Madhya Pradesh High Court
Pravin Kumar Vyas vs School Education Department on 23 October, 2017
THE HIGH COURT OF MADHYA PRADESH
WP-1938-2017
(PRAVIN KUMAR VYAS Vs SCHOOL EDUCATION DEPARTMENT)
Indore, Dated : 23-10-2017
Shri Rakesh Pal, counsel for the petitioner.
Ms. Bhakti Vyas, GA for the respondent / State.
The petitioner has filed present writ petition being aggrieved by the order dated 23/12/2016 Annexure-P/4, by which, the respondent has recovered the amount of Rs. 1,88,343/-. from his retiral dues.
2 The petitioner was appointed as Assistant Teacher w.e.f. 10/09/1974 and retired as teacher w.e.f. 31/12/2016. Vide order dated 28/04/2006, the petitioner was granted the benefit of IInd Krammonati and pay-scale of Rs 5500 - 9000/- w.e.f. 01/08/2003. Thereafter, vide order dated 25/02/2008, he was promoted to the post of teacher in the pay-scale of Rs. 5000 - 8000/-. Due to personal reason, the petitioner did not accept the promotion. At the time of retirement, his pension and other retiral dues were liable to be settled on the basis of the pay-scale of Rs. 5500 - 9000/-, but the respondent has withdrawn the benefit of IInd Kramonnati and settled his retiral dues on the basis of the pay- scale of Rs. 5000 - 8000/-, hence the present writ petition before this Court.
3 After notice, the respondents filed return by submitting that in the promotion order, specific condition was mentioned that in the event of refusal of the promotion, benefit of Kramonnati would be withdrawn in light of the circular of the State Government dated 23/09/2002. Since the petitioner did not accept the promotion, therefore, he is not entitled to get the benefit of Kramonnati because the same was given to him in lieu of promotion. 4 The circular dated 23/09/2002 came for consideration before this Court in W.P. no. 1687/2003 and vide order dated 04/08/2003, the Writ Petition was dismissed and the action of the respondent was held justified in withdrawing the benefit of Kramonnati. Thereafter, writ appeal was filed, in which Division Bench in the matter of Lokendra Kumar Agrawal Vs. State of M.P and another reported in 2010(2) MPHT 163 has held that withdrawal of the Kramonnati amounts to reduction of pay i.e. an punishment and which cannot be done without holding departmental enquiry. Operative part of the order is reproduced below :
"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 amount 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 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."
5 Since the circular dated 23/09/2002 virtually has been quashed by this Court in the case of Lokendra Kumar Agrawal (supra ), it has been held that the benefit of Kramonnati cannot be withdrawn in the event of repudiation of promotion, therefore, the action of the respondent cannot be upheld.
6 Hence the recovery of Rs.1,88,343/- is set aside and, the respondents are directed to settle the pension and other retiral dues of the petitioner on the basis of the pay-scale of Rs. 5500 - 9000/-. The entire exercise be completed within a period of 60 days from the date of production of certified copy of this order. In view of the aforesaid present writ petition is disposed of. C c as per rules.
(VIVEK RUSIA) JUDGE