UNION OF INDIA & ORS. versus MANJU ARORA & ANR.
[2022] 2 S.C.R. 591, Supreme Court of India, 2022
Outcome: Disposed off
Segment: Ratio
[2022] 2 S.C.R. 591
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 if
entitled to benefits under Assured Career Progression Scheme (ACP)
– Respondents-employees refused the offered promotion due to
personal grounds – However, the benefits under the ACP Scheme
were given to them but, were later withdrawn – Respondents were
reverted back to their earlier pay scale – Challenged withdrawal
of ACP benefit – Tribunal held that they were not entitled to the
benefits of upgraded pay scale in terms of the ACP Scheme – Division
Bench issued direction for restoration of the upgradation under
the ACP Scheme – On appeal, held: 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 own personal reasons – This vital
aspect was not appropriately appreciated by High Court while
granting relief to the employees – Employees who have refused the
offer of regular promotion are disentitled to the financial
upgradation benefits of ACP Scheme under O.M. dtd. 9.8.99 –
However, this would not apply to the two respondents in C.A
Nos.7150-7151/2009 as they were not
offered regular promotion
but conditional promotion – Their refusal of the promotion will not
disentitle them to the benefits under the ACP Scheme – Doctrine of
Approbate and Reprobate.
Allowing the C.A.Nos.7027-7028 of 2009 and dismissing
the C.A. Nos.7150-7151 of 2009, the Court
HELD: 1.1 The OM dated 9.8.1999 offering Assured Career
Progression for the Central Government Civilian Employees was
intended as a “safety net” to deal with the problem of genuine
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stagnation and hardship faced by the employees due to lack of
adequate promotional avenues. The ACP Scheme was introduced
by the government with appropriate modification on the basis of
the recommendation made by the Fifth Central Pay Commission.
Under the Scheme, it was decided to grant financial upgradation
after 12 years of regular service and the second one after 12
years of regular service from the date of the first financial
upgradation, subject to fulfillment of prescribed conditions. 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. 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. The respondents 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
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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. 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 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. [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 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. 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. 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. The Scottish doctrine
of “Approbate and Reprobate” is attracted to the circumstances
in this case. The concerned employees cannot therefore be
allowed to simultaneously approbate and reprobate. It is declared
accordingly 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 – referred
to.
1.3 However, the above would not apply to the two
respondent employees in C.A Nos.7150-7151/2009 as they were
not offered regular promotion but conditional promotion on
officiating basis subject to reversion. These two employees cannot
be said to have exercised a choice between alternatives and as
UNION OF INDIA & ORS. v. MANJU ARORA & ANR.
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such the above Principle would not apply and their refusal to accept
the officiating promotion cannot be held against them. The refusal
of the promotion will not disentitle the two employees to the
benefits under the ACP Scheme. It is declared accordingly. Since
the respondents have reached the age of superannuation in the
meantime, the consequential relief under this order should be
made 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.
From the Judgment and Order dated 21.11.2007 of the High Court
of Delhi at New Delhi in W. P. (C) Nos.7227 and 7283 of 2003.
With
Civil Appeal Nos.7150-7151 of 2009.
Ms. Meera Patel, Bhuvan Mishra, Ayush Puri, Arvind Kumar
Sharma, 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 by
HRISHIKESH ROY, J.
1. Heard Ms. Meera Patel, learned counsel appearing for the
appellants 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 are
represented by learned counsel Mr. Piyush Sharma and Mr. A.P. Dhamija.
2. The respondents herein are claiming the benefit of Assured
Career
Progression Scheme (for short “ACP Scheme”) for the Central
Government civilian employeesunder the O.M. dated 9.8.1999 issued
by the Ministryof Personnel, Public Grievances and Pensions,
Government of India. The ACP Scheme provided for financial upgradation
to the next higher grade of pay for those employees who could not get
promotion after 12 years of service. Second upgradation is similarly
admissible after 24 years of service.
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3. Suman Lata Bhatia and Manju Arora who were appointed as
Senior Translator (Hindi), were offered promotion to the higher post of
Translation Officer (Hindi) on regular basis. But due to personal grounds,
they refused the offered promotions. However, the benefits under the
ACP Scheme were given to the respondents on 15.11.1999 but when it
was found that those were wrongly granted, the same were withdrawn
by orders dated 4.9.2002 and 10.10.2002 for Suman Lata Bhatia and
Manju Arora respectively. The withdrawal order adverted to the
clarificatory O.M. dated 18.7.2001 which disentitled financial upgradation
under the ACP Scheme to those who had refused vacancies based
promotion. 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 to
remain in the grade of Senior Translator (Hindi). Accordingly, taking
note of the response to the show cause notice and rejecting the same,
the ACP benefit was withdrawn and the respondent was reverted back
to her earlier pay scale. Similar steps were taken for the other employee
as well.
