1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.1090/1997 Gyan Chand Mathur vs. State of Raj. & Ors. Date of order : 22/2/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Prahlad Singh for the petitioner. Shri S.D. Khaspuria, Addl. Govt. Counsel for the respondents. ****** REPORTABLE Heard learned counsel for the parties. This writ petition has been filed by the petitioner aggrieved by the order dated 3.2.1997 by which benefit of second and third selection scale granted to him by orders dated 19.9.1992 and 24.4.1996 was withdrawn. The petitioner was appointed on the post of L.D.C. with the respondents on 12.2.1969. He was thereafter promoted on the post of U.D.C. The petitioner was granted the benefit of second selection scale by order dated 19.9.1992 with effect from 25.1.1992 in the pay scale of Rs.1400-2600. This second selection scale was granted to him on completion of 18 years of service and subsequently when he was able to get third promotion, the respondents by order dated 2 24.4.1996 granted to him benefit of third selection scale with effect from 13.2.1996 in the pay scale of Rs.1640-2900. It so happened that the respondents by order dated 18.11.1996 promoted the petitioner on the post of Office Assistant, albeit on ad hoc basis, subject to review and revision for a period of six months. The petitioner submitted an application before the respondents on 12.12.1996 in which he expressed his inability to accept the promotion and thereby proceed to Bharatpur where he was posted, on account of family circumstances. His promotion was cancelled by order dated 23.12.1996. Subsequently, petitioner was promoted on regular basis on the post of Office Assistant vide order dated 21.3.1998 against the vacancy of the year 1997-98 and upon attaining the age of superannuation, he retired from service on 30.9.2008. Shri Prahlad Singh, learned counsel for the petitioner submitted that the promotion granted to the petitioner by order dated 18.11.1996 even if declined by him for personal difficulty by application dated 3 12.12.1996, the action of the respondents to punish him by order dated 4.12.1996, for the reason that petitioner had forgone promotion on 18.11.1996, is not justified. Learned counsel submitted that the Government in its Department of Finance has issued a Circular dated 18.10.1993 wherein it is provided that government servants, who are promoted to the next higher post after grant of third selection scale and who forgo the chance of promotion, would continue to draw pay in that selection grade. In 1996, when the petitioner was offered promotion and he did not accept that promotion firstly because that promotion was on ad hoc basis subject to review and revision for a limited period of six months and secondly the Circular dated 18.10.1993 was in vogue according to which the benefit of selection scale granted should not have been withdrawn. Learned counsel however argued that even if the Circular dated 4.10.1996 now relied by the respondents is accepted, according to para 3 of it, the respondents could not withdraw the benefit of second and third selection scale because the petitioner soon after 4 accepted the promotion when it was granted to him on regular basis on 21.3.1998. Learned counsel referred to a subsequent Circular of the Finance Department issued on 31.12.2009, in para 18 of which it is provided that if a regular promotion has been offered but is refused by the employee before becoming entitled to a financial upgradation, no financial upgradation shall be allowed as such an employee has been stagnated due to lack of opportunities. If, however, financial upgradation has been allowed due to stagnation and the employee subsequently refuses the promotion, it shall not be a ground to withdraw the financial upgradation. Learned counsel submitted that even according to last Circular which respondents issued, such benefit could not be withdrawn from the petitioner. Shri S.D. Khaspuria, learned Additional Government Counsel opposed the writ petition and submitted that a person having availed the benefit of selection scale on account of stagnation when actually offered promotion, cannot decline to accept the same because benefit of selection grade is granted in 5 lieu of promotion. Learned counsel submitted that since the petitioner declined to accept the promotion by application dated 12.12.1996 i.e. after 4.12.1996 when the Circular was issued by the Finance Department, according to para 2 and 3 thereof, the benefit of selection grade granted to the petitioner was liable to be withdrawn. I have given my anxious consideration to the rival submissions and perused the material on record. The Circular dated 18.10.1993 is on record, para 3 of which provides as under: “The matter has been considered and the Governor is pleased to order that Government servants who are promoted on the next higher post after grant of third selection grade and who forgo the chance of promotion would continue to draw pay in that Selection Grade. Government servants who are promoted to the next higher post after grant of second selection grade and who forgo the chance of promotion would continue to draw pay in that second selection grade but such employees would not be eligible for third selection grade.” 