Madhya Pradesh High Court
Rameshchandra Temniya vs State Of M.P. on 14 February, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJEEV SACHDEVA,
HON'BLE SHRI JUSTICE VIVEK AGARWAL &
HON'BLE SHRI JUSTICE VINAY SARAF
WRIT APPEAL No. 583 of 2020
RAMESHCHANDRA TEMNIYA
Versus
STATE OF M.P. AND OTHERS
Appearance:
Shri Sanjay Jamindar - Advocate (through video conferencing) and Shri
Aditya Khandekar - Advocates for the petitioner.
Shri Siddharth Singh Chauhan - Government Advocate for the
respondents/State.
Reserved on : 09.09.2024
Pronounced on : 14.02.2025
ORDER
Per: Vivek Agarwal, J.-
This matter is referred to by Division Bench at Indore of this High
Court at Indore vide order dated 29.09.2021 referring the following
questions for consideration to Larger Bench:
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"1. Whether an employee who declined promotion, is
entitled to get benefit of kramonnati ?
2. Whether withdrawal of Kramonnati erroneously
granted without anything more and without attaching any
stigma and penal consequences amounts to punishment ?
3. Whether such withdrawal of upgradation benefits hits
Article 311 of the Constitution of India ?"
2. The backdrop, in which reference is made, is that the petitioner
Rameshchandra Temniya while working as Dresser was promoted by order
dated 17.12.1999 on the post of Dresser Grade I in the scale of Rs.3050-
4590/-. The appellant took a conscious decision to forgo the promotion. In
furtherance of his decision, the promotion order was cancelled on
21.01.2000. Thereafter pursuant to the circular of the State Government
dated 17.03.1999/19.04.1999 after completion of 12 years of service, the
petitioner was given first kramonnati in the pay-scale of Rs.2,610-3,540/-.
When this aspect of grant of kramonnati after denial of promotion came to
the notice of the Accounts and Audit Section of the concerned Department
that petitioner had declined promotion, it was opined that the petitioner
was not entitled to get benefit of kramonnati. Therefore, by order dated
10.06.2008, the promotion order was cancelled and the financial benefits
attached to the promotional post were directed to be recovered along with
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interest.
3. The order dated 10.06.2008 was called in question by filing Writ
Petition No.8527/2018. Learned Single Judge upheld the order dated
10.06.2008 as a result writ appeal was filed.
4. It is on record that another Division Bench of this High Court vide
order dated 23.02.2010 passed in Writ Appeal No.496/2009 (Lokendra
Kumar Agrawal v. State of MP) opined 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 I Lead 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
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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 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 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.
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(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."
5. The Division Bench in Writ Appeal No.583/2020 has expressed that
it has doubts about the correctness of the order of the Division Bench in
Writ Appeal No.496/2009 and thus, reference came to be made to a Larger
Bench with a request to Hon'ble the Chief Justice to consider the need of
constitution of a Larger Bench to consider the questions mentioned above.
The reasons for doubting the correctness of the order passed by the
Division Bench in Writ Appeal No.496/2009 are mentioned as under:
"(1) The financial upgradation/kramonnati is
provided to an employee who did not get benefit of
promotion within stipulated years (12 & 24 years,
respectively in Madhya Pradesh). In other words, the
financial upgradation is given when employee was all
along eligible to be promoted and department is unable to
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give him benefit of promotion. Thus in order to avoid
stagnation of such employee, benefit of kramonnati is
being provided.
In our considered opinion, if department has
promoted the petitioner and it is petitioner who has
declined that promotion, the stagnation is not attributable
to the department. Indeed, it is petitioner's own creation.
The petitioner cannot get the benefit of his own wrong.
Thus in such cases, where the employee was given
promotion and he declined it, in our view he is not entitled
to get the benefit of 'kramonnati'.
(2) We also doubt the finding of the previous Bench
in Lokendra Kumar Agrawal (supra) wherein it is held
that such withdrawal of promotion amounts to punishment
attracting Article 311 of the Constitution.
In service/Administrative Law, the
cancellation/withdrawal of promotion/financial
upgradation in all situations, does not amount to reversion
of an employee. If an erroneous promotion is granted, the
authority granting such promotion has every right to
withdraw it in accordance with law. Such withdrawal, by
no stretch of imagination, can be said to be punitive in
nature attracting Article 311 of the Constitution.
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It is noteworthy that benefit of "kramonnati" is not a
promotion or a time bound promotion as understood by
the Division Bench in Lokendra Kumar Agrawal (supra).
The financial upgradation is given to stagnating
employees after completion of stipulated years of service
because of which they only get upgraded pay scale. Their
nature of job remains the same. Putting it differently, the
employee continues to perform same nature of duties, but
gets a higher pay scale on getting the benefit of
kramonnati. Thus, even otherwise, kramonnati cannot be
equated with promotion and for this reason also, taking
away the benefit of kramonnati will not amount to
"reduction in rank". The punishments of dismissal,
removal and reduction in rank alone are covered under
Article 311 (2) of the Constitution. It cannot be stressed to
bring the financial upgradation within its ambit."
