writ Petition Allowed.

Case Law Discussed:

1. Rustom Cavasjee Cooper Vs U.O.I., (1970) 1
SCC 248

2. K.S. Puttaswamy Vs U.O.I., (2017) 10 SCC 1

3. National Legal Services Authority Vs U.O.I.,
(2014) 5 SCC 438

4. St. of Madras Vs VSG. Row, AIR 1952 SC 196

5. Pradeep D. Signapurkar Vs U.O.I. & anr.,
2019 SCC OnLine Bom 2608

Key Words:
Forgoing Promotion - Right to Privacy - Article
21 - Personal Autonomy - Service Rules -
Natural Rights - Reversion - Certiorari -
Mandamus

(Delivered by Hon'ble Manish Mathur, J.)

1. Heard Mr. Abhishek Mishra,
learned counsel for petitioner and Mr.
582 INDIAN LAW REPORTS ALLAHABAD SERIES
Vikas Singh, learned State Counsel for
opposite parties.

2. Petition has been filed challenging
order dated 07.01.2022 whereby petitioner
has been granted promotion on the post of
Collection Amin. Also under challenge is
order
dated
15.12.2022
whereby
petitioner's application to forgo aforesaid
promotion has been rejected on ground that
there is no such provision under law.

3. It has been submitted that earlier
petitioner while performing his duties on
post of Collection Peon was found
eligible
for
promotion on post
of
Collection Amin with such promotion
being granted vide impugned order dated
07.01.2022. It is submitted that on the
basis of said order, petitioner joined and
performed
his
duties
without
any
complaint but since he was facing
problems in effective discharge of his
duties on the promotional post, he made
an application dated 02.05.2022 with
prayer that he may be permitted to forgo
the said promotion. It is submitted that
the
aforesaid
application
has
been
rejected only on the ground that there is
no
such
provisions
under
service
Regulations applicable upon petitioner.

4. It has been submitted that since
petitioner does not have any grievance with
his demotion and even otherwise is not
claiming any benefits in pursuance thereof,
he would have a right to waive rights
vested with regard to such promotions. It is
also submitted that there is no bar either for
petitioner forgoing his promotion. Learned
counsel for petitioner has placed reliance
on a Division Bench decision of High
Court of Bombay at Goa rendered in
Pradeep D. Signapurkar v. Union of
India and others reported in 2019 SCC
OnLine
Bom
2608
to
buttress
his
submissions.

5. Learned State Counsel on the basis
of counter affidavit filed has refuted the
submissions advanced by learned counsel
for petitioner with submissions that since
petitioner was found eligible and qualified
for promotion on the post of Collection
Amin, he was granted such promotion with
effect from 07.01.2022 and has thereafter
performed his duties without any complaint
for almost one year now. It is submitted
that since there is no provision under
Service Regulations for an employee to
forgo his promotion, his request was rightly
rejected.

6. Upon consideration of submissions
advanced by learned counsel for the parties
and perusal of material on record, it is quite
evident and admitted that petitioner who
was earlier working on post of Collection
Peon was granted promotion on post of
Collection
Amin
vide
order
dated
07.01.2022. It is also submitted that in
pursuance thereof, petitioner joined and
performed his duties as a Collection Amin
for a period of five months whereafter he
submitted an application for forgoing
promotion on 02.05.2022. His Application
has been rejected solely on ground that
there is no such provision under the Service
Rules for an employee to forgo his
promotion.

7. In the considered opinion of this
Court,
an
employee
may
have
a
fundamental right to be considered for
promotion but at the same time he would
also have an inalienable right to forgo such
promotion for which purpose, there is no
requirement for any specific stipulation in
Service
Regulations.
Such
Service
Regulations do provide a provision for
12 All. Hausilal Vs. State of U.P. & Ors.
583
reversion of an employee to a lower post on
fulfilment of condition required for such
reversion. However, in case an employee
seeks to forgo his promotion waiving his
rights for such promotion, it would
definitely come within purview of his right
to waive such promotion particularly since
Service Regulations are also in the nature
of contractual obligations between an
employer and an employee. Such rights
accrued to an employee can definitely be
waived in case they do not adversely affect
any public policy. Since right to forgo
promotion is in nature of a personal right of
an employee, this Court finds substance in
submission of learned counsel for petitioner
that he would have a right to waive such
promotional aspect.

8. This Court is also of the considered
opinion that an employee has an inherent
right to waive promotion accorded to him.
In Rustom Cavasjee Cooper v. Union of
India (1970) 1 SCC 248, Hon'be the
Supreme Court has clearly held that the
enunciation of rights does not follow a
uniform pattern but one single thread which
runs through all of them is that they seek to
protect rights of the individuals against
infringement within specific limits and that
Part-III of the Constitution weaves a
pattern of guarantees on the texture of basic
human rights. The relevant portion of the
judgment is as follows:-

".....................The enunciation of
rights either express or by implication does
not follow a uniform pattern. But one
thread runs through them : they seek to
protect the rights of the individual or
groups of individuals against infringement
of those rights within specific limits. Part
III of the Constitution weaves a pattern of
guarantees on the texture of basic human
rights.
The
guarantees
delimit
the
protection of those rights in their allotted
fields : they do not attempt to enunciate
distinct rights.?

