Nb Sub Dharm Raj (Army) vs UOI & Others on 26 May 2026

**ORDER**

**26.05.2026**

1. Under Section 14 of the Armed Forces Tribunal Act 2007, the Applicant has filed this OA praying for directing the Respondents to grant MACP Nb Sub to the applicant wef 22/3/2011 onwards. He has further prayed for directing the Respondents to treat Unwillingness for his promotion as withdrawn. Any other relief to the applicant which the Hon'ble Tribunal considers just and proper in the circumstances.

2. Brief facts of the case as enunciated by the applicant are that the applicant was enrolled in the Army on 22/3/2003 as a direct entry Havildar in the Army Education Corps and thus completed eight years eligibility criteria of being in same grade for eight years to be eligible for grant of MACP. On 19/1/2007, while the applicant was posted with 13 SIKH Regiment, he submitted an Unwillingness for Russian Language Course due to reason that his father had expired on 26/12/2006 and the applicant was overburdened with domestic compulsions. Secondly, he was neither earmarked as reserve nor was in waiting list declared three months in advance and the applicant was detailed on 07/1/2007 when the course had already commenced on 26/12/2006. Obviously directing the applicant without any prior notice on an important long language course was unfair as he had to make necessary preparations for such a course of long duration. With the passage of time, his domestic problems got resolved and he submitted an application for withdrawal of his unwillingness on 22/10/2009 alongwith recommendations of his commanding officer, well before his being eligible for MACP on 22/3/2011. However, his application for withdrawal of unwillingness has obviously been accepted and that's how he has been promoted to the rank of Nb Sub on 14/12/2016. Thus he also deserves for grant of MACP wef 22/3/2011. Having been aggrieved, the applicant was filed this OA praying for relief.

3. The Respondents, while not disputing the basic facts, submitted that the applicant was discharged from service on 28/2/2019 under the provisions of Army Rule 13 (3) I (b) at his own request. The applicant had submitted his Permanent Unwillingness certificate for further promotions on 19/1/2007 and also expressed his unwillingness to undergo Russian Language Course, highlighting the provisions contained in AEC ROI (Record Office Instructions) No 02/2000, stating that his claim for promotion to the next higher rank will be permanently extinguished due to his unwillingness to undergo promotion cadre/Russian Language Course. The ibid ROI further confirms that the unwillingness certificate is irrevocable under any circumstances if not waived by the competent authority. However, based on the later application dated 21/4/2015, submitted by the applicant, sanction was accorded to the applicant to take off his unwillingness and to detail him on criteria/mandatory course as per the revised AEC ROI No 017/2014 vide IHQ of MoD (Army) Policy letter dated 09/3/2016. In the meantime, the applicant, on his own accord, had successfully completed BEd (Psychology) from the Indraprastha National Open University on 14/3/2010 and upgraded to Group X wef 14/5/2010 for which he was also paid X Group Pay of Rs 3600/- per month. Accordingly, the applicant was promoted to the rank of Nb Sub on 14/12/2016 with ante date seniority wef 04/12/2016 and was paid First Financial Upgradation of Nb Sub under MACP scheme wef 14/12/2016. The Respondents have further elaborated that the applicant after getting promotion to the rank of Nb Sub having qualification of BEd and 15 years of pensionary service as on 21/3/2018, applied for premature retirement from service with a view to avail service benefits like service pension, commutation, AGI maturity benefits and other terminal benefits which are entitled to him on completion of a minimum service of 15 years period and to settle down in civil life by availing Ex-Serviceman quota for Govt job purpose. And despite huge deficiency in AEC Instructor Trade, the request of the applicant for grant of premature retirement was examined in the light of his grievances and has been discharged from service at his own request wef 28/2/2019. Further, the applicant was promoted to the rank of Nb Sub wef 14/12/2016 and he was in receipt of benefits of MACP Nb Sub wef 14/12/2016, the Respondents have prayed for dismissing the OA, more so, the OA was filed after a delay of 12 years after rendering unwillingness certificate dated 19/1/2007 which is not within the limitation period as laid down in Section 22 of the Armed Forces Tribunal Act 2007.

