Madhya Pradesh High Court
Satish Kumar Mandloi vs The State Of Madhya Pradesh on 21 January, 2019
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HIGH COURT OF MADHYA PRADESH
W.P. No. 25029/2018
(Satish Kumar Mandloi Vs. State of MP and others)
Indore, Dated: 21/1/2019
Shri Anand Agrawal learned counsel for petitioner.
Shri Kaustubh Pathak learned counsel for respondents.
Heard finally with consent.
By this writ petition the petitioner has challenged the order dated 22/2/2018, Annexure P-1 by which the benefit of third time scale of pay granted vide order dated 30 th December 2017 w.e.f. 15/10/2016 has been withdrawn on the ground that petitioner had refused to go on promotion, hence he was wrongly granted the benefit of third time scale of pay.
Learned counsel for petitioner has pointed out that the issue involved in the present case is squarely covered by the judgment of this court in the case of Lokendra Kumar Agrawal Vs. State of MP and another reported in 2010(2) MPHT 163. He has also submitted that petitioner was granted second time scale of pay vide order dated 14/12/2010 which was higher than the pay scale which was offered to petitioner by the promotion order dated 6/9/2013, therefore, he had refused to join it. He further submits that even otherwise the reason for refusal may not be relevant because the withdrawal amounts to violating Article 311(2) of Constitution of India.
Counsel for State has supported the impugned order. Having heard the learned counsel for the parties and on perusal of the record it is noticed that this court in case of Lokendra Kumar Agrawal (supra) considering the similar controversy has held as under:
~2~ "4. The respondent-State stated that the General Administration Department issued circulars dated 5th 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post and forgo the promotion then the benefit of Time Bound Promotion granted to such an employee would also be withdrawn, consequently, the time bound promotion granted to the appellant has been withdrawn.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. 19th October, 2005. Thereafter, appellant was promoted on the post of Head Clerk and he had foregone the said promotion. Consequently, the benefit of time bound promotion granted to the appellant has also been withdrawn. However, the appellant was considered by a duly constituted committee for the purpose of grant of benefit of time bound promotion and thereafter the aforesaid benefit was extended to the appellant. In our opinion, subsequent withdrawal of benefit of time bound promotion of the appellant amounts to reduction in pay of the appellant and it could not be done without holding a proper enquiry because the reduction of pay amounts to penalty.
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 ~3~ 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 18th 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."
That apart in identical circumstances, the Coordinate Bench vide order dated 21st August 2018 in case of Dalchand Joshi Vs. State of MP and others in WP No. 8402/18 and vide order dated 17/9/2018 in WP No. 8401/18 in the case of Ali Ahmed Khan Vs. State of MP and others has granted relief to the similarly situated persons.
Since the case of petitioner is squarely covered by the aforesaid orders, therefore, the present writ petition is allowed and the impugned order dated 22/2/2018 is set aside.
C.C. As per rules.
(Prakash Shrivastava) Judge BDJ Bhuneshwar Datt 2019.01.24 16:45:32
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