1 W.P. No.1874/2011 (S) Date: 3.8.2011 Shri Rakesh Pal, learned counsel for the petitioner. Shri Vivek Patwa, learned Dy. G.A. for the respondents/State. The writ petition is heard finally with the consent of counsel for the parties. O R D E R 1/ The present writ petition has been filed by the petitioner challenging the order (Annexure P/4), by which the pension of the petitioner has been fixed treating the petitioner in the pay scale of Rs.5,000-8,000/-. 2/ The case of the petitioner is that she was initially appointed as Assistant Teacher on 29.7.1970 and on completion of 12 years' service she was granted senior pay scale, vide order dated 25.1.1991. On completion of 24 years' service on the recommendation of the Departmental Promotion Committee, she was granted 2nd Kramonnati, vide order dated 28.4.2006, w.e.f. 1.8.2003 in the pay scale of Rs.5,500-9,000/-. The petitioner retired from service on 31.7.2010 on reaching the age of superannuation. The respondents while calculating the pension of the petitioner, vide Annexure P/4, have applied the pay scale of Rs.5,000-8,000/-, whereas the petitioner at the time of retirement was in the pay scale of Rs.5,500-9,000/-. 3/ A reply has been filed by the respondents taking the 2 plea that the petitioner was given the benefit of 2nd Kramonnati on completion of 24 years' of service and fixed in the pay scale of Rs.5,500-9,000/- w.e.f. 1.8.2003. The petitioner was promoted as UDT by order dated 28.12.2006. It was a condition of the order that if the petitioner refuses to accept the promotion, then the benefit of the Kramonnati will be withdrawn. The petitioner had foregone the promotion. By mistake the petitioner was given the benefit of 2nd Kramonnati till the date of retirement but at the time of calculating the pension the said mistake was noted, therefore, the petitioner's pension was fixed treating her to be in the pay scale of Rs.5,000-8,000/-. 4/ Learned counsel appearing for the petitioner submitted that the controversy involved in the present matter has already been settled and the benefit of 2nd Kramonnati could not have been withdrawn. He further submitted that the petitioner was not heard before withdrawing the said benefit. 5/ Learned counsel appearing for the respondents/State has supported the impugned action of the respondents. 6/ I have heard the learned counsel for the parties and perused the record. 7/ It is the undisputed position on record that the petitioner was given the benefit of 2nd Kramonnati w.e.f. 1.8.2003 and fixed in the pay scale of Rs.5,500-9,000/-. The petitioner continued on the said pay scale till her superannuation. It is also undisputed that the petitioner was not given any opportunity of 3 hearing before taking the impugned action. The only ground for fixing the pension treating the petitioner at a lower pay scale of Rs.5,000-8,000/- disclosed by the respondents is that the petitioner had foregone the promotion, therefore, the benefit of 2nd Kramonnati was withdrawn. 8/ The controversy involved in the present matter is covered by the Division Bench judgment of this Court in the matter of Lokendra Kumar Agrawal Vs. State of M.P. and another reported in 2010(2) MPHT 163, wherein the Division Bench has held that :- “4. The respondent-State stated that the General Administration Department issued circulars dated 5th July, 2002 and 23.9.2002 clarifying the position of the employees who did not join in pursuance to the order of promotion on the promotional post. As per the aforesaid circular, if the employee refused to join on the promotional post and forgo the promotion then the benefit of Time Bound Promotion granted to such an employee would also be withdrawn. Consequently, the time bound promotion granted to the appellant has been withdrawn. 5. From the facts of the case, it is clear that the appellant was granted the benefit of time bound promotion pay scale i.e. pay scale of Rs.4500-7000, after considering the case by the duly constituted committee. He was granted the aforesaid pay scale w.e.f. 19th October, 2005. Thereafter, appellant was promoted on the post of Head Clerk and he had foregone the said promotion. Consequently, the benefit of time bound promotion granted to the appellant has also been withdrawn. However, the appellant was considered by a duly constituted committee for the purpose of grant of benefit of time bound promotion and thereafter the aforesaid benefit was extended 4 to the appellant. In our opinion, subsequent withdrawal of benefit of time bound promotion of the appellant amounts to reduction in pay of the appellant and it could not be done without holding a proper enquiry because the reduction of pay amount to penalty. Appellant has not committed any misconduct. He has simply foregone his promotion. In such circumstances, the department can withdraw the benefit of promotional post from the appellant, however, the benefit of time bound promotion granted to the appellant earlier could not be withdrawn because time bound promotion was granted to the appellant as up-gradation of pay after completing certain period of service and withdrawal of the aforesaid benefit amounts to violation of Article 311(2) of the Constitution. 6. In our opinion, the learned Single Judge has committed an error by holding that the respondents can withdraw the benefit of time bound promotion because the appellant refused to join on the promotional post. On account of refusal to join on the promotional post the appellant has already been suffered by foregoing the benefit which could have been accrued to the appellant due to his promotion on the next higher post. However, under the Executive instructions issued by the Department the benefit of time bound promotion of the appellant could not be withdrawn because it would amount to reduction in pay and the aforesaid action is in violation of Article 311(2) of the Constitution because the reduction of pay could only be ordered as a consequence of penalty. 7. Consequently, the writ appeal filed by the appellant is hereby allowed. The impugned order passed by the learned Single Judge dated 14-9-2009 in Writ Petition No.774/2009(S) is hereby quashed and also the order dated 18th September, 2007 passed by the Joint Director is also quashed. It is held that the appellant would be entitled to the benefit of time bound promotion pay scale of Rs.4500-7000, which was granted to the appellant earlier. Looking to the facts of the 5 case, there shall be no order as to costs.” 9/ The facts of the present matter are also identical. The benefit of the 2nd Kramonnati has been withdrawn without affording any opportunity of hearing to the petitioner and without conducting any enquiry and the said withdrawal has resulted into reduction in pay of the petitioner, and consequently affected her pensionary benefits, therefore, in view of the position settled by the Division Bench in the above judgment, the impugned action of the respondents can not be sustained and is hereby set aside. It is held that the petitioner would be entitled to benefit of the 2nd Kramonnati which was given to her earlier and her pensionary benefits will be calculated accordingly. 10/ The writ petition is allowed to the extent indicated above. No costs. (Prakash Shrivastava) J U D G E Trilok/-