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2010 DIGILAW 226 (MP)

Lokendra Kumar Agrawal v. State of M. P.

2010-02-23

S.K.GANGELE, S.S.DWIVEDI

body2010
JUDGMENT : Heard. 1.Appellant has filed this Writ Appeal against the order dated 14-9-2009 passed by the learnedSingle Judge of this Court in Writ Petition No. 774/2009 (s). 2.Appellant filed the aforesaid Writ Petition before this Court challenging orderdated 18-9-2007 , by whichthe benefit of time bound promotion pay scale granted to the appellant of Rs . 4500-7000 has been withdrawn and the pay of theappellant has been fixed in the pay scale of Rs .4000-6000. 3.The appellant was appointed as Lower Division Clerk by an order dated 28th September, 1981 . In the year1987 he passed the examination of Subordinate Accounts Services. Thereafter,the appellant has been granted benefit of time bound promotion pay scale underthe Time Bound Promotion Scheme vide order dated 21st March, 2006 and he was placed in the pay scale of Rs . 4500-7000 w.e.f . 19th October, 2005 . Thereafter, theappellant was considered and promoted to the post of Head Clerk vide orderdated 2nd July, 2007 . Herefused to join on the post of promotion as Head Clerk and on his refusal tojoint on the post of promotion vide an order dated IIth December, 2008 the benefit of time bound promotion pay scale granted to theappellant has been withdrawn and his pay has been fixed in the pay scale of Rs . 4000-6000. As per the appellant, the action of therespondent-Department in withdrawing the benefit of time bound promotion payscale to the appellant is arbitrary and illegal. 4.The respondent-State stated that the General Administration Department issuedcirculars dated 5th July, 2002 and 23-9-2002 clarifyingthe position of the employees who did not join in pursuance to the order ofpromotion on the promotional post. As per the aforesaid circular, if theemployee refused to join on the promotional post and forgo the promotion thenthe benefit of Time Bound Promotion granted to such an employee would also bewithdrawn, consequently, the time bound promotion granted to the appellant hasbeen withdrawn. 5.From the facts of the case, it is clear that the appellant was granted thebenefit of time bound promotion pay scale, i.e., pay scale of Rs . 4500-7000, after considering the case by the dulyconstituted committee. He was granted the aforesaid pay scale w.e.f . 19th October, 2005 . Thereafter, appellant was promoted on the post ofHead Clerk and he had foregone the said promotion. Consequently, the benefit oftime bound promotion granted to the appellant has also been withdrawn. 4500-7000, after considering the case by the dulyconstituted committee. He was granted the aforesaid pay scale w.e.f . 19th October, 2005 . Thereafter, appellant was promoted on the post ofHead Clerk and he had foregone the said promotion. Consequently, the benefit oftime bound promotion granted to the appellant has also been withdrawn. However,the appellant was considered by a duly constituted committee for the purpose ofgrant of benefit of time bound promotion and thereafter the aforesaid benefitwas extended to the appellant. In our opinion, subsequent withdrawal of benefitof time bound promotion of the appellant amounts to reduction in pay of theappellant and it could not be done without holding a proper enquiry because thereduction of pay amounts to penalty. Appellant has not committed anymisconduct. He has simply foregone his promotion. In such circumstances, thedepartment can withdraw the benefit of promotional post from the appellant,however, the benefit of time bound promotion granted to the appellant earliercould not be withdrawn because time bound promotion was granted to theappellant as up gradation of pay after completing certain period of service andwithdrawal of the aforesaid benefit amounts to violation of Article 311 (2) ofthe Constitution. 6.In our opinion, the learned Single Judge has committed an error by holding thatthe respondents can withdraw the benefit of time bound promotion because theappellant refused to join on the promotional post. On account of refusal tojoint on the promotional post the appellant has already been suffered byforegoing the benefit which could have been accrued to the appellant due to hispromotion on the next higher post. However, under the Executive instructionsissued by the Department the benefit of time bound promotion of the appellantcould not be withdrawn because it would amount to reduction in pay and theaforesaid action is in violation of Article 311 (2) of the Constitution becausethe reduction of pay could only be ordered as a consequence of penalty. 7.Consequently, the writ appeal filed by the appellant is hereby allowed. Theimpugned order passed by the learned Single Judge dated 14-9-2009 in Writ Petition No. 774/2009 (S) ishereby quashed and also the order dated 18th September, 2007 passed by the Joint Director is also quashed. It isheld that the appellant would be entitled the benefit of time bound promotionpay scale of Rs . 4500-7000, which was granted to theappellant earlier. Looking to the facts of the case, there shall be no order asto costs.