Smt. Kusum Deshmukh vs The State Of Madhya Pradesh
2023 Latest Caselaw 13077 MP

                             1              WP No.20018/2023


IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
               ON THE 11th OF AUGUST, 2023
              WRIT PETITION No. 20018 of 2023
BETWEEN:-

SMT. KUSUM DESHMUKH W/O SHRI RAVISHANKAR
DESHMUKH, AGED ABOUT 62 YEARS, OCCUPATION:
RETIRED ASSISTANT TEACHER GOVT. PRIMARY
SCHOOL CHANDORA TAHSIL MULTAI DISTRICT
BETUL R/O TAPTI WARD, MULTAI DISTRICT BETUL
(MADHYA PRADESH)



                                                .....PETITIONER
(BY SHRI JITENDRA ARYA - ADVOCATE)

AND

1.    STATE OF MADHYA PRADESH THROUGH THE
      PRINCIPAL SECRETARY SCHOOL EDUCATION
      DEPARTMENT VALLABH BHAWAN BHOPAL
      (MADHYA PRADESH)



2.    THE COMMISSIONER, PUBLIC INSTRUCTION
      GOUTAM NAGAR, CHETAK BRIDGE, BHOPAL
      (MADHYA PRADESH)



3.    JOINT DIRECTOR, TREASURY (ACCOUNT AND
      PENSION)   DIVISION  BHOPAL   (MADHYA
      PRADESH)



4.    DISTRICT   EDUCATION    OFFICER   BETUL
      DISTRICT BETUL (MADHYA PRADESH)
                                    2                   WP No.20018/2023



5.   DISTRICT PENSION OFFICER BETUL DISTRICT
     BETUL (MADHYA PRADESH)



6.   BLOCK     EDUCATION   OFFICER   MULTAI
     DISTRICT BETUL (MADHYA PRADESH)



7.   SANKUL    PRINCIPAL  GOV.  EXCELLENCE
     HIGHER    SECONDARY   SCHOOL,   MULTAI
     DISTRICT BETUL (MADHYA PRADESH)



                                                      .....RESPONDENTS
(BY SHRI MOHAN SAUSARKAR - GOVERNMENT ADVOCATE)
      This petition coming on for admission this day, the court passed the

following:

                                 ORDER

This petition under Article 226 of Constitution of India has been filed seeking the following reliefs:

"(I) That, this Hon'ble Court may kindly be please to allow the petition and direct to the respondents extend all the benefit of II and III Krammonati to the petitioner and further directed to the respondent entitled to interest on the delay payment. (II) That, this Hon'ble Court may kindly be pleased to call entire record from the respondent for proper adjudication in the matter, in the interest of justice. (III) Any other relief or writ or direction or order which this Hon'ble Court may deem fit and proper looking to the facts and circumstances of the case be awarded to the petitioner including the cost of the litigation."

2. It is submitted by counsel for petitioner that it is true that petitioner has forgone her promotion but she has been denied the second and third kramonnati. Accordingly, it is submitted that in the light of order passed by coordinate Bench of this Court in the case of Fakheer Chand Dhotre Vs. State of M.P. and others decided on 19.10.2011 in W.P. No.17583/2011 and order passed by coordinate Bench of this Court in the case of Shahid Khan Vs. State of M.P. and others decided on 20.06.2022 in W.P. No.10540/2022, the respondents may be directed to decide the representation.

3. Per contra, it is submitted by counsel for State that kramonnati is nothing but is a stagnation allowance awarded on account of non-grant of promotion. Once the promotion is refused, then the person is not entitled for kramonnati.

4. Heard learned counsel for parties.

5. The Supreme Court in the case of Union of India and others Vs. Manju Arora and another by judgment dated 3/1/2022 passed in Civil Appeal No.7027-7028/2009 has held as under:-

11. As can be seen, the benefit of the financial upgradation under the ACP Scheme shall be available only if regular promotion during the prescribed intervals, 12 years and 24 years, could not be availed by an employee. While Condition no. 5.1 is clear to this effect, the Division Bench unnecessarily referred to condition No. 10 to hold in favor of employees who have refused promotion offered to them. The Court was of the opinion that the employees concerned are entitled to one financial upgradation, even if they turn down the offer of promotion, as non-

acceptance of such promotion would impact only their second upgradation. With such finding, the respondents were held entitled to the relief under

the ACP Scheme, although it was a case of refusal of promotion offered to the employee.

