IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No.14653 of 2008 Date of Decision: 5.8.2009. Rakesh Kumar ..........Petitioner. Versus State of Haryana and others ..........Respondent CORAM: HON'BLE MR.JUSTICE M.M.KUMAR HON'BLE MR.JUSTICE JASWANT SINGH. Present: Ms.Preeti Khanna,Advocate for the petitioner. Ms.Ritu Bahri, D.A.G.Haryana for the respondents. 1. To be referred to the Reporter or not ? 2. Whether the judgement should be reported in the Digest ? JASWANT SINGH,J. This petition under Article 226 has been filed for declaring Rule 11 of the Haryana Civil Service (Assured Career Progression) Rules,1998 (for brevity ACP Rules 1998) and clarification thereto (Annexure P/2) as unconstitutional and void with a further prayer to quash impugned orders 29.2.2008 (Annexure P/6) vide which the ACP grade has been withdrawn due to foregoing of promotion by the petitioner and his pay has been refixed; and further order dated 22.7.2008 (Annexure P/9) whereby recovery of excess pay of Rs.55,599/- paid from 13.7.2004 has been ordered. CWP No.14653 of 2008 2 Facts leading to the present writ petition are that the petitioner joined service as Clerk in the year 1978 and was regularized as such on 15.9.1982. On completion of his ten years of regular service as Clerk and no opportunity being available for promotion; he was granted first Higher Standard Pay Scale on 15.9.1992. In the year 1998, Haryana Civil Service (Assured Career Progression) Rules,1998 (for short 1998 Rules) under proviso to Article 309 of the Constitution of India were framed vide notification dated 7.1.1998. The said rules came into force w.e.f. 1.1.1996. These rules were framed to provide at least two financial upgradation to those employees , who despite regular satisfactory service of ten years (for 1st ACP) or twenty years (for 2nd ACP scale), as the case may be, may have not got any financial upgradation either by functional promotion or pay scale revision. Pursuant to the said 1998 Rules, the petitioner on completing his twenty years of regular service as Clerk, without any promotion was granted 2nd ACP w.e.f. 1.10.2002, vide office order dated 29.10.2002. On 12.7.2004 the petitioner came to be promoted as Assistant vide order Annexure P/3 and was transferred from the office of Deputy Commissioner,Gurgaon to be posted at the office of Deputy Commissioner, Narnaul. However, the petitioner, on account of some personal circumstances, expressed his inability to join his new place of posting and chose to forego his promotion. His request was acceded to and in his place another official namely Ashok Kumar was promoted as CWP No.14653 of 2008 3 Assistant. Consequent upon foregoing of his promotion as Assistant, the ACP scale granted to the petitioner was withdrawn vide letter dated 29.2.2008 (Annexure P/6) and his pay was re-fixed. Still further, the petitioner was served with a show cause notice dated 4.4.2008 (Annexure P/7) for recovery of excess pay amounting to Rs.55,599/- w.e.f. 13.7.2004 (i.e. from the date he has foregone his promotion as Assistant). Petitioner submitted reply to the said show cause notice, inter alia, stating therein that since he had already completed twenty years of satisfactory regular service and the benefit of ACP scales already stood vested and accrued to him, the same could not be withdrawn now. It was further the case of the petitioner that Rule 11 of 1998 Rules, under which the ACP scale was withdrawn from him does not provide for recovery of such benefits. The respondents after considering the reply to the show cause notice vide order dated 22.7.2008 (Annexure P/9) directed recovery of Rs.55,599/- . Hence the present writ petition. Upon notice respondents filed written statement. It is the case of the respondents that vide notification dated 26.11.2002 Government issued clarification regarding fixation of pay of an employee, when he/she forgoes his/her promotion while drawing pay in ACP scale in reference to rule 11 of the said notification. It is stated that under Rule 11 of the 1998 Rules, when an employees chooses to forego any promotion while drawing his pay in ACP scales, his pay is CWP No.14653 of 2008 4 to be re-fixed by the competent authority in his substantive working from the date of such forego of promotion and this is what has exactly been done in the case of the petitioner and hence the petition merits dismissal. A Division Bench of this Court while issuing notice of motion vide order dated 20.8.2008 had ordered the stay of recovery