High Court · 2025

1. Heard Km. Vishwa Mohini, learned counsel for petitioners as well as learned Standing Counsel for respondents.

2. With the consent of the parties, the writ petition is being heard and decided at the admission stage.

3. The grievance raised by the petitioner is with regard to order dated 14.11.2024 wherein the respondents have declined to consider her candidature for promotion to the post of Nursing Sister on the ground that on 24.12.2021, the DPC was constituted and the petitioner was duly promoted but she had forgone her promotion.

4. In the aforesaid circumstances, the respondents have relied upon the Government Order dated 06.10.2022, according to which, in case a government servant refuses or decides to forego his promotion then he would not be entitled for promotion in future.

5. According to the petitioner, the Government Order dated 06.10.2022 is a subsequent Government Order which was not in existence at the time when the petitioner had forgone her promotion and consequently will not be applicable upon the petitioners. In the Government Order dated 06.10.2022, it has clearly been provided that any person who forgoes his promotion will have to submit his affidavit to the effect she/he does not want to be considered for promotion in future and accordingly such person will not be considered by the D.P.C. for the future promotion.

6. Learned Standing Counsel on the other hand has submitted that he has received written instructions from Director General, Medical Education, U.P., Lucknow/respondent no. 2, according to which, it has been informed that in the present case Government Order dated 06.10.2022 would have no application and also that the said Government Order does not operate retrospectively.

7. Learned counsel for petitioner also relied upon the judgment of this court in the case of Smt. Renu Pal and another Vs. State of U.P. and Anr. (Writ A No. 11252 of 2024) where a similar controversy has already been decided holding that the Government Order dated 06.10.2022 is perspective in operation and will not apply to promotions made prior to the said date.

8. Hon'ble Supreme Court in the case of V. Vincent Velankanni Vs. Union of India, AIRONLINE 2024 SC 695, the Court while considering similar issue has observed has under :- "42. It is trite law that an Office Memorandum/Government Order cannot have a retrospective effect unless and until there is an express provision to make its effect retrospective or that the operation thereof is retrospective by necessary implication. In this regard, we are benefitted by the observations of this Court in Sonia v. Oriental Insurance Co. Ltd. and Others, AIR 1999 SC 3616 wherein it was held that: "11. In any view of the matter, law is well settled that an Office Memorandum cannot have a retrospective effect unless and until intention of the authorities to make it as such is revealed expressly or by necessary implication in the Office Memorandum."

43. If a Government Order is treated to be in the nature of a clarification of an earlier Government Order, it may be made applicable retrospectively. Conversely, if a subsequent Government Order is held to be a modification/amendment of the earlier Government Order, its application would be prospective as retrospective application thereof would result in withdrawal of vested rights which is impermissible in law and the same may also entail recoveries to be made. The principles in this regard were culled out by this Court in a recent judgment of Sree Sankaracharya University of Sanskrit and Others v. Dr. Manu and Another, AIR 2011 SC 3793 in the following terms: - "52. From the aforesaid authorities, the following principles could be culled out: i) If a statute is curative or merely clarificatory of the previous law, retrospective operation thereof may be permitted. ii) In order for a subsequent order/provision/amendment to be considered as clarificatory of the previous law, the pre- amended law ought to have been vague or ambiguous. It is only when it would be impossible to reasonably interpret a provision unless an amendment is read into it, that the amendment is considered to be a clarification or a declaration of the previous law and therefore applied retrospectively. iii) An explanation/clarification may not expand or alter the scope of the original provision. iv) Merely because a provision is described as a clarification/explanation, the Court is not bound by the said statement in the statute itself, but must proceed to analyse the nature of the amendment and then conclude whether it is in reality a clarificatory or declaratory provision or whether it is a substantive amendment which is intended to change the law and which would apply prospectively."

44. Applying these principles to the case at hand, we are of the view that the subsequent GO dated 4th August, 2015 cannot be read simply as a clarification and therefore cannot be made applicable retrospectively. The said GO has substantively modified the position governing seniority in the Industrial Establishments by reviving the earlier OM dated 4th November, 1992, and supersedes the orders/circulars dated 24th December, 2002 and 13th January, 2003, which were holding the field over more than a decade. Therefore, giving retrospective effect to the GO dated 4th August, 2015 would have catastrophic effect on the seniority of the entire cadre."

9. Accordingly, from above it is clear that merely because the petitioner had forgone her promotion on the previous occasion, Government Order dated 06.10.2022 would not bar them from reconsideration for promotion and hence the impugned order dated 14.11.2024, denying promotion to the petitioner solely on the ground that she had forgone her promotion on earlier occasion, would not act as bar for fresh consideration of her candidature for promotion.