6. Shri Sanjay Jamindar, learned counsel for the appellant submits that
kramonnati was given after the petitioner had forgone his promotion. The
petitioner was appointed as a Dresser on 04.03.1980. The date of
promotion is 17.12.1999. Promotion was cancelled on 21.01.2000.
Kramonnati was granted on 10.06.2008 with effect from 21.07.2004.
7. It is further submitted that for grant of kramonnati, a Departmental
Screening Committee was duly constituted to adjudge the cases of eligible
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persons and criteria laid down in the circulars for grant of kramonnati
being exhaustive, the petitioner was granted kramonnati after fulfilling all
the criteria which are laid down for considering case of a person for
promotion. Therefore, withdrawal of kramonnati will amount to violation
of Article 311 (2) of the Constitution of India. Reliance is placed on the
Constitution Bench decision of the Supreme Court in the case of
Parshotam Lal Dhingra v. Union of India, 1958 SC 36.
8. To appreciate the question which was raised before the Constitution
Bench, brief factual matrix is necessary. The appellant therein - P.L.
Dhingra had joined railway services as a Signaller (Telegraphist) in 1924.
He was promoted to the post of Section Controller in 1942 and Deputy
Chief Controller in 1947 and Chief Controller in 1950. All these posts
were in Class III service. On 31.03.1951, Shri P.L. Dhingra along with six
other candidates appeared before the Selection Board constituted for
selecting a candidate for the post of assistant Superintendent Railway
Telegraphs which was a gazetted post in Class II Officers' cadre. Shri
Dhingra was selected out of the seven candidates for this post. On
02.07.1951, a notice of appointment was issued by the Headquarters. Shri
Dhingra joined in the afternoon of 03.07.1951 in place of one Sahu Ram.
Thereafter on 28.04.1953, one Gouri Shankar S.S.T.E.I./Hd. Qrs. made
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certain adverse remarks against the appellant P.L. Dhingra in his
confidential report for the year ending 31.03.1953. This adverse remark
was confirmed by C.S.T.E. on 25.05.1953 and as a practice, those remarks
were placed before the General Manager who on 11.06.1953 observed as
follows:
"I am disappointed to read these reports. He should revert as a
subordinate till he makes good the shortcomings noticed in this chance of
his as an officer. Portion underlined red to be communicated."
Thereafter Railway Board wrote to the General Manager as under:
"With reference to your Letter No.3780 dated 30th December,
1953, the Board desires that you should inform Shri Parshotam Lal
Dhingra that his reversion for generally unsatisfactory work will
stand, but that this reversion will not be a bar to his being
considered again for a promotion in the future if his work and
conduct justify. He should also be informed that he has, in his
representation, used language unbecoming of a senior official, and
that he should desist from this in future.
You may watch his work up to the end of March 1955 and
judging from his work and conduct, you may treat him as eligible
for being considered for promotion as Assistant Transportation
Superintendent in the selection that may be made after March
1955."
This was communicated to Shri Dhingra on 17.02.1955.
9. Shri Dhingra, in the meantime, had filed writ petition under Article
226 of the Constitution of India on 09.02.1955. Hon'ble Judge took the
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view that the petitioner had been punished by being reduced in rank
without being given an opportunity to show cause against the action
proposed to be taken in regard to him and that consequently the order was
invalid for non-compliance with the provisions of Article 311 (2) of the
Constitution.
10. On a Letters Patent Appeal filed by the Union of India, a Division
Bench of the High Court reversed the order passed by Hon'ble Single
Judge and dismissed the petitioner's writ application. Thereafter, the High
Court certified that it was a fit case for appeal to Hon'ble the Supreme
Court. Accordingly, the matter came to be considered by Hon'ble the
Supreme Court.
11. Hon'ble the Supreme Court, by a majority view pronounced by
Hon'ble Shri Justice S.R. Das, C.J. has held as follows:
"29. Applying the principles discussed above it is
quite clear that the petitioner before us was appointed to the
higher post on an officiating basis, that is to say, he was
appointed to officiate in that post which, according to Indian
Railway Code, Rule, 2003(19) corresponding to F.R. 9(19)
means, that he was appointed only to perform the duties of
that post. He had no right to continue in that post and under
the general law the implied term of such appointment was
that it was terminable at any time on reasonable notice by
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the Government and, therefore, his reduction did not operate
as a forfeiture of any right and could not be described as
reduction in rank by way of punishment. Nor did this
reduction under Note 1 to Rule 1702 amount to his dismissal
or removal. Further it is quite clear from the orders passed
by the General Manager that it did not entail the forfeiture of
his chances of future promotion or affect his seniority in his
substantive post. In these circumstances there is no escape
from the conclusion that the petitioner was not reduced in
rank by way of punishment and, therefore, the provisions of
Article 311(2) do not come into play at all. In this view of
the matter the petitioner cannot complain that the
requirements of Article 311(2) were not complied with, for
those requirements never applied to him. The result,
therefore, is that we uphold the decision of the Division
Bench, although on somewhat different grounds. This appeal
must, therefore, be dismissed with costs."
Thus, it is held that since the petitioner was not reduced in rank by
way of punishment as Shri Dhingra was appointed in an officiating
capacity and not in a substantive capacity, therefore, the provisions of
Article 311 (2) of the Constitution do not come into play at all.