of excess amount of pay. We have heard learned counsel for the parties and perused the pleadings with their able assistance. It was contended by the learned counsel for the petitioner that Rule 11 of the ACP Rules 1998, enabling the withdrawal of benefit of ACP Scale already given on the premise of foregoing of promotion, subsequent to the such grant is contrary to the letter and spirit of the introduction of ACP Scheme and is thus arbitrary and liable to be struck down being violative of Article 14 of the Constitution of India. It was further contended that the ACP scale had already been vested in the petitioner on account of his rendering more than 20 years of regular satisfactory service during which no opportunity of promotion was available and therefore, non-availing of the promotion by the petitioner subsequent to the grant of ACP scale cannot be a circumstance to withdraw the ACP scale, which had already vested in him. It was supplemented to say that this amounted to reduction in rank and thus a punishment which is also hit with the vice of Article 14 of the Constitution of India being wholly arbitrary CWP No.14653 of 2008 5 and unfair. Lastly, it was contended that keeping in view the principle of law consistently laid down by Hon'ble the Supreme Court in various pronouncements that in the absence of any fraud or mis-representation, no recovery of excess amount is permissible, therefore, the recovery of the said amount from the petitioner vide Annexure P/9 with retrospective effect is liable to be quashed. Per contra, learned counsel for the respondents submitted that keeping in view the circumstances existing in various services of the State wherein despite long periods of satisfactory service, opportunities of promotion were not available, the State Government had framed the ACP Rules granting a concession to such employees in the shape of promotional/ACP scales and continuance of promotional/ACP scales was made conditional by virtue of Rule 11 which postulates that the event of refusal of offer of promotion would incur withdrawal of the ACP scale, cannot be termed as arbitrary. It was next submitted that clarification (Annexure P/2) has been provided only as a matter of guidance for implementing the aforesaid Rule 11 of the ACP Rules,1998. It was also argued that the withdrawal of the ACP scale vide Annexure P/6 and recovery order Annexure P/9 have been passed strictly in accordance with Rule 11 of the ACP Rules and after following the due process of law. After giving our thoughtful consideration to the rival submission and pleadings of the parties, we are of the considered opinion that the challenge to Rule 11 of the ACP Rules,1998 and the CWP No.14653 of 2008 6 clarification (Annexure P/2) must fail. However, the contention of the learned counsel for the petitioner regarding challenge to the recovery of excess pay with retrospective effect is to be accepted keeping in view the consistent view of Hon'ble the Supreme Court and a Full Bench of this Court. It is a matter of record that keeping in view the prevailing circumstances in some state services like lack of promotional avenues or non-availability of such promotional avenues for long periods of time, Hon'ble the Supreme Court in Council of Scientific and Industrial Research v. KGS Bhatt, (1989) 4 SCC 635 had pointed out that provision for promotion increases efficiency of the public service while stagnation reduces efficiency and makes the service ineffective and therefore suggested/ directed the State authorities to take steps for framing appropriate schemes for such category of officers. This view has been consistently reiterated by Hon'ble the Supreme Court in State of Tripura v. K.K. Roy (2004) 9 SCC 65 and Food Corporation of India v. Parashotam Das Bansal, (2008) 5 SCC 100. In order to provide advancement of the employees who have been suffering stagnation in service, the State of Haryana under proviso to Articles 309 of the Constitution of India framed the ACP Rules,1998. It is not in dispute that Rule 5 provides for conditions of eligibility for placement/grant of ACP scales after 10 years and 20 years of regular satisfactory service. However, Rule 11 provide that in the event of foregoing of promotion by a Government servant, he shall CWP No.14653 of 2008 7 cease to be entitled to be placed in the ACP scale from the date of foregoing his promotion. In the present case the dispute relates to Rule 11 and it would be appropriate to reproduce the same which reads as