Ex Sigmn Manraj Dhaker vs UOI & Others on 6 November 2025

ORDER

06.11,2025 Respondents The above Original Application has been filed by the Applicant under the provisions of Section 14 of the Armed Forces Tribunal Act, 2007, praying for grant of benefit of MACP-II wef 01.07.2022 and, consequently, fixation of Pension and pensionary benefit accordingly and that the arrears be paid along with interest @ 12% per annum. Brief facts of the case are that the Applicant was enrolled in the Army on 08.12.2004 and after rèndering more than 17 years of unblemished service, he was discharged from Servic on 31.12.2021. The Applicant submits that on implementation of 6th CPC, IHQ of MoD (Army) vide letter dt 13.06.2011 and 25.07.2018 wef 01.01.2006, on completion of 8, 16 and 24 years of Service or completion of eight years of continuous Service in the same rank, the Applicant is eligible for MACP-II benefits on completion of 16 years of service. However, despite the fact that he was never punished for any offence and was discharged fromn Service after rendering more than 17 years of service, the benefits of MACP-II scheme have not been granted to him. The Applicant OA No 56/2024 Ex Siamn Manrai Dhaker Vs UOI & Ors made representations as also issued Legal Notice for grant of MACP-II benefits, but to no avail. Therefore, the aggrieved Applicant has filed present OA. While not

3. The Respondents have filed a detailed Reply Statement. contesting the basic facts presented by the Applicant, the Respondents have submitted that the Applicant was granted MACP-1 benefits (Naik Grade) wef The 08.12.2012, ie., on completion of eight years of qualifying service. Applicant had rendered an unwillingness certificate for further promotion cadre to the next rank on 21.06.2017 (Annexure R/V). As per Para 21 of Administrative Instructions, if an individual is unwilling to accept promotion, benefits of MACP will be denied. However, if an individual refuses promotion after grant of MACP, the earlier MACP granted to him will not be withdrawn. The effective date of unwillingness certificate for cadre/promotion is from the date of signing of the unwillingness certificate. Since the Applicant had signed unwillingness certificate on 21.06.2017, ie., before completion of 16 years of service, he was not granted MACP-II benefit wef 08.12.2020. In view of the aforesaid averments, the Respondents hàve reiterated that the OA is devoid of merit and deserves to be dismissed.

4. 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 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 Goernment 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 t grant three financial up aradation under the MACPS at intervals of8, 16,24 years of continuOus reqular service. The special Army Instruction 1/5/2008 dated 11 Oct 2008, in Para 15 thereof lays down the basic parameters in this regard.

Financial Uparadation 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 OA No S6/2024 Ex Sigmn Manraj Dhaker Vs UOI & Ors

6. whenever a person has spent 8 years continuously in the samne grade pay. MACP will imply a minimum increment of 3% of total pay (incuding Grade Pay, ' Pay, where applicable) applicable to the rank in respect of whch 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 eliqible for further MACP. If he again accepts promotion, MACP will also be debarred by the period of debarment due to refusal. Wilingness for promotion will be assumed unless an individual states he is unwilling. Perusal of the Administrative Instructions mentioned in above paragraph reveals that the conditions for grant of Financial upgradation is either

7.

22. Effect of Med/ACR Criteria. There will be no Med/ACR/Passing of promotion cadre criteria stipulated for MACP " 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. Hon'ble Supreme Court in its judgment dt o3.01.2022 in Civil Appeal No 7O27-7028 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 reguar promotions have been received by her/hinm at the prescribed intervals of 12 and 24 years respectively. In the entire service career, an employee is entitled to financal upgradation if the concerned employee had to suffer stagnation in the same post without benefit of any regular promotion and, as earlier stated the 0.M. dated 9.81999 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 regulat promotion, refuses to accept the same and chooOses to remain in the existing grade of her own volition? Manju Arora and Suman Lata Bhatia were

14. As can be seen from the records. Ma offered promotion to higher grade on multijple OCcasions, but they refused the same and chose to continue inthe existing pay SCale. The purport of the 0.M. dated 9.81999 was subsequently clarified by the 0.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 cdear 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 accCOunt of refusal, can be considered for regular promotion only after necessary debarnment 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 aderted to the words in condition 10 of the 0.M. to hold in favour of the employees who have refused promotion for their own personal reasons. OA No 56/2024 Ex Sigmn Manraj Dhaker Vs UOl & Ors

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, shehe shall not be entitled to financial upgradation only because she has suffered stagnation. This is because, it is nota 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.

10.

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 dificulties as the concerned employee very often refuse promotion in order to continue in hi_/her own place of posting.

18. In the above circumstances, we find merit in the submissions made on behalf of the appellants. Cosequentiy, it is decdared that the employees who have refused the offer of regular promotion are disentitied 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 octrine was explained in Lissenden V. CAV Bosch Ltd (1940) AC 412, wherein Lord Atkin observed at page 429, Ssy/ .......n cases where the doctrine does aDply 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.

On perusal of the aforesaid facts in this case, it is apparent that the Applicant had specificaly rendered his unwillingness to attend promotion cadre for the next rank. Therefore, he is clearly not eligible for MACP benefits. Moreover, a distinction has been made between accepting promotion and accepting to participate in promotion cadre. As participation in promotion cadre course is a pre-requisite for promotion, giving unwillingness for promotion cadre would also be deemed urnwillingness for promotion. 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, l'eat their cake and have it too". It is declared accordingly for the resporidents in the CA. Nos. 7027-28/2009.

9. The OA is devoid of merit and, hence, is dismissed. Miscellaneous Application(s) pending, if ány, also stand disposed off. No order on costs. (SANJIV MITTAL) MEMBER (A) ORCES (GOVERDHAN BARDHAR) MEMBER (J) OA No 56/2024 EX Siamn Manrai Dhaker Vs UOI & Ors