CIVIL WRIT PETITION NO.10225 of 2009(O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CIVIL WRIT PETITION NO.10225 of 2009(O&M)

DATE OF DECISION: NOVEMBER 10 , 2010

Smt. Joginder Sethi

.....Petitioner

VERSUS

State of Haryana and others

....Respondents

CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH

PRESENT:

Mr. B.K. Bagri, 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

the orders dated 17.3.2008 (Annexure P-2) and 29.4.2008 (Annexure

P-5) vide which pay of the petitioner has been refixed after

withdrawing of 2^nd ACP and further for issuing direction to

respondents to grant 2^nd ACP pay scale to her along with arrears of

revised pay, commutation, gratuity and revised pension etc.

The petitioner was appointed as Clerk on 31.8.1972

in the office of Land Acquisition officer, Harayna PWD B & R, Ambala

Cantt. She was granted benefit of 1^st Higher Standard Pay Scale on

CIVIL WRIT PETITION NO.10225 of 2009(O&M)

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8.2.1996. The Government of Haryana replaced Higher Standard

Pay Scale with the ACP Pay Rules,1998 w.e.f.1.1.1996. The

petitioner was granted 1^st ACP on 7.1.1998. She became entitled to

2^nd ACP w.e.f. January, 2007. She was also granted this benefit, but

her claim was rejected on the ground that she had foregone her

promotion as SDC and her pay was fixed in the pay scale of

Rs.5000-6000/- after 36 years of service. The similar situated

employees, however, even junior to the petitioner, were getting the

pay scale of Rs.5000-7850/- in the 2^nd ACP pay scale. The

petitioner, accordingly, has filed this writ petition.

Reply on behalf of the State is filed. The prayer of the

petitioner has been opposed by making reference to the rule 11 of

ACP Rules 1998, which provides that the Government servant, who

chose to forego any functional promotion on any ground whatsoever,

while drawing pay in any ACP scale with reference to him/her, he/she

shall cease to be entitled to draw his/her pay in the ACP pay scales

and shall draw his/her pay in the functional pay scales prescribed for

the post.

Counsel for the petitioner, however, has placed on

record a judgment passed by the Division Bench of this Court in

C.W.P. No.5786 of 2007, decided on 11.8.2008. In this case, it has

been held that mere refusal to promotion would not entail the

consequences of forfeiture of proficiency step up or Assured Career

Progression. This view has been taken by making reference to a

decision in case of C.W.P. No.7642 of 2001, decided on 28.11.2002.

The respondents, accordingly, were directed to consider the case of

CIVIL WRIT PETITION NO.10225 of 2009(O&M)

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the petitioner for ACP Scale on completion of 10/20 years of service

in a cadre as per rules. The State of Haryana had filed the Special

Leave Petition against the said order, which was dismissed by the

Hon'ble Supreme Court. Thereafter, the State had filed a review

petition, which was also dismissed on February 23, 2010. Thus, the

issue of denial of ACP scale on the ground of foregoing promotion, is

now finally settled.

The present writ petition is, accordingly, disposed of in

terms of the order passed in Annexure P-11. The action of the

respondents in denying the ACP scale to the petitioner is, therefore,

set aside. The respondents are directed to consider the case afresh

and grant relevant ACP scale to the petitioner and thereafter, fix her

pensionary benefits accordingly. Let the needful be done within a

period of three months from the date of receipt of certified copy of

this order.

November 10, 2010

( RANJIT SINGH )

monika

JUDGE