Civil Writ Petition No. 4573 of 2010

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IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

Civil Writ Petition No. 4573 of 2010

Date of decision: 07.07.2011

Rikhi Ram

...Petitioner

Versus

State of Haryana and others

...Respondents

CORAM: HON'BLE MR. JUSTICE RANJIT SINGH

Present:

Mr. Sandeep Kotla, Advocate,

for the petitioner.

Mr. Harish Rathee, Sr. DAG, Haryana

for the State.

RANJIT SINGH J.

The petitioner has filed this writ petition for quashing of

order dated 22.02.2007, Annexure P-4 and for issuance of writ of

mandamus restoring 2^nd higher ACP pay scale to the petitioner,

which has been withdrawn from him through the impugned order.

The petitioner, who was working as SDC at Hisar, claims

that he had performed satisfactorily and that there was no complaint

against his work and conduct. He was promoted from the post of

SDC to Accounts clerk and promotion letter was issued. The

petitioner, however, was not interested to get promotion because of

certain constraints of his family circumstances. He made a

representation through proper channel expressing his unwillingness

to join the post of Accounts clerk and, thus, had foregone the

promotion. The promotion order issued on 12.05.2006, accordingly,

was withdrawn on 28.12.2006 qua the petitioner. The petitioner, who

was drawing 2^nd ACP, was held not entitled to draw the scale as per

Civil Writ Petition No. 4573 of 2010

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provisions of Rule 2 of ACP Rules, 1998 (hereinafter referred to as

'Rules'). The 2^nd ACP earlier granted to the petitioner was,

accordingly, withdrawn on 22.01.2007. The petitioner would refer to

number of petitions by other employees where such claim has been

allowed despite the fact that the persons had foregone promotion.

The respondents have filed reply and have contested the

claim raised in the petition. It is stated that the petitioner declined to

join on the promoted post and had foregone the promotion

permanently. Reference is made to Rule 11 of the rules to justify the

action of withdrawing the ACP. It is, accordingly, stated that

consequent upon the action of the petitioner in foregoing the

promotion, he has ceased to be entitled to avail the benefit of ACP

and, accordingly, his pay has been rightly fixed.

Similar issue arose before this Court and was adjudicated

in CWP No. 9755 of 2009 decided on 25.11.2010 titled as Vijay

Singh versus State of Haryana and others. That was also a case

where 2^nd ACP was withdrawn and the State had relied upon the

instructions to justify their action in withdrawing the 2^nd ACP when the

petitioner therein had foregone his promotion. In Vijay Singh's case

(supra), relief was claimed on the basis of order passed in CWP No.

15839 of 2007 titled Nirmal Kanta and another versus State of

Haryana, which was allowed on 11.08.2008. The Special Leave

Petition filed by the State against this order passed in Nirmal

Kanta's case (supra) was also dismissed on 16.02.2009.

The submission on behalf of the State in the above noted

case of Vijay Singh was that the ratio of law laid down in Nirmal

Kanta's case (supra) was not applicable on the ground that the

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Division Bench in Nirmal Kanta's case (supra) was considering the

rules relating to proficiency step up. Reliance in that case was also

made to Rule 11 of the rules, which is 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

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

his pay in the functional pay scales prescribed for the

post on which he is substantially working from the date of

such forego of promotion.”

By referring to the order passed in Nirmal Kanta's case

(supra), it was noticed that the case related to grant of higher

standa