Bipin Chander Negi, Judge (oral)

The present petition has been filed seeking quashing of iAnnexure P-4, whereby, a representation, made in pursuance of Hjudgement dated 10-07-2018 passed in CWP No 148/2018 titled Kamal Singh vs Union of India and others, seeking grant of financial upgradation under the Assured Career Progression Scheme (ACPS), has been denied to the petitioner.

Other than the aforesaid, it has been prayed that post quashing of Annexure P-4, revised pension, retiral benefits along-with up-to-date interest be paid to the petitioner.

The admitted facts are as follows :-

3(i) The petitioner was appointed as a Constable on 18.03.1972. Subsequent thereto, he was promoted as a Lance Naik on P 06.01.1986. On 08.01.1990, he was promoted as a Head Constable.

3(ii) The next promotional post thereafteHr is that of a Sub Inspector. However, on being promoted as a Sub Inspector, it is mandatorily required, as per standing orderfs to complete the Platoon Commander Course. In the case at hand, petitioner had refused to undergo the said course, on his owtn, and had submitted an unwillingness in this respect. The opeurative part in this respect has been reproduced at Page-28 of the paper book (Paragraph-5 of the impugned Annexure P-4). The ACP Scheme, in the case at hand, had been introduced in the respondent-Department on 09.08.1999.

In the aforesaid backdrop, the sole contention urged is that rejection on the ground that the petitioner had refused to undergo the Platoon Commander Course, cannot be a reason to deny the benefits of HACP Scheme.

Per contra, learned Deputy Solicitor General of India appearing on behalf of the respondents has drawn the attention of this Court to the decision of the Hon’ble Apex Court, in Union of India v. Manju Arora, 2022 (2) SCC 151 and based on the same it is contended that since in the case at hand regular promotion has been refused by the petitioner before becoming entitled to a financial upgradation therefore the petitioner shall not be entitled for financial upgradation only because the petitioner has suffered stagnation. In a nutshell it is contended that the petitioner in the case at hand cannot be permitted to approbate and reprobate.

As has been stated supra, the next promotional post after working as a Head Constable is of a Sub InspectorH. For being promoted as a Sub Inspector, as per the standing orders the Platoon Commander Course is required to be mandatorily donfe. In the case at hand, unwillingness to undergo the said course is evident from the relevant extract reproduced in the imputgned rejection order Annexure P-4 (Paragraph-5 thereof). In the unwillingness submitted it has been categorically mentioned by the petitioner that he has no need/desire of promotion in future and that he shall have no objection if in case his juniors are promoted.

Further parity is sought to be drawn with the case of one Sansar Dass. However, in this respect, only a bald averment has been made. Nothing has been placed on record to show, as to how the case of Hthe petitioner was similar to the one of Sansar Dass who had been granted Assured Career Progression in terms of order dated 10.07.2018 (Annexure P-5).

No other contention has been urged. It is a well settled position of law that if a regular promotion is offered and the same is refused by the employee before becoming entitled to a financial up- gradation then the said employee shall not be entitled for financial up- gradation only because the employee has suffered stagnation. In such a case, it is not lack of promotional opportunities, but an employee opting to forfeit promotion for his own personal reasons.

In this respect, reliance has been correctly placed by the learned Deputy Solicitor General of India on Manju Arora’s case (supra). Relevant extract of the judgment reads as under:-

“17. We are quite certain that if a regular promotion is offered but is refused by the employoee before becoming entitled to a financial upgradation, s