UNION OF INDIA & ORS. versus MANJU ARORA & ANR. on 3 January 2022

[2022] 2 S.C.R. 591

UNION OF INDIA & ORS.

v.

MANJU ARORA & ANR.

(Civil Appeal Nos. 7027-7028 of 2009)

JANUARY 03, 2022

[R. SUBHASH REDDY AND HRISHIKESH ROY, JJ.]

Service Law – Non-acceptance of promotion – Employee ifentitled to benefits under Assured Career Progression Scheme (ACP)– Respondents-employees refused the offered promotion due topersonal grounds – However, the benefits under the ACP Schemewere given to them but, were later withdrawn – Respondents werereverted back to their earlier pay scale – Challenged withdrawalof ACP benefit – Tribunal held that they were not entitled to thebenefits of upgraded pay scale in terms of the ACP Scheme – DivisionBench issued direction for restoration of the upgradation underthe ACP Scheme – On appeal, held: If a regular promotion is offeredbut is refused by the employee before becoming entitled to a financialupgradation, she/he shall not be entitled to financial upgradationonly because she has suffered stagnation – This is because, it is nota case of lack of promotional opportunities but an employee optingto forfeit offered promotion, for own personal reasons – This vitalaspect was not appropriately appreciated by High Court whilegranting relief to the employees – Employees who have refused theoffer of regular promotion are disentitled to the financialupgradation benefits of ACP Scheme under O.M. dtd. 9.8.99 –However, this would not apply to the two respondents in C.ANos.7150-7151/2009 as they were not offered regular promotionbut conditional promotion – Their refusal of the promotion will notdisentitle them to the benefits under the ACP Scheme – Doctrine ofApprobate and Reprobate.

Allowing the C.A.Nos.7027-7028 of 2009 and dismissingthe C.A. Nos.7150-7151 of 2009, the Court HELD: 1.1 The OM dated 9.8.1999 offering Assured CareerProgression for the Central Government Civilian Employees wasintended as a “safety net” to deal with the problem of genuine

Conclusion

Astagnation and hardship faced by the employees due to lack ofadequate promotional avenues. The ACP Scheme was introducedby the government with appropriate modification on the basis ofthe recommendation made by the Fifth Central Pay Commission.Under the Scheme, it was decided to grant financial upgradationafter 12 years of regular service and the second one after 12Byears of regular service from the date of the first financialupgradation, subject to fulfillment of prescribed conditions. Thebenefit of the financial upgradation under the ACP Scheme shallbe available only if regular promotion during the prescribedintervals, 12 years and 24 years, could not be availed by anCemployee. While Condition no. 5.1 is clear to this effect, theDivision Bench unnecessarily referred to condition No. 10 to holdin favor of employees who have refused promotion offered tothem. The Court was of the opinion that the employees concernedare entitled to one financial upgradation, even if they turn downthe offer of promotion, as non-acceptance of such promotion wouldDimpact only their second upgradation. With such finding, therespondents were held entitled to the relief under the ACPScheme, although it was a case of refusal of promotion offered tothe employee. Reading of the ACP Scheme shows that financialupgradation would accrue to an employee only if no regularEpromotions have been received by her/him at the prescribedintervals of 12 and 24 years respectively. In the entire servicecareer, an employee is entitled to financial upgradation if theconcerned employee had to suffer stagnation in the same postwithout benefit of any regular promotion. The respondents wereoffered promotion to higher grade on multiple occasions, but theyFrefused the same and chose to continue in the existing pay scale.The purport of the O.M. dated 9.8.1999 was subsequently clarifiedby the O.M. dated 18.7.2001 where it was specifically providedthat an employee who had been offered regular vacancy basedpromotion before grant of ACP benefit and the regular promotionGwas refused, she/he become ineligible to the grant of the ACPbenefits. Even without the clarificatory notification dated18.7.2001, a plain reading of clause 5.1 of the O.M. dated 9.8.1999makes it abundantly clear that an employee who has opted to H

remain in the existing grade, by refusing offer of promotion,forfeits the rights to ACP benefits and such employee, on accountof refusal, can be considered for regular promotion only afternecessary debarment period is over. Despite the clear wordingsin condition 5.1, the purport of the OM dated 9.8.1999 was missedout in the impugned judgment and the Court unnecessarilyadverted to the words in condition 10 of the O.M. to hold in favorof the employees who have refused promotion for their ownpersonal reasons. [Paras 10, 11, 13-15][596-F-H; 598-B-H; 599-A-C]