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12. However, Hon'ble Shri Justice Vivian Bose expressed that he
cannot agree that Article 311 of the Constitution is not attracted in the said
case and expressed as follows:
"....I gather that his view, and that of my learned
brothers, is that Article 311 is confined to the penalties
prescribed by the various rules and that one must look to
all the relevant rules to determine whether the order is
intended to operate as a penalty or not. With deep respect,
I do not think that the gist of the matter is either the form
of the action or the procedure followed: nor do I think it is
relevant to determine what operated in the mind of a
particular officer. The real hurt does not lie in any of those
things but in the consequences that follow and, in my
judgment, the protections of Article 311 are not against
harsh words but against hard blows. It is the effect of the
order alone that matters; and in my judgment, Article 311
applies whenever any substantial evil follows over and
above a purely 'contractual one'. I do not think the article
can be evaded by saying in a set of rules that a particular
consequence is not a punishment or that a particular kind
of action is not intended to operate as a penalty. In my
judgment, it does not matter whether the evil
consequences are one of the 'penalties' prescribed by the
rules or not. The real test is, do they in fact ensue as a
consequence of the order made?"
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13. Thus, reading the dissenting view of Hon'ble Mr. Justice Vivian
Bose, it is pointed out that even in case of withdrawal of kramonnati
provisions of Article 311 (2) of the Constitution will be applicable.
14. Reliance is placed on the judgment of the Supreme Court in the
case of Union of India and Another v. Narendra Singh, (2008) 2 SCC
750 to submit that even if correction of mistaken decision, process of law
is must, i.e. show cause notice should at least be given.
15. Shri Siddharth Singh Chouhan, learned counsel appearing for the
State submits that circular dated 17.03.1999 is the kramonnati scheme for
the government servants. Circular dated 05.07.2002 provides for
withdrawal of kramonnati on account of refusal to take promotion by
government servant. Circular dated 24.01.2008 deals with time pay scale
for members of the civil services of the State. Rule 10 of the MP Civil
Services (Classification, Control and Appeal) Rules, 1966 deals with
penalties.
16. It is submitted that law in regard to entitlement to claim financial
upgradation on denial of promotion is now well settled by Hon'ble the
Supreme Court in Union of India and Others v. Manju Arora and Others,
(2022) 2 SCC 151. It is further submitted that Hon'ble the Supreme Court
in the case of Bharat Sanchar Nigam Limited v. R. Santhakumari
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Velusamy and Others (2011) 9 SCC 510 has differentiated between
financial upgradation and promotion. Therefore, promotion and financial
upgradation being not one and the same thing, same yardstick cannot be
applied to the matter of financial upgradation as are applicable to
promotion.
17. Reliance is placed in the case of B. Thirumal v. Ananda Sivakumar
and Others, (2014) 16 SCC 593 to point out that scheme of kramonnati
and promotions are two different things.
18. Reliance is also placed on the judgment of Hon'ble the Supreme
Court in the case of Dharampal Satyapal Limited v. Deputy
Commissioner of Central Excise, Gauhati and Others, (2018) 8 SCC 519
and it is suggested that issuance of notice of recovery seeking to recover
excise duty retrospectively is a useless formality. When there is no dispute
regarding quantum recoverable, such retrospective recovery is valid in law.
As non-issuance of show-cause notice had not caused any prejudice to the
assessee and remanding the matter for decision after issuance of notice
would be just a mere formality matter, held, cannot be remanded directing
issuance of show-cause notice prior to recovery of excise duty.
19. Reliance is placed on the decision in the case of Union of India and
Others v. M.V. Mohanan Nair, (2020) 5 SCC 421 wherein Hon'ble the
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Supreme Court had occasion to analyse Modified Assured Career
Progression (MACP) Scheme and has held that in absence of any such
usage in MACP Scheme, contention of respondents that benefit of MACP
Scheme is referable to promotional post, is dehors MACP Scheme and
therefore, rejected the plea.
20. Reliance is also placed on the judgment of Division Bench of this
Court in the case of Union of India and Others v. Shri Devraj Bais and
Others, 2011 SCC OnLine MP 2567 to submit that in service laws, power
is conferred not for a person but in exigency of service, a factor depending
upon the circumstances which may arise giving rise to occasional exercise
of power to relax.
21. Reliance is also placed on the Division Bench decision of this Court
in the case of Premlata Raikwar v. State of MP and Others, 2020 SCC
OnLine MP 4460 wherein it is held that once the petitioner waived
promotion as Headmaster, then subsequently after completion of 12 years
of service, he would not be entitled for kramonnati. The order passed by
learned single Judge in WP No.22795/2019 is affirmed.
22. After hearing learned counsel for the parties and going through the
record, to answer the questions referred to this Full Bench, firstly it is
necessary to clarify that kramonnati or MACP or time scale of pay is not
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the same thing as promotion and the scheme of kramonnati/MACP is to
obviate the chances of stagnation of an employee.