6 The subsequent Circular dated 4.12.1996 in para 3 provides as under: “The Governor is further pleased to order that the Government servant who had foregone the second or third promotion before issue of this order and is drawing pay either in the second or third selection grade, the benefit of second and / third selection grade, as the case may be, shall not be withdrawn, and in case such a Government servant is again offered promotion after issue of this order, the benefit of second and / third selection grade shall be withdrawn from the date he refused to accept the promotion. The pay of such an employee shall be retired either in pay scale of the first promotion post or in the first selection grade or in pay scale of the second promotion post, at the stage he would have drawn had he not been granted second and/third selection grade(s) as the case may be.” The last Circular dated 31.12.2009 which the learned counsel for the petitioner has cited before the Court in para 18 provides as under: “18. If a regular promotion has been offered but was refused by the employee before becoming entitled to a 7 financial upgradation, no financial upgradation shall be allowed as such an employee has not been stagnated due to lack of opportunities. If, however, financial upgradation has been allowed due to stagnation and the employee, subsequently refuses the promotion, it shall not be a ground to withdraw the financial upgradation. He shall, however, not be eligible to be considered for further financial upgradation till he agrees to be considered for promotion again and the second the next financial upgradation shall not be deferred to the extent of period of debarment due to refusal.” What is contended by the learned counsel for the petitioner is that the petitioner declined promotion when he was promoted on ad hoc basis by order dated 18.11.1996, the Circular dated 18.10.1993 was in vogue. According to para 3 of that Circular, a government servant who is promoted to the next higher post after grant of second selection grade and who forgoes the chance of promotion would continue to draw pay in that second selection scale. In the present case, the petitioner was offered promotion on ad hoc basis by order dated 18.11.1996 8 after grant of third selection grade. According to para 3 of the Circular dated 4.12.1996, if the government servant forgoes second or third selection scale before issue of the said order and is drawing pay either in second or third selection grade, benefit of second and/or third selection grade, as the case may be, shall not be withdrawn and in case such a government servant is again offered promotion after issue of the said order and he still refuses to accept, benefit of second and/or third selection grade shall be withdrawn from the date he refuses to accept the promotion. Learned Additional Government Counsel however relied on para 2 of the Circular. Even if the matter is examined from that stand point, it becomes evident that the government servant who is drawing pay in second or third selection grade, if on his actual promotion to second / third promotion, forgoes the promotion, the benefit of second or third selection grade, as the case may be, shall be withdrawn from the date he forgoes the promotion. Pay of such an employee shall be refixed either in 9 pay scale of the first promotion post or in the first selection grade or in pay scale of the second promotion post, which he would have drawn at that stage, had he not been granted second / third selection grade, as the case may be. What has to be therefore seen is as to what is the significance of the fact that petitioner refused promotion by application dated 12.12.1996. Firstly, promotion that was granted to the petitioner was not on regular basis, but it was on ad hoc basis subject to review and revision and therefore unless and until the word `promotion' which is referred to in various government Circulars in relation to the scheme of selection grade or the withdrawal thereof, has to be construed as regular promotion. In the present case, regular promotion was not granted to the petitioner, therefore, he did not accept as it was on ad hoc basis and that too for a period of six months. Regular promotion was granted to the petitioner on 21.3.1998 and he accepted the same. The earlier Circular of the government dated 18.10.1993 was in vogue when the promotion was granted to the 10 petitioner on ad hoc basis. Para 3 of that Circular provides that if a government servant who was promoted to the next higher post after grant of third selection scale forgoes the chance of promotion, would continue to draw the pay in that selection grade. If that was the executive instruction governing the field on the date when the petitioner was granted promotion on 18.10.1993, he could not be treated differently because all those promoted after that Circular and who had foregone promotion, having availed the benefit of third selection scale, were dealt with accordingly. The petitioner also when he was offered promotion for the period of three months, received the benefit of third selection