12. The learned counsel for the appellant has taken us through the relevant conditions in the ACP Scheme notified on 9.8.1999 and more particularly clause 5.1 and Clause 10 thereof. She has also brought to the notice of the Court, the promotions offered to the employees and their refusal to accept the promotion for their own personal reasons, such as family needs or movement to another station etc.

13. Reading of the ACP Scheme shows that financial upgradation would accrue to an employee only if no regular promotions have been received by her/him at the prescribed intervals of 12 and 24 years respectively. In the entire service career, an employee is entitledto financial upgradation if the concerned employee had to suffer stagnation in the same post without benefit of any regular promotion and, as earlier stated, the O.M. dated 9.8.1999 was introduced as a "safety net" to deal with the problems of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues. But can the benefit of the Scheme be claimed by an employee when she, despite offer of regular promotion, refuses to accept the same and chooses to remain in the existing grade of her own volition?

14. As can be seen from the records, Manju Arora and Suman Lata Bhatia were offered promotion to higher grade on multiple occasions, but they refused the same and chose to continue in the existing pay scale. The purport of the O.M. dated 9.8.1999 was subsequently clarified by the O.M. dated 18.7.2001 where it was specifically provided that an employee who had been offered regular vacancy based promotion before grant of ACP benefit and the regular promotion was

refused, she/he become ineligible to the grant of the ACP benefits. Even without the clarificatory notification dated 18.7.2001, a plain reading of clause 5.1 of the O.M. dated 9.8.1999 makes it abundantly clear that an employee who has opted to remain in the existing grade, by refusing offer of promotion, forfeits the rights to ACP benefits and such employee, on account of refusal, can be considered for regular promotion only after necessary debarment period is over.

15. However, despite the clear wordings in condition 5.1, the purport of the OM dated 9.8.1999 was missed out in the impugned judgment and the learned Court unnecessarily adverted to the words in condition 10 of the O.M. to hold in favor of the employees who have refused promotion for their own personal reasons.

16. We are quite certain that if a regular promotion is offered but is refused by the employee before becoming entitled to a financial upgradation, she/he shall not be entitled to financial upgradation only because she has suffered stagnation. This is because, it is not a case of lack of promotional opportunities but an employee opting to forfeit offered promotion, for her own personal reasons. However, this vital aspect was not appropriately appreciated by the High Court while granting relief to the employees.

17. It may also be observed that when an employee refuses the offered promotion, difficulties in manning the higher position might arise which give rise to administrative difficulties as the concerned employee very often refuse promotion in order to continue in his/her own place of posting.

6. This Court by order dated 14/2/2020 passed in the case of Smt. Premlata Raikwar Vs. State of M.P. and others decided in Writ Petition No.22795/2019 has held as under:-

8. The question is no more res integra. This Court in the case of Vishnu Prasad Verma vs. Industrial Court of M.P. By order dated 31.1.2019 passed in W.P.No. 19767/2017 has held as under:

The judgments on which reliance has been placed by the counsel for the petitioner, are distinguishable for the simple reason that in those cases the benefit of Kramonnati was granted and thereafter at a later stage the concerning employee forwent their promotions. Here in the present case, the petitioner has forgone his promotion prior to passing of an order granting the benefit of Kramonnati w.e.f. back date. The petitioner while foregoing his promotion was well aware of the circular dated 23.9.2002.

The respondents have relied upon the circular dated 23.9.2002, in which it is clearly mentioned that in case if a person forgoes his promotion then he would not be entitled for Kramonnati. The circular dated 23-9-2002 is reproduced as under :

^^e/; izn's k 'kklu lkekU; iz'kklu foHkkx ea=ky;

dzekad ,Q-1&1@1@osvkiz@99

Hkksiky] fnukad 5 tqykbZ] 2002

23 flrEcj] 2002 izfr] 'kklu ds leLr foHkkx] v/;{k] jktLo eaMy] e-iz-] Xokfy;j] leLr foHkkxk/;{k] leLr laHkkxk;qDr] leLr dysDVj]

leLr eq[; dk;Zikyu vf/kdkjh ftyk iapk;r] e/;izns'kA

fo"k;%& 'kkldh; lsodksa ds fy;s dzeksUufr ;kstukA

lanHkZ%& bl foHkkx dk Kki Øekad ,Q 1&1@1@os vkiz@99] fnukad 31-03-2001 ,oa fnukad 9-4-2001-

lanfHkZr Kkiu }kjk ;s funsZ'k tkjh fd;s x;s Fks fd ^^ftu ik= deZpkfj;ksa us mPp inksa ij inksUufr ysus ls ;k inksUufr in ij tkus ls badkj fd;k gS] os deZpkjh ØeksUufr ;kstuk ds ik= ugha gksx a aAs mUgsa mDr ;kstuk dk YkkHk izkIr ugha gksxkA ^^