23. Circular of Government of Madhya Pradesh, General
Administration Department (Pay Commission Cell), Mantralaya bearing
No. F. 1-1/1/Ve. Aapr/99 dated 17 March, 1999/19.04.1999 clearly
stipulates that the State of Madhya Pradesh took a policy decision that
every regular government servant/officer shall be entitled to two additional
pay-scales during his whole service career other than the one which was
applicable at the time of entry in service. It is further mentioned that all
those employees who have been regularly appointed under the concerned
service recruitment rules and have been working thereafter in the same
pay-scale, on completion of 12 years or more, will be entitled to higher
pay-scale in which they may be granted kramonnati subject to following
conditions:
"क य द उ शासक य कम क िनयिमत सेवा म िनयु प ा ़ क सेवा अविध
१२ वष से अिधक परं तु २४ वष से कम है , तथा सेवा म भरती के समय लागू
ारं िभक वेतनमान अथवा उसके त थानी वेतनमान के अित र कोई अ य
वेतनमान पदौ नित / मो नित / चयन / अप ेड करके अथवा अ य कसी
मा यम से ा नह ं हुआ है
खयदउ शासक य कम क िनयिमत सेवा म िनयु के प ात क सेवा अविध
२४ वष से अिधक है , तथा उसे सेवा म वेश के समय लागू वेतनमान के अित र
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एक से अिधक उ चतर वेतनमान पदौ नित / मो नित / चयन / अप ेडशन
अथवा अ य कसी मा यम से न िमला हो
ग इस योजना के अंतगत ् मो नित का लाभ दान करने के िलये उ कमचार /
अिधकार के वगत 5 वषा◌े के गोपनीय ितवेदन का पर ण उसी कार कया
जायेगा जस कार पदो नित के करण म कया जाता है , तथा उपयु पाये जाने
पर ह मो नित का लाभ दया जायेगा
घ मो नत होने पर वेतन का िनधारण मो नित वेतनमान म अगली टे ज पर
िनधा रत कया जावेगा
पर तु य द भ व य म इसी वेतनमान म पदो नित क जाती है तो उसके उपरांत
वेतन िनधारण ऐसा मानते हुए कया जावेगा जैस क सबंिधत कमचार पूव के
वेतनमान म ह चला आ रहा हो तथा उसे मो नित के फल व प वेतन िनधारण
का लाभ नह ं िमला हो
च इस मो नित के फल व प सबंिधत अिधकार / कमचार के पदनाम म
कसी कार का प रवतन नह ं कया जायेगा "
A table is also given prescribing kramonnat pay-scales against each
of the pay-scales on which a person is working. Thus, it is evident that
Scheme of kramonnati is a scheme to obviate stagnation in the same pay-
scale.
24. Thereafter the State of Madhya Pradesh issued another circular No.
F1-1/1 VAP/1999, Bhopal, dated 05 July, 2002/23.09.2002. It is provided
that those eligible employees who have refused to take benefit of
promotion will not be eligible for kramonnati scheme. They shall not
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receive benefit of that scheme. In paragraph 3 of the said circular, the State
Government clarified that kramonnati scheme is an alternate and ad hoc
arrangement for those who are not able to get promotion for a long period
and kramonnati is being given in lieu of promotion. It is further clarified
that those employees who are given benefit of kramonnati, when promoted
to the higher post and then refuse to accept the promotion then the benefit
of kramonnat pay-scale will also be terminated. It further provides that in
the promotion order itself, it be mentioned that if a government servant
relinquishes promotion, then kramonnati which was granted to him in lieu
promotion shall also stand terminated.
25. Thus, it is evident that kramonnati is a kind of Modified Assured
Career Progression Scheme so to obviate stagnation for want of avenues of
promotions and it is not equivalent to promotion as held by the Supreme
Court in the case of M.V. Mohanan Nair (supra). In the case of M.V.
Mohanan Nair (supra) the Supreme Court has held that in absence of such
usage in MACP Scheme, contention of respondent that benefit of MACP
Scheme is referable to promotional rules is dehors MACP Scheme and is
liable to be rejected. It is held that use of word immediate next higher
grade pay occurring in MACP Scheme does not mean that pay-scale of
promotional pay-scale is to be given.
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26. Hon'ble the Supreme Court in B. Thirumal (supra) has clarified that
there is difference between upgradation to higher pay-scale and promotion
inasmuch as in case of upgradation, candidate continues to hold the same
post without any change in duties and responsibilities but merely gets
higher pay-scale which is available to everyone who satisfies eligibility
conditions without undergoing any process of selection. In paragraphs 24
and 25 of the said judgment, it is held as follows:
"24. On a careful reading of Principles (ii) and (iii) above
in Velusamy [BSNL v. R. Santhakumari Velusamy,
(2011) 9 SCC 510 : (2011) 2 SCC (L&S) 496 : AIR 2011
SC 3793], it is evident that upgradation which is
synonymous to redesignation in the facts of this case
simply confers a financial benefit by raising the scale of
pay of the posts without there being movement from a
lower position to a higher position. In the case of
upgradation, the candidate continues to hold the same post
without any change in the duties and responsibilities but
merely gets a higher pay scale. Not only that, where the
advancement to a higher pay scale without change of post
is available to everyone who satisfies the eligibility
conditions, without undergoing any process of selection, it
will be upgradation. But if advancement to a higher pay
scale without change of post is accompanied by some
process which has the element of selection, then it will be
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a promotion to a higher pay scale. This Court declared
that upgradation in that case was not promotion, also
because the BCR Scheme did not involve creation of
additional posts nor did the Scheme involve consideration
of inter se merit of the candidates or involve any selection
process. The Court on that basis declared that BCR
Scheme was only an upgradation intended to give relief
against stagnation which was not tantamount to
promotion. To such process of upgradation, the
Reservation Rules had no application, declared this Court.
