CIVIL WRIT PETITION NO.6042 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CIVIL WRIT PETITION NO.6042 of 2009 DATE OF DECISION: SEPTEMBER 7, 2010 Bhagwan Dass .....Petitioner VERSUS State of Haryana and another ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH PRESENT: Mr. Ashok Kaushik, Advocate, for the petitioner. Mr. Harish Rathee, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. The petitioner has approached this Court for quashing order dated 31.5.2006 passed by the Commissioner Gurgaon, whereby the benefit of 1st A.C.P. and 2nd A.C.P. has been withdrawn. The petitioner was granted 2nd A.C.P. on 10.6.2005. He was sought to be promoted to the post of Assistant vide order dated 5.5.2006. The petitioner gave a representation on 15.5.2006 saying that he wanted to forego his promotion because of his family problem. On account of this, the 1st and 2nd A.C.P. were withdrawn vide order dated 31.5.2006. Immediately thereafter, the petitioner CIVIL WRIT PETITION NO.6042 of 2009 -2- had filed a representation on 22.6.2006 showing his willingness to accept the promotion. Subsequently, he was promoted on 22.2.2008. The petitioner, accordingly, contends that the withdrawal of the 1st A.C.P. can not be justified and would be illegal and the 2nd A.C.P. has also been withdrawn from the date the petitioner has joined the promoted post. In response to notice of motion, reply has been filed. The factual position as noted above is not in serious dispute. Reference is made to Rule 11 of the ACP Rules, 1998, which talks of ceasing of entitlement of A,C.P. Scales. If a Government employee 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 A.C.P. scale and shall draw his pay in the functional pay scale prescribed for the post on which he is substantively working from the date of such promotion. The withdrawal of the 2nd A.C.P., which was granted to the petitioner on 10.6.2005, may have some justification on the basis of this Rule, but how the 1st A.C.P. granted to the petitioner was withdrawn, will be an issue, which require consideration. In addition, the petitioner also pleads that the A.C.P. was withdrawn without issuing any show cause notice to him and thus, would plead the violation of principle of natural justice while passing the impugned order. The question of withdrawing the A.C.P. on the ground that the person has forgone his promotion, has also been CIVIL WRIT PETITION NO.6042 of 2009 -3- considered by this Court in the case of Rakesh Kumar Vs. State of Haryana and others, 2010 (1) SCT 443 and C.W.P. No.15839 of 2007, titled as 'Nirmal Kant and another Vs. State of Haryana and another', decided on 11.8.2008. It appears that the issue is settled in Nirmal Kant's case (supra). The decision rendered by a Division Bench of this Court in Nirmal Kant's case (supra) was taken in appeal before the Hon'ble Supreme Court after filing review petition against the same. The S.L.P. has been dismissed. Even review petition was also dismissed. Notice has been issued in Rakesh Kumar's case (supra) Since the A.C.P. granted has been withdrawn without issuing any show cause notice to the petitioner, apparently the principle of natural justice has been violated. The impugned order, as such, can not be sustained on this ground. The writ petition is, accordingly, disposed of with a direction to the respondents to pass afresh order after serving a show cause notice to the petitioner, whereupon the reply filed by the petitioner be taken into consideration. The petitioner would be at liberty to challenge the order, in case, he feels aggrieved against the same in any manner. September 7, 2010 ( RANJIT SINGH ) monika JUDGE