Ex Sigmn Kuldeep (Army) vs UOI & Others on 10 July 2026

**ORDER

10.07.2026**

1. Under Section 14 of the Armed Forces Tribunal Act 2007, the Applicant has filed this OA praying therein to direct the Respondents to grant MACP-II benefits wef 13.04.2021 and, consequently, fixation of Pay, Pension and pensionary benefit accordingly and that the arrears be paid along with interest @ 12% per annum.

2. Brief facts of the case as enunciated by the Applicant are that after rendering more than 17 years of service, he was discharged from Service on 30.04.2022 for which he has been granted Service Pension for life. The Applicant submits that on implementation of 6^th CPC wef 01.01.2006, IHQ of MoD (Army) vide letter dt 13.06.2011 and 25.07.2018 have allowed upto three financial upgradations on completion of 8, 16 and 24 years of Service or completion of eight years of continuous Service in the same rank. On completion of 16 years of service on 12.04.2021, the Applicant was eligible for grant of MACP-II benefits wef 13.04.2021, however, the Applicant has not been granted financial upgradation wef 13.04.2021. The Applicant made representations as also issued Legal Notice for grant of MACP-II benefit wef 13.04.2021 on completion of 16 years of service, but to no avail. Therefore, the aggrieved Applicant has filed present OA.

3. The Respondents have filed a detailed Reply Statement. While not contesting the basic facts presented by the Applicant, the Respondents have submitted that on completion of 8 years of service, the Applicant was granted MACP-I benefit wef 13.04.2013. Thereafter, promotion order of the Applicant to the rank of Naik wef 01.01.2018 was issued vide promotion Order dt 06.11.2017, however, the Applicant rendered his permanent unwillingness for further promotion to the rank of Naik on 02.01.2018 and, hence, he was not eligible for grant of MACP-II benefits (Naik) on completion of 16 years of service wef 13.04.2021. In view of the aforesaid averments, the Respondents have reiterated that the OA is devoid of merit and deserves to be dismissed.

4. We have heard 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 to 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 upgradation 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. Perusal of the Administrative Instructions mentioned in above paragraph reveals that the conditions for grant of Financial upgradation is either completion of 8, 16 and 24 years of service or 8 years of continuous service in a particular rank. However, refusal for promotion will lead to denial of further MACP benefits.

7. 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. On perusal of the aforesaid facts in this case, it is apparent that the Applicant had specifically rendered his permanent unwillingness on 02.01.2018 for promotion before completion of 16 years of service. Moreover, in his unwillingness certificate, it was specifically mentioned by him that he was aware that he would be debarred for grant of MACP from the date of rendition of the unwillingness certificate. Since the Applicant rendered his unwillingness for further promotion before completion of 16 years of service, he is clearly not eligible for MACP-II benefits. It is also prudent to observe that the Applicant has filed this OA fully knowing that he had given his permanent unwillingness for promotion and was not entitled to the benefit of MACP-II as prayed for in the OA and, hence, indulged in vexatious litigation, which is not appreciated. However, we are restraining ourselves to impose costs on the Applicant.

9. In-fine, the OA is devoid of merit and, hence, is dismissed. Pending Miscellaneous Application(s), if any, also stand disposed off.

10. No order on costs.

Sd/- XXX

(SANJIV MITTAL) MEMBER (A)

Sd/- XXX

(GOVERDHAN BARDHAR) MEMBER (J)

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