Madhya Pradesh High Court
Rameshchandra Temniya vs State Of M.P. on 14 February, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2025:MPHC-JBP:6830
1
WA-583-2020
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:
Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 3/3/2025 6:43:02 PM
NEUTRAL CITATION NO. 2025:MPHC-JBP:6830 2 WA-583-2020 "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 Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 3/3/2025 6:43:02 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:6830 3 WA-583-2020 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 Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 3/3/2025 6:43:02 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:6830 4 WA-583-2020 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. Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 3/3/2025 6:43:02 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:6830 5 WA-583-2020 (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 Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 3/3/2025 6:43:02 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:6830 6 WA-583-2020 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. Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 3/3/2025 6:43:02 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:6830 7 WA-583-2020 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 Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 3/3/2025 6:43:02 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:6830 8 WA-583-2020 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 Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 3/3/2025 6:43:02 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:6830 9 WA-583-2020 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 Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 3/3/2025 6:43:02 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:6830 10 WA-583-2020 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 Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 3/3/2025 6:43:02 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:6830 11 WA-583-2020 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. Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 3/3/2025 6:43:02 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:6830 12 WA-583-2020
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?"Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 3/3/2025 6:43:02 PM
NEUTRAL CITATION NO. 2025:MPHC-JBP:6830 13 WA-583-2020
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 Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 3/3/2025 6:43:02 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:6830 14 WA-583-2020 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 Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 3/3/2025 6:43:02 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:6830 15 WA-583-2020 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 Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 3/3/2025 6:43:02 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:6830 16 WA-583-2020 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 Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 3/3/2025 6:43:02 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:6830 17 WA-583-2020 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 Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 3/3/2025 6:43:02 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:6830 18 WA-583-2020 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.Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 3/3/2025 6:43:02 PM
NEUTRAL CITATION NO. 2025:MPHC-JBP:6830 19 WA-583-2020
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 Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 3/3/2025 6:43:02 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:6830 20 WA-583-2020 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."Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 3/3/2025 6:43:02 PM
NEUTRAL CITATION NO. 2025:MPHC-JBP:6830 21 WA-583-2020
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 Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 3/3/2025 6:43:02 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:6830 22 WA-583-2020 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 Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 3/3/2025 6:43:02 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:6830 23 WA-583-2020 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."
Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 3/3/2025 6:43:02 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:6830 24 WA-583-2020 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.
Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 3/3/2025 6:43:02 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:6830 25 WA-583-2020
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.Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 3/3/2025 6:43:02 PM
NEUTRAL CITATION NO. 2025:MPHC-JBP:6830 26 WA-583-2020
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 Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 3/3/2025 6:43:02 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:6830 27 WA-583-2020 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 Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 3/3/2025 6:43:02 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:6830 28 WA-583-2020 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 Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 3/3/2025 6:43:02 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:6830 29 WA-583-2020 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 Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 3/3/2025 6:43:02 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:6830 30 WA-583-2020 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 Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 3/3/2025 6:43:02 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:6830 31 WA-583-2020 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 Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 3/3/2025 6:43:02 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:6830 32 WA-583-2020 (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 Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 3/3/2025 6:43:02 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:6830 33 WA-583-2020 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 Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 3/3/2025 6:43:02 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:6830 34 WA-583-2020 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- Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 3/3/2025 6:43:02 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:6830 35 WA-583-2020 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.Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 3/3/2025 6:43:02 PM
NEUTRAL CITATION NO. 2025:MPHC-JBP:6830 36 WA-583-2020 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 Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 3/3/2025 6:43:02 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:6830 37 WA-583-2020 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
Signature Not Verified
Signed by: KOUSHALENDRA
SHARAN SHUKLA
Signing time: 3/3/2025
6:43:02 PM