An employee who refuses promotion is not entitled to financial upgradation under the ACP Scheme, as it is intended for those facing stagnation.

ORDER

This petition under Article 226 of the Constitution of India has been filed seeking the following relief:

2. It is submitted by counsel for petitioner that petitioner, after serving for 30 years, was superannuated on 30.09.2020. By order dated 13.03.2018, third Kramonnati was sanctioned. However, by order dated 05.10.2019, said order was withdrawn on the ground that petitioner had forgone the promotion to the post of Pradhanadhyapak, Middle School. It was also observed that excess payment made to petitioner on account of third Kramonnati be recovered. It is submitted by counsel for petitioner that Kramonnati is a separate independent cause of action and has nothing to do with refusal to take any promotion. Thus, the refusal to grant third Kramonnati is bad in law.

3. Heard learned counsel for the petitioner. The moot question for consideration is that when an employee refuses to accept promotion, then whether he is still entitled to financial upgradation/Kramonnati or not ?

4. The Supreme Court in the case of Union of India and others Vs. Manju Arora and another by judgment dated 3/1/2022 passed in Civil Appeal No.7027- 7028/2009 has held as under:-

“11. As can be seen, the benefit of the financial upgradation under the ACP Scheme shall be available only if regular promotion during the prescribed intervals, 12 years and 24 years, could not be availed by an employee. While Condition no. 5.1 is clear to this effect, the Division Bench unnecessarily referred to condition No. 10 to hold in favor of employees who have refused promotion offered to them. The Court was of the opinion that the employees concerned are entitled to one financial upgradation, even if they turn down the offer of promotion, as non- acceptance of such promotion would impact only their second upgradation. With such finding, the respondents were held entitled to the relief under the ACP Scheme, although it was a case of refusal of promotion offered to the employee.

12. The learned counsel for the appellant has taken us through the relevant conditions in the ACP Scheme notified on 9.8.1999 and more particularly clause 5.1 and Clause 10 thereof. She has also brought to the notice of the Court, the promotions offered to the employees and their refusal to accept the promotion for their own personal reasons, such as family needs or movement to another station etc.

13. Reading of the ACP Scheme shows that financial upgradation would accrue to an employee only if no regular promotions have been received by her/him at the prescribed intervals of 12 and 24 years respectively. In the entire service career, an employee is entitled to financial upgradation if the concerned employee had to suffer stagnation in the same post without benefit of any regular promotion and, as earlier stated, the O.M. dated 9.8.1999 was introduced as a "safety net" to deal with the problems of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues. But can the benefit of the Scheme be claimed by an employee when she, despite offer of regular promotion, refuses to accept the same and chooses to remain in the existing grade of her own volition?

14. As can be seen from the records, Manju Arora and Suman Lata Bhatia were offered promotion to higher grade on multiple occasions, but they refused the same and chose to continue in the existing pay scale. The purport of the O.M. dated 9.8.1999 was subsequently clarified by the O.M. dated 18.7.2001 where it was specifically provided that an employee who had been offered regular vacancy based promotion before grant of ACP benefit and the regular promotion was refused, she/he become ineligible to the grant of the ACP benefits. Even without the clarificatory notification dated 18.7.2001, a plain reading of clause 5.1 of the O.M. dated 9.8.1999 makes it abundantly clear that an employee who has opted to remain in the existing grade, by refusing offer of promotion, forfeits the rights to ACP benefits and such employee,