25. The rationale behind upgradation not being considered
tantamount to promotion would, in our opinion, apply
with full force even to a case where the
upgradation/redesignation is sought to be termed as a case
of recruitment by transfer. If the process of
upgradation/redesignation has no correlation to the
vacancies available in the State Engineering Service and if
such upgradation/redesignation is granted as a matter of
course without any selection process and merely on the
incumbent acquiring a degree qualification, we see no
reason why such upgradation/redesignation should be
treated as a case of appointment to the said service by
transfer. What could not constitute promotion [assuming
that the post of Assistant Engineer (Electrical) was a part
of the Subordinate Service] cannot obviously be
considered to be a case of appointment by transfer."
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27. In the case of R. Santhakumari Velusamy (supra), the Supreme
Court has held that reservation would apply only to the promotional post or
upgradation involving selection as distinguished from mere upgradation or
upgradation simpliciter. It also distinguished between the promotion and
upgradation simpliciter. In kramonnati it is upgradation simpliciter.
28. Before we move forward, it is pertinent to answer that in case of
kramonnati scheme, as it is argued by learned counsel for the appellant and
is evident from the circulars issued from time to time, there is an element
of scrutiny but that is only a screening and that scrutiny alone is not
sufficient to term the process to be that of or akin to promotion inasmuch
as promotion can only be made against vacant sanctioned post involving
higher responsibility. Therefore, the argument raised by Shri Jamindar that
process of kramonnati since involves an element of screening, it has all the
trappings of promotion, deserves to, and is hereby rejected.
29. The Supreme Court in Manju Arora (supra) has held in clear terms
that there is difference between refusal of regular promotion and promotion
against officiating basis. It is held that persons who refuse regular
promotion are on a different footing as compared to persons who refuse
promotion against officiating basis. It is held that those who refuse regular
promotion, will not be entitled to benefit of Assured Career Progression
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Scheme because doctrine of "Approbate and Reprobate" becomes
applicable since employees concerned cannot be permitted to "eat their
cake and have it too". It is further held that however, the said doctrine will
not be applicable to employees who were not offered regular promotion
but conditional promotion on officiating basis subject to reversion. Since
such employee cannot be said to have exercised choice between
alternatives and their refusal to accept officiating promotion cannot be held
against them. In paragraph 19 and 20 of the said judgment, it is held as
under:
"19. In the above circumstances, we find merit in the
submissions made on behalf of the appellants.
Consequently, it is declared that the employees who have
refused the offer of regular promotion are disentitled to
the financial upgradation benefits envisaged under the
OM dated 9-8-1999. In this situation, the Scottish doctrine
of "approbate and reprobate" springs to mind. The English
equivalent of the doctrine was explained in Lissenden v.
C.A.V. Bosch Ltd. [Lissenden v. C.A.V. Bosch Ltd., 1940
AC 412 (HL)] wherein Lord Atkin observed at : (AC p.
429)
"... In cases where the doctrine does apply
the person concerned has the choice of two
rights, either of which he is at liberty to
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adopt, but not both. Where the doctrine does
apply, if the person to whom the choice
belongs irrevocably and with knowledge
adopts the one he cannot afterwards assert
the other."
The above doctrine is attracted to the circumstances in this
case. The employees concerned cannot therefore be
allowed to simultaneously approbate and reprobate, or to
put it colloquially, "eat their cake and have it too". It is
declared accordingly for the respondents in CAs Nos.
7027-28 of 2009.
20. However, the above would not apply to the two
respondent employees Kanta Suri and Veena Arora in
CAs Nos. 7150-51 of 2009 as they were not offered
regular promotion but conditional promotion on
officiating basis subject to reversion, by the order dated
29-12-1988. These two employees cannot be said to have
exercised a choice between alternatives and as such the
above principle would not apply and their refusal to
accept the officiating promotion cannot be held against
them. The refusal of the promotion offered by the
communication dated 29-12-1988 will not disentitle the
two employees, Kanta Suri and Veena Arora to the
benefits under the ACP Scheme. It is declared
accordingly."
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The law laid down in the case of Manju Arora (supra) also brings
out a distinction between the law laid down by the Supreme Court in P.L.
Dhingra (supra) and arguments advanced by Shri Jamindar inasmuch as it
is held that there is no lien on account of officiating promotion and thus
any withdrawal of officiating promotion will not attract rigor of Article
311 of the Constitution.
30. A Division Bench of this Court in the case of Premlata Raikwar
(supra) has held that once the petitioner therein waived promotion then
subsequently on completing 12 years of service, he is not entitled to time-
scale as he/she voluntarily waived right of promotion and on such waiver,
he looses his entitlement for kramonnati. Similar view is expressed by
learned single Judge in the case of Vishnu Prasad v. Industrial Court of
MP [WP No.19767/2017 decided on 31.01.2019] wherein it is held that
benefit of kramonnati is granted to an employee by way of stagnation
allowance as employer is not able to provide promotion avenues to its
employees. If the petitioner was promoted and he refuses the promotion,
then by way of forgoing his promotion for domestic reasons, he waived his
right of getting kramonnati. Thus, it is held that he is not entitled to claim
benefit of kramonnati.