4. We have heard both the parties and considered the submissions of Learned Counsels for the parties and perused the material placed on record. The question that merits consideration is whether an individual who refuses promotion shall be entitled for grant of MACP Benefits?

5. The relevant Para Nos 4, 8, 21 and 22 of Administrative Instructions on grant of MACP Benefits issued vide Additional Directorate General Personnel Services, Adjutant General's Branch, Integrated Headquarters of MoD (Army) letter No B/33513/ ACP/AG/PS-2(c) dt 13.06.2011 reads as under:- "4. The Government has considered the recommendations of the Sixth Central Pay Commission for introduction of Modified Assured Career Progression Scheme (MACPS) and has accepted the same with further modification to grant three financial up-gradation under the MACPS at intervals of 8, 16, 24 years of continuous regular service. The special Army Instruction 1/S/2008 dated 11 Oct 2008, in Para 15 thereof, lays down the basic parameters in this regard.

8. Financial Upgradation on ACP. There shall be three financial upgradations under the MACPS, counted from the direct entry grade on completion of 8, 16 and 24 years service respectively. Financial upgradation under the Scheme will be admissible whenever a person has spent 8 years continuously in the same grade pay irrespective of date of promotion/seniority. MACP will imply a minimum increment of 3% of total pay (including Grade Pay, 'X' Pay, where applicable) applicable to the rank in respect of which MACP is being granted.

21. Effect of Refusal of Promotion. If an individual refuses promotion, MACP will also be denied. If an individual refuses promotion after MACP, earlier MACP will not be withdrawn. However, he will not be eligible for further MACP. If he again accepts promotion, MACP will also be debarred by the period of debarment due to refusal. Willingness for promotion will be assumed unless an individual states he is unwilling.

22. Effect of Med/ACR Criteria. There will be no Med/ACR/Passing of promotion cadre criteria stipulated for MACP."

6. It is apparent from the above that refusal for promotion will lead to denial of MACP benefits.

7. With regard to eligibility for grant of MACP Scheme to the personnel who is unwilling and/or refuses for further promotion, the Hon'ble Supreme Court in its judgment dt **03.01.2022 in Civil Appeal No. 7027-7028 of 2009 in the case of UOI & Ors Vs Manju Arora & Anr** settled that the employees who refuses promotion shall not be eligible for ACP Scheme. Relevant paragraphs of the judgment reads as follows:- "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, 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 favour 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 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 Reprobate" springs to mind. The English equivalent of the doctrine was explained in *Lissenden v. CAV Bosch Ltd*, (1940) AC 412, 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.


8. It is apparent that the Applicant had rendered his unwillingness dated 19/1/2007 for both promotion to higher rank as also undergoing Russian Language Course which is a mandatory criteria for an Education Instructor of the Army Education Corps in furtherance of his career. After submission of this unwillingness for his promotion, the applicant on his own accord, had obtained BEd degree from an Open University on 14/3/2010, which also paved his way for upgradation to X Group and getting the X Group Pay also. Later on, based on the application dated 21/4/2015, request of the applicant was considered sympathetically by the Respondents in revoking the earlier Unwillingness certificate rendered by the applicant and he was detailed to undergo mandatory cadre/course and then promoted the applicant to the rank of Nb Sub wef 14/12/2016. Moreover, the action/inaction in getting promoted to the higher rank was his own making and the Respondents have been more than sympathetic in revoking the unwillingness certificate rendered by the applicant based on his later application which resulted in his promotion to the rank of Nb Sub after undergoing mandatory cadre/course. Therefore, we find no patent infirmity in the action taken by the Respondents and, therefore, the prayer of the applicant for grant of MACP Nb Sub to the applicant wef 22/3/2011 onwards has no merit as his refusal for promotion was in existence then and is rejected.

9. The OA is devoid of merit and, hence, is dismissed. No order on costs.

10. Pending Miscellaneous Application, if any, also stand disposed off.

Sd/- XXX

(SANJIV MITTAL) MEMBER (A)

Sd/- XXX

(GOVERDHAN BARDHAR) MEMBER (J)

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