Civil Writ Petition No. 8143 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 8143 of 2009 Date of decision: 22.10.2009 Kamlesh Kumari ...petitioner Versus State of Haryana and others ...respondents. CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. Umesh Narang, Advocate for the petitioners. Mr. Harish Rathee, Sr.DAG, Haryana for the State. ***** RANJIT SINGH J. The petitioner was appointed as JBT teacher on 6.7.1973 on adhoc basis. Her services were reguarlised w.e.f. 19.7.1979. On completion of 10 years regular service, she was granted 1st ACP Grade of Rs. 5450-8000 and her pay was fixed at Rs.5750/-. Ultimately the turn of the petitioner came due for promotion and on the basis of seniority-cum-merit, she was promoted to the post of Head teacher. Thereafter, she was posted to Government Primary School, Kheri. Due to some problem in her family, the petitioner requested to give posting on promotion post near to her home. The petitioner as such could not join on the promotional post. The petitioner again made a request for posting her to nearby school and the posting order on the post of Head teacher was issued for Government Primary School, Baragudha. The petitioner accordingly was relieved and joined at the said school. The pay of the petitioner was reduced and refixed in the Civil Writ Petition No. 8143 of 2009 2 grade of 4500-7000 on the ground that she has foregone her promotion in the light of Haryana Government Finance Department, letter No. 2/21/2001-4PR(FD) dated 26.11.2002. The petitioner disputed this proposition, served a legal notice and filed a writ petition, which was disposed of with the direction to decide a legal notice. The legal notice filed by the petitioner has been rejected and she has now filed the present writ petition. In the reply filed, the respondents disputes the claim made by the petitioner. They have tried to justify the withdrawal of ACP by making reference to Rule 11 of ACP rules, which reads as under: “ Ceasing of entitlement of ACP Scales:- In case the Government servant chooses to forego any functional promotion on any ground whatsoever, while drawing his/her pay in any ACP scale with reference to him/her, he/she shall cease to be entitled to draw his/her pay in the ACP pay scale land shall draw his/her pay in the functional pay scales prescribed for the post on which he/she substantively working from the date such forgo of promotion” It is then stated that the case of the petitioner was again received for promotion and she was promoted as Head teacher on 22.7.2003 and was posted to Government Primary School, Baragudha, which is near to her residence. The petitioner has statedly joined the promoted post on 25.7.2003. It is accordingly pleaded that no financial loss has been caused to the petitioner. The prayer thus is made for dismissing the writ petition. Civil Writ Petition No. 8143 of 2009 3 Counsel for the petitioner would refer to a decision in the case of CWP No. 5283 of 2005 decided on 16.12.2005 whereby identical issue has been decided by the Court. In this writ petition also JBT teacher was granted ACP scale and upon promotion she sought time to join the posting. She was accordingly adjusted in the Primary School nearby where she joined duty. Her pay was also reduced and re-fixed on the ground that she had failed to join the promoted post like the petitioner. She was also fixed in the scale of 4500-7000 and subsequently was fixed in the scale of 5500-9000 as on 10.8.2004. The facts in the writ petition and order, Annexure P-11 are thus almost identical as are in the present case. Division Bench of this Court, in this regard held as under: “ From the narration of the aforesaid facts, it is apparent that the petitioner had been granted the benefit of 1st ACP grade vide order dated February 20, 2002. Accordingly, her pay was fixed in the scale of Rs. 5450- 8000. Subsequently, she was promoted. Initially the petitioner on account of her family circumstances was not able to join her promoted post. She requested for extension of time to join her duties on the promoted post. Her request was kept pending and ultimately was rejected vide order dated May 31, 2004. She was directed to resume duties on promotional post. On the aforesaid directions, the petitioner joined her duties on August 10, 2004 on the promotional post. The joining report Annexure P/6 specifically shows that an order was passed by the Block Education Officer on August 10, Civil Writ Petition No. 8143 of 2009 4 2004 whereby the petitioner was allowed to join her duties with effect from August 10, 2004. It is not in dispute that the petitioner had since joined on the promoted post. The delay, if any, in joining on the promoted post stands condoned when she was allowed to join on the-promoted post with effect from August 10, 2004. In these circumstances, the respondents cannot he heard to claim that she had foregone her promotion and on that account the ACP grade granted to her was liable to be withdrawn. The action of the respondents in this regard was wholly uncalled for and unjustified.” The writ was, accordingly, allowed and the order refixing and reducing the pay was set aside. Directions further were issued that the benefit of 1st ACP granted to the petitioner would stand restored. The present writ petition thus deserves to be allowed in the terms of the law laid down in order, Annexure P-11. Consequently, order Annexures P-6 and P-10 are set aside. Direction is issued to the effect that the benefit of 1st ACP Grade granted to the petitioner in the year 1996 would stand restored to her. Consequence of this order, if any arrears become due to the petitioner, the same shall also be released within two months from the date of receipt of the copy of this order. October 22, 2009 ( RANJIT SINGH ) rts JUDGE