LPA No.322 of 2018 (O&M)

[1]

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

LPA No.322 of 2018 (O&M) in

CWP No.9389 of 2013

Date of Decision : 28.02.2018

Surinder Kumari and others

.... Appellants

VERSUS

State of Haryana and another

.... Respondents

CORAM : HON'BLE MR. JUSTICE RAJESH BINDAL

HON'BLE MR. JUSTICE B.S.WALIA

Present:

Mr. G.S. Bajwa, Advocate for the appellants.

*****

B.S.WALIA, J.

1.

This order will dispose of LPA Nos.322 and 323 of 2018 since

common questions of facts and law are involved. However, the facts of the case

are being taken from LPA No.322 of 2018 i.e. CWP No.9389 of 2013 titled as

“Surinder Kumari and others versus State of Haryana and another”.

2.

Challenge in this Intra-court appeal is to order dated 05.09.2017

whereby writ petition filed by the appellant-petitioners challenging order dated

26.07.2012 (Annexure P-1) withdrawing the benefit of Assured Career

Progressions Scheme (hereinafter referred to as “ACP”) and consequently

reducing the pay of the appellant-petitioners, was dismissed.

3.

The appellant-petitioners while working in the Department of

Pushpinder Saini

2018.05.23 10:24

I attest to the accuracy and

integrity of this document

LPA No.322 of 2018 (O&M)

[2]

Education had foregone promotion as Head Teachers due to compelling domestic

circumstances, therefore, were not granted the benefit of ACP after

01.01.1996/01.01.2006 in terms of the notification dated 07.01.1998/30.12.2008

under the Haryana Civil Services (Assured Career Progression) Rules,

1998/Haryana Civil Services (Assured Career Progression) Rules, 2008

(hereinafter referred to as “1998 Rules/2008 Rules” respectively).

4.

Writ petition was filed by the appellants/petitioners by placing

reliance on the decision of this Court in CWP No.9755 of 2009 titled as Vijay

Singh vs. State of Haryana and others decided on 25.11.2010, CWP No.8047 of

2010 titled as Bimla Devi and others vs. State of Haryana and others decided

on 29.07.2011 as also the Full Bench judgment of this Court in Budh Ram and

others vs. State of Haryana and others, 2009 (3) SCT 333. Although plea was

taken that the Rules were ultra vires and liable to be struck down, however, no

challenge, either to the Rules, 1998 or Rules, 2008 was made to the writ petition.

Rule 11 on the basis of which the order was passed under the 1998 Rules, reads as

under:

"11.Ceasing of entitlement of ACP Scales:-In case the

Government 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

entitled to draw his pay in the ACP pay scales and shall draw

his pay in the functional pay scales prescribed for the post on

which he is substantively working from the date of such forego

of promotion. "

Pushpinder Saini

2018.05.23 10:24

I attest to the accuracy and

integrity of this document

LPA No.322 of 2018 (O&M)

[3]

5.

Likewise, Rule 14 under the 2008 Rules which came into force w.e.f.

01.01.2006 reads as under:

14. Ceasing of entitlement of ACP Pay structure:- In case

the Government servant chooses to forego any functional

promotion on any ground whatsoever, while drawing his pay in

any ACP pay structure with reference to him, he shall cease to

be entitled to draw his pay in the ACP pay structure last granted

to him and shall draw his pay in the pay band and grade pay he

was drawing before the grant of the last ACP grade pay from

the date of such foregoing of promotion”.

6.

On the basis of the aforementioned Rules, defence of the respondents

was that once the appellant-petitioners had foregone promotion for the post of

Head Teacher in January, 2008 in the case of petitioner No.12, the Rules would

come into play, in view of Division Bench judgments of this Court in Shakuntla

Devi vs. State of Haryana, 2003 (2) SCT 697 and Rakesh Kumar vs. State of

Haryana and others, 2010 (1) SCT 443