10. In the light of above, present writ petition is allowed.

11. Impugned order dated 14.11.2024 is set aside. The respondents are directed to consider petitioner for promotion to the post of Nursing Sister,with all consequential benefits, expeditiously, say within next two months from the date of production of certified copy of this order. Order Date :- 17.2.2025/Ravi/ (Alok Mathur, J.) RAVI SHANKAR SRIVASTAV High Court of Judicature at Allahabad, Lucknow Bench

1. Heard Km. Vishwa Mohini, learned counsel for petitioners as well as learned Standing Counsel for respondents.

2. With the consent of the parties, the writ petition is being heard and decided at the admission stage.

3. The grievance raised by the petitioner is with regard to order dated 14.11.2024 wherein the respondents have declined to consider her candidature for promotion to the post of Nursing Sister on the ground that on 24.12.2021, the DPC was constituted and the petitioner was duly promoted but she had forgone her promotion.

4. In the aforesaid circumstances, the respondents have relied upon the Government Order dated 06.10.2022, according to which, in case a government servant refuses or decides to forego his promotion then he would not be entitled for promotion in future.

5. According to the petitioner, the Government Order dated 06.10.2022 is a subsequent Government Order which was not in existence at the time when the petitioner had forgone her promotion and consequently will not be applicable upon the petitioners. In the Government Order dated 06.10.2022, it has clearly been provided that any person who forgoes his promotion will have to submit his affidavit to the effect she/he does not want to be considered for promotion in future and accordingly such person will not be considered by the D.P.C. for the future promotion.

6. Learned Standing Counsel on the other hand has submitted that he has received written instructions from Director General, Medical Education, U.P., Lucknow/respondent no. 2, according to which, it has been informed that in the present case Government Order dated 06.10.2022 would have no application and also that the said Government Order does not operate retrospectively.

7. Learned counsel for petitioner also relied upon the judgment of this court in the case of Smt. Renu Pal and another Vs. State of U.P. and Anr. (Writ A No. 11252 of 2024) where a similar controversy has already been decided holding that the Government Order dated 06.10.2022 is perspective in operation and will not apply to promotions made prior to the said date.

8. Hon'ble Supreme Court in the case of V. Vincent Velankanni Vs. Union of India, AIRONLINE 2024 SC 695, the Court while considering similar issue has observed has under :- "42. It is trite law that an Office Memorandum/Government Order cannot have a retrospective effect unless and until there is an express provision to make its effect retrospective or that the operation thereof is retrospective by necessary implication. In this regard, we are benefitted by the observations of this Court in Sonia v. Oriental Insurance Co. Ltd. and Others, AIR 1999 SC 3616 wherein it was held that: "11. In any view of the matter, law is well settled that an Office Memorandum cannot have a retrospective effect unless and until intention of the authorities to make it as such is revealed expressly or by necessary implication in the Office Memorandum."

43. If a Government Order is treated to be in the nature of a clarification of an earlier Government Order, it may be made applicable retrospectively. Conversely, if a subsequent Government Order is held to be a modification/amendment of the earlier Government Order, its application would be prospective as retrospective application thereof would result in withdrawal of vested rights which is impermissible in law and the same may also entail recoveries to be made. The principles in this regard were culled out by this Court in a recent judgment of Sree Sankaracharya University of Sanskrit and Others v. Dr. Manu and Another, AIR 2011 SC 3793 in the following terms: - "52. From the aforesaid authorities, the following principles could be culled out: i) If a statute is curative or merely clarificatory of the previous law, retrospective operation thereof may be permitted. ii) In order for a subsequent order/provision/amendment to be considered as clarificatory of the previous law, the pre- amended law ought to have been vague or ambiguous. It is only when it would be impossible to reasonably interpret a provision unless an amendment is read into it, that the amendment is considered to be a clarification or a declaration of the previous law and therefore applied retrospectively. iii) An explanation/clarification may not expand or alter the scope of the original provision. iv) Merely because a provision is described as a clarification/explanation, the Court is not bound by the said statement in the statute itself, but must proceed to analyse the nature of the amendment and then conclude whether it is in reality a clarificatory or declaratory provision or whether it is a substantive amendment which is intended to change the law and which would apply prospectively."

44. Applying these principles to the case at hand, we are of the view that the subsequent GO dated 4th August, 2015 cannot be read simply as a clarification and therefore cannot be made applicable retrospectively. The said GO has substantively modified the position governing seniority in the Industrial Establishments by reviving the earlier OM dated 4th November, 1992, and supersedes the orders/circulars dated 24th December, 2002 and 13th January, 2003, which were holding the field over more than a decade. Therefore, giving retrospective effect to the GO dated 4th August, 2015 would have catastrophic effect on the seniority of the entire cadre."

9. Accordingly, from above it is clear that merely because the petitioner had forgone her promotion on the previous occasion, Government Order dated 06.10.2022 would not bar them from reconsideration for promotion and hence the impugned order dated 14.11.2024, denying promotion to the petitioner solely on the ground that she had forgone her promotion on earlier occasion, would not act as bar for fresh consideration of her candidature for promotion.

10. In the light of above, present writ petition is allowed.

11. Impugned order dated 14.11.2024 is set aside. The respondents are directed to consider petitioner for promotion to the post of Nursing Sister,with all consequential benefits, expeditiously, say within next two months from the date of production of certified copy of this order. Order Date :- 17.2.2025/Ravi/ (Alok Mathur, J.) RAVI SHANKAR SRIVASTAV High Court of Judicature at Allahabad, Lucknow Bench