caselaws
Supreme Court of India
Union Of India vs Manju Arora on 3 January, 2022Author: Hrishikesh Roy
Bench: R. Subhash Reddy, Hrishikesh Roy
[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.7027-7028 OF 2009
UNION OF INDIA & ORS. APPELLANT(S)
VERSUS
MANJU ARORA & ANR. RESPONDENT(S)
WITH
CIVIL APPEAL NOS.7150-7151 OF 2009
J U D G M E N T
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
Signature Not Verified
Digitally signed by
represented by learned counsel Mr. Piyush Sharma and
Rajni Mukhi
Date: 2022.01.03
15:40:25 IST
Reason:
Mr. A.P. Dhamija.
Page 1 of 16
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those were wrongly granted, the same were withdrawn by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
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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was withdrawn and the respondent was reverted back to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 OA No. 2673/2002 (Suman Lata
Bhatia), OA No. 2674/2002 (Veena Arora) and OA No.
3021/2002 (Manju Arora) respectively.
Page 3 of 16
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
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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 WP (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 second upgradation
only. It was concluded that the employees were rightly
given the benefit of first upgradation, which could not
have been withdrawn. Accordingly, the judgment of the
Tribunal was interfered and consequently, direction was
issued for restoration of the upgradation under the ACP
Scheme, to the concerned employees.
Page 5 of 16
8. The basic facts in the Civil Appeal Nos.7150-
7151/2009 are similar where the concerned respondents
Kanta Suri and Veena Arora were also appointed as
Senior Translator (Hindi) in the Air Headquarters. The
key point of distinction for these two employees was
that instead of regular promotion, both Kanta Suri and
Veena Arora were offered promotion on officiating basis
to the post of Translation Officer (Hindi) with the
stipulation that the promotes are liable to reversion
if their seniors who are on deputation to other
office/posts, return to their present cadre in the Air
Force or due to any administrative reasons.
9. Additionally, it may be mentioned that the decision
in favor of the employees to the effect that their
refusal for promotion would impact only their second
upgradation, was based upon the common judgment dated
21.11.2007 of the Division Bench of the Delhi High
Court in the case of Suman Lata Bhatia and Manju Arora,
adverted earlier.
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10. 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 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.
Conditions 5.1 and 10 thereof being relevant, are
extracted hereinbelow:-
“5.1 Two financial up-gradation under
the ACP Scheme in the entire Government
Service career of an employee shall be
counted against regular promotions
(including in-situ promotion and fast
track promotion availed through limited
departmental competitive examination)
availed from the grade in which an
employee was appointed as a direct
recruit. This shall mean that two
Page 7 of 16
financial up-gradation under the ACP
Scheme shall be available only if no
regular promotion during the prescribed
periods (12 and 24 years) have been
availed by an employee. If a employee
has already got one regular promotion, he
shall qualify for the second financial
up-gradation only on completion of 24
years of regular service under the ACP
Scheme. In case two prior promotions on
regular basis have already been received
by an employee, no benefit under the ACP
Scheme shall accrue to him.
**** **** **** ****
**** **** **** ****
10. Grant of higher pay scale under the
ACP Scheme shall be conditional to the
fact that an employee, while accepting
the said benefit, shall be deemed to have
given his unqualified acceptance for
regular promotion on occurrence of
vacancy subsequently. In case he refuses
to accept the higher post on regular
promotion subsequently, he shall be
subject to normal debarment for regular
promotion as prescribed in the general
instructions in this regard. However, as
and when he accepts regular promotion
thereafter, he shall become eligible for
the secondup-gradation under the ACP
Scheme only after he completes the
required eligibility service/ period
under the ACP Scheme in that higher grade
subject to the condition that the period
for which he was debarred for regular
promotion shall not count for the
purpose. For example, if a persons has
got one financial up-gradation after
Page 8 of 16
rendering 12 years of regular service and
after 2 years there from if he refuses
regular promotion and is consequently
debarred for one year and subsequently he
is promoted to the higher grade on
regular basis after completion of 15
years (12+12+1) of regular service, he
shall be eligible for consideration for
the second up-gradation under the ACP
Scheme only after rendering ten more
years in addition to two years of service
already rendered by him after the first
financial up-gradation (2+10) in the
higher grade i.e. after 25 years
(12+12+1) of regular service because the
debarment period of one year cannot be
taken into account towards the required
12 years of regular service in that
higher grade.”
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
Page 9 of 16
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
Page 10 of 16
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,
Page 11 of 16
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, on account of refusal,
can be considered for regular promotion only after
necessary debarment period is over.
15. However, despite the clear wordings in condition
5.1, the purport of the OM dated 9.8.1999 was missed
out in the impugned judgment and the learned Court
unnecessarily adverted to the words in condition 10 of
the O.M. to hold in favor of the employees who have
refused promotion for their own personal reasons.
16. We are quite certain that 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
Page 12 of 16
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 her
own personal reasons. However, this vital aspect was
not appropriately appreciated by the High Court while
granting relief to the employees.
17. It may also be observed that when an employee
refuses the offered promotion, difficulties in manning
the higher position might arise which give rise to
administrative difficulties as the concerned employee
very often refuse promotion in order to continue in
his/her own place of posting.
18. In the above circumstances, we find merit in the
submissions made on behalf of the appellants.
Consequently, it is declared that the employees who
have refused the offer of regular promotion are
disentitled to the financial upgradation benefits
envisaged under the O.M. dated 9.8.1999. In this
situation, the Scottish doctrine of “Approbate and
Page 13 of 16
Reprobate” springs to mind. The English equivalent of
the doctrine was explained in Lissenden v. CAV Bosch
Ltd.1 wherein Lord Atkin observed at page 429,
“…………In cases where the doctrine does
apply the person concerned has the choice
of two rights, either of which he is at
liberty to adopt, but not both. Where the
doctrine does apply, if the person to
whom the choice belongs irrevocably and
with knowledge adopts the one he cannot
afterwards assert the other………….”
The above doctrine is attracted to the
circumstances in this case. The concerned employees
cannot therefore be allowed to simultaneously approbate
and reprobate, or to put it colloquially, “eat their
cake and have it too”. It is declared accordingly for
the respondents in the C.A. Nos.7027-28/2009.
19. However, the above would not apply to the two
respondent employees Kanta Suri and Veena Arora in C.A
Nos.7150-7151/2009 as they were not offered regular
promotion but conditional promotion on officiating
1 [1940] A.C 412
Page 14 of 16
basis subject to reversion, by the order dated
29.12.1988. These two employees cannot be said to have
exercised a choice between alternatives and as such the
above Principle would not apply and their refusal to
accept the officiating promotion cannot be held against
them. The refusal of the promotion offered by the
communication dated 29.12.1988 will not disentitle the
two employees, Kanta Suri and Veena Arora to the
benefits under the ACP Scheme. It is declared
accordingly.
20. Since the respondents have reached the age of
superannuation in the meantime, the consequential
relief under this order should be made available to the
two eligible employees (if not granted), within three
months from today.
21. For the foregoing, the first set of Appeals i.e.
Civil Appeal Nos.7027-7028 of 2009 are allowed.
However, the second set of Appeals i.e. Civil Appeal
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Nos.7150-7151 of 2009 stand dismissed. There shall be
no order as to costs.
……………………………………………………J.
[R. SUBHASH REDDY]
……………………………………………………J.
[HRISHIKESH ROY]
NEW DELHI
JANUARY 03, 2022
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