The withdrawal of the ACP once granted on the ground of subsequently foregoing promotion may not be justified under the ACP Rules.

Ranjit Singh, J.

1. The petitioner is praying for restoring his second ACP, which has been withdrawn through order dated 13.8.2008 (Annexure P-6) and for quashing the order dated 17.11.2008 (Annexure P-7) refixing his pay.

2. The petitioner was appointed as Assistant Draftsman in the office of Executive Engineer, Fatehabad on 10.11.1981. He is having the qualification of I.T.I. The petitioner was allowed second ACP on completion of 20 years of service as per ACP Rules. The ACP has now been withdrawn on the ground that the petitioner has foregone a promotion.

3. Government has issued instructions on 8.2.1994 regulating the grant of higher standard pay scale on completion of 10/20 years regular service. The petitioner had rendered more than 10 years service when these instructions were issued and he accordingly was granted 1st higher standard pay scale in the scale of Rs. 1600-2660 w.e.f. 1.1.1994 and his pay was fixed at Rs. 1640- 2900 w.e.f. 1.4.1995.

4. The instructions regulating the grant of standard pay scale were replaced by another scheme known as "ACP Pay Scale Rules 1998" w.e.f. 1.1.1996 by the Government. Since, the petitioner was appointed in the year 1981, he had completed 20 years of service in November, 2001. The petitioner accordingly was granted 2nd ACP Scale in the pay scale of Rs. 5500-9000 w.e.f. 9.11.2001. Copy of this is annexed with the petition as Annexure P-2. On the basis of good record of the petitioner, the benefit of 2nd ACP scale was allowed.

5. The petitioner became due for promotion to the post of Head Draftsman w.e.f. 25.9.2007. On account of some family circumstances, the petitioner was not keen to join on the promoted post as it would have led to his transfer to another place. The petitioner filed a representation to forego the promotion for one year through his representation dated 25.9.2007. This prayer of the petitioner was allowed on 14.12.2007. Soon thereafter the petitioner was served a show cause notice asking him to explain as to why the 2nd ACP granted to him be not withdrawn as he had foregone his promotion. The petitioner submitted his reply but impugned order withdrawing the ACP was passed on 13.8.2008 and his pay has been re-fixed through order dated 17.11.2008. Being aggrieved against the same, the petitioner has filed this writ petition. The pay of the petitioner has also been re-fixed in the pay scale of Rs. 5000- 7850.

6. The petitioner has prayed for quashing of this order primarily on the ground that the issue has been fully settled by order passed by this court in CWP No. 15839 of 2007, titled as Nirmal Kanta and another v. State of Haryana and others, which Was allowed on 11.8.2008. The Special Leave Petition filed against the same, being Civil Appeal No. 1536 of 2009 has also been dismissed on 16.2.2009. The petitioner accordingly has prayed that the impugned orders be set-aside.

7. Written statement is filed on behalf of the respondent- State. It is not disputed that Division Bench of this court has already taken a view, reference to which is made by the petitioner, and also the fact that the Special Leave petition filed against the said judgment has been dismissed on 16.2.2009. The State counsel, however, would justify the decision of the Government to withdraw the ACP, as the petitioner had foregone promotion. The counsel contends that the ratio of law as is laid down in Nirmal Kantas case (supra), is not applicable to this case as while deciding the said case, Division Bench was considering the rules regarding proficiency step up, which were different than the rules contained in Assured Career Progression Rules. Reference in this regard is made to Rule 11 of Haryana Civil Services (Assured Career Progression) Rules, 1998, which reads as under:-

"Ceasing of entitlement of ACP Scales".- In case the Govt, servant 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 e