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2014 DIGILAW 355 (MP)

State of M. P. v. Omprakash Kumud

2014-04-01

J.K.JAIN, SHANTANU KEMKAR

body2014
ORDER 1. This intra Court appeal is directed against the order dated 24.1.2007 passed by the learned Single Judge of this Court in Writ Petition No. 2724/2006 (s). 2. As there is a delay of 159 days in filing the appeal, IA No.9139/2007, an application seeking condonation of the delay has been filed. 3. On due consideration of the application, we find that the delay has been satisfactorily explained. Accordingly, delay in filing the appeal is condoned. 4. With consent, heard finally. 5. The respondent herein filed the aforesaid writ petition seeking direction to the appellants to comply with Kramonnati order dated 30.6.2000, which was passed in his favour. 6. The writ Court, after exhaustively dealing with the issue involved in the matter, allowed the writ petition in following terms : - “After hearing the learned counsel for the parties and on perusal of the record it is apparent that the petitioners were allowed benefit of Kramonnati on completion of 12 years of service in the scale of Rs.3,500-80-4,700-100-5,200, as per order Annexure P/1 dated 30.6.2000. The fixation has also been made accordingly. Thereafter, the petitioners have forgone the promotion as directed in the order Annexure P/2 dated 5.10.2002, but subsequently as per the order Annexure P/4 dated 14.6.2005 they have further been promoted by the respondents in same scale of Rs.4,000-100-6,000 on which they have joined. However, during the year 2004-05 the benefit of the increments as per Kramonnat scale has been denied to them in the light of the order Annexure R/1. On perusal of the record it is apparent that the document Annexure R/1 does not deal with the contingency of the persons, who have accepted their promotion at the subsequent stage. In the present case because of the petitioners have been promoted by issuing second order of promotion as per Annexure P/4 dated 14.6.2005, when is carried out by them, therefore, the respondents can not deny the benefit of the increments as per Kramonnat scale on the basis of document Annexure R/1. In view of the discussions made herein above; the denial of the increments to the petitioners, as per the Kramonnat scale Rs.3,500-80-4,700-100-5,200 is arbitrary. In view of the discussions made herein above; the denial of the increments to the petitioners, as per the Kramonnat scale Rs.3,500-80-4,700-100-5,200 is arbitrary. The stand as taken by the respondents in their return that the petitioners shall be entitled to the increments as per the scale of Rs.3,050-75-3,950-80-4,590 cannot be accepted for another reason also, because the order of Kramonnati Annexure P/1 dated 30.6.2000 has not yet been withdrawn by the respondents. In such circumstances the benefit of the Kramonnati which has already been drawn by the petitioners deserves to be continued till they join on promotional post. The petitioners are also entitled to get increments, as per the Kramonnat scale during the year 2004-05. Accordingly, this petition succeeds and is hereby allowed. The respondents are directed to fix the petitioners’ pay by granting them increments according to the pay scale Rs.3,500-80-4,700-100-5,200 during the year 2004-05. The arrears of the difference of the salary shall also be paid to the petitioners and the order of re-fixation be passed accordingly. The aforesaid exercise be completed within a period of 3 months from the date of communication of this order.” 7. According to the learned Deputy Government Advocate, the writ petitioner was not entitled to get the benefit of the order dated 30.6.2000, as he foregone the promotion, which was granted to him on 5.10.2002. She submits that as per the instructions dated 23.9.2002 issued by the General Administration Department, if an employee forgoes his promotion, then he is not entitled for the benefit of Kramonnati. 8. In reply, learned counsel appearing for the respondent / writ petitioner submits that subsequently the writ petitioner has complied with the promotion order dated 14.6.2005. He submits that in the order of grant of Kramonnati, no condition was mentioned that the benefits will not be extend-able to the writ petitioner, if subsequently he forgoes the promotion. He further argued that subsequent GAD circular dated 23.9.2002 cannot be made applicable retrospectively. 9. Having considered the submissions made by the learned counsel for the parties, we are of the view that the learned Single Judge has rightly dealt with the matter and has committed no error in allowing the writ petition. In the order dated 30.6.2000 no condition was imposed to the effect that in case he forgoes the promotion in future, the benefit granted will be revoked. In the order dated 30.6.2000 no condition was imposed to the effect that in case he forgoes the promotion in future, the benefit granted will be revoked. The subsequent circular dated 23.9.2002 cannot be applied retrospectively. Moreover, the petitioner subsequently accepted the promotion order dated 14.6.2005. Additionally, we find that in the similar circumstances, a Division Bench of this Court at Gwalior in the case of Lokendra Kumar Agrawal v. State of MP & others [2010 (2) MPHT 163 (DB)] has held, as under: - “5. From the facts of the case, it is clear that the appellant was granted the benefit of time bound promotion pay scale, i.e., pay scale of Rs.4500-7000, after considering the case by the duly constituted committee. He was granted the aforesaid pay scale w.e.f. 19th October, 2005. Thereafter, appellant was promoted on the post of Head Clerk and he had forgone the said promotion. Consequently, the benefit of time bound promotion granted to the appellant has also been withdrawn. However, the appellant was considered by a duly constituted committee for the purpose of grant of benefit of time bound promotion and thereafter the aforesaid benefit was extended to the appellant. In our considered opinion, subsequent withdrawal of benefit of time bound promotion of the appellant amounts to reduction in pay of the appellant and it could not be done without holding a proper enquiry because the reduction of pay amounts to penalty. Appellant has not committed any misconduct. He has simply forgone his promotion. In such circumstances, the department can withdraw the benefit of promotional post from the appellant, however, the benefit of time bound promotion granted to the appellant earlier could not be withdrawn because time bound promotion was granted to the appellant as upgradation of pay after completing certain period of service and withdrawal of the aforesaid benefit amounts to violation of Article 311 (2) of the Constitution. 6. In our opinion, the learned Single Judge has committed an error by holding that the respondents can withdraw the benefit of time bound promotion because the appellant refused to join on the promotional post. On account of refusal to join on the promotional post the appellant has already been suffered by forgoing the benefit which could have been accrued to the appellant due to his promotion on the next higher post. On account of refusal to join on the promotional post the appellant has already been suffered by forgoing the benefit which could have been accrued to the appellant due to his promotion on the next higher post. However, under the executive instructions issued by the Department the benefit of time bound promotion of the appellant could not be withdrawn because it would amount to reduction in pay and the aforesaid action is in violation of Article 311 (2) of the Constitution because the reduction of pay could only be ordered as a consequence of penalty. 7. Consequently, the writ appeal filed by the appellant is hereby allowed. The impugned order passed by the learned Single Judge dated 14.9.2009 in Writ Petition No.774/2009 (s) is hereby quashed and also the order dated 18th September, 2007 passed by the Joint Director is also quashed. It is held that the appellant would be entitled the benefit of time bound promotion pay scale of Rs.4500-7000, which was granted to the appellant earlier. Looking to the facts of the case, there shall be no order as to costs.” 10. Keeping in view the aforesaid position of law, no case for interference in the order passed by the learned Single Judge is made out. 11. The appeal fails and is hereby dismissed.