scale. Such benefit could not be withdrawn from the petitioner acting by the circular dated 4.12.1996 either. It is not evident whether this Circular can reopen the past cases, which have been settled pursuant to the earlier Circular dated 18.10.1993, whereas persons who declined to accept the promotion after grant of third selection scale were allowed to get those benefits and 11 exception was only made for those government servants, who are promoted to the next higher post after grant of second selection grade and who had foregone the chance of promotion and it was provided that they would continue to draw the pay in that selection scale. But such employees would not be eligible for third selection scale was the instructions contained in Circular dated 18.10.1993. Subsequently, departure was made by the Circular dated 4.12.1996 to say that if a government servant had foregone second and third selection scale before issue of such circular, benefit of second and third selection scale as the case may be shall not be withdrawn and in case such a government servant had forgone the promotion after issue of such order, benefit of second and third selection scale shall be withdrawn from the date he refuses to accept the promotion. Admittedly when the promotion was granted on 18.11.1996, it was on ad hoc basis and that too subject to review and revision, therefore, he cannot be deemed to have refused a regular promotion and moreover when promotion was offered to him 12 after issue of this Circular dated 4.12.1996, he rightly accepted the same on 21.3.1998. The government in its recent Circular dated 31.12.2009 appears to have taken a more logical and reasonable approach by providing that “if a regular promotion has been offered but was refused by the employee before becoming entitled to a financial upgradation, no financial upgradation shall be allowed as such an employee has not been stagnated due to lack of opportunities. If, however, financial upgradation has been allowed due to stagnation and the employee subsequently refuses the promotion, it shall not be a ground to withdraw the financial upgradation. He shall, however, not be eligible to be considered for further financial upgradation till he agrees to be considered for promotion again and the second the next financial upgradation shall also be deferred to the extent of period of debarment due to the refusal.” In the first place, the petitioner was not offered a regular promotion and even after he declined to accept same, the respondents passed the 13 order dated 23.12.1996 cancelling the promotion. They provided for a period of one year as the period for reconsideration of his promotion and regular promotion thereafter was granted to him. Secondly, he had already availed of the three selection grades and therefore there was no question of not allowing him any financial upgradation as per the last instructions of the government in Circular dated 31.12.2009. Such financial upgradation is sought to be denied to an employee if he had already declined to accept the regular promotion prior to such date when the financial upgradation becomes payable to him. If however such financial upgradation has already been allowed due to promotion and employee accepts the promotion, it is provided that this would not be a ground to withdraw the financial upgradation. He shall however not be eligible to be considered for further financial upgradation till he agrees to be considered for promotion again and second / next financial upgradation shall also be deferred to the extent of period of debarment due to refusal. Now in the 14 Circular if the respondent-State has propounded that if an employee has already availed the benefit of the annual grade increments, in other words, was offered financial upgradation and thereafter he refused to avail of the promotion, it shall not be a ground to withdraw the financial upgradation. This has thus clearly clarified the situation that the government itself has deviated from its earlier Circular dated 4.12.1996. In any case, the government has agreed that the financial upgradation if already granted before and if promotion is offered thereafter, refusal thereof would not be a ground to withdraw the benefit of financial upgradation. Examining from this angle also, respondents would not be justified in withdrawing the benefit of second and third selection grade granted to the petitioner. Even otherwise, the respondents when they are seeking to confer upon its employees in the subordinate service, benefit of first, second and third selection grade, as the case may be, in the terms of the Circular promulgated by it on 25.1.1992, cannot treat its employees in 15 dissimilar manner by extending more favourable benefits to another employee and refusing such benefits to petitioner. For all these reasons, the writ petition deserves to be allowed. The impugned order dated 3.2.1997 is quashed and set aside and the petitioner is held entitled to all the consequential benefits together with interest @ 9% per annum. Compliance of the judgement be made within a period of three months from the date its copy is produced before the respondents. (MOHAMMAD RAFIQ), J. RS/