under:- “11. Ceasing of Entitlement of ACP scales:- In case the government servant chooses to forego any functional promotion on any ground whatsoever, while drawing his pay in any ACP scale with reference to him, he shall cease to be entitled to draw his pay in the ACP pay scales and shall draw his pay in the functional pay scales prescribed for the post on which he is substantively working from the date of such forego of promotion.” A plain and bare reading of Rule 11 of ACP Rules,1998 reveals that a Government servant who has been placed in the ACP scale, if chooses to forego his promotion on any ground whatsoever while drawing the ACP scale shall cease to be entitled to draw his pay in the ACP pay scale from the date of his refusal of promotion. It is thus clear that continuance of the grant of pay in the ACP scale is based on the condition that the Government employee shall not forego his promotion for whatever reason. The rationale is based on logic besides being just and fair as placing in the ACP scale is itself made on account of stagnation/non-availability of promotional avenues and in the event, though subsequently, the Government servant willingly CWP No.14653 of 2008 8 refuses to accept the offer of promotion for whatever reason then it can safely be presumed that the Govt. Servant considers there is no stagnation in his Govt service, which needs/deserves to be compensated by ACP/promotional scale. Therefore, in our opinion, the State Government would be well within its right to withdraw placement of such an employee in ACP scale as the same was subject to certain condition which is germane to the grant of the same. Consequently, the provision of Rule 11 cannot be by any stretch of reasoning be held to be arbitrary. A reading of the clarification Annexure P/2 further reveals that for implementing the provision of Rule 11 of the ACP Rules, the method and manner of refixing the pay scale of the Government servant covered under Rule 11 has been provided. No serious challenge has been laid to the clarification Annexure P/2. Therefore, no infirmity can also be found with Annexure P/2. We further find that the refixation of the pay of the petitioner vide Annexure P/6 in terms of Rule 11 cannot also be faulted. Therefore, challenge to Annexure P/6 also fails. As regards the contention that no recovery of excess pay vide Annexure P/9 can be ordered, deserves to be accepted in view of the facts of the present case and settled principle of law. It is not the case of the respondents that the petitioner had made any mis- representation or committed any other act of deception while continuing to avail the benefit of ACP scale even after foregoing his offer of promotion on 12.7.2004. It is evident that the petitioner CWP No.14653 of 2008 9 continued to get the promotional ACP scale inspite of the provisions of Rule 11 of the ACP Rules on an erroneous application of the Rules or apathy simplicitor on the part of the officials concerned till the passing of the impugned order dated 22.7.2008. The consistent view taken by the various Courts, as regards the recovery of such benefits extended to the employees without the employees being, in any way, guilty of any deception, is that such recovery would be unfair, unequitably against justice and good conscience. Reliance can be placed on the decision of their Lordships of Hon'ble the Supreme Court in Sahib Ram v. State of Haryana, 1994 (5) SLR 753, Purshotam Lal and others v. State of Bihar and others, 2007(1) RSJ 150, P.H.Reddy v. N.T.R.D., 2002(2) SCT 987. Hon'ble the Supreme Court in Union of India and another etc. v. M.Bhaskar and others etc., 1996(3) RSJ 205 declined permission to recover the amount already paid to the employee on the ground that the same would cause hardship. Reference in this regard may also be made to a recent Full Bench decision of this Court rendered in CWP No.2799 of 2008 Budh Ram and others v. State of Haryana and others, decided on 22.5.2009, by 3 Judges Bench of this Court. Keeping in view the aforesaid legal position and the facts of the present case we hold that though refixation of the pay of the petitioner vide Annexure P/6 is valid, however, demand for recovery for the pay paid in excess prior to the date of passing of order dated 22.7.2008 (Annexure P/9) is unsustainable and therefore, to that extent CWP No.14653 of 2008 10 Annexure P/9 is quashed. The writ petition stands partly allowed in the aforesaid terms. (Jaswant Singh) (M.M.Kumar) Judge Judge 5.8.2009. joshi.