1. Dispute over entitlement to financial upgradation under the Assured Career Progression Scheme following refusal of regular promotion versus officiating promotion. (Para 2 , 3 , 8 )
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2022 Supreme(SC) 1
SUPREME COURT OF INDIA
(From the High Court of Delhi at New Delhi)
R. SUBHASH REDDY, HRISHIKESH ROY, JJ.
Union of India and Others – Appellants
Versus
Manju Arora and Another – Respondents
Civil Appeal Nos. 7027-7028, 7150-7151 of 2009
Decided On : 03-01-2022
Important Points
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.
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.
Subject
Employment Law - Promotions and Career Progression
Act Referred
SERVICE LAW: .
Headnote
Service Law – Promotion – Assured Career Progression Scheme (ACP Scheme) – Withdrawal of ACP benefits – 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 – Employee before becoming entitled to a financial upgradation, she/he shall not be entitled to financial upgradation only because she has suffered stagnation – It is not a case of lack of promotional opportunities but an employee opting to forfeit offered promotion, for her own personal reasons – However, this vital aspect was not appropriately appreciated by High Court while granting relief to employees – When an employee refuses offered promotion, difficulties in manning higher position might arise which give rise to administrative difficulties as concerned employee very often refuse promotion in order to continue in his/her own place of posting – Appeals partly allowed. (Paras 14, 16, 17 and 21)
Facts of the case:
Respondents herein are claiming the benefit of Assured Career Progression Scheme (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. 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.
Findings of Court:
Since the respondents have reached the age of superannuation in the meantime, the consequential relief under this order should be made available to two eligible employees (if not granted), within three months from today.
Result : First set of Appeals allowed and second set of Appeals dismissed.
Legal Category Hierarchy
Advocates appeared:
For the Appellant(s) : Ms. Meera Patel, Adv. Mr. Bhuvan Mishra, Adv. Mr. Ayush Puri, Adv. Mr. Arvind Kumar Sharma, AOR
For the Respondent(s): Dr. I. B Gaur, AOR Mr. Rajeev Manglik, Adv. Mr. Piyush Sharma, AOR Mr. A.P. Dhamija, Adv. Mr. J.P. Singh, Adv. Ms. Tanya Sharma, Adv. Mr. Sarad Kumar Singhania, AOR
For the Appellant(s) : Ms. Meera Patel, Adv. Mr. Bhuvan Mishra, Adv. Mr. Ayush Puri, Adv. Mr. Arvind Kumar Sharma, AOR
For the Respondent(s): Dr. I. B Gaur, AOR Mr. Rajeev Manglik, Adv. Mr. Piyush Sharma, AOR Mr. A.P. Dhamija, Adv. Mr. J.P. Singh, Adv. Ms. Tanya Sharma, Adv. Mr. Sarad Kumar Singhania, AOR
Table of Contents
2. Whether refusal of regular promotion disentitles an employee from financial upgradation under the ACP Scheme or only impacts subsequent upgradations. (Para 7 , 11 , 12 )
3. ACP Scheme is a safety net for genuine stagnation; refusing regular promotion is a voluntary choice and not stagnation, attracting the doctrine of approbate and reprobate. (Para 10 , 13 , 14 , 16 , 17 , 18 )
4. Refusal of regular promotion forfeits entitlement to financial upgradation under the ACP Scheme, whereas refusal of conditional officiating promotion does not. (Para 14 , 16 , 18 , 19 )
5. Appeals regarding regular promotion refusal allowed; appeals regarding officiating promotion refusal dismissed. (Para 21 )
6. Does refusal of regular promotion disentitle an employee from ACP benefits?
Yes. The ACP Scheme is a safety net for genuine stagnation. An employee who refuses regular promotion of their own volition cannot be said to be stagnating and thus forfeits the right to financial upgradation. (Para 13 , 14 , 16 )
7. How does the doctrine of Approbate and Reprobate apply to ACP benefits?
An employee cannot simultaneously refuse a regular promotion and claim the financial benefit associated with such promotion under the ACP Scheme, as they cannot adopt two conflicting rights. (Para 18 )
8. Does refusal of officiating promotion impact ACP entitlement?
No. Refusal of promotion offered on an officiating basis, subject to reversion, does not constitute a choice between alternatives and therefore does not disentitle the employee from ACP benefits. (Para 19 )
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