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31. Thus, to answer first issue in reference as to 'whether an employee
who declined promotion, is entitled to get benefit of kramonnati', the
answer in categorical terms is NO. Once an employee declines regular
promotion, he is not entitled to get benefit of kramonnati.
32. As far as second issue as to 'whether withdrawal of kramonnati
erroneously granted without anything more and without attaching any
stigma and penal consequences, amounts to punishment?' is concerned,
this is when clubbed to the third aspect of reference i.e. 'whether such
withdrawal of upgradation benefits hits Article 311 of the Constitution', it
is appropriate to refer Article 311 of the Constitution. Article 311 of the
Constitution deals with dismissal, removal or reduction in rank. Thus, to
attract the provisions of Article 311 of the Constitution, it should be either
a case of dismissal, removal or reduction in rank. As far as dismissal and
removal are concerned, it does not call for any elaborate discussion, as
admittedly, withdrawal of kramonnati does not amount to either dismissal
or removal.
33. As far as aspect of reduction in rank is concerned, rank is defined in
Black's Law Dictionary 9th Edition, by Brian A. Garner as follows:
"rank. n. 1. A social or official position or standing, as in the
armed forces <the rank of captain> [Cases Armed Services -8.
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2. Parliamentary law. A motion's relative precedence."
34. The expression 'rank' is dealt with in the cases of Nyadar
Singh v. Union of India, AIR 1988 SC 1979 and in the case of High
Court of Calcutta v. Amal Kumar Roy, AIR 1962 SC 1704 (at page 1710).
In Amal Kumar Roy (supra) where for the Constitution Bench, B.P. Sinha,
CJ explained "The word 'rank' can be and has been used in different
senses in different context. The expression 'rank' in Article 311 (2) has
reference to a person's classification and not his particular place in the
same cadre in the hierarchy of the service to which he belongs. Hence, in
the context of the judicial service of West Bengal, 'reduction in rank'
would imply that a person who is already holding the post of a Subordinate
Judge has been reduced to the position of a Munsif, the rank of a
Subordinate Judge being higher than that of a Munsif. But Subordinate
Judges in the same cadre hold the same rank, though they have to be listed
in order of seniority in the Civil List. Therefore, losing some places in the
seniority list would not tantamount to reduction in rank. (Emphasis
supplied)"
35. In the case of State of Punjab v. Kishan Das AIR 1971 SC 766, it is
held that forfeiture of service resulting in loss of higher salary or reducing
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the chances of promotion to a higher post, does not amount to reduction in
rank. Thus, when the law is crystal clear that kramonnati/Career
Advancement Scheme in lieu of promotion is not akin to promotion but is
only to obviate the financial stagnation in the career, there being no
reduction in rank, withdrawal of kramonnati should not be construed to
amount reduction in rank.
36. Even in the case of Parshotam Lal Dhingra (supra), the Supreme
Court formulated two tests, namely, (1) whether the servant had a right to
the post or the rank, or (2) whether he has been visited with evil
consequences of the kind hereinbefore referred to? If the case satisfies
either of the two tests then it must be held that the servant has been
punished. Applying the principles to the facts of that case, Hon'ble the
Supreme Court found that the impugned order of reversion in the case of
P.L. Dhingra did not entail the forfeiture of his chances of his future
promotion or affect his seniority in his substantive post and, therefore,
there was no reduction in rank within the meaning of Article 311 of the
Constitution.
37. The Supreme Court in the case of Nyadar Singh (supra) has held
that the power of reduction in rank is available to reduce a civil servant to a
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lower time scale, grade, service or post from which he had previously
earned his promotion. Therefore, he must have held the post earlier.
38. In the present case, as discussed above and as held by Hon'ble the
Supreme Court in the case of B. Thirumal (supra) that
upgradation/kramonnati does not amount to promotion, therefore, there is
no question of holding a promotional post. Therefore, withdrawal of
kramonnati will not amount to reduction in rank. Hon'ble the Supreme
Court in the case of Dr. N.C. Singhal v. Union of India and Others,
(1980) 3 SCC 29 has held that "if an employee eligible for promotion is
offered a higher post by way of promotion, his refusal to accept the same,
would enable the employer, the Central Government in this case, to fill in
the post by offering it to a junior to the government servant refusing to
accept the post and in so acting there will be no violation of Article 16 of
the Constitution. Further, the government servant who refuses to accept the
promotional post offered to him for his own reasons, cannot then be heard
to complain that he must be given promotional post from the date on which
the avenue of promotion was open to him.
39. In the case of Union of India v. Narendra Singh (2008) 2 SCC 750
it is held that if there is cancellation of even an erroneous promotion then
show cause notice is required to be given to the concerned employee in
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terms of the principles of natural justice and doctrine of audi alteram
partem.