1.2 If a regular promotion is offered but is refused by theemployee before becoming entitled to a financial upgradation,she/he shall not be entitled to financial upgradation only becauseshe has suffered stagnation. This is because, it is not a case oflack of promotional opportunities but an employee opting to forfeitoffered promotion, for her own personal reasons. However, thisvital aspect was not appropriately appreciated by the High Courtwhile granting relief to the employees. It may also be observedthat when an employee refuses the offered promotion, difficultiesin manning the higher position might arise which give rise toadministrative difficulties as the concerned employee very oftenrefuse promotion in order to continue in his/her own place ofposting. The employees who have refused the offer of regularpromotion are disentitled to the financial upgradation benefitsenvisaged under the O.M. dated 9.8.1999. The Scottish doctrineof “Approbate and Reprobate” is attracted to the circumstancesin this case. The concerned employees cannot therefore beallowed to simultaneously approbate and reprobate. It is declaredaccordingly for the respondents in the C.A. Nos.7027-28/2009.[Paras 16-18][599-D-G; 600-B-C]

Lissenden v. CAV Bosch Ltd. [1940] A.C 412 – referredto.

1.3 However, the above would not apply to the tworespondent employees in C.A Nos.7150-7151/2009 as they werenot offered regular promotion but conditional promotion onofficiating basis subject to reversion. These two employees cannotbe said to have exercised a choice between alternatives and as AB

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Asuch the above Principle would not apply and their refusal to acceptthe officiating promotion cannot be held against them. The refusalof the promotion will not disentitle the two employees to thebenefits under the ACP Scheme. It is declared accordingly. Sincethe respondents have reached the age of superannuation in themeantime, the consequential relief under this order should beBmade available to the two eligible employees (if not granted),within three months from today. [Paras 19, 20][600-C-E]

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 7027-7028 of 2009.

CFrom the Judgment and Order dated 21.11.2007 of the High Courtof Delhi at New Delhi in W. P. (C) Nos.7227 and 7283 of 2003.

With

Civil Appeal Nos.7150-7151 of 2009.

DMs. Meera Patel, Bhuvan Mishra, Ayush Puri, Arvind KumarSharma, Advs. for the Appellants.

Dr. I. B. Gaur, Rajeev Manglik, Piyush Sharma, A. P. Dhamija,Ms. Tanya Sharma, Sarad Kumar Singhania, Advs. for the Respondents.

The Judgment of the Court was delivered byEHRISHIKESH ROY, J.

1. Heard Ms. Meera Patel, learned counsel appearing for theappellants in both the matters. The respondents in Civil Appeal Nos.7027-7028 of 2009 are represented by Mr. Rajiv Manglik, learned counsel.In Civil Appeal Nos. 7150-7151 of 2009, the respective respondents areFrepresented by learned counsel Mr. Piyush Sharma and Mr. A.P. Dhamija.

2. The respondents herein are claiming the benefit of AssuredCareer Progression Scheme (for short “ACP Scheme”) for the CentralGovernment civilian employeesunder the O.M. dated 9.8.1999 issuedby the Ministryof Personnel, Public Grievances and Pensions,GGovernment of India. The ACP Scheme provided for financial upgradationto the next higher grade of pay for those employees who could not getpromotion after 12 years of service. Second upgradation is similarlyadmissible after 24 years of service.

