- (1.) Admittedly, the first prayer has been rendered infructuous and requires no determination. The correct amount of DCRG has been released, which is Rs. 71,000/- and not Rs. 91,000/- mentioned in the prayer clause. As far as the second prayer is concerned, the same deserves to be rejected for the reason that when the petitioner's right to promotion matured to the post of Head Mistress, she declined the offer for personal reasons. She sought permission from the Department that she would not avail promotion and would rather forego consideration. The prayer was accepted vide letter dated 22.12.1999 and she continued on the lower post.
(2.) Thereafter, it appears that the Department mistakenly granted the ACP benefits on completion of 10 years of service. On discovery of mistake, the benefit was withdrawn, which led to reduction in pay. It transpired that in 2003, the petitioner's turn came again for consideration for promotion from the post of JBT to Head Mistress. She accepted the offer of promotion this time. The only argument raised by Mr. Sharma is on the construction of Rule 11 of the Assured Career Progression Rules, 1998 (for short 'the Rules'). Rule 11 reads as follows: "11. Ceasing of entitlement of ACP Scales: In case, the Government servant chooses to forego any functional promotion on any ground whatsoever, while drawing his pay in any ACP scale with reference to him, he shall cease to be entitled to draw his pay in the ACP pay scales and shall draw his pay in the functional pay scales prescribed for the post on which he is substantially working from the date of such forgo of promotion." Mr. Sharma argues that words 'ceasing' of entitlement of ACP scales are significant and this does not mean that promotion will neither be offered nor accepted at a later point in time when the petitioner was willing. 'Ceasing' means stopping i.e. for the time being, but it does not mean that right to promotion stands extinguished. That may be true, but the question is; by own act and conduct, the petitioner surrendered her right for promotion by seeking permission in 1999, which when granted entitled her to ACP scales. On promotion being granted in 2003, the right to ACP scales cannot be claimed as a matter of right and, therefore, there was nothing wrong in the action of the Department in withdrawing the ACP benefits, which are in lieu of promotion. At this stage, Mr. Sharma relies upon a Single Bench judgment rendered in CWP No.8143 of 2009 titled 'Kamlesh Kumari Vs. State of Haryana & others', wherein the learned Single Judge has relied upon earlier decision in CWP No.5283 of 2005 decided on 16.12.2005 while setting aside the order of refixing and reducing pay of Kamlesh Kumari.
(3.) On the other hand, Ms. Shruti Jain Goel, AAG, Haryana, per contra has placed reliance on a decision of the Division Bench of this Court in Rakesh Kumar Vs. State of Haryana & others, 2010 1 SCT 443 , where Rule 11 fell for consideration. The Bench relied upon earlier case law of the Supreme Court and this Court noticed in the judgment and held as follows: "13. xx xx xx A plain and bare reading of Rule 11 of ACP Rules, 1998 reveals that a Government servant who has been placed in the ACP scale, if chooses to forego his promotion on any ground whatsoever while drawing the ACP scale shall cease to be entitled to draw his pay in the ACP pay scale from the date of his refusal of promotion. It is thus clear that continuance of the grant of pay in the ACP scale is based on the condition that the Government employee shall not forego his promotion for whatever reason. The rationale is based on logic besides being just and fair as placing in the ACP scale is itself made on account of stagnation/non-availability of promotional avenues and in the event, though subsequently, the Government servant willingly refuses to accept the offer of promotion for whatever reason then it can safely be presumed that the Govt. Servant considers there is no stagnation in his Government service, which needs/deserves to be compensated by ACP/promotional scale. Therefore, in our opinion, the State Government would be well within its right to withdraw placement of such an employee in ACP scale as the same was subject to certain condition which is germane to the grant of the same. Consequently, the provision of Rule 11 cannot be by any stretch of reasoning be held to be arbitrary. A reading of the clarification Annexure P/2 further reveals that for implementing the provision of Rule 11 of the ACP Rules, the method and manner of refixing the pay scale of the Government servant covered under Rule 11 has been provided. No serious challenge has been laid to the clarification Annexure P/2. Therefore, no infirmity can also be found with Annexure P/2. We further find that the refixation of the pay of the petitioner vide Annexure P/6 in terms of Rule 11 cannot also be faulted. Therefore, challenge to Annexure P/6 also fails.";