Ex LNk Sunil Kumar (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 II to the applicant wef 28/7/2020 and pension and pensionary benefits of the applicant be fixed and released accordingly with interest @12%. He has also prayed for passing any other which the Hon'ble Tribunal deems fit in the circumstances of the case as also award of cost of the application in favour of the applicant.

2. Brief facts of the case as enunciated by the applicant are that the applicant was enrolled in the Army on 28/7/2004 and was discharged from service on 31/7/2021 after serving for 17 years and four days. He further submits that the policy of MACP I is entitled for completion of eight years, II MACP on completion of 16 years and the third after 24 years of service, in accordance with 7^th CPC. Since the applicant was discharged from service on completion of 17 years of service, he is entitled for grant of II MACP wef 28/7/2020. However, the applicant was granted only MACP I, ie, Naik, on attaining the service of eight years with Grade Pay of Rs 2400/-. However, despite various representations to the authorities, he was not granted the same benefit. Hence, this OA, praying for relief.

3. Vide Reply Statement, the Respondents have submitted that the applicant was discharged from service on 31/7/2021 unc. Rule 13 (3) item III (i) on completion of his service limits/terms of engagement. He was granted service pension for life for the qualifying service rendered. On completion of eight years, the applicant was granted first MACP benefits (Naik Grade) wef 28/7/2012. The applicant was detailed to undergo Lance Naik to Naik promotion cadre, however, he knowingly rendered his unwillingness to attend the promotion cadre despite the fact known to him that if he renders his unwillingness for promotion cadre, he will not be eligible for grant of MACP in future, Copy of Unwillingness Certificate dated 19/7/2018, Annexure R/2. Therefore, the applicant is not entitled for grant of second MACP, Hav Grade wef 28/7/2020 as per policy in vogue.

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. It is apparent from the material on record that the applicant was enrolled in the Army on 28/7/2004. On completion of eight years of service, the applicant was granted benefit of first MACP of Naik Grade, wef 28/7/2012. Vide his Unwillingness certificate dated 19/7/2018, in which he had specifically declared that he was Unwilling to attend promotion cadre Lance Naik to Naik, which was duly countersigned by his superior authority. The applicant was discharged from service on 31/7/2021 under Rule 13 (3) item III (i) on completion of his service limit/engagement and was granted service pension for life.

6. With regard to grant of MACP 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."

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

8. 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, where 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."*

9. On perusal of the aforesaid facts in this case, it is apparent that the Applicant had specifically rendered his unwillingness on 19/7/2018 to attend promotion cadre Lance Naik to Naik promotion before completion of 16 years of service on 28/7/2020. Since the Applicant rendered his unwillingness to attend promotion cadre he is clearly not eligible for MACP-II benefits. However, it has been contended by the Applicant that a distinction has to be made between accepting promotion and willingness to participate in promotion cadre. In this regard, it is felt that since participation in promotion cadre course is a pre-requisite for promotion, giving unwillingness for promotion cadre would also be deemed unwillingness for promotion. In this case, the Applicant gave his unwillingness to attend Lance Naik to Naik promotion cadre, therefore, he is not eligible for claiming the benefits of MACP-II in accordance with the policy on the subject. Moreover, while expressing his unwillingness, the Applicant was fully aware that he would be deemed for further MACP-II as noted in his unwillingness certificate. It is rather intriguing that despite this specific assertion by him, he has chosen to file this OA and has indulged in vexatious litigation.

- 10. In-fine, the OA is devoid of merit and, hence, is dismissed.

- 11. No order on costs.

- 12. 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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