Ali Ahemad Khan v. State Of M.P. & Another

S.C. Sharma, J.:— The petitioner before this Court has filed this present petition claiming upgradation on completion of 30 years of service.

2. The petitioner was appointed as Shilp Anudeshak vide order dated 10.01.1985 and he was granted promotion on the post Training Superintendent. The petitioner was earlier granted first kramonnati on 19.04.1999 and was granted second kramonnati w.e.f. 01.04.2006. The petitioner was promoted by an order dated 06.09.2013 again in the same pay-scale and he has not accepted the promotion because it was in the same pay-scale, meaning thereby, the petitioner in his entire career has received only two upgradations so far as the pay-scale is concerned.

3. The respondents have not granted the benefit of third time bout upgradation in spite of completion of 30 years of service on the ground that the petitioner has refused to accept the promotional post.

4. This Court in similar circumstances in the case of Lokendra Kumar Agrawal v. State of M.P. reported in 2010 (2) MPHT 163 in paragraph Nos. 4, 5, 6 and 7 has held as under:—

“4. The respondent-State stated that the General Administration Department issued circulars dated 5 July, 2002 and 23-9-2002 clarifying the position of the employees who did not join in pursuance to the order of promotion on the promotional post. As per the aforesaid circular, if the employee refused to join on the promotional post and forgo the promotion then the benefit of Time Bound Promotion granted to such an employee would also be withdrawn, consequently, the time bound promotion granted to the appellant has been withdrawn.

5. From the facts of the case, it is clear that the appellant was granted the benefit of time bound promotion pay scale, i.e., pay scale of Rs. 4500-7000, after considering the case by the duly constituted committee. He was granted the aforesaid pay scale w.e.f. 19 October, 2005. Thereafter, appellant was promoted on the post of Head Clerk and he had foregone the said promotion. Consequently, the benefit of time bound promotion granted to the appellant has also been withdrawn. However, the appellant was considered by a duly constituted committee for the purpose of grant of benefit of time bound promotion and thereafter the aforesaid benefit was extended to the appellant. In our opinion, subsequent withdrawal of benefit of time bound promotion of the appellant amounts to reduction in pay of the appellant and it could not be done without holding a proper enquiry because the reduction of pay amounts to penalty. Appellant has not committed any misconduct. He has simply foregone his promotion. In 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.

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 18 September, 2007 passed by the Joint Director is also quashed. It is held that the appellant would be entitled to the benefit of time bound promotion pay scale of Rs. 4500-7000, which was granted to the appellant earlier. Looking to the facts of the case, there shall be no order as to costs.”

5. In the aforesaid case, the promotion was given in the same pay-scale on the post of accountant and this Court has arrived at a conclusion that refusal to accept promotion which is in the same pay-scale will not dis-entitle the government servant for grant of further upgradation keeping in view the notification dated 30.09.2014.

6. In light of the aforesaid order, merely because the petitioner has refused to join on the promotional post, which is in the same pay-scale, it cannot be made a basis for non grant of upgradation after completion of 30 years of service.

7. Not only this, other identically placed persons have also been granted upgradation and the petitioner has made categoric statement in the writ petition and enclosed an order passed by the respondent dated 25.08.2017 (Annexure P-6), there is no denial on the part of the respondents in respect of the aforesaid pleadings.

8. Resultantly, the writ petition is allowed. The respondents are directed to grant upgradation to the petitioner on completion of 30 years of service keeping in view the notification dated 30.09.2014. Respondents shall not deny the upgradation on the ground that the petitioner has refused to join the promotional post and the exercise of granting upgradation shall be concluded within a period of 4 months from the date of receipt of certified copy of this order. The petitioner shall be entitled for grant of arrears of salary also along with all consequential benefits.

9. With the aforesaid, the present writ petition stands allowed.

10. Certified copy, as per rules.