3. Suman Lata Bhatia and Manju Arora who were appointed asSenior Translator (Hindi), were offered promotion to the higher post ofTranslation Officer (Hindi) on regular basis. But due to personal grounds,they refused the offered promotions. However, the benefits under theACP Scheme were given to the respondents on 15.11.1999 but when itwas found that those were wrongly granted, the same were withdrawnby orders dated 4.9.2002 and 10.10.2002 for Suman Lata Bhatia andManju Arora respectively. The withdrawal order adverted to theclarificatory O.M. dated 18.7.2001 which disentitled financial upgradationunder the ACP Scheme to those who had refused vacancies basedpromotion. It is specifically reflected in the said order that the employee(respondent herein) having refused promotion on multiple occasions,cannot be said to be stagnating as she,of her own volition has opted toremain in the grade of Senior Translator (Hindi). Accordingly, takingnote of the response to the show cause notice and rejecting the same,the ACP benefit was withdrawn and the respondent was reverted backto her earlier pay scale. Similar steps were taken for the other employeeas well.

4. The withdrawal of ACP benefit for the two respondents andone other was challenged before the Central Administrative Tribunal,Principal Bench (for short “the Tribunal”) in OA No. 2673/2002 (SumanLata Bhatia), OA No. 2674/2002 (Veena Arora) and OA No. 3021/2002(Manju Arora) respectively.

5. In the analogous order (28.8.2003), the Tribunal adverted toboth OMs(9.8.1999 and 18.7.2001) and noted that the ACP Scheme isto provide relief to employees who are suffering stagnation in the samepost for long period of time. However, having regard to the clarificatorycommunication as also the purport of the Scheme and the fact that theoriginal applicants had refused regular promotion, they were helddisentitled to the upgraded pay scale in terms of the ACP Scheme. TheTribunal opined that on refusal to accept regular promotion, the employeecannot be considered to be stagnating as she has opted to remain in theexisting grade of her own volition. Consequently, the decision of theemployer to withdraw the ACP benefits to the three applicants werefound to be in order by declaring that they are not entitled to the benefitsof upgraded pay scale, in terms of the ACP Scheme. However, theproposed recovery of the differential pay on account of cancellation ofthe pay upgradation was interdicted with the observation that the upgradedpay scale was allowed without any misrepresentation from their side.

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A6. The above decision of the Tribunal declaring disentitlement ofthe Original Applicants to the ACP benefits were challenged respectivelyin the WP (C) No. 7227/2003 (Manju Arora), W.P. (C) No.7283/2003(Suman Lata) and both cases were taken up for analogous consideration.

7. The Division Bench adverted to the condition No. 5.1 as alsoBCondition No.10 in the O.M. dated 9.8.1999 to conclude that in case aparticular employee had turned down the offered promotion, the non-acceptance of promotion would impact their second upgradation only. Itwas concluded that the employees were rightly given the benefit of firstupgradation, which could not have been withdrawn. Accordingly, thejudgment of the Tribunal was interfered and consequently, direction wasCissued for restoration of the upgradation under the ACP Scheme, to theconcerned employees.

8. The basic facts in the Civil Appeal Nos.7150-7151/2009 aresimilar where the concerned respondents Kanta Suri and Veena Arorawere also appointed as Senior Translator (Hindi) in the Air Headquarters.DThe key point of distinction for these two employees was that instead ofregular promotion, both Kanta Suri and Veena Arora were offeredpromotion on officiating basis to the post of Translation Officer (Hindi)with the stipulation that the promotes are liable to reversion if their seniorswho are on deputation to other office/posts, return to their present cadreEin the Air Force or due to any administrative reasons.

9. Additionally, it may be mentioned that the decision in favor ofthe employees to the effect that their refusal for promotion would impactonly their second upgradation, was based upon the common judgmentdated 21.11.2007 of the Division Bench of the Delhi High Court in theFcase of Suman Lata Bhatia and Manju Arora, adverted earlier.