9. In K. S. Puttaswamy and another
v. Union of India and others, (2017) 10
SCC 1, Hon'be the Supreme Court has
considered the right of an individual to be
'let alone' in the following manner:-

"35. ................................The right
?to be let alone? thus represented a
manifestation of ?an inviolate personality?,
a core of freedom and liberty from which
the human being had to be free from
intrusion. The technology which provided a
justification for the need to preserve the
privacy
of
the
individual
was
the
development of photography. The right to
be let alone was not so much an incident of
property as a reflection of the inviolable
nature of the human personality.

In paragraph 38 of the aforesaid
judgment, it has been held that the right to
be let alone is a part of the right to enjoy
life, which in turn is a part of the
fundamental right to life of an individual.
Thus, there is a distinct connection drawn
by Hon'be the Supreme Court with the right
of an individual to be let alone with right to
life enunciated under Article 21 of the
Constitution of India.

10. It is also the considered opinion of
this Court that right of an individual as an
employee to forego promotion would come
within sphere of his right to privacy, which
in K. S. Puttaswamy (supra) has already
been held to be a concomitant of the right
of an individual to exercise control over his
or her personality since there are certain
rights which are natural to or inherent in a
human being. The relevant portion of the
judgment is as follows:-
584 INDIAN LAW REPORTS ALLAHABAD SERIES

"42. Privacy is a concomitant of
the right of the individual to exercise
control over his or her personality. It finds
an origin in the notion that there are
certain rights which are natural to or
inherent in a human being. Natural rights
are
inalienable
because
they
are
inseparable from the human personality.
The human element in life is impossible to
conceive without the existence of natural
rights.
In
1690,John
Locke
had
in
hisSecond
Treatise
of
Government
observed that the lives, liberties and estates
of
individuals
are as
a
matter
of
fundamental
natural
law,
a
private
preserve. The idea of a private preserve
was to create barriers from outside
interference. In 1765,William Blackstone in
hisCommentaries on the Laws of England
spoke of a ?natural liberty?. There were, in
his view, absolute rights which were vested
in the individual by the immutable laws of
nature. These absolute rights were divided
into rights of personal security, personal
liberty and property. The right of personal
security involved a legal and uninterrupted
enjoyment of life, limbs, body, health and
reputation by an individual."

11. The aspect that the right to forego
promotion would be linked to personal
autonomy of an employee is thus evident
from the aforesaid discussions. The right to
personal autonomy in turn being protected
under Article 21 of the Constitution of
India has also been dealt with by Hon'ble
the Supreme Court in National Legal
Services Authority v. Union of India
(NALSA), (2014) 5 SCC 438 in the
following manner:-

?73. ? Article 21 is the heart and
soul of the Indian Constitution, which speaks
of the rights to life and personal liberty. Right
to life is one of the basic fundamental rights
and not even the State has the authority to
violate or take away that right. Article 21
takes all those aspects of life which go to
make a person's life meaningful. Article 21
protects the dignity of human life, one's
personal autonomy, one's right to privacy,
etc. Right to dignity has been recognised to
be an essential part of the right to life and
accrues to all persons on account of being
humans. InFrancis Coralie Mullinv.UT of
Delhi[Francis Coralie Mullinv.UT of Delhi,
(1981) 1 SCC 608 : 1981 SCC (Cri) 212]
(SCC pp. 618-19, paras 7 and 8), this Court
held that the right to dignity forms an
essential part of our constitutional culture
which seeks to ensure the full development
and evolution of persons and includes
?expressing oneself in diverse forms, freely
moving about and mixing and comingling
with fellow human beings

75.
Article
21,
as
already
indicated, guarantees the protection of
?personal autonomy? of an individual.
InAnuj Gargv.Hotel Assn. of India[Anuj
Gargv.Hotel Assn. of India, (2008) 3 SCC 1]
(SCC p. 15, paras 34-35), this Court held that
personal
autonomy
includes
both
the
negative right of not to be subject to
interference by others and the positive right
of individuals to make decisions about their
life, to express themselves and to choose
which activities to take part in. Selfdetermination of gender is an integral part of
personal autonomy and self-expression and
falls within the realm of personal liberty
guaranteed
under
Article
21
of
the
Constitution of India.?

12. It has been held and reiterated by
Hon'ble the Supreme Court that to live is to
live with dignity which is the core which
unites fundamental rights which seek to
achieve for each individual, the dignity of
existence.
12 All. Hausilal Vs. State of U.P. & Ors.
585

13. The right to forego promotion
being concomitant to right to be let alone
would thus be a natural and a right inherent
in
each
individual
and
would
thus
constitute a natural right.

