Case: UNION OF INDIA &amp; ORS Vs. MANJU ARORA &amp; ANR

thereafter, he shall become eligible for the secondup-gradation under the ACP Scheme only after he completes the required eligibility service/ period under the ACP Scheme in that higher grade subject to the condition that the period for which he was debarred for regular promotion shall not count for the purpose. For example, if a persons has got one financial up-gradation after rendering 12 years of regular service and after 2 years there from if he refuses regular promotion and is consequently debarred for one year and subsequently he is promoted to the higher grade on regular basis after completion of 15 years (12+12+1) of regular service, he shall be eligible for consideration for the second up-gradation under the ACP Scheme only after rendering ten more years in addition to two years of service already rendered by him after the first financial up-gradation (2+10) in the higher grade i.e. after 25 years (12+12+1) of regular service because the debarment period of one year cannot be taken into account towards the required 12 years of regular service in that higher grade. 11. As can be seen, the benefit of the financial upgradation under the ACP Scheme shall be available only if regular promotion during the prescribed intervals, 12 years and 24 years, could not be availed by an employee. While Condition no. 5.1 is clear to this effect, the Division Bench unnecessarily referred to condition No. 10 to hold in favor of employees who have refused promotion offered to them. The Court was of the opinion that the employees concerned are entitled to one financial upgradation, even if they turn down the offer of promotion, as non-acceptance of such promotion would impact only their second upgradation. With such finding, the respondents were held entitled to the relief under the ACP Scheme, although it was a case of refusal of promotion offered to the employee. 12. The learned counsel for the appellant has taken us through the relevant conditions in the ACP Scheme notified on 9.8.1999 and more particularly clause 5.1 and Clause 10 thereof. She has also brought to the notice of the Court, the promotions offered to the employees and their refusal to accept the promotion for their own personal reasons, such as family needs or movement to another station etc. 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 favor 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] A.C 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 favor 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] A.C 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.7027-28/2009.19. However, the above would not apply to the two respondent employees Kanta Suri and Veena Arora in C.A Nos.7150-7151/2009 as they were not offered regular promotion but conditional promotion on officiating basis subject to reversion, by the order dated 29.12.1988. These two employees cannot be said to have exercised a choice between alternatives and as such the above Principle would not apply and their refusal to accept the officiating promotion cannot be held against them.