10. The OM dated 9.8.1999 offering Assured Career Progressionfor the Central Government Civilian Employees was intended as a “safetynet”to deal with the problem of genuine stagnation and hardship facedby the employees due to lack of adequate promotional avenues.The ACPGScheme was introduced by the government with appropriate modificationon the basis of the recommendation made by the Fifth Central PayCommission. Under the Scheme, it was decided to grant financialupgradation after 12 years of regular service and the second one after12 years of regular service from the date of the first financial upgradation,subject to fulfillment of prescribed conditions. Conditions 5.1 and 10Hthereof being relevant, are extracted hereinbelow:- “5.1 Two financial up-gradation under the ACP Scheme in theentire Government Service career of an employee shall be countedagainst regular promotions (including in-situ promotion and fasttrack promotion availed through limited departmental competitiveexamination) availed from the grade in which an employee wasappointed as a direct recruit. This shall mean that two financialup-gradation under the ACP Scheme shall be available only if noregular promotion during the prescribed periods (12 and 24 years)have been availed by an employee. If a employee has already gotone regular promotion, he shall qualify for the second financialup-gradation only on completion of 24 years of regular serviceunder the ACP Scheme. In case two prior promotions on regularbasis have already been received by an employee, no benefit underthe ACP Scheme shall accrue to him.

10. Grant of higher pay scale under the ACP Scheme shall beconditional to the fact that an employee, while accepting the saidbenefit, shall be deemed to have given his unqualified acceptancefor regular promotion on occurrence of vacancy subsequently. Incase he refuses to accept the higher post on regular promotionsubsequently, he shall be subject to normal debarment for regularpromotion as prescribed in the general instructions in this regard.However, as and when he accepts regular promotion thereafter,he shall become eligible for the secondup-gradation under the ACPScheme only after he completes the required eligibility service/period under the ACP Scheme in that higher grade subject to thecondition that the period for which he was debarred for regularpromotion shall not count for the purpose. For example, if a personshas got one financial up-gradation after rendering 12 years ofregular service and after 2 years there from if he refuses regularpromotion and is consequently debarred for one year andsubsequently he is promoted to the higher grade on regular basisafter completion of 15 years (12+12+1) of regular service, heshall be eligible for consideration for the second up-gradation underthe ACP Scheme only after rendering ten more years in additionto two years of service already rendered by him after the firstfinancial up-gradation (2+10) in the higher grade i.e. after 25 years A

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A(12+12+1) of regular service because the debarment period ofone year cannot be taken into account towards the required 12years of regular service in that higher grade.”

11. As can be seen, the benefit of the financial upgradation underthe ACP Scheme shall be available only if regular promotion during theBprescribed intervals, 12 years and 24 years, could not be availed by anemployee. While Condition no. 5.1 is clear to this effect, the DivisionBench unnecessarily referred to condition No. 10 to hold in favor ofemployees who have refused promotion offered to them. The Courtwas of the opinion that the employees concerned are entitled to onefinancial upgradation, even if they turn down the offer of promotion,Casnon-acceptance of such promotion would impact only their secondupgradation. With such finding, the respondents were held entitled to therelief under the ACP Scheme, although it was a case of refusal ofpromotion offered to the employee.

12. The learned counsel for the appellant has taken us throughDthe relevant conditions in the ACP Scheme notified on 9.8.1999 andmore particularly clause 5.1 and Clause 10 thereof. She has also broughtto the notice of the Court, the promotions offered to the employees andtheir refusal to accept the promotion for their own personal reasons,such as family needs or movement to another station etc.

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13. Reading of the ACP Scheme shows that financial upgradationwould accrue to an employee only if no regular promotions have beenreceived by her/him at the prescribed intervals of 12 and 24 yearsrespectively. In the entire service career, an employee is entitled tofinancial upgradation if the concerned employee had to suffer stagnationFin the same post without benefit of any regular promotion and, as earlierstated, the O.M. dated 9.8.1999 was introduced as a “safety net”todeal with the problems of genuine stagnation and hardship faced by theemployees due to lack of adequate promotional avenues. But can thebenefit of the Scheme be claimed by an employee when she, despiteoffer of regular promotion, refuses to accept the same and chooses toGremain in the existing grade of her own volition?

