UNION OF INDIA & ORS. versus MANJU ARORA & ANR.

Citation: [2022] 2 S.C.R. 591 · Decided: 03-01-2022 · Supreme Court of India · Bench: R. SUBHASH REDDY · Disposal: Disposed off

Judgment (excerpt)

[2022] 2 S.C.R. 591
591
UNION OF INDIA & ORS.
v.
MANJU ARORA & ANR.
(Civil Appeal Nos. 7027-7028 of 2009)
JANUARY 03, 2022
[R. SUBHASH REDDY AND HRISHIKESH ROY, JJ.]
Service Law – Non-acceptance of promotion – Employee if
entitled to benefits under Assured Career Progression Scheme (ACP)
– Respondents-employees refused the offered promotion due to
personal grounds – However, the benefits under the ACP Scheme
were given to them but, were later withdrawn – Respondents were
reverted back to their earlier pay scale – Challenged withdrawal
of ACP benefit – Tribunal held that they were not entitled to the
benefits of upgraded pay scale in terms of the ACP Scheme – Division
Bench issued direction for restoration of the upgradation under
the ACP Scheme – On appeal, held: If a regular promotion is offered
but is refused by the employee before becoming entitled to a financial
upgradation, she/he shall not be entitled to financial upgradation
only because she has suffered stagnation – This is because, it is not
a case of lack of promotional opportunities but an employee opting
to forfeit offered promotion, for own personal reasons – This vital
aspect was not appropriately appreciated by High Court while
granting relief to the employees – Employees who have refused the
offer of regular promotion are disentitled to the financial
upgradation benefits of ACP Scheme under O.M. dtd. 9.8.99 –
However, this would not apply to the two respondents in C.A
Nos.7150-7151/2009 as they were not offered regular promotion
but conditional promotion – Their refusal of the promotion will not
disentitle them to the benefits under the ACP Scheme – Doctrine of
Approbate and Reprobate.
Allowing the C.A.Nos.7027-7028 of 2009 and dismissing
the C.A. Nos.7150-7151 of 2009, the Court
HELD: 1.1 The OM dated 9.8.1999 offering Assured Career
Progression for the Central Government Civilian Employees was
intended as a “safety net” to deal with the problem of genuine
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SUPREME COURT REPORTS
[2022] 2 S.C.R.
stagnation and hardship faced by the employees due to lack of
adequate promotional avenues. The ACP Scheme was introduced
by the government with appropriate modification on the basis of
the recommendation made by the Fifth Central Pay Commission.
Under the Scheme, it was decided to grant financial upgradation
after 12 years of regular service and the second one after 12
years of regular service from the date of the first financial
upgradation, subject to fulfillment of prescribed conditions. 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. 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. The respondents 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
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remain in the existing grade, by refusing offer of promotion,
forfeits the rights to ACP benefits and such employee, on account
of refusal, 

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