Per Somnath Ayyar, J.
1. The petitioner is an upper division clerk in the National Dairy Research Institute in the Southern Station at Bangalore. On 15 May, 1963, he was offered the higher post of an accountant in the National Dairy Research Institute in Karnal in the State of Punjab. The petitioner declined that offer and when, on 31 January, 1964, he was offered a promotion to the post of a head clerk in the Eastern Regional Station in Calcutta, he again declined it. So, on 27 February, 1964, the concerned Director made an order that the offers of promotion to which the consent of the petitioner was erroneously sought, should be treated as withdrawn and that the petitioner's case should not be considered for promotion to any higher post for a period of two years from 16 May, 1963.
2. In this writ petition, the petitioner asks us to quash the order made in that way. He also asks us to issue a mandamus for the appointment of the petitioner as a head clerk with retrospective effect from 14 May, 1957, when respondent 2 was appointed as a head clerk, or, in any event, as an accountant from 3 September, 1960, when respondent 3 was appointed as such, or, in the alternative, as a head clerk from 13 October, 1962, when respondent 3 was appointed as a head clerk, and again in the alternative as a head clerk from either 1 September, 1962, when respondent 5 was appointed or from 21 September, 1962, when respondent 4 was appointed to that post. He again asks us to quash the appointment of respondent 5 as head clerk on the ground that that appointment is not sanctioned by the cadre and recruitment rules. It is abundantly clear that the petitioner was not right in refusing to accept the promotional post which was offered to him on 15 May, 1963 and on 31 January, 1964. It has been mentioned to us that the petitioner stated then that he could not also accept the promotional posts in distant places like the Punjab State and the West Bengal State so soon after he was transferred to Bangalore.
3. That those places were distant places or that the petitioner had been just then transferred to Bangalore, was no ground for his refusal of the promotional post or for insistence on his being offered a higher post in any particular area. But the refusal of promotion, if he was allowed the option to refuse it, cannot justify proscription for future promotion, however short its period, since in that situation the element of insubordination or disobedience is excluded by the option.
4. If the petitioner did not accept the promotion, he denied himself the benefits available in the higher post and go he stays in the lower post. That was all that could have happened to the petitioner when, on the two occasions to which we have referred, he declined to go as an accountant or a head clerk.
5. But, if, again, on a third occasion, by reason of his seniority or otherwise, the petitioner become entitled to be considered for promotion, he could not be kept aside on the ground that on the earlier occasion, when he was allowed a choice, he chose not to accept the promotions offered to him.
6. It is not the case of anyone that the petitioner was unworthy of promotion for any other reason. That is not the allegation in the counter-affidavit. It has been very frankly stated in the counter-affidavit that the only reason for the direction that the petitioner should not again be considered for promotion during the period specified in the impugned order, was the fact that he refused the promotions offered in 1963 and in 1964.
7. Sri Keshava Ayyangar, the learned Central Government Pleader, explains that, in that situation, the authorities were of the view that no useful purpose would be served by making, once again, an offer of promotion to the petitioner, since it was very probable that he would once again decline the promotion unless the post offered to him was in the area of his choice.
8. It is however, clear that the petitioner was entitled to be considered for promotion if and when a vacancy arose in a higher post, notwithstanding the fact that the offer made on 31 January, 1964, and that made on 15 May, 1963, had been declined by him. To think that, if a promotion was offered to him once again, it was very probable that it would again be refused, was no more than mere speculation. So, the Director could not take it for granted that future promotions would also have been declined by the petitioner in the same way in which he declined the promotions offered to him on the two earlier occasions.
9. We, therefore, not aside the direction made by the Director that the petitioner should not be considered for promotion for any higher post for a period of two years from 15 May, 1963. Now, this period for two years commenced on 15 May, 1963 and ended on 14 May, 1965. But, during this period an offer was made on 31 January, 1964, which the petitioner declined. Since the period during which the petitioner was prescribed for promotion has now come to an end, we must issue an appropriate direction for the protection of the petitioner's rights such as those which have been invaded in consequence of the impugned direction which we have set aside. That direction should be that, if, after 31 January, 1964 and before 15 May, 1965, any higher post became vacant for which the petitioner could have been promoted, that higher promotional post should now be offered to the petitioner with effect from the date on which that vacancy arose. The petitioner should be appointed to that post in that way with retrospective effect and he would be entitled to all the concomitant benefits and advantages flowing therefrom.
10. It should, however, be made clear that the petitioner is not entitled to a promotional post in the area of his choice. So, if the petitioner, when any appointment is made in the manner directed by us, again unwisely declines the appointment as he did before, it is obvious he will forfeit the benefit of the direction issued by us.
11. Now, in regard to the other prayers which are made against respondents 2 to 5, it is stated in the counter-affidavit produced by respondent 1 that the petitioner does not hold a rant higher than respondents 2 to 5, and respondent 1 depends in support of that assertion on the final seniority list prepared on 29 August, 1963. It is stated in the counter-affidavit that the earlier list in which the petitioner was assigned a higher rank was discovered to be defective on account of miss interpretation of certain directives issued by the Government of India. The counter-affidavit dose not state how the earlier list could be regarded as erroneous and in what way the Government of India directives had been misunderstood. In those circumstances, we are of the opinion that the question whether the petitioner is entitled to a rank higher than that assigned to respondents 2 to 5 has to be left open for investigation and adjudication in separate proceedings. We, therefore, reserve liberty for the petitioner to agitate that matter in independent proceedings and to make suitable representations to the concerned authorities in regard to that matter as a preclude to the commencement of such proceedings.
12. This writ petition succeeds to the extent indicated, and every other question which we have not decided in this writ petition is left open as already observed.
13. In the circumstances, no costs.