2- 'kklu ds /;ku esa ;g ckr vkbZ gS fd dqN 'kkldh; lsod ØeksUufr ;kstuk ds ykHk izkIr gksus ds ckn inksUufr NksM+ nsrs gS] D;ksafd mUgs mPp osrueku dk ykHk ØeksUufr ;kstuk ds varxZr iwoZ ls gh izkIr gksrk jgrk gSA

3- ØeksUufr ;kstuk] inksUufr ugha fey ikus ds dkj.k ,d oSdfYid ,oa rnFkZ O;oLFkk gS tks 'kkldh; lsod dks yEch vof/k rd inksUufr ugha fey ikus ds ,ot esa nh tkrh gSA

4- jkT; 'kklu }kjk fopkjksijkUr ;g fu.kZ; fy;k x;k gS fd ,sls 'kkldh; lsod] ftUgsa ØeksUufr dk ykHk fn;k x;k gS] dks tc mPp in ij inksUur fd;k tkrk tkrk gS vkSj og ,slh inksUufr ysus ls badkj djrk gS rks mls iznku fd, x, ØeksUufr osrueku dk ykHk Hkh lekIr dj fn;k tkosA lkFk gh] inksUufr vkns'k esa Hkh bldk Li"V mYys[k fd;k tkos fd ;fn 'kkldh; lsod bl inksUufr dk ifjR;kx djrk gS rks mls inksUufr ds ,ot es]a iwoZ esa iznku fd, x, ØeksUufr osrueku dk ykHk Hkh lekIr dj fn;k tkosxa kA

5- ;g vkns'k foRr foHkkx ds i`"Bkadu Øekad 1031@1399@02@vkj@pkj] fnukad 23-09-2002 }kjk egkys[kkdkj] e/;izns'k ] Xokfy;j dks i`"Bkafdr fd;k x;k gSA

e/;izns'k ds jkT;iky ds uke ls rFkk vkns'kkuqlkj] gLrk @& ¼ds-,y- nhf{kr½ vij lfpo] e/;izns'k 'kklu] lkekU; iz'kklu foHkkx^^ Stagnation is a situation in which something stays the same and does not grow and develop. A higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues is an acceptable reason for pay differentiation, therefore, Krammonati is granted to an employee by way of stagnation

allowance, as the employer is not able to provide promotional avenues to its employees. Thus, in order to avoid work frustration amongst the employees, stagnation allowance is given by awarding higher pay scale. Now the only question for consideration is that whether an employee can waive this right, by refusing promotion or not?

A person may refuse promotion for various reasons. A person may not be interested in taking additional responsibilities attached to the promoted post or he might be already getting higher pay scale or he may not be interested to go to the place of posting etc. In the present case, the petitioner was posted at Gwalior and by order dated 24-4-2003, he was promoted to the post of Daftari and was posted in Labour Court, Damoh. The petitioner by his letter dated 3-5-2003 had forgone his promotion on the ground that Damoh is situated at a distance of 500 Km.s and since, he would not get much financial benefit, therefore, the family of the petitioner would get disturbed. Thus, the petitioner had forgone his promotion, primarily because he was not interested to join at Damoh.

The Supreme Court in the case of Kanchan Udyog Ltd. Vs. United Spirits Ltd., reported in (2017) 8 SCC 237 has held as under :

"22. The learned Single Judge framed an issue also with regard to waiver, estoppel and acquiescence, then answered it in the negative in a singular line, without any discussion. Waiver and acquiescence may be express or implied. Much will again depend on the nature of the contract, and the facts of each case. Waiver involves voluntary relinquishment of a known legal right, evincing awareness of the existence of the right and to waive the same. The principle is to be found in Section 63 of the Act. If a party entitled to a benefit under a contract, is denied the same, resulting in violation of a legal right, and does not protest, foregoing its legal right,

and accepts compliance in another form and manner, issues will arise with regard to waiver or acquiescence by conduct. ........................

