Civil Writ Petition No. 4573 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 4573 of 2010 Date of decision: 07.07.2011 Rikhi Ram ...Petitioner Versus State of Haryana and others ...Respondents CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. Sandeep Kotla, Advocate, for the petitioner. Mr. Harish Rathee, Sr. DAG, Haryana for the State. RANJIT SINGH J. The petitioner has filed this writ petition for quashing of order dated 22.02.2007, Annexure P-4 and for issuance of writ of mandamus restoring 2nd higher ACP pay scale to the petitioner, which has been withdrawn from him through the impugned order. The petitioner, who was working as SDC at Hisar, claims that he had performed satisfactorily and that there was no complaint against his work and conduct. He was promoted from the post of SDC to Accounts clerk and promotion letter was issued. The petitioner, however, was not interested to get promotion because of certain constraints of his family circumstances. He made a representation through proper channel expressing his unwillingness to join the post of Accounts clerk and, thus, had foregone the promotion. The promotion order issued on 12.05.2006, accordingly, was withdrawn on 28.12.2006 qua the petitioner. The petitioner, who was drawing 2nd ACP, was held not entitled to draw the scale as per Civil Writ Petition No. 4573 of 2010 2 provisions of Rule 2 of ACP Rules, 1998 (hereinafter referred to as 'Rules'). The 2nd ACP earlier granted to the petitioner was, accordingly, withdrawn on 22.01.2007. The petitioner would refer to number of petitions by other employees where such claim has been allowed despite the fact that the persons had foregone promotion. The respondents have filed reply and have contested the claim raised in the petition. It is stated that the petitioner declined to join on the promoted post and had foregone the promotion permanently. Reference is made to Rule 11 of the rules to justify the action of withdrawing the ACP. It is, accordingly, stated that consequent upon the action of the petitioner in foregoing the promotion, he has ceased to be entitled to avail the benefit of ACP and, accordingly, his pay has been rightly fixed. Similar issue arose before this Court and was adjudicated in CWP No. 9755 of 2009 decided on 25.11.2010 titled as Vijay Singh versus State of Haryana and others. That was also a case where 2nd ACP was withdrawn and the State had relied upon the instructions to justify their action in withdrawing the 2nd ACP when the petitioner therein had foregone his promotion. In Vijay Singh's case (supra), relief was claimed on the basis of order passed in CWP No. 15839 of 2007 titled Nirmal Kanta and another versus State of Haryana, which was allowed on 11.08.2008. The Special Leave Petition filed by the State against this order passed in Nirmal Kanta's case (supra) was also dismissed on 16.02.2009. The submission on behalf of the State in the above noted case of Vijay Singh was that the ratio of law laid down in Nirmal Kanta's case (supra) was not applicable on the ground that the Civil Writ Petition No. 4573 of 2010 3 Division Bench in Nirmal Kanta's case (supra) was considering the rules relating to proficiency step up. Reliance in that case was also made to Rule 11 of the rules, which is as under:- “Ceasing of entitlement of ACP Scales”.- In case the Govt. 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 Scale and shall 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.” By referring to the order passed in Nirmal Kanta's case (supra), it was noticed that the case related to grant of higher standard pay scale on completion of 10/20 years of service. In Nirmal Kanta's case (supra), the counsel for the petitioner has referred to another judgment passed by the Division Bench in the case of Shashi Kiran and others versus State of Punjab and others in CWP No. 7642 of 2001 decided on 28.11.2002. The relevant observations in this case were as under: “ The basic contention raised before us is that the respondents had undergone their promotions as lecturers w.e.f. 1.1.1996 and consequently they would be debarred from claiming the proficiency step up. The respondents claim to have taken this action in furtherance to paragraph No.9 of the Punjab Government instructions dated 1.9.1989. It is difficult for this Court to hold that the petitioners would be debarred from claiming the Civil Writ Petition No. 4573 of 2010 4 proficiency step up in the circumstances of the case. The petitioners were offered the promotion in September, 1998 and thereafter, by that time the petitioners had completed more than eight years of service as they were appointed on Adhoc basis in the year 1975 and regularly appointed to the same posts in the year 1977 onwards. Thus, in any circumstances and whatever be the interpretation given to the instructions of the Government, the petitioners cannot be denied the eight years proficiency step up increment.” On this basis, it was observed by the Court 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 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 Civil Writ Petition No. 4573 of 2010 5 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.” Making reference to all these judgments, the Court in Vijay Singh's case (supra) had allowed the petition by holding as under:- “ Even otherwise, the justification to withdraw the ACP, once granted, on the ground that subsequently someone has foregone the promotion may not apparently be justified. No doubt, ACP Rules talk of grant of scale when one is not able to earn promotion but withdraw the scale once granted validly on the ground of some subsequent action may not sound fair. The impugned order passed by the respondents is, therefore, not justified. The issue also was considered by Hon'ble Supreme Court and so would not call for any fresh consideration.” While deciding Vijay Singh's case (supra), this Court made reference to another decisions in the case of Anita Sharma Vs. State of Haryana and others, Civil Writ Petition No. 5786 of Civil Writ Petition No. 4573 of 2010 6 2007, which was allowed by the Division Bench of this Court on 11.08.2008. The Court observed as under:- 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 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. Thus, Rule 11 of the ACP Rules even if not considered by the Court would not be of much consequence as the respondents Civil Writ Petition No. 4573 of 2010 7 had raised this plea before the Hon'ble Supreme Court but did not find favour with the same. In view of the matter having been, to an extent, settled by the Hon'ble Supreme Court, reference by Mr. Rathee to the ratio of law in Rakesh Kumar versus State of Haryana 2010 (1) SCT 443 may not strictly govern the issue. The writ petition is, accordingly, allowed. The impugned order dated 22.02.2007 (Annexure P-4) is hereby quashed. There shall be no orders as to costs. July 07, 2011 (RANJIT SINGH) rts JUDGE