Back
2016 Supreme(P&H) 1287
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
KULDIP SINGH, J.
Amar Ashok Pathak - Petitioner
Vs.
State of Punjab & Others - Respondents
CWP No. 2938 of 2014
Decided On : 05-08-2016
Advocate Appeared:
For the Petitioner: Mr. Vikas Mohan Gupta
For the State : Mr. Rajat Bansal
The ACP granted after completion of 4/9 years of service could not be withdrawn based on the petitioner's refusal of a previous promotion, as it was not stipulated in the policy.
Headnote:
Refusal of Promotion - Assured Career Progression Scheme - 3(a) - 4,9 and 14 years of service - The court held that the Assured Career Progression (ACP) granted after completion of 4/9 years of service could not be withdrawn merely on the ground that the petitioner had refused the promotion, as it was not stipulated in the policy (Annexure P-4). The impugned orders were set aside and the respondents were directed to re-fix the pay of the petitioner and grant consequential benefits.
Fact of the Case:
The petitioner, a former Joint Director (Prosecution and Litigation), challenged the withdrawal of Assured Career Progression (ACP) benefits after his retirement, based on his refusal of a previous promotion.
Finding of the Court:
The court found that the withdrawal of ACP benefits after completion of 4/9 years of service, due to the petitioner's refusal of a previous promotion, was not justified as it was not stipulated in the policy.
Issues: The main issue was whether the ACP benefits could be withdrawn based on the petitioner's refusal of a previous promotion.
Ratio Decidendi: The court held that the ACP granted after completion of 4/9 years of service could not be withdrawn merely on the ground that the petitioner had refused the promotion, as it was not stipulated in the policy (Annexure P-4).
Final Decision: The impugned orders were set aside, and the respondents were directed to re-fix the pay of the petitioner and grant the consequential benefit in the matter of pay, pension, and any other benefits.
Kuldip Singh, J.
Learned State counsel has filed the reply by way of short affidavit of Vijay Kumar Batra District Treasury Officer, Patiala on behalf of respondent No. 4 and the same is taken on record.
2. Brief facts of this case are that Amar Ashok Pathak-petitioner joined as Law Officer on 17.03.1977 in the State of Punjab. In the year 1983, he was promoted to Deputy District Attorney and subsequently promoted to District Attorney in the year 2000. Further, he was promoted to the post of Joint Director (Prosecution and Litigation) in the year 2009. It comes out that prior to his promotion as Joint Director (Prosecution and Litigation) in the year 2009, he was also offered promotion to the post of Joint Director, vide order dated 05.12.2005 (Annexure R-2), but vide letter dated 08.12.2005 (Annexure R-3) of the petitioner, he refused the promotion to the said post. Thereafter, the petitioner retired from service on 30.11.2010 vide order dated 30.11.2010 (Annexure P-1). After the retirement of the petitioner, the Principal Secretary, Department of Home Affairs and Justice, Punjab passed an order dated 21.11.2013 (Annexure P-12) whereby the ACP, on his having completed 4 and 9 years of service, granted vide orders dated 05.10.2009 and 25.06.2010, was cancelled. The due recovery was ordered to be adjusted against the payment of DCRG. The order dated (Annexure P-12) is reproduced as under:-
“The order regarding giving benefits to Sh. Amar Ashok Pathak, Joint Director, Prosecution and Litigation (Retired) being District Attorney under ACP Scheme on his having completed 4 year and 9 year service, vide order No. 4(472)-83- AD-/10303-06 dated 05.10.2009 and letter No. 4(472)-83-AD-/7469-74 dated 25.06.2010 of Punjab Government, are hereby cancelled.
The due recovery against additional payment be adjusted from DCRG of the officer and balance amount of DCRG be issued.”
3. Consequently, order dated 10.12.2013 (Annexure P-13) was passed wherein re-fixing the pay of the petitioner was done and subsequent to this order another order dated 17.12.2013 (Annexure P-14) was passed, whereby, out of Rs. 3.00 Lacs retained out of gratuity, Rs. 2,11,550/- were ordered to be recovered and remaining amount was sanctioned. Thereafter, another follow up order dated 18.12.2013 (Annexure P-15) was passed wherein the pension of the petitioner was accordingly fixed. The petitioner has impugned all the aforementioned Annexures P-12 to P-15 in the present writ petition being illegal and seeks consequential benefits.
4. The State in the reply has taken the stand that as per the instructions (Annexure P-4) for grant of Assured Career Progression Scheme (ACP), the ACP was to be granted on completion of 4/9/14 years of service to the employees who are not promoted to the higher level on account of unavailability of vacancy or non-existence of promotional avenues in the cadre. It was stated that the petitioner was promoted vide order dated 05.12.2005 (Annexure R-2) but he refused the promotion as Joint Director vide his letter dated 08.12.2005 (Annexure R-3). In this way, the promotional avenue was available but this was not availed by the petitioner, hence, the ACP on completion of 4 years was rightly withdrawn.
5. Admittedly, the ACP granted to the petitioner was withdrawn by the respondent department. In this regard, it is stated on behalf of the State that since the policy instructions (Annexure P-4) was to be effective from 03.11.2006 and that the ACP after completion of 4/9 years of service was granted after the said date and therefore, the same has been withdrawn. It is also not denied that initially the petitioner has refused the promotion to the post of Joint Director vide letter dated 08.12.2005.
6. Now, question would arise whether on account of the refusal for promotion, the ACP on completion of service of 4/9 years could be withdrawn or not ? The relevant extract of the policy (Annexure P-4) is reproduced as under. :-
“3(a) After a service of 4,9 a