14. As can be seen from the records, Manju Arora and SumanLata Bhatia were offered promotion to higher grade on multiple occasions,but they refused the same and chose to continue in the existing payscale. The purport of the O.M. dated 9.8.1999 was subsequently clarifiedHby the O.M. dated 18.7.2001 where it was specifically provided that an employee who had been offered regular vacancybased promotion beforegrant of ACP benefit and the regular promotion was refused, she/hebecome ineligible to the grant of the ACP benefits. Even without theclarificatory notification dated 18.7.2001, a plain reading of clause 5.1 ofthe O.M. dated 9.8.1999 makes it abundantly clear that an employeewho has opted to remain in the existing grade, by refusing offer ofpromotion, forfeits the rights to ACP benefits and such employee, onaccount of refusal, can be considered for regular promotion only afternecessary debarment period is over.

15. However, despite the clear wordings in condition 5.1, thepurport of the OM dated 9.8.1999 was missed out in the impugnedjudgment and the learned Court unnecessarily adverted to the words incondition 10 of the O.M. to hold in favor of the employees who haverefused promotion for their own personal reasons.

16. We are quite certain that if a regular promotion is offered butis refused by the employee before becoming entitled to a financialupgradation, she/he shall not be entitled to financial upgradation onlybecause she has suffered stagnation. This is because, it is not a case oflack of promotional opportunities but an employee opting to forfeit offeredpromotion, for her own personal reasons. However, this vital aspectwas not appropriately appreciated by the High Court while granting reliefto the employees.

17. It may also be observed that when an employee refuses theoffered promotion, difficulties in manning the higher position might arisewhich give rise to administrative difficulties as the concerned employeevery often refuse promotion in order to continue in his/her own place ofposting.

18. In the above circumstances, we find merit in the submissionsmade on behalf of the appellants. Consequently, it is declared that theemployees who have refused the offer of regular promotion are disentitledto the financial upgradation benefits envisaged under the O.M. dated9.8.1999. In this situation, the Scottish doctrine of “Approbate andReprobate” springs to mind. The English equivalent of the doctrine wasexplained in Lissenden v. CAV Bosch Ltd.[1] wherein Lord Atkin observedat page 429, 1 [1940] A.C 412

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A“…………In cases where the doctrine does apply the personconcerned has the choice of two rights, either of which he is atliberty to adopt, but not both. Where the doctrine does apply, if theperson to whom the choice belongs irrevocably and with knowledgeadopts 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 simultaneouslyapprobate and reprobate, or to put it colloquially, “eat their cake andhave it too”.It is declared accordingly for the respondents in the C.A.Nos.7027-28/2009.

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C19. However, the above would not apply to the two respondentemployees Kanta Suri and Veena Arora in C.A Nos.7150-7151/2009 asthey were not offered regular promotion but conditional promotion onofficiating basis subject to reversion, by the order dated 29.12.1988.These two employees cannot be said to have exercised a choice betweenalternatives and as such the above Principle would not apply and theirDrefusal to accept the officiating promotion cannot be held against them.Therefusal of the promotion offered by the communication dated 29.12.1988will not disentitle the two employees, Kanta Suri and Veena Arora to thebenefits under the ACP Scheme. It is declared accordingly.

20. Since the respondents have reached the age of superannuationEin the meantime, the consequential relief under this order should be madeavailable to the two eligible employees (if not granted), within threemonths from today.

21. For the foregoing, the first set of Appeals i.e. Civil AppealNos.7027-7028 of 2009 are allowed. However, the second set of AppealsFi.e. Civil Appeal Nos.7150-7151 of 2009 stand dismissed. There shall beno order as to costs.

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Divya Pandey(Assisted by : Roopanshi Virang, LCRA)

Appeals disposed of.

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