Ex Sigmn Anoop Singh (Army) vs UOI & Others on 9 December 2021

**ORDER**

**09.12.2021**

1. 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 Benefit and consequential Pensionary Benefits.

2. Brief facts of the case are that the Applicant was enrolled in the Army on **01.03.2004** and was discharged from Service on **31.03.2020** at his own request after rendering more than 16 years of Service, however he has been granted Service Pension for the rank of MACP Naik. The Govt of India vide their letter dated 07.08.2003 introduced Assured Career Progression (ACP) Scheme wef 07.08.2003, according to which financial upgradation was entitled on completion of 10 years continuous service in the same Grade who could not be promoted due to stagnation of promotion. However, not more than two ACP Benefits were to be given in the entire Service Career. During the 6^th CPC, the ACP Scheme was further modified vide Govt of India letter dt 19.05.2009. This Scheme was made operational wef 01.09.2008. Consequent upon the Orders of Govt of India, ADGPS, IHQ of MoD (Army) vide their letter dated 13.06.2011 issued Administrative Instructions on grant of MACP Benefits to PBORs. Consequent upon the judgment of Hon'ble Supreme Court in the case

of UOI Vs Balbir Singh Turn (Civil Appeal No 3744/2017 decided on 08.12.2017), the Govt of India, vide their letter No 14(1)/99-D(AG) dated 25.07.2018 made the MACP Scheme operational wef 01.01.2006. The Applicant had completed 16 years of Service on 01.03.2020 and is entitled for grant of MACP-II Benefits wef 01.03.2020, however the Respondents have not granted the benefits. The Applicant approached the Respondents and have also served Legal Notice through his Counsel for grant of MACP Benefit but to no avail. Aggrieved by the inaction on the part of the Respondents, the Applicant has filed the present Original Application for grant of MACP-II Benefit wef 01.03.2020 and consequential Revision of Pension.

3. The Respondents have filed a detailed Reply Statement. While not contesting the basic facts submitted by the Applicant, the Respondents have submitted that the Applicant was discharged from Service on 31.03.2020 at his own request before fulfilling terms of engagement. On completion of 8 years of Service, the Applicant has been granted MACP-I Benefit wef 01.03.2012. Thereafter, the Applicant rendered his Unwillingness Certificate for promotion to the rank of Naik on 28.02.2018. The Applicant was provided an opportunity for promotion to the rank of Naik, however, he rendered his Unwillingness Certificate for further promotion, and as such, he is not entitled for MACP-II Benefits under the provisions of Para 21 of IHQ of MoD (Army) letter dt 13.06.2011.

4. Heard and considered the submissions of Learned Counsel for the parties and perused the material placed on record. The question that merits consideration is whether the Applicant, who rendered unwillingness for further promotion entitled for MACP Benefits?

5. The issue relating to Effect of Refusal to Promotion has been clarified in Para 21 of ADGPS, IHQ of MoD (Army) letter No B/33513/ACP/AG/PS-2(c) dt 13 Jun 2011, which reads as under:- *"21. 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 again accepts promotion, MACP will also be deferred by the period of debarment due to refusal. Willingness for promotion will be assumed unless an individual states he is unwilling."*

6. Further, the issue relating to grant of MACP Benefits to the personnel who rendered their unwillingness certificate for promotion cadre has been clarified vide AG's Branch, IHQ of MoD (Army) letter No B/33513/MACP/AG/PS-2(c) dt 11 July 2018, the relevant portion of which reads as under:- "3. **Base Policy Document.** DoPT letter No 35034/3/2008-Estt(D) dt 19 May 2009 serves as the basic policy letter for grant of MACP. Para 25 Annexure 1 on the issue of refusal for promotion reads as under:- *" If a regular promotion has been ordered but was refused by the employee before becoming entitled to a financial upgradation, no financial upgradation shall be allowed as such an employee has not been stagnated due to lack of opportunities. If, however, financial upgradation has been allowed due to stagnation and the employees subsequently refuse the promotion, it shall not be ground to withdraw the financial upgradation. He shall, however, not be eligible to be considered for further financial upgradation till he agrees to be considered for promotion again and the second or next financial upgradation shall also be deferred to the extend of period of debarment due to refusal."*

