Yash Pal vs State Of Haryana And Others
2022 Latest Caselaw 1071 P&H

CWP-17077-2021                                                              1

206         IN THE HIGH COURT OF PUNJAB AND HARYANA
                        AT CHANDIGARH

                                                CWP-17077-2021
                                                Date of Decision : 02.03.2022


Yash Pal                                                     ...Petitioner

                                           Versus

The State of Haryana and others                              ...Respondents



CORAM : HON'BLE MR. JUSTICE RAJBIR SEHRAWAT

Present:    Mr. Jawahar Lal Goyal, Advocate
            for the petitioner.

            Mr. Harish Rathee, DAG, Haryana.

            (In virtual Court)

                   ****

RAJBIR SEHRAWAT, J (ORAL)

1. This is a petition filed under Article 226/227 of the

Constitution of India for issuance of a writ in the nature of certiorari

quashing the impugned order dated 26.04.2021/27.04.2021 (P-10) qua Sr.

No.949, wherein the posting of petitioner as ESHM is shown as 'Forgo-

retirement on 30.04.2021 after completion of 58 years of age; recovery

order dated 23.08.2021 (P-13), vide which recovery amounting to

Rs.1,36,024/- has been sought from the petitioner as his 2nd ACP has been

ordered to be withdrawn on account of forgoing promotion. Certain other

prayers have also been made in the petition.

2. The facts involved in the present case are that the petitioner

was appointed as Science Master on 29.01.1996, on adhoc basis in the

School Education Department, Haryana, which was followed by

regularization w.e.f. 01.10.2003. As per the ACP scheme/rules, the

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petitioner was granted 1st ACP scale w.e.f. 01.10.2013, on completion of 10

years regular satisfactory service. Thereafter, the petitioner was awarded 2nd

ACP scale as well, w.e.f. 01.10.2019, on completion of 16 years of service.

After grant of 2nd ACP scale, the pay of the petitioner was fixed on

06.03.2020 and the petitioner started drawing salary accordingly. The next

post of promotion from the post of Science Master is to the post of

Elementary School Head Master. Since the petitioner was senior enough,

therefore, his case was also considered and the necessary promotion order

was passed on 23.11.2020. However, thereafter, actual posting orders for

promotional post were not issued by the respondent department to any of

the persons who are promoted vide the above said order.

3. As has come on record, there were certain earlier promotion

orders also qua which the persons promoted had not been granted postings

after their promotions. Therefore, a consolidated exercise of granting

posting stations was carried out by the respondent department. Online

options were invited for places of postings and the candidates were asked to

fill-up their options, if they intended to accept the promotion. The online

form contained two columns. One was meant for those persons, who

accepted the promotions and who intended to get the postings pursuant to

the promotion. The other column was where the promoted persons wanted

to forego the promotion and did not want to be disturbed from their current

place. These options were to be exercised by the promoted persons upto

19.04.2021. The petitioner opted the column of foregoing promotion and

filled up the column submitting that he did not want to choose any station.

The reason given by the petitioner was also mentioned by stating therein

that he was retiring on 30.04.2021 only on completion of 58 years. Pursuant

to foregoing of the promotion, the petitioner was not granted any posting

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order and he was retained as a Science Master at the same place where he

was posted earlier. Hence, pension was also fixed on the post of Science

Master only. After the petitioner opted to forego the promotion, the

respondents withdrew the 2nd ACP scale from the petitioner, which was

earlier granted to him in lieu of lack of promotion, on the ground that he has

subsequently foregone the promotion. Accordingly, the pension of the

petitioner has also been re-fixed and reduced. Hence, the present petition

has been filed challenging the reduction of the pension by withdrawing the

ACP scale, as well as, the recovery arising therefrom.

4. It is submitted by the counsel for the petitioner that the

promotion of the petitioner was made in November, 2020. It was the

respondents only who are responsible for not granting posting to the

petitioner within time stipulated in the promotion period, i.e., within a

period of 3 days. When the respondents asked for options of stations, the

petitioner had already entered into the month of his retirement, rather, he

was retiring just after 10 days of seeking the options by the respondents.

Moreover, before seeking option from the petitioner, the respondents had

already fixed the pension of the petitioner in the scale of Science Master.

Faced with this situation, the petitioner had chosen the option to forego the

promotion, because he would have been disturbed from his present place of

posting only for a period of one week or so. That would have resulted in

delay in release of the retiral benefits of the petitioner. Hence, it is

submitted that it is the situation created by the respondents themselves

which has resulted in the petitioner foregoing the promotion. The petitioner

cannot be punished for the fault of the respondents.

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5. Learned counsel has further submitted that the respondents

themselves had granted the 2nd ACP under the rules and as per the

entitlement of the petitioner. The petitioner was getting the pension only as

per his entitlement till the date the order withdrawing the ACP scales was

withdrawn from him. As submitted above, the petitioner could not opt for

promotion because of the delay caused by the respondents, therefore, it is

the respondents only because of inaction of whom, the petitioner had got the

pension in the 2nd ACP scale. The petitioner is not at fault in this matter at

all, therefore, no recovery can be effected from the petitioner on account of

withdrawal of the 2nd ACP scale. Learned counsel for the petitioner has

relied upon the judgment in Sahib Ram Verma versus Union of India,

1995(1) S.C.T. 668.

