CIVIL WRIT PETITION NO.6650 OF 2010 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: SEPTEMBER 23, 2011 Kailash Devi and others .....Petitioners VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. H. N. Khanduja, Advocate, for the petitioners. Mr. Harish Rathee, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. This order will dispose of Civil Writ Petition Nos.6650 of 2010 (Kailash Devi and others Vs. State of Haryana and others), 6924 of 2010 (Ved Parkash and others Vs. State of Haryana and others), 6993 of 2010 (Mahinder Singh Mehla and others Vs. State of Haryana and others), 7509 of 2010 (Partap Singh and others Vs. State of Haryana and others), 8610 of 2010 (Pushpa Devi and others Vs. State of Haryana and others), 8614 of 2010 (Paramjeet Singh Vs. State of Haryana CIVIL WRIT PETITION NO.6650 OF 2010 :{ 2 }: and others), 8630 of 2010 (Shakuntla Nijhawan and others Vs. State of Haryana and others), 8631 of 2010 (Jai Gopal and others Vs. State of Haryana and others), 14337 of 2010 (Ram Kishan & others Vs. State of Haryana and others), 425 of 2011 (Kamlesh Kumari Vs. State of Haryana and others), 3026 of 2011 (Anshu Mala Sharma & others Vs. State of Haryana and others) and 4731 of 2011 (Sneh Lata and others Vs. State of Haryana and others). The facts are being taken from Civil Writ Petition No.6650 of 2010. The petitioners in these cases are aggrieved against the withdrawal of ACP scale having been granted on the ground that they had foregone promotion. Noticing the facts in brief, it can be observed that the Haryana Government granted two higher standard pay scales on completion of 10 and 20 years of regular satisfactory service as per the instructions dated 1.1.1994 with effect from 1.1.1996. The Government adopted new pay scales as well as the benefits of A.C.P scales on completion of 10 and 20 years of regular service with effect from the said date by issuing notification dated 7.1.1998. The petitioners are those employees who were granted ACP scales due to stagnation in the promotional avenues. During 2004-07, the petitioners were granted one chance of promotion against the post of Head Teacher of Primarily School on the basis of their service record. The petitioners had expressed their inability to accept the promotion on the ground that promotional place was located at a distant place. The petitioners requested for adjusting them to the nearby place. As per the petitioners, they were never called for grant CIVIL WRIT PETITION NO.6650 OF 2010 :{ 3 }: of promotion as was done in case of some of the similarly situated persons. The respondent-Government had relied on Rule 11 of the Haryana Civil Services (Assured Career Progression) Rules, 1998 (for short, “the Rules”) to hold that if a promotee foregoes his promotion, then benefit of ACP scale already granted to him, shall be withdrawn. Thereupon, the respondents have issued order on 11.6.2009, directing all the Block Education Officers and Drawing and Disbursing Officers to withdraw the benefit of ACP scale granted to the petitioners and to re-fix their pay after reducing the same. The Drawing and Disbursing Officers issued orders on 31.5.2009 for withdrawing the ACP scale. The petitioners served a legal notice against the same and then have approached this Court. It is averred that similar plea in large number of cases has been allowed by this Court, against which even Special Leave Petition has been dismissed. Reply in one case only has been filed. This case pertains to the Revenue Department. Rest of the cases are from Education Department. In these cases, no reply has been filed. Since the issue involved in these cases stand settled, there may not be much need to wait for completion of pleadings. Writ petitions are being decided on the basis of stand taken in one of the cases. The stand in the reply is being noticed from Civil Writ Petition No.8614 of 2010. The petitioner in said writ petition was promoted to the post of Kanungo but he did not join on the promoted post. His prayer was that he can not join on a promoted post due to his family circumstances. The petitioner therein said that he would not have CIVIL WRIT PETITION NO.6650 OF 2010 :{ 4 }: any objection if junior to him is promoted. His promotion was accordingly cancelled. It is in this background the order withdrawing the first and second ACP allowed in this case has been withdrawn by invoking the provisions of Rule 11 of the Rules, 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 functional pay scales prescribed for the post on which he is substantially working from the date of such forego of promotion.” Accordingly, the prayer is that the petitioners are not entitled to grant of ACP, once they had foregone the