4 to 5. x x x

5. In view of the foregoing, it is evident that the policy on MACP debars grant of MACP to individuals who refuse promotion. As passing of promotion cadre is an essential pre-requisite for promotion, individuals are required to undergo the same prior to being considered for granted promotion. Thus, an individual who refuses to attend promotion cadre (ie refusing to fulfill promotion criteria) is making himself ineligible for promotion. It is imperative that an explicit "unwillingness for promotion at this time", be taken from individuals who are unwilling to attend promotion cadres as per Appendix attached."

7. A similar case was decided by Armed Forces Tribunal, Regional Bench, Kochi in the case of Sep/ASH Pradip Musib Vs UOI & Ors in OA No 26/2015, decided on 28.10.2015, the relevant portion of which reads as under:- **"11. .... While there is a mention in the new orders that no past cases will be re-opened, in our view, the question to be considered is whether the applicant had any opportunity for promotion based on vacancies available from the date of coming into effect of MACP till his retirement. If the applicant had no opportunity for promotion for want of vacancy in the next**

*higher rank, then his claim for MACP could not be denied only on the basis of an undertaking he had executed, because even if he had given his willingness for promotion, there was no opportunity available to him for promotion. On the other hand, if a vacancy existed before his date of retirement he would have no case at all for award of MACP. We are unable to take a view on the issues as no material has been placed before us on the availability of vacancies for promotion or if anyone junior to the applicant had been promoted prior to his retirement.*

*12. In view of the foregoing, the Original Application is partly allowed and the respondents are directed to give due consideration to the claim of the applicant for the benefit of MACP introduced with effect from 01 September 2008 (Annexure R3) by ignoring the unwillingness to accept promotion executed by the applicant. If no vacancy arose and if no person junior to the applicant had been promoted prior to his date of discharge, he is to be granted the benefit of MACP with effect from 01 September, 2008 or the due date whichever is later, provided the applicant is found fit after due screening in accordance with law. Appropriate decision is to be intimated to the applicant within a period of four months from the date of receipt of a copy of this order."*

8. A similar case was decided by Armed Forces Tribunal, Principal Bench, New Delhi in the case of Ex Sep (ACP-I) Bhale Ram Vs UOI & Ors in OA No 26/2015, decided on 28.10.2015, wherein the Respondents were directed to give due consideration to the claim of the Applicant for the benefit of MACP introduced wef 01.09.2008 by ignoring the unwillingness certificate to accept promotion executed by the Applicant.

9. A bare perusal of the above judgments makes it clear that the Unwillingness Certificate is not the sole or overriding criterion for denial the MACP Benefit to the eligible petitioners. On perusal of the material available, it is found that the Applicant rendered his Unwillingness Certificate for further promotion on 20.02.2018 and he was discharged from Service on 31.03.2020, thereby implying that there was a very limited time available between the promotion and the date of retirement in the present rank, even if he had rendered his willingness for promotion. Moreover, the Respondents have placed no material on record which establishes that the vacancy was available for promotion to the Applicant before his discharge from service and the juniors to the Applicant, who rendered their willingness for promotion, have been promoted to the next rank before discharge of the Applicant. Therefore, the benefit of doubt is extended in favour of the Applicant and the Applicant is

entitled for MACP-II Benefit wef 01.03.2020 on completion of 16 years of Qualifying Service.

10. In fine, the Original Application is allowed. The Respondents are directed to grant MACP-II Benefit to the Applicant wef 01.03.2020 along with arrears and consequential Pensionary Benefits, within four months from the date of receipt of a copy of this Order. In default thereof, the arrears shall carry interest @ 8% per annum till the date of actual payment.

11. The Learned Counsel for the Respondents made an oral prayer for Leave to Appeal which was denied.

12. No order on costs.

(BOBBY CHERIAN MATHEWS) MEMBER (A) ssy/-

(RAJENDRA MENON) CHAIRPERSON