Ex Sep (ACP) Raj Kumar (Army) vs UOI & Others on 3 November 2025

ORDER

03.11.2025 : Mr. Brij Bihari Sharma, Advocate HON'BLE MR. JUSTICE GOVERDHAN BARDHAR, MEMBER () HON'BLE MR. SANJIV MITTAL, MEMBER (A) Under Section 14 of the Armed Forces Tribunal Act 2007, the Applicant has filed this OA praying for directing the Respondents to grant 1* MACP (Naik Grade) wef 03/9/2010 on completión of eight years of service and 2nd MACP (Havildar Grade) wef 03/9/2018 on completion of i6 years of service by considering unwilling certificate rendered by the applicant on 16/11/2016for further promotion to the next rank as null and void in the interest of natural justice. He has also prayed for grant of all consequential benefits to the applicant.

2. Brief facts of the case as enunciated by the applicant are that the applicant was enrolled in the Army on 03/9/2002 and was discharged from service on completion of 17 years and 28 days of service on 30/9/2019 and was granted service pension for life. The applicant approached the Respondents through various means including a legal notice for grant of 2nd MACP in terms of Govt of India, Ministry of Defence letter dated 13/6/2011. but no heed was paid to the request of the applicant. In this regard the applicant has placed reliance on the Order dated 09/12/202 1 passed by this Bench in the case of Ex Naik (TS) Rajesh Kumar Vs UOI & Ors, in OA No 01 of 2020 as also in the case of OA No 02 of 2020, decided on 09/12/2020 filed by Ex Naik (TS) Gajendra Singh Vs UOI & Ors. Having been aggrieved, the applicant has filed the OA, praying for relief.

3. The Respondents have filed a detailed Reply Statement and while not disputing the basic facts, submitted that the applicant was discharged from service on 30/9/2019 on fulfilling the conditions of enrolment under Rule 13 (3) Item III ()) of Army Rules 1954. He had rendered 17 years and 28 days of service. He was granted service pension in the rank of Lance Naik (MACP Naik) in Group Y, which has been revised from time to time. As per Para 21 of IHO of MoD (Army) letter dated 13/6/2011, 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 If an individual refuses promotion after MACP, earlier MACP will not be withdrawn.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 deferred by th¿ period of debarment due to refusal. In the instant case, on occurring the vacarncy for promotion, the applicant had given unwillingness for further promotion to next higher rank, ie, to the rank of Nik in writing on 16/11/2016, which makes him ineligible for grant of MACP (Havildar Grade). Moreover, the applicant, Was also fully aware about his unwillingness for further promotion to the next rank and, therefore, he is not entitled for the benefits of 2nd MACP of Havildar Grade in accordance with ibid provisions. Under the circumstances, the Respondents have prayed for dismissing the OA with costs.

4. We have heard the counsels for the parties and perused the material placed on record.

5. During the course of hearing, Counsel for the Respondents has placed on record a copy of the UnwillingnesS certificate dated 16/11/2016 rendered by the applicant for further promotion, which was also countersigned by the Commanding Officer of the Unit. In the unwillingness certificate, the applicant had unequivocally accepted the fat that "am unwilling for further promotion to the rank of Naik against stagnation panel promotion and have no objection in case any junior is promoted to higher rank against my vacancy. I further declare that I am well aware of the implication of submitting unwillingness for further promotion and will also not request for withdrawal of my present unwilingness at a later stage".

6. The relevant Para Nos 4, 8, 21 and 22 of Administrative Instructions for 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:

7. "4. The Government has considered the recommendations of the Sixth Central Pay Commission for introduction of ModifiedAssured Career Progression Scheme (MACPS) and has accepted the same with further modification to qrant three financial up-gradation under the MACPS at intervals of 8, 16,24 years of continuous reqular service. The special Army Instruction 1/5/2008 dated 11 Oct 2008, in Para 15thereof lays down the basic parameters in this regard.

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. 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. f 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 unwiling. Perusal of the Administrative Instructions mentioned in above paragraph reveals that the conditiode fo~AU: grant of Financial upgr
datioD is either completion of 8,16 and 24 years of service or8 years of continuous Service in a particular rank. There is no criteria for Medical/ACR/Passing of promotion for extending the financial upgradation. However, refusal for promotion wil lead to denial of MACP benefits.

22. Effect of Med/ACR Crteia. There will be no MedACR/ Passing of promotion cadre criteria stipulated for MACP."Ooce 1 Hon'ble Supreme Court in its judgment in the case of UoI & Ors Vs Manju Arora & Anr has settled that the employees who refuse promotion shall not be eligible for ACP Scheme Dolevant 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 reqular promotion and. as earlier stated, the 0.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 beneit of the Schenme be claimed by an employee when she, despite offer of regular promotion, reruses 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 Subsequenty clarified by the O.M. dated 18.7.2001 wheret was specifically provded 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 18.72001, la plain reading of clause 5.1 Of the 0.M. dated 9.8.1999 makes it abundantly clear that an employee who has opted to remain in the existing grade, by refusing ofer of promotion, forfeits the rights to AP benefits and such employee, on account of refusal, an be considered for regular promotion oniy 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 conditjon 1O ofthe Q.Mto hold in favour of the employees who have refused promotion for their own personal reasons.

16. We are qute certajD that if a regular promotoh, iS, offered but is refused by the employee before beconing entitied to a financial upgradation, she/he shall not be entitled to financial upgradation only because she has sutfered 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 reasoFs. However, this vital aspect was hot 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, diffculties in manniagthe higher position mght arise Which give rise to administrative difficulties as the conemed employee very often jéfuseprómotion in order to continue in his/her own place of paatng,

18. In the abOve circumstançes, we fnd in the submissions made on behalf of the appellants. Consequently, it is decared 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 situatior, 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 hghts, 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 simuitaneously approbate and reprobate, or to put it colloquialy, "eat their cake and have it too". It is decared accordinghy for the respondents in the CA. Nos. 7027-28/2009. "

9. From the aforesaid facts, it is crystal clear that the Applicant had specifically refused to accept promotion to the next rank. Therefore, he is clearly not eligible for MACP benefits. Further, a distinction has been made between accepting promotion and accepting to participate in promotion cadre. As participation in promotion cadre COurse isa pre-requisite for promotion, giving unwillingness for promotion cadre would also mean deemed unwillingness for promotion. Moreover, while giving unwillingnesS to attend the promotion cadre, the Applicant also stated that he was well aware of the implications of submitting this unwillingness, which included denial of MACP to him.

10. Further, relying on the judgment of Honble Supreme Court in the case of Manju Arora (Supra), AFT (PB), New Delhi vide Order dt 24.01.2023 in OA No 2355/2021 in the case of Ex Sep Vijay Singh Vs UOI& Ors and Order dt 27.04.2023 in OA No 2617/2021 in the case of Ex Sep (ACP-1) Dilip Singh Vs UOI & Ors has dismissed the OA on the grounds that the Applicants in the OA had submitted their unwillingness certificate to participate in the promotion cadre promotion.

11. In view of the aforesaid facts, we are of the considered view that the Original Application is devoid of merit and, hence, dismissed.

12. No order on costs.

13. Miscellaneous Application(s) pending, if any, also stand disposed off. (SANJIV MITTAL) MEMBER (A) cda/ FORCE (GOVERDHAN BARDHAR) MEMBER (J)