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Madhya Pradesh High Court · body

2017 DIGILAW 1062 (MP)

Shanti Thakur v. State of M. P.

2017-10-06

J.K.MAHESHWARI

body2017
ORDER 1. Being aggrieved by the inaction of the respondents in the matter of grant of third time scale of pay, the petitioner has come before this Court relying upon the decision of Division Bench of this Court in the matter of Lokendra Kumar Agrawal v. State of M.P. and another, reported in 2010(2) MPHT 163 . 2. On perusal of the record and upon hearing learned Deputy Advocate General, it is apparent that the grievance of the petitioner has not yet been redressed, which is required to be redressed by the competent authority within the time framed. It is to be noted here that similar controversy has been decided by the Division Bench of this Court in the matter of Lokendra Kumar Agrawal (supra), wherein the Division Bench has held as under :- 4. The respondent-State stated that the General Administration Department issued circulars dated 5th July, 2002 and 23.9.2002 clarifying the position of the employees who did not join in pursuance to the order of promotion on the promotional post. As per the aforesaid circular, if the employee refused to join on the promotional post and forgo the promotion then the benefit of Time Bound Promotion granted to such an employee would also be withdrawn, consequently, the High Court of Madhya Pradesh time bound promotion granted to the appellant has been withdrawn. 5.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.4,500-7,000, 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 foregone 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 Consequently, the benefit of time bound promotion granted to the appellant has also been withdrawn.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 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 foregone his promotion. In our 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 foregone 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 up gradation of pay after completing certain period of service and withdrawal of the High Court of Madhya Pradesh 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 foregoing 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 to 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. 3. High Court of Madhya Pradesh in view of the aforesaid, it would be appropriate to dispose of this petition in the following terms :- (1) The petitioner shall submit a fresh representation along with the relevant documents for grant of third time scale of pay before competent authority within two weeks from today. 3. High Court of Madhya Pradesh in view of the aforesaid, it would be appropriate to dispose of this petition in the following terms :- (1) The petitioner shall submit a fresh representation along with the relevant documents for grant of third time scale of pay before competent authority within two weeks from today. (2) On receiving such representation, it shall be considered and decided by the competent authority in the light of Division Bench decision of this Court in Lokendra Kumar Agrawal (supra), within three months thereafter. In case, the petitioner is found entitled for grant of such benefit, she be granted otherwise assigning the reasons and affording opportunity of hearing, appropriate order be passed within the time so stipulated. (3) Needless to observe that if petitioner feels aggrieved by the order, she is at liberty to take recourse of law afresh. 4. With the aforesaid observations, this petition stands disposed of.