SHAKUNTLA DEVI Vs. STATE OF HARYANA

JUDGEMENT

(1.) Petitioner was appointed on June 14, 1972 a Junior Mistress in the Industrial Training and Vocational Education Department, Haryana at Sonepat. By order dated December 20, 1994 passed by the Director of Industrial Training and Vocational Education Haryana, she was granted the first higher standard pay scale of Rs. 1600-2660 with effect from January 1, 1994 on completion of more than 10 years of satisfactory service in the cadre. Thereafter, on February 16, 1996 she was granted the second higher standard pay scale of Rs. 1640-2900 with effect from July 1, 1994 on completion of 20 years of regular satisfactory service. The pay scales of the Haryana Government employees were revised with effect from January 1, 1996 as a result whereof she started drawing a pay of Rs. 8300/- in the scale of Rs. 5500-9000. This pay was drawn by her in the second ACP scale of Rs. 5500-9000 in terms of the Haryana Civil Services (Assured Career Progression) Rules, 1998 (for short the ACP Rules) which came into force with effect from January 1, 1996 though the functional scale of the post of Junior Mistress was Rs. 5000-7850. She was allowed to cross the efficiency bar with effect from April 1, 1997 and her pay was raised to Rs. 8475/- per month. The Director of Industrial Training and Vocational Education, Haryana by his order dated November 24, 1999 promoted her to the post of Head Mistress and posted her at Jhajjar against a vacant post. She did not join at Jhajjar and informed the Department that it was not possible for her to accept the promotion on account of the failing health of her in-laws who were residing with her. Since the petitioner had foregone her promotion to the post of Head Mistress she was served with a notice dated June 28, 2002 calling upon her to show cause as to why the second ACP scale granted to her be not withdrawn in view of the provisions of Rule 11 of the ACP Rules. As already observed, the petitioner was drawing pay in the second ACP scale of Rs. 5500-9000 whereas the functional scale of her post was Rs. 5000-7850. She filed her reply to the show cause notice and explained the reasons as to why she had foregone the promotion. The explanation was not found satisfactory and, therefore, the Director by his order dated September 25, 2002 withdrew the second ACP scale of Rs. 5500-9000 and fixed her pay in the functional scale of Rs. 5000-7850 on the ground that the higher scale had to be withdrawn in view of the provisions of Rule 11 of the ACP Rules. It is against this order that the present petition has been filed under Article 226 of the Constitution.

(2.) We have heard the learned counsel appearing for the petitioner and having perused the record of the writ petition find no merit in the same. A perusal of the impugned order would show that the second ACP scale of Rs. 5500-9000 has been withdrawn because the petitioner had foregone her promotion and this has been done in terms of Rule 11 of the ACP Rules which reads as under :

(3.) A reading of the aforesaid Rule makes it clear that a Government employee who chooses to forego any functional promotion on any ground whatsoever while drawing his pay in any ACP scale shall cease to be entitled to draw his pay in that scale and shall draw his pay in the functional pay scale prescribed for the post on which he is substantially working. It is not in dispute that the petitioner was working as a Junior Mistress when she was granted the second higher standard pay scale. When she decided to forgo the promotion she could not continue to draw pay in the higher scale but could draw her pay only in the functional scale of her post. Admittedly, the higher scale in which she was drawing her pay was Rs. 5500-9000 whereas the functional scale of the post of Junior Mistress which she was holding was Rs. 5000-7850. In view of the provisions of Rule 11 of the ACP Rules, she was not entitled to draw pay in the scale of Rs. 5500-9000 and could only draw in the functional scale of Rs. 5000-7850. No fault can, thus, be found with the impugned order passed by the Director withdrawing the higher scale and fixing her pay in the functional scale of the post.