6. Having heard the counsel for the parties and having perused

the record, this Court does not find any substance in the arguments of the

petitioner. There is no denying the fact that the promotion order was issued

by the respondents in November, 2020 and that the petitioner was not given

the appointment within the stipulated period of three days. However, the

respondents had granted due opportunity to the petitioner to opt for

promotion and to get posted on the promotional post. However, the

petitioner had positively chosen to forego the promotion, as such. Hence,

the respondents cannot be found at fault in not granting him the promotion

and any posting pursuant to the promotion order.

7. Since the promotion had been foregone by the petitioner,

therefore, the action of withdrawal of the ACP scale is only the statutory

consequence which was to follow and was to visit the petitioner under Rule

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14 of the Haryana Civil Services (ACP Rules), 2016, which is reproduced

as under :-

"14. Ceasing of entitlement of ACP Level.

(1) A Government employee who foregoes his promotion in the line of hierarchy or seeks reversion on his own accord to feeder post on any ground whatsoever, while drawing pay in --

(a) 3rd ACP Level, the pay shall be refixed in 2nd ACP Level ;

(b) 2nd ACP Level, the pay shall be re-fixed in the 1st ACP Level ;

(c) 1st ACP Level, the pay shall be re-fixed in the Functional pay structure, equal to the presumptive pay which shall have been admissible had he not been granted 3rd/2nd/1st ACP Level , as the case may be.

(2) If such Government employee becomes ready to accept promotion, in such case the period of service between the date of foregoing promotion/reversion and date of application indicating readiness to accept the promotion, subject to minimum one year, shall be excluded from the regular satisfactory service for the purpose of grant of ACP Level. On assuming the charge of promotional post the pay shall be re-fixed equal to the pay drawn in ACP Pay structure immediately before foregoing promotion or fixation of pay of the promotional post under normal rules, whichever is higher:

Provided that the request for seeking reversion or foregoing promotion once accepted by the competent authority shall not be withdrawn. Once a Government employee has foregone his promotion or sought reversion to a feeder post, such foregoing/ reversion shall remain in force for a minimum period of one year or upto the period he gives in writing to re-consider his name for promotion, whichever is later."

Perusal of the above said rules makes it clear that if an

employee foregoes the promotion when offered, that is bound to result in

withdrawal of the ACP pay scale, which was granted to him on account of

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non-availability of promotional avenues. The respondents may have been

lax in seeking the options for postings from the persons, including the

petitioner, however, the fact remains that he was granted an opportunity to

accept the promotion. Since the petitioner has foregone the same, therefore,

the respondents cannot be blamed for withdrawing the said 2nd ACP pay

scales as well.

8. Although the counsel for the petitioner has submitted that it

was the fault of the respondents only in not seeking options for postings for

about six months, yet even such fault on the part of the respondents cannot

operate as estoppel against the rules. Moreover, since the petitioner had

already been issued the pension payment order in the pay scales of the

Science Master, therefore, he would have been cognizant of the fact that if

he foregoes the promotion, he will be getting the pension only in the post of

Science Master. Since the pension is to be fixed as per the rules, therefore,

the pension even on the post of Science Master has to be reduced pursuant

to the provisions contained in the ACP Scales/rules. Needless to say, that

the petitioner's pension has not been reduced lower than in the functional

pay scales of the post of Science Master. Therefore, the petitioner does not

have any absolute right to get the pension in the ACP scale except where

the grant of ACP scale itself is permitted by the statutory rules.

9. However, this Court found substance in the arguments of the

learned counsel for the petitioner that the petitioner himself is not

responsible for payment of alleged excess amount of pension. For the

limited purpose of recovery calculated by the respondents against the

petitioner, the petitioner is right in asserting that it is the fault and delay on

the part of the respondents only, which created the situation resulting into

the payment of excess amount of pension, as per the respondents. This

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Court found reliance on the judgment relied upon by the counsel for the

petitioner in Sahib Ram Verma (supra). The petitioner is a class-III

employee. He is not responsible for any excess payment as such. He was

getting the pension only as per the pension payment order issued by the

respondents themselves. Hence, no recovery can be effected from the

petitioner on account of alleged excess payment of the pension. Hence, the

recovery from the petitioner, as such, cannot be sustained.

10. It is also the claim of the petitioner that the amount in lieu of

leave travel concession, which was duly sanctioned by the respondents, has

not been released by the respondents on the pretext that the same deserves

to be adjusted against the recovery. However, since the recovery itself has

been held to be non-sustainable, therefore, this amount also deserves to be

paid to the petitioner.

11. In view of the above, the present petition is partly allowed. The

order of withdrawing the 2nd ACP scale is upheld. However, the order qua

effecting the recovery from the petitioner is quashed. Accordingly, if some

amount has been recovered from the petitioner on account of the withdrawal

of the 2nd ACP scale, the respondents are directed to refund the same to the

petitioner within a period of one month from the date of receipt of certified

copy of this order. Further, the amount of leave travel concession which

already stood sanctioned by the respondents, is also ordered to be paid to

the petitioner. Let all due amounts be paid to the petitioner within a period

of one month from the date of receipt of certified copy of this order.

                                             (RAJBIR SEHRAWAT)
                                                   JUDGE
March 02, 2022
Manpreet
           Whether speaking/reasoned           :      Yes/No
           Whether reportable                  :      Yes/No

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