Supreme Court of India
Union Of India vs Manju Arora on 3 January, 2022Author: Hrishikesh Roy

Bench: R. Subhash Reddy, Hrishikesh Roy



CIVIL APPEAL NOS.7027-7028 OF 2009





CIVIL APPEAL NOS.7150-7151 OF 2009


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

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those were wrongly granted, the same were withdrawn by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

Page 2 of 16
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was withdrawn and the respondent was reverted back to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

Page 4 of 16
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


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.

Page 6 of 16
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


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


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

Page 15 of 16
Nos.7150-7151 of 2009 stand dismissed. There shall be

no order as to costs.


JANUARY 03, 2022

Page 16 of 16


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