23. Waiver by conduct was considered in P. Dasa Muni Reddy v. P. Appa Rao, observing as follows: (SCC p. 729, para 13) "13. Abandonment of right is much more than mere waiver, acquiescence or laches. ... Waiver is an intentional relinquishment of a known right or advantage, benefit, claim or privilege which except for such waiver the party would have enjoyed. Waiver can also be a voluntary surrender of a right. The doctrine of waiver has been applied in cases where landlords claimed forfeiture of lease or tenancy because of breach of some condition in the contract of tenancy. The doctrine which the courts of law will recognise is a rule of judicial policy that a person will not be allowed to take inconsistent position to gain advantage through the aid of courts. Waiver sometimes partakes of the nature of an election. Waiver is consensual in nature. It implies a meeting of the minds. It is a matter of mutual intention. The doctrine does not depend on misrepresentation. Waiver actually requires two parties, one party waiving and another receiving the benefit of waiver. There can be waiver so intended by one party and so understood by the other. The essential element of waiver is that there must be a voluntary and intentional relinquishment of a right. The voluntary choice is the essence of waiver. There should exist an opportunity for choice between the relinquishment and an enforcement of the right in question."

24. Waiver could also be deduced from acquiescence, was considered in Waman Shriniwas Kini v. Ratilal Bhagwandas & Co. observing as follows: (AIR p. 694, para 13) "13. ... Waiver is the abandonment of a right which normally everybody is at liberty to

waive. A waiver is nothing unless it amounts to a release. It signifies nothing more than an intention not to insist upon the right. It may be deduced from acquiescence or may be implied."

The Supreme Court in the case of All India Power Engineer Federation Vs. Sason Power Ltd., reported in (2017) 1 SCC 487 has held as under : "19. At this juncture, it is important to understand what exactly is meant by waiver. In Jagad Bandhu Chatterjee v. Nilima Rani this Court held: (SCC pp. 446-47, para 5) "5. In India the general principle with regard to waiver of contractual obligation is to be found in Section 63 of the Contract Act. Under that section it is open to a promisee to dispense with or remit, wholly or in part, the performance of the promise made to him or he can accept instead of it any satisfaction which he thinks fit. Under the Indian law neither consideration nor an agreement would be necessary to constitute waiver. This Court has already laid down in Waman Shriniwas Kini v. Ratilal Bhagwandas & Co., SCR p. 226 that: (AIR p. 694, para 13) '13. ... waiver is the abandonment of a right which normally everybody is at liberty to waive. A waiver is nothing unless it amounts to a release. It signifies nothing more than an intention not to insist upon the right.' It is well known that in the law of pre-emption the general principle which can be said to have been uniformly adopted by the Indian courts is that acquiescence in the sale by any positive act amounting to relinquishment of a pre-emptive right has the effect of the forfeiture of such a right. So far as the law of pre-emption is concerned the principle of waiver is based mainly on Mohammedan Jurisprudence. The contention that the waiver of the appellant's right under Section 26-F of the Bengal Tenancy

Act must be founded on contract or agreement cannot be acceded to and must be rejected."

20. In P. Dasa Muni Reddy v. P. Appa Rao, this Court held: (SCC p. 729, para 13) "13. ... Waiver is an intentional relinquishment of a known right or advantage, benefit, claim or privilege which except for such waiver the party would have enjoyed. Waiver can also be a voluntary surrender of a right. The doctrine of waiver has been applied in cases where landlords claimed forfeiture of lease or tenancy because of breach of some condition in the contract of tenancy. The doctrine which the courts of law will recognise is a rule of judicial policy that a person will not be allowed to take inconsistent position to gain advantage through the aid of courts. Waiver sometimes partakes of the nature of an election. Waiver is consensual in nature. It implies a meeting of the minds. It is a matter of mutual intention. The doctrine does not depend on misrepresentation. Waiver actually requires two parties, one party waiving and another receiving the benefit of waiver. There can be waiver so intended by one party and so understood by the other. The essential element of waiver is that there must be a voluntary and intentional relinquishment of a right. The voluntary choice is the essence of waiver. There should exist an opportunity for choice between the relinquishment and an enforcement of the right in question. It cannot be held that there has been a waiver of valuable rights where the circumstances show that what was done was involuntary. There can be no waiver of a non-existent right. Similarly, one cannot waive that which is not one's as a right at the time of waiver. Some mistake or misapprehension as to some facts which constitute the underlying assumption without which parties would not have made the contract

may be sufficient to justify the court in saying that there was no consent."

The Supreme Court in the case of Sonel Clocks and Gifts Ltd. Vs. New India Assurance Co. Ltd. reported in (2018) 9 SCC 784 has held as under :

"13. It is a well established position that waiver is an intentional relinquishment of a right. It must involve conscious abandonment of an existing legal right, advantage, benefit, claim or privilege, which except for such a waiver, a party could have enjoyed. It is an agreement not to assert a right. To invoke the principle of waiver, the person who is said to have waived must be fully informed as to his rights and with full knowledge about the same, he intentionally abandons them. (See para 41 of State of Punjab.) There must be a specific plea of waiver, much less of abandonment of a right by the opposite party."