40. In Babulal Badriprasad Verma v. Surat Municipal Corporation
and Others, (2008) 12 SCC 401, it is held that a person may waive his
right either expressly or by necessary implication. He may in a given case
disentitle himself from obtaining an equitable relief particularly when he
allows a thing to come to an irreversible situation. It is further held that
once the appellant through his conduct waived his right to equitable
remedy then, such conduct preclude and operates as estoppel against him
with respect to asserting his right.
41. Thus, we have no hesitation to hold that withdrawal of kramonnati
does not amount to attaching any stigma and penal consequences and it
does not amount to punishment inasmuch as, an employee forgoing the
promotion is aware of the consequences and once he takes a conscious
decision to forgo the promotion, then withdrawal of kramonnati by
implication of waiver and acquiescence will not allow the person so
subjected to withdrawal, to say that it is a punishment. Therefore, in the
light of the decisions in the cases of Parshotam Lal Dhingra, Nyadar
Singh and Amal Kumar Roy (supra) provisions of Article 311 of the
Constitution will not be attracted. Therefore, with profound respect, we
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hold that law laid down in case Lokendra Kumar Agrawal (supra) by
Division Bench, is not correct ratio of law. We hold that withdrawal of
such benefits is not hit by Article 311 of the Constitution.
42. Before parting we would like to clarify that there are two situations
which emerge on account of forgoing a promotion, one is, it will debar the
employee from claiming kramonnati which becomes due on completion of
certain years of service. Another is that, whether said kramonnati if granted
prior to promotion can be withdrawn without giving a show cause notice or
not? In view of law laid down in the case of Dharampal Satyapal Limited
(supra), we are of the opinion that when there is no dispute in regard to
knowledge of the employee forgoing a promotion in regard to withdrawal
of kramonnati or denial of kramonnati in future, non-issuance of show-
cause notice would not cause any prejudice.
43. While dealing with the second part of the issue in hand, we came
across a circular issued by the General Administration Department of the
State Government bearing No.887/1998160/240/1/3 dated 29.08.2024
though not placed before us either by the petitioner or respondents/State.
The same reads as follows:
" म य दे श शासन
सामा य शासन वभाग
मं ालय , भोपाल
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मॅाक 887/1998160/2024/1/3 भोपाल, दनॉक 29 अग त 2024
ित,
शासन के सम त वभाग,
अ य , राज व म डल, म० ० वािलयर,
सम त वभागा य ,
सम त संभागायु ,
सम त कले टर,
सम त मु य कायपालन अिधकार , जला पंचायत,
म य दे श.
वषय - शासक य सेवक के िलये मो नित योजना.
संदभ - इस वभाग का प रप ० एफ 1-1/1 / वेआ /99, दनॉ ंक 23.09.2002
---------
उपरो संदिभत प रप क कं डका - 4 ारा ये िनदश जार कए गए थे क "ऐसे
शासक य सेवक, ज ह मो नित का लाभ दया गया है , को जब उ च पद पर पदो नत कया
जाता है और वह ऐसी पदो नित लेने से इं कार करता है तो उसे दान कए गए मो नित
वेतनमान का लाभ भी समा के दया जावे, साथ ह पदो नित आदे श म भी इसका प
उ लेख कया जावे◌े क य द शासक य सेवक इस पदो नित का प र याग करता है तो उसे
पदो नित के एवज म पूव म◌ं दान कए गए मो नित वेतनमान का लाभ भी समा कर
दया जावेगा"
२- रा य शासन ारा पूण वचारोपरांत संदिभत प रप मांक एफ 1-1/1 / वेआ /99,
दनॉक
ं 23.09.2002 क कं डका -4 को िन नानुसार ित था पत कया जाता है -
"इस योजना के अंतगत उ चतर वेतनमान का व ीय लाभ लेने के प ात य द कोई
कमचार बाद म िनयिमत पदो नित वीकार करने से इं कार करता है तो उसे पूव से वीकृ ◌ृत
उ चतर वेतनमान के अंतगत व ीय लाभ वापस नह ं िलया जावेगा, पर तु बाद म उसे कोई
उ चतर वेतनमा◌ानका व ीय लाभ दे य नह ं होगा."
३- उपरो िनदश जार होने क दनांक से भावशील ह गे तथा पुराने िन णत करण पुन:
नह ं खोले जायगे.
म य दे श के रा यपाल के नाम से
तथा आदे शानुसार
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(सुमन रायकवार)
अवर सिचव
म य दे श शासन
सामा य शासन वभाग"
44. Therefore, in view of the aforesaid circular, it is held that if
kramonnati is granted prior to award of promotion and an employee
refuses to accept the promotion, then the said kramonnati cannot be
withdrawn as per the aforesaid government circular dated 29.08.2024.
Per: Vinay Saraf,J.-
I have gone through the judgment of Hon'ble Shri Justice Vivek
Agarwal and I respectfully agree with the erudite views expressed by my
senior. I, however, wish to add few words of my own in conclusion of
question No.1, which was formulated as under:
"Whether an employee who declined promotion, is entitled to get benefit
of Kramonnati ?"
