Sabina, J. - (1.) PETITIONER has filed this petition challenging the orders dated 10.3.2008 (Annexure P -2) and 4.11.2008 (Annexure P -3) vide which time bound scale granted to the petitioner on completion of 9/16 years of service and proficiency step up granted on completion of 8 years of service, had been withdrawn and recovery was sought to be effected from the petitioner.
(2.) LEARNED counsel for the petitioner has submitted that petitioner was appointed as Upper Division Clerk with the respondents on 10.8.1979. Petitioner was granted first proficiency step up with effect from 10.8.1987 on completion of 8 years of service. Petitioner was granted first time bound scale with effect from 10.8.1988 on completion of 9 years of service and second time bound scale with effect from 10.8.1995 on completion of 16 years of service. Petitioner was offered promotion to the post of Circle Assistant vide order dated 4.9.2000. On account of her family circumstances, petitioner requested to forego the promotion and the said request was accepted vide order dated 11.10.2000 (Annexure P -1). After completion of three years of service, petitioner represented that she be promoted to the post of Circle Assistant. The said representation was accepted and the petitioner was promoted as Circle Assistant on 1.4.2005. Thereafter, vide the impugned orders, the time bound scales granted to the petitioner were withdrawn and recovery was ordered to be effected from the petitioner. Since the petitioner had earned time bound scales before the offer of promotion, the time bound scales granted to the petitioner could not be withdrawn. In support of his arguments, learned counsel has placed reliance on decision of this Court in CWP No. 2587 of 2009 decided on 12.8.2010 (Annexure P -5). Learned counsel for the respondents, on the other hand, has opposed the petition and has submitted that petitioner had foregone the promotion on 4.9.2000 and was, therefore, debarred for reconsideration for promotion for three years as well as 9/16 years time bound promotional/devised promotional scales in view of circular Annexure R -1 dated 22.10.1993.
(3.) THE controversy involved in this case has already been settled vide decision of this Court in CWP No. 2587 of 2009 decided on 12.8.2010 (Annexure P -5) wherein it was held as under: - (6) The solitary question that arises for consideration is as to whether the petitioner having declined the offer for promotion to the post of Lineman on 27h December, 2001 incurred any disqualification to draw the time -bound promotional scales which were earlier granted to him under the policy decision dated 23.04.1990? (7) In order to justify their action, the respondents have placed reliance upon the circular dated 26th July, 1990 (Annexure R3/1) issued by the Finance Section of the Board as a "clarification in respect of grant of promotional/devised promotional scale". The relevant clause of the said Circular reads as follows: - Subject: Clarification in respect of grant of Promotional/Devised Promotional Scale. Please refer to this office order No. 197/Fin/PRC -1988, Office Order No. 198/Fin/PRC -1988 both dated 23.04.1990 and office order No. 201/PRC/Fin -1988 dated 03.05.1990, regarding the grant of promotional/Devised Promotional Scales. Certain points have been raised for clarification in respect of grant of promotional/Devised Promotional Scales, the procedure for which was laid down in the office order dated 23.04.1990. The matter has been considered in detail and the following clarifications are given to the various points: - Points Clarification xxxxxxxxxxxxx xxxxxxxxxxxxx 6. What will be effect if an employee foregoes a promotion. The employee who foregoes his promotion will not be entitled for promotional scale on completion of 9/16 years service. xxxxxxxxxxxxxx xxxxxxxxxxxxxx (8). There is no room to doubt from the plain language of the Circular that if an employee is offered promotion' and he refuses to accept and foregoes the same, in that event, the employee is not entitled for the promotional pay scale on completion of 9/16 years of service. Point No. 6 (reproduced above) of the subject Circular is absolutely consistent and in conformity with the Board's policy decision dated 23.04.1990 whereby time -bound promotional scales were decided to be granted to those employees who despite completion of 9 or 16 years or service were stagnated without any promotion. When an employee gets promotion as per his seniority/merit and/or eligibility, he cannot be said to be stagnated and obviously would not be entitled to the time -bound promotional scale. Conversely, an eligible employee cannot be denied the time bound promotional scale even after completion of 9 or 16 years of service merely on the assumption that he was likely to get promotion in near future. (9) In the case in hand, the 1st and 2nd time -bound promotional scales were granted to the petitioner on 11.10.1990 and 18.06.1993, respectively. There is indeed no denial to the fact that the petitioner got no offer for promotion as Lineman before 18th June, 1993. As a matter of fact the first ever promotion offered to the petitioner was on 27th December, 2001 only, which he declined to accept may be due to the fact that he was nearing retirement and was not willing to shift to a new place of posting. (10) The clarificatory Circular dated 26.07.1990 (Annexure R3/1) nowhere provides nor it can lead to such absurd consequences that a promotion offered after 16 years of service would take away the service benefit given to an employee on completion of 9 years' service. Since the petitioner never refused to accept the promotion before he was granted the time -bound promotional pay scales on completion of 9/16 years of service, the subsequent offer for such promotion and that too at the fag end of his career, cannot take away the time bound promotional scales which were rightly granted to him being a stagnated employee. (11) The impugned action of the respondents deserves to be struck down also being violative of the principles of natural justice. The withdrawal of the promotional pay scales has far -reaching civil consequences including reduction in the petitioner's pension and other retiral dues. Unfortunately, the respondents have acted with such a closed mind that they did not deem it proper to hear the petitioner before passing the order under challenge and that too at the time of his farewell on retirement.;