promotion. This issue had earlier arisen before this Court in Civil Writ Petition No.9755 of 2009 (Vijay Singh Vs. State of Haryana and others), decided on 25.11.2010. After detailed and elaborate discussion, the Court has held as under:- “From the above, it can be noticed that the contention raised on behalf of the State was the same as is being urged now in the present case. The plea in the above- noted case was also that the petitioners therein had foregone promotion as Lecturers w.e.f. 1.1.1996 and consequently they were debarred from claiming proficiency step up. The court accordingly viewed that it is difficult to uphold the contention that the petitioners therein could be debarred from claiming proficiency step CIVIL WRIT PETITION NO.6650 OF 2010 :{ 5 }: up in the circumstances of the case. The petitioners therein were offered promotion in September, 1998 and had completed more than eight years service from the date of their appointment and it was accordingly viewed that the Government instructions could not be read in a manner to deny the eight years proficiency step up. The court, thus, has held in Nirmal Kant's case (supra)* that the refusal to avail promotion would not entail the consequences of forfeiture of proficiency step up as an Assured Career Progression. The court, thus, viewed that Nirmal Kant's case (supra) was covered by the decision in the case of Shashi Kiran (supra)**. The State had filed a Special Leave Petition in the case of Nirmal Kant (supra), which was dismissed on merits, though by a short order. Thus, this decision has acquired finality. The State had thereafter filed a review petition against the same, which has been dismissed on 23.2.2010. Reference is made to a decision in another case titled Anita Sharma Vs. State of Haryana and others, Civil Writ Petition No.5786 of 2007, which was allowed by Division Bench of this Court on 11.8.2008. Against this judgment, the State again filed Special Leave Petition and the plea on the basis of Rule 11 of the ACP Rules was made to challenge the order passed by this court as is now raised *C.W.P. No.15839 of 2007 (Nirmal Kanta and another Vs. State of Haryana and others) **C.W.P. No.7642 of 2001 (Shashi Kiran & others Vs. State of Punjab & others) CIVIL WRIT PETITION NO.6650 OF 2010 :{ 6 }: by the State counsel. This can be so noticed from order issuing notice in the SLP, which is annexed as Annexure P-14 and is as under:- “Learned counsel for the petitioner contends that the Division Bench of the High Court has not appreciated the import of the cited judgment which relates to the State of Punjab which has different instructions, whereas the Haryana instructions specify in clause 11 that if the Government servant chooses to forego any functional promotion on any ground whatsoever, while drawing pay in any ACP scale, he shall cease to be entitled to draw his pay in the ACP pay scale.” This Special Leave Petition was also dismissed by the Hon'ble Supreme Court on 12.7.2010 despite the plea as noted above. Copy of this order is on record as Annexure P-16. In this background, the submission made by the State counsel that provisions of Rule 11 of ACP Rules were not considered by this court would be of not much consequences as respondents raised this plea, which was noticed and ultimately did not find favour with the Hon'ble Supreme Court.” Counsel for the petitioners also points out that number of other Special Leave Petitions filed against similar judgement have been dismissed by the Hon'ble Supreme Court. In this regard, he has handed over a copy of order passed in Special Leave Petition No.11440 of 2009 (State of Haryana and others Vs. Anita CIVIL WRIT PETITION NO.6650 OF 2010 :{ 7 }: Sharma), where judgement passed by this Court in Civil Writ Petition No.5796 of 2007, has been dismissed. The order passed by the Hon'ble Supreme Court reads as under:- “We are told by learned counsel for the parties that the review petition in a similar matter has since been dismissed. We see no reason for any interference in these matters. The Special Leave Petitions are, accordingly, dismissed.” It is, thus, clear that not only the similar Special Leave Petitions have been dismissed, even the application seeking review of the order was also declined by the Hon'ble Supreme Court. Accordingly, the prayer made in these writ petition is squarely covered by the decisions of this Court, which have been upheld by the Hon'ble Supreme Court. There is, thus, hardly any need to require the State to file any response to the writ petitions. The writ petitions are, thus, allowed in terms of order passed in Vijay Singh's case (supra). The impugned orders are accordingly quashed. September 23, 2011 ( RANJIT SINGH ) khurmi JUDGE