14. Once it has been held that right to
forego would be a natural and fundamental
right of an employee and would come
within purview of Article 21 of the
Constitution of India, the aspect of its
infringement is also to be seen in that light.
In State of Madras v. V.G. Row, AIR
1952 SC 196, it has been held that in order
to perceive the nature of the right alleged to
have
been
infringed,
the
underlying
purpose of the restrictions imposed, the
extent and urgency of evil sought to be
remedied thereby, and proportion of
imposition of condition upon such right is
also required to be considered. The relevant
portion of the judgment is as follows:-

"...................The nature of the
right alleged to have been infringed, the
underlying purpose of the restrictions
imposed, the extent and urgency of the evil
sought to be remedied thereby, the
disproportion
of
the
imposition,
the
prevailing conditions at the time, should all
enter into the judicial verdict.................."

15. Again reverting to judgment
rendered in K. S. Puttaswamy (supra), the
three conditions required to be considered
in order to examine validity of restraints on
fundamental right have been enunciated in
the following manner:-

"310. While it intervenes to
protect legitimate State interests, the State
must nevertheless put into place a robust
regime that ensures the fulfilment of a
threefold
requirement.
These
three
requirements apply to all restraints on
privacy (not just informational privacy).
They emanate from the procedural and
content-based mandate of Article 21. The
first requirement that there must be a law
in existence to justify an encroachment on
privacy is an express requirement of Article
21. For, no person can be deprived of his
life
or
personal
liberty
except
in
accordance with the procedure established
by law. The existence of law is an essential
requirement. Second, the requirement of a
need, in terms of a legitimate State aim,
ensures that the nature and content of the
law which imposes the restriction falls
within
the
zone
of
reasonableness
mandated by Article 14, which is a
guarantee against arbitrary State action.
The pursuit of a legitimate State aim
ensures that the law does not suffer from
manifest arbitrariness. Legitimacy, as a
postulate, involves a value judgment.
Judicial review does not reappreciate or
second guess the value judgment of the
legislature but is for deciding whether the
aim which is sought to be pursued suffers
from palpable or manifest arbitrariness.
The third requirement ensures that the
means which are adopted by the legislature
are proportional to the object and needs
sought to be fulfilled by the law.
Proportionality is an essential facet of the
guarantee against arbitrary State action
because it ensures that the nature and
quality of the encroachment on the right is
not disproportionate to the purpose of the
law. Hence, the threefold requirement for a
valid law arises out of the mutual
interdependence between the fundamental
guarantees against arbitrariness on the one
hand and the protection of life and
personal liberty, on the other. The right to
privacy, which is an intrinsic part of the
right to life and liberty, and the freedoms
embodied in Part III is subject to the same
restraints which apply to those freedoms."
586 INDIAN LAW REPORTS ALLAHABAD SERIES

16. Upon applicability of aforesaid
judgments
in
the
present
facts
and
circumstances of the case, a conclusion
thus is inevitable that the right to forego
promotion by an employee falls within the
realm of an inherent natural right of such a
person
and
any
restriction
imposed
thereupon
has
to
comply
with
the
conditions indicated in the judgments
referred to herein above, particularly in K.
S. Puttaswamy (supra). In the present facts
and circumstances of the case, it is evident
that the opposite parties have not been able
to
indicate
any
law
whereby
the
fundamental right of an employee to forego
promotion has been restrained. Even
otherwise, no such restrictions as indicated
would
fall
within
the
zone
of
reasonableness.

17. Aforesaid concept has also been
dealt with by the High Court of Bombay at
Goa in Pradeep D. Signapurkar(supra) in
the following manner:-

"Suffice it to state an employee
can
forgo
promotion
and
thus
a
promotion cannot be forced on an
employee.
The
order
dated
21st
September, 2019 does not deal with the
request of the Petitioner to be retained in
Goa as Upper Division Clerk. Whilst it
may be true that forgoing a promotion
does not confer an absolute right on an
individual not to be transferred, but
exigencies
of
service
have
to
be
humanized keeping in view the problems
faced by an individual."

18. This Court is in respectful
agreement with the ratio enunciated in
aforesaid judgment and therefore has no
hesitation in holding that an employee has a
right to forgo his promotion. It is also not
case of the opposite parties that petitioner
on his initial or his promotional post was
inefficient in working or caused any
pecuniary loss to Government or that there
were disciplinary proceedings pending
against him.

19. In view of aforesaid discussion,
the impugned orders dated 07.01.2022 and
15.12.2022 are hereby quashed by issuance
of a writ in the nature of Certiorari so far as
it relates to petitioner. Further, a writ in the
nature of Mandamus is issued commanding
the opposite parties to permit petitioner to
continue on the post of Collection Peon
with all concomitant rights of that post.

20. Resultantly, the petition succeeds
and is allowed. The parties to bear their
own costs.
----------
(2023) 12 ILRA 586
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.11.2023

BEFORE

THE HON'BLE MANISH MATHUR, J.

Writ-A No. 5905 of 2023

Kokila Sharma ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Brijesh Kumar Tiwari

Counsel for the Respondents:
A.S.G.I., Anand Dwivedi, C.S.C.

Civil
Law
-
Gratuity
Act,
1972Applicability-Anganwadi
Workers
and
Helpers-Petitioner
engaged
as
Anganwadi Worker since 2012-Claim for
parity in honorarium with other St.s and
benefit
of
Gratuity
Act-Relied
upon
Supreme Court judgment in Maniben