45. In dealing with the reference under consideration, we are
mainly concerned with the nature and scope of the Assured Career
Progression Scheme introduced by Government of Madhya Pradesh with a
view to deal with the problem of genuine stagnation and hardship faced by
the employees due to lack of adequate promotional avenues. Assured
Career Progression (ACP) Scheme was originally introduced on
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17.03.1999/19.04.1999 to mitigate the hardship in cases of acute stagnation
in a cadre or in an isolated post and it was decided to grant two financial
up-gradations under the ACP Scheme to employees on completion of 12
and 24 years of regular service. The financial up-gradations under the ACP
Scheme are placement in the higher Pay Scale and financial benefits in the
higher Pay Scale without regular promotion. Under the financial up-
gradation, grant of financial benefits under the ACP Scheme to the
government servants concerned is on personal basis and such financial up-
gradation neither amounts to regular promotion nor requires creation of
new post.
46. Basic object behind the Assured Career Progression Scheme is
to remove stagnation and provide relief against stagnation. First and
foremost, thing to be seen is whether employee is really possessing the
qualifications provided for the promotional post. Sometimes, beside the
educational qualifications, some departments provide for some additional
qualifying conditions such as passing of professional or departmental
examination etc. Failure to pass such examination, it being essential
qualification, the employee may not get promotion, sometimes written test
and/or oral interview is prescribed with condition of attainment of
prescribed bench mark. Concerned employee, if failed to secure necessary
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bench mark may be held disqualified for getting promotional post.
Condition that confidential reports should be up to the mark is also
considered as qualification stagnated. Promotion denied to an employee on
the aforementioned grounds is a disqualification for getting benefit under
ACP Scheme. It is irrespective of and in addition to the eligibility
condition of 10 years' service and stagnation.
47. Many a time, for variety of reasons, though the promotional
avenues are open, promotions are not granted. May be for administrative
reasons or other difficulties like non-availability or promotional posts,
recruitment process not undertaken, Govt. imposed ban on filling of the
posts, the issues regarding percentage of reservation/quota or otherwise are
pending before the court of law or post is isolated etc. and in these
situations and for many other reasons, if employee does not get promotion
is said to have been stagnated.
48. The scheme was discontinued by State Government by
Circular dated 05.07.2002 and thereafter new scheme was introduced with
effect from 01.04.2006 through Finance Department dated 24.01.2008 to
the effect that financial up-gradation under the Scheme will be admissible
whenever an incumbent has spent 10 years continuously in the same grade-
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pay, however the promotions earned/financial up-gradations granted under
the ACPS in the past shall be taken into account.
49. ACPS envisages merely placement in the immediate next
higher grade pay in the hierarchy of the recommended revised pay bands
and grade pay / financial up gradations on completion of 10 years and 20
years of regular service without one or two promotions, as the case may be.
The financial up-gradation under the ACPS is to the pay scale of the next
higher grade pay and not of next promotional post in the service.
50. Supreme Court in a recent judgment in Union of India and
Others v. N.M. Raut and Others, 2024 SCC Online SC 3873 considered
the object and scope of ACPS and held as under:
"13. A careful reading of the aforesaid
clauses/provisions reflects the objective purpose of the
MACPS, that is, that an employee should not remain
stagnant in the same pay scale/Grade Pay for periods of
10, 20 or 30 years. In such cases, the employee would be
entitled to financial up-gradation to the immediate next
higher Grade Pay, as mentioned in Section 1, Part - A of
the first Schedule to the CCS RP Rules. Emphasis in clause
1 is on the expression "Grade Pay". Clause 2, similarly
states that the benefit under the MPACPS is available
where the eligible employee has not got regular promotion.
In such cases, he/she will be given financial up-gradation.
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However, such financial up - gradation is not the same as
a pay-scale/Grade Pay, which is applicable to the next
promotional post in the hierarchy of the concerned
cadre/organization."
51. In view of the above discussion and pronouncement of the
Supreme Court, it is safe to hold that benefit of ACPS is available to an
incumbent only in case if he really possesses the qualifications provided
for the promotional post and despite having essential qualification and
eligibility, he could not get promotion within fixed period. Under these
circumstances to avoid the stagnation of promotional avenue, the employee
will get financial up-gradation to the immediate next higher Grade Pay.
However, if any promotion is offered to the employee and he declined to
avail the promotion, there cannot be any stagnation and under these
circumstances he will not be entitled to get benefit of ACPS.
Question No.1 is answered accordingly that if an employee
is promoted within the period specified in ACP Scheme or
declined to avail offered promotion, in both situations, he will not
be entitled to get benefit of Kramonnati.
There is no need to add words in conclusion arrived by Shri
Justice Vivek Agarwal on Question No.2 that withdrawal of
erroneously granted Kramonnati does not amount to attaching
any stigma and thus, there are no penal consequences of the same
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and withdrawal of Kramonnati cannot be treated as punishment
or penalty.
Question No.3 is also answered by Justice Vivek Agarwal in
quite detail that in no circumstances the withdrawal of
erroneously granted Kramonnati is hit by Article 311 of the
Constitution of India and thus, there is no need to issue any show
cause notice or hold any enquiry.
52. The Reference is answered in the above terms. The matter is
remitted to the Division Bench for a decision on merits in accordance with
the findings recorded hereinabove.
(SANJEEV SACHDEVA) (VIVEK AGARWAL) (VINAY SARAF)
JUDGE JUDGE JUDGE
ks