The Supreme Court in the case of Babulal Badriprasad Varma Vs. Surat Municipal Corpn. Reported in (2008) 12 SCC 401 has held as under :

"48. Significantly, a similar conclusion was reached in Krishna Bahadur v. Purna Theatre though the principle was stated far more precisely, in the following terms: (SCC p. 233, paras 9-10) "9. The principle of waiver although is akin to the principle of estoppel; the difference between the two, however, is that whereas estoppel is not a cause of action; it is a rule of evidence; waiver is contractual and may constitute a cause of action; it is an agreement between the parties and a party fully knowing of its rights has agreed not to assert a right for a consideration.

10. A right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public interest is involved therein. Whenever waiver is pleaded it is for the party pleading the same

to show that an agreement waiving the right in consideration of some compromise came into being. Statutory right, however, may also be waived by his conduct."

(emphasis supplied) (See also Bank of India v. O.P. Swarnakar.)

49. In Ramdev Food Products (P) Ltd. v. Arvindbhai Rambhai Patel this Court observed: (SCC pp. 761- 62, paras 73-74) "73. The matter may be considered from another angle. If the first respondent has expressly waived his right on the trade mark registered in the name of the appellant Company, could he claim the said right indirectly? The answer to the said question must be rendered in the negative. It is well settled that what cannot be done directly cannot be done indirectly.

74. The term 'waiver' has been described in the following words:

'1471. Waiver.--Waiver is the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted, and is either express or implied from conduct. ... A person who is entitled to rely on a stipulation, existing for his benefit alone, in a contract or of a statutory provision, may waive it, and allow the contract or transaction to proceed as though the stipulation or provision did not exist. Waiver of this kind depends upon consent, and the fact that the other party has acted on it is sufficient consideration. ... It seems that, in general, where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, so as to alter his position, the party who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relationship as if no such promise or assurance had

been made by him, but he must accept their legal relations subject to the qualification which he has himself so introduced, even though it is not supported in point of law by any consideration."

Thus, it is clear that "Waiver" is the voluntary relinquishment or surrender of some known right or privilege.

If the facts and circumstances of the case are considered, then it is clear that the petitioner was aware of the fact that if forgoes his promotion, then he would not be entitled to claim Kramonnati, but still he decided to forgo his promotion. The judgments on which the reliance has been placed by the petitioner are distinguishable because in those cases the employees had forgone their promotion after grant of Kramonnati, and it was held that if the benefit of kramonnati is withdrawn, then it would result in reduction of pay, therefore, the principle of estoppel has no application in those case.

Thus, it is held that although the right of kramonnati had already accrued in favor of the petitioner on 7-4-2002, but before the same could be declared and could be granted, the petitioner was promoted, which was forgone by him for the simple reason, that he was not inclined to join at Damoh, which according to the petitioner was about 500 Kms. away from Gwalior. Thus, it can be said that the petitioner had "waived" his right of getting kramonnati, which had already accrued to him.

Under the facts and circumstances of this case, this Court is of the considered opinion that the respondents did not commit any mistake by refusing to extend the benefit of Kramonnati to the petitioner, after his refusal to accept the promotion, for the simple reason because the Kramonnati is granted in order to encounter the situation of stagnation but where the employee is not the victim of stagnation and if he voluntarily and

consciously decides not to take the promotion, then he cannot claim the benefit of Kramonnati.

Accordingly, this petition fails and is hereby dismissed.

9. Thus it can be said that the petitioner had consciously waived his right of getting kramonnati by refusing to accept promotion.

10. Therefore, in the light of the judgment passed in the case of Vishnu Prasad Verma (supra), it is held that since the petitioner was promoted to the post of Headmaster which was forgone by him, as a result of which it is held that the petitioner had waived his right to get the benefit of Kramonnati which became due to him subsequent to his promotion.

19. Since the petitioner was offered promotion which was not accepted by him, therefore, he cannot claim the benefit of time bound advancement scheme, because it is applicable to only those employees who were the victims of stagnation.

20. Accordingly, the petition fails and is hereby dismissed."

7. In the present case also petitioner has refused to accept her promotion and thus, she has waived her right of getting krammonati.

8. Accordingly, this petition is also dismissed in terms and conditions of order passed in case of Premlata Raikwar (supra).

(G.S. AHLUWALIA) JUDGE vc VARSHA CHOURASIYA 2023.08.14 19:29:01 +05'30'