Ex NK (TS) Laxman Ram Saini (Army) vs UOI & Others on 26 May 2026

**ORDER**

**26.05.2026**

**MA No 07/2022**

1. 1. The applicant has filed this MA praying for condonation of delay of four years, four months and 16 days involved in filing the OA. Delay is condoned.

**OA No 08/2022**

1. 2. 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 28/2/2006 and pension and pensionary benefits of the applicant be fixed and released accordingly alongwith interest 2%. He has also prayed for passing any other Order which the Hon'ble Tribunal deems fit in the circumstances of the case as also award cost of the application in favour of the applicant.

3. Brief facts of the case as enunciated by the applicant are that the applicant was enrolled in the Army on 28/2/1990 and was discharged from service on 28/2/2007 after serving for 17 years and one day of service. 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, with Grade Pay of Rs 2400/- Rs 2800/- and Rs 4200/- respectively, 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 MACP II in the Grade of Rs 2800/- in the rank of Havildar wef 28/2/2006. However, despite various representations to the authorities, he was not granted the same benefit. Hence, this OA, praying for relief.

4. Vide Reply Statement, while not disputing the basic facts, the Respondents have submitted that the applicant was discharged from service on 28/2/2007 in the rank of Naik (TS) on completion of his terms of engagement under Rule 13 (3) Item III (i) of Army Rules 1954. He was granted service pension for life for the qualifying service. Further, while serving with 401 Field Hospital, the applicant had submitted his Permanent Unwillingness Certificate dated 29/10/2004 for further promotion, which was duly countersigned by his Commanding Officer. Since the applicant voluntarily submitted his Unwillingness for further promotion, the applicant is not eligible for grant of financial ungradation of MACP II (Havildar Grade) as per existing policy, Annexure R/1. Respondents further submitted that in terms of Para 21 of AG/PS, IHQ of MoD (Army) letter dated 13/6/2011, which stipulates that an individual who refuses promotion, MACP will also be denied. In support of his arguments, the Respondents have placed reliance on the Order dated 04/1/2022 passed by the Lucknow Bench of the Armed Forces Tribunal in OA No 107 of 2021 in the case of Ex Naik (TS) Dhananjay Kumar Singh Vs UOI & Ors, in which it was held "that the applicant has rendered his unwillingness for further promotion in writing which debarred him from further promotion to get the benefit of MACP II (Havildar Grade) as per Govt Policy letters dated 13/6/2011 and 11/7/2018. Hence, we are of the view that aim of the applicant for grant of benefit of MACP II without fulfilling the conditions as required as per MACP policy, is not sustainable and has rightly been rejected by the respondents which need no interference". Further, the applicant has filed this OA after a delay of four years, four months and 16 days and, hence, is liable to be rejected at the initial stage itself on the ground of delay alone.

5. 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?

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 read 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 purpose 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."

9. On perusal of the aforesaid facts in this case, it is apparent that the Applicant had specifically rendered his Permanent Unwillingness on 29/10/2004 for promotion to the rank of Naik. Since the Applicant rendered his explicit unwillingness for further promotion, he is clearly not eligible for MACP-II benefits. 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

Sd/- XXX

(SANJIV MITTAL) MEMBER (A)

(GOVERDHAN BARDHAR) MEMBER (J)

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