IMPORTANT POINT
Promotion – An employee who has opted to remain in existing grade, by refusing offer of promotion, forfeits rights to ACP benefits and such employee, on account of refusal, can be considered for regular promotion only after necessary debarment period is over.

JUDGMENT :

HRISHIKESH ROY, J.

1. Heard Ms. Meera Patel, learned counsel appearing for the appellants in both the matters. The respondents in Civil Appeal Nos. 7027-7028 of 2009 are represented by Mr. Rajiv Manglik, learned counsel. In Civil Appeal Nos. 7150-7151 of 2009, the respective respondents are represented by learned counsel Mr. Piyush Sharma and Mr. A.P. Dhamija.

2. The respondents herein are claiming the benefit of Assured Career Progression Scheme (for short “ACP Scheme”) for the Central Government civilian employees under the O.M. dated 9.8.1999 issued by the Ministry of Personnel, Public Grievances and Pensions, Government of India. The ACP Scheme provided for financial upgradation to the next higher grade of pay for those employees who could not get promotion after 12 years of service. Second upgradation is similarly admissible after 24 years of service.

3. Suman Lata Bhatia and Manju Arora who were appointed as Senior Translator (Hindi), were offered promotion to the higher post of Translation Officer (Hindi) on regular basis. But due to personal grounds, they refused the offered promotions. However, the benefits under the ACP Scheme were given to the respondents on 15.11.1999 but when it was found that those were wrongly granted, the same were withdrawn by orders dated 4.9.2002 and 10.10.2002 for Suman Lata Bhatia and Manju Arora respectively. The withdrawal order adverted to the clarificatory O.M. dated 18.7.2001 which disentitled financial upgradation under the ACP Scheme to those who had refused vacancies based promotion. It is specifically reflected in the said order that the employee (respondent herein) having refused promotion on multiple occasions, cannot be said to be stagnating as she, of her own volition has opted to remain in the grade of Senior Translator (Hindi). Accordingly, taking note of the response to the show cause notice and rejecting the same, the ACP benefit was withdrawn and the respondent was reverted back to her earlier pay scale. Similar steps were taken for the other employee as well.

4. The withdrawal of ACP benefit for the two respondents and one other was challenged before the Central Administrative Tribunal, Principal Bench (for short “the Tribunal”) in O.A. No. 2673/2002 (Suman Lata Bhatia), O.A. No. 2674/2002 (Veena Arora) and O.A. No. 3021/2002 (Manju Arora) respectively.

5. In the analogous order (28.8.2003), the Tribunal adverted to both OMs (9.8.1999 and 18.7.2001) and noted that the ACP Scheme is to provide relief to employees who are suffering stagnation in the same post for long period of time. However, having regard to the clarificatory communication as also the purport of the Scheme and the fact that the original applicants had refused regular promotion, they were held disentitled to the upgraded pay scale in terms of the ACP Scheme. The Tribunal opined that on refusal to accept regular promotion, the employee cannot be considered to be stagnating as she has opted to remain in the existing grade of her own volition. Consequently, the decision of the employer to withdraw the ACP benefits to the three applicants were found to be in order by declaring that they are not entitled to the benefits of upgraded pay scale, in terms of the ACP Scheme. However, the proposed recovery of the differential pay on account of cancellation of the pay upgradation was interdicted with the observation that the upgraded pay scale was allowed without any misrepresentation from their side.

6. The above decision of the Tribunal declaring disentitlement of the Original Applicants to the ACP benefits were challenged respectively in the W.P. (C) No. 7227/2003 (Manju Arora), W.P. (C) No. 7283/2003 (Suman Lata) and both cases were taken up for analogous consideration.

7. The Division Bench adverted to the Condition No. 5.1 as also Condition No. 10 in the O.M. dated 9.8.1999 to conclude that in case a particular employee had turned down the offered promotion, the non-acceptance of promotion would impact their