The conditional nature of ACP scale continuation under Rule 11 and the legal principle against recovery of benefits extended to employees without deception or misrepresentation.

Jaswant Singh, J.

1. This petition under Article 226 has been filed for declaring Rule 11 of the Haryana Civil Service (Assured Career Progression) Rules, 1998 (for brevity ACP Rules 1998) and clarification thereto (Annexure P/2) as unconstitutional and void with a further prayer to quash impugned orders 29.2.2008 (Annexure P/6) vide which the ACP grade has been withdrawn due to foregoing of promotion by the petitioner and his pay has been refixed; and further order dated 22.7.2008 (Annexure P/9) whereby recovery of excess pay of Rs. 55,599/- paid from 13.7.2004 has been ordered.

2. Facts leading to the present writ petition are that the petitioner joined service as Clerk in the year 1978 and was regularized as such on 15.9.1982. On completion of his ten years of regular service as Clerk and no opportunity being available for promotion; he was granted first Higher Standard Pay Scale on 15.9.1992.

3. In the year 1998, Haryana Civil Service (Assured Career Progression) Rules, 1998 (for short 1998 Rules) under proviso to Article 309 of the Constitution of India were framed vide notification dated 7.1.1998. The said rules came into force w.e.f. 1.1.1996. These rules were framed to provide at least two financial upgradation to those employees, who despite regular satisfactory service of ten years (for 1st ACP) or twenty years (for 2nd ACP scale), as the case may be, may have not got any financial upgradation either by functional promotion or pay scale revision.

4. Pursuant to the said 1998 Rules, the petitioner on completing his twenty years of regular service as Clerk, without any promotion was granted 2nd ACP w.e.f. 1.10.2002, vide office order dated 29.10.2002. On 12.7.2004 the petitioner came to be promoted as Assistant vide order Annexure P/3 and was transferred from the office of Deputy Commissioner,Gurgaon to be posted at the office of Deputy Commissioner, Narnaul. However, the petitioner, on account of some personal circumstances, expressed his inability to join his new place of posting and chose to forego his promotion. His request was acceded to and in his place another official namely Ashok Kumar was promoted as Assistant.

5. Consequent upon foregoing of his promotion as Assistant, the ACP scale granted to the petitioner was withdrawn vide letter dated 29.2.2008 (Annexure P/6) and his pay was re-fixed. Still further, the petitioner was served with a show cause notice dated 4.4.2008 (Annexure P/7) for recovery of excess pay amounting to Rs. 55,599/- w.e.f. 13.7.2004 (i.e. from the date he has foregone his promotion as Assistant). Petitioner submitted reply to the said show cause notice, inter alia, stating therein that since he had already completed twenty years of satisfactory regular service and the benefit of ACP scales already stood vested and accrued to him, the same could not be withdrawn now. It was further the case of the petitioner that Rule 11 of 1998 Rules, under which the ACP scale was withdrawn from him does not provide for recovery of such benefits.

6. The respondents after considering the reply to the show cause notice vide order dated 22.7.2008 (Annexure P/9) directed recovery of Rs. 55,599/- . Hence the present writ petition.

7. Upon notice respondents filed written statement. It is the case of the respondents that vide notification dated 26.11.2002 Government issued clarification regarding fixation of pay of an employee, when he/she forgoes his/her promotion while drawing pay in ACP scale in reference to rule 11 of the said notification. It is stated that under Rule 11 of the 1998 Rules, when an employees chooses to forego any promotion while drawing his pay in ACP scales, his pay is to be re-fixed by the competent authority in his substantive working from the date of such forego of promotion and this is what has exactly been done in the case of the petitioner and hence the petition merits dismissal.

8. A Division Bench of this Court while issuing notice of motion vide order dated 20.8.20