Madhya Pradesh High Court
Mohan Lal Kumawat vs School Education Department on 28 June, 2021
Author: Subodh Abhyankar
THE HIGH COURT OF MADHYA PRADESH
W.P. No.6282/2021
Mohan Lal Kumavat V/s. State of M.P. & Others
-: 1 :-
Indore, dated : 28.06.2021
Hearing through Video Conferencing.
Shri K.L.Purohit, learned counsel for the petitioner.
Shri Valmik Shakargaye, learned Govt. Advocate for the
respondent/State.
Heard.
The petitioner before this court has filed the present petition
being aggrieved by order dated 24.02.2021, passed by the respondent
No.3 by which the benefit on third Kramonati has been withdrawn.
The facts of the case reveal that the petitioner on completion of
24 years of service was granted the benefit of second Kramonati by an
order dated 12.06.2019 in the pay-scale of Rs.9300 - 34800 + Grade
Pay of Rs.3600/-. After grant of second Kramonati, he was promoted
by an order dated 21.07.2014 in the pay-scale of Rs.9300 - 34800 +
Grade pay of Rs.3200/-, as the pay of the promotional post was less
than the pay-scale already granted to the petitioner and he was
subjected to in reduction in pay. He has refused the promotion which
was granted by order dated 21.07.2014 and on this count alone the
respondents have denied the benefit which was to be conferred upon
the petitioner on completion of 30 years of service. Only on this count,
the respondents have denied the grant of benefit. A reply has been filed
in the matter and the respondents/State has stated that because the
petitioner has refused the promotion, they have rightly denied the
benefit of up-gradation on completion of 30 years of service.
The respondent has placed reliance upon the circular issued by
the State Government dated 05.07.2002.
THE HIGH COURT OF MADHYA PRADESH
W.P. No.6282/2021
Mohan Lal Kumavat V/s. State of M.P. & Others
The controversy involved in the present case stands concluded
by the judgment delivered by this court in the case of Lokendra
Kumar Agrawal V/s. State of M.P., [2010 (2) MPHT 163
(DB)]. This court in the aforesaid case in paragraph 4 to 7 has held as
under :-
"4. The respondent-State stated that the
General Administration Department issued circulars
dt.5th July, 2012 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 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, ie., 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 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.
THE HIGH COURT OF MADHYA PRADESH
W.P. No.6282/2021
Mohan Lal Kumavat V/s. State of M.P. & Others
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 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 joint 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
14.09.2009 in the 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.
THE HIGH COURT OF MADHYA PRADESH
W.P. No.6282/2021
Mohan Lal Kumavat V/s. State of M.P. & Others
In light of the aforesaid, the judgment delivered by this court, as
the petitioner was being granted promotion on a lower pay-scale, he
has rightly refused the same and, therefore, it will not come in his way
in the matter of grant of up-gradation on completion of 30 years of
service.
Resultantly, the impugned order dated 24.02.2021 is hereby
quashed.
The respondents are directed to process the case of the petitioner
for grant of higher pay-scale on completion of 30 years of service,
within a period of 4 months from the date of receipt of process and
pass final order within a period of 4 months from the date of receipt of
certified copy of this order.
No order as to costs.
Certified copy as per rules.
(SUBODH ABHYANKAR)
JUDGE
ns
NEERAJ SARVATE
2021.06.29 14:09:18 +05'30'
