SBCWP NO.382/09. {1} IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.382/2009. Murari Lal Gupta Versus State of Rajasthan & Ors. Date of order:- July 13, 2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Saransh Saini for the petitioner. Shri Ganesh Meena, Government Counsel for the State. ***** Reportable BY THE COURT:- The issue involved in the present writ petition is whether petitioner should be entitled to retain the benefit of second selection scale granted to him vide order dated 24/7/1995 w.e.f. 10/7/1995 despite his refusal to accept the promotion. Petitioner was granted second selection scale vide order dated 19/10/1992 w.e.f. 25/1/1992 pursuant to the scheme of selection scale introduced by the government vide circular issued on that date. He was granted third selection scale on comletion of 27 years of service vide order dated 24/7/1995 w.e.f. 10/7/1995. Petitioner in the meantime was promoted on the post of Office Assistant vide order of the SBCWP NO.382/09. {2} respondents dated 15/1/1995. He however, by his letter dated 27/1/1995 declined to accept that promotion. Subsequently, however, he was again promoted on the post of Office Assistant vide order dated 3/6/1998 on which post he joined on 20/6/1998. Petitioner while working on the post of Office Assistant retired from service w.e.f. 31/8/2008. When his pension case was being prepared, at that time, respondents at that stage sought to withdraw the benefit of second and third selection scales granted to the petitioner retrospectively and accordingly revised his pay making certain recoveries. 2) Shri Saransh Saini, learned counsel for the petitioner cited the order passed by the Chief Executive Officer Secondary Education Rajasthan Bikaner dated 1/6/2008 which was based on the clarifications made by the government vide circular dated 6/5/2005 wherein scope and purport of the clarifications earlier issued on 4/12/1996 was explained. It was clarified that even if a government servant has forgone his promotion and on that basis selection scale earlier granted has been withdrawn, upon his promotion at subsequent stage, those benefits will be liable to be restored back to him. 3) Shri Ganesh Meena, learned Government Counsel appearing for the State however has opposed SBCWP NO.382/09. {3} the writ petition and cited two judgments of this Court in Krishan Kumar Vs. State of Rajasthan & Ors. : RLW 2006(4) 3274 and argued that in that judgment also the employees who after grant of second and third selection scale, declined to accept, has been held to be not entitled to retain those benefits. This was held on the basis of government circular dated 4/12/1996. 4) Although, it is a fact that Petitioner on 15/1/1995 when he was promoted on the post of Office Assistant declined to accept such promotion vide letter dated 27/1/1995. But at the same time, it is also a fact that his case became ripe for promotion on 3/6/1998 and he joined on the promoted post of Office Assistant on 20/6/1998. 5) Shri Saransh Saini, learned counsel for the petitioner sought to justify the non acceptance of promotion by the petitioner citing personal reasons but that period was for duration of only about six months. Notification of the government dated 4/12/1996 provides 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 SBCWP NO.382/09. {4} selection grade shall be withdrawn from the date he refuses to accept the promotion. The pay of such an employees shall be refixed either in pay scale of the first/second 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/third selection grade (s) as the case may be. 6) The clarification of the government dated 6/5/2005 which is referred to in the letter of Chief Accounts Officer dated 1/6/2005 (Ann.12) was in face issued on the context of similar employee of the education department; Shri Derashi. It has been clarified by the government that since Derashri was subsequently again promoted on 1/7/2003, benefit of second selection scale, which was earlier withdrawn in his case, was required to be restored to him w.e.f. 1/7/2003. 7) Having regard to the facts of the case, I find that case of the petitioner is liable to be dealt with in the same manner in which the respondents education department granted first benefit to Derashri, who like him had also foregone promotion and his second selection scale was withdrawn and subsequently when he was again promoted w.e.f. 1/7/2003, those benefits were restored to him from that date. Only difference between his case and that of the petitioner would be SBCWP NO.382/09. {5} that in the case of the petitioner, it is second and third selection scale. Respondents have in applying notification dated 4/12/1996 have illegally withdrawn both the benefits and second & third selection scale of the petitioner whereas they could claim to withdraw only third selection scale. 8) In the result, the writ petition is allowed. The action of the respondents in withdrawing of the second selection scale is held to be illegal. Said benefit is restored back to the petitioner. As far as third selection scale is concerned, it is directed that same would stand withdrawn from the petitioner on 15/1/1995 when he was offered promotion which he declined but it would be restored back to him w.e.f. 3/6/1998, when the petitioner joined the post of promotion as Office Assistant on 20/6/1998 in terms of the government circular dated 4/12/1996. Petitioner shall be accordingly granted all the consequential benefits together with interest @6% p.a. Compliance of the judgment shall be made within a period of three months from the date copy of this order is produced before the respondents. (MOHAMMAD RAFIQ), J. anil