4. The withdrawal of ACP benefit for the two respondents and
one other was challenged before the Central Administrative Tribunal,
Principal Bench (for short “the Tribunal”) in OA No. 2673/2002 (Suman
Lata 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 to
both OMs(9.8.1999 and 18.7.2001) and noted that the ACP Scheme is
to provide relief to employees who are suffering stagnation in the same
post for long period of time. However, having regard to the clarificatory
communication as also the purport of the Scheme and the fact that the
original applicants had refused regular promotion, they were held
disentitled to the upgraded pay scale in terms of the ACP Scheme. The
Tribunal opined that on refusal to accept regular promotion, the employee
cannot be considered to be stagnating as she has opted to remain in the
existing grade of her own volition. Consequently, the decision of the
employer to withdraw the ACP benefits to the three applicants were
found to be in order by declaring that they are not entitled to the benefits
of upgraded pay scale, in terms of the ACP Scheme. However, the
proposed recovery of the differential pay on account of cancellation of
the pay upgradation was interdicted with the observation that the upgraded
pay scale was allowed without any misrepresentation from their side.
UNION OF INDIA & ORS. v. MANJU ARORA & ANR.
[HRISHIKESH ROY, J.]
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6. The above decision of the Tribunal declaring disentitlement of
the Original Applicants to the ACP benefits were challenged respectively
in 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 also
Condition No.10 in the O.M. dated 9.8.1999 to conclude that in case a
particular employee had turned down the offered promotion, the non-
acceptance of promotion would impact their second upgradation only. It
was concluded that the employees were rightly given the benefit of first
upgradation, which could not have been withdrawn. Accordingly, the
judgment of the Tribunal was interfered and consequently, direction was
issued for restoration of the upgradation under the ACP Scheme, to the
concerned employees.
8. The basic facts in the Civil Appeal Nos.7150-7151/2009 are
similar where the concerned respondents Kanta Suri and Veena Arora
were also appointed as Senior Translator (Hindi) in the Air Headquarters.
The key point of distinction for these two employees was that instead of
regular promotion, both Kanta Suri and Veena Arora were offered
promotion on officiating basis to the post of Translation Officer (Hindi)
with the stipulation that the promotes are liable to reversion if their seniors
who are on deputation to other office/posts, return to their present cadre
in the Air Force or
due to any administrative reasons.
9. Additionally, it may be mentioned that the decision in favor of
the employees to the effect that their refusal for promotion would impact
only their second upgradation, was based upon the common judgment
dated 21.11.2007 of the Division Bench of the Delhi High Court in the
case of Suman Lata Bhatia and Manju Arora, adverted earlier.
10. The OM dated 9.8.1999 offering Assured Career Progression
for the Central Government Civilian Employees was intended as a “safety
net”to deal with the problem of genuine stagnation and hardship faced
by the employees due to lack of adequate promotional avenues.The ACP
Scheme was introduced by the government with appropriate modification
on the basis of the recommendation made by the Fifth Central Pay
Commission. Under the Scheme, it was decided to grant financial
upgradation after 12 years of regular service and the second one after
12 years of regular service from the date of the first financial upgradation,
subject to fulfillment of prescribed conditions. Conditions 5.1 and 10
thereof being relevant, are extracted hereinbelow:-
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“5.1 Two financial up-gradation under the ACP Scheme in the
entire Government Service career of an employee shall be counted
against regular promotions (including in-situ promotion and fast
track promotion availed through limited departmental competitive
examination) availed from the grade in which an employee was
appointed as a direct recruit. This shall mean that two financial
up-gradation under the ACP Scheme shall be available only if no
regular promotion during the prescribed periods (12 and 24 years)
have been availed by an employee. If a employee has already got
one regular promotion, he shall qualify for the second financial
up-gradation only on completion of 24 years of regular service
under the ACP Scheme. In case two prior promotions on regular
basis have already been received by an employee, no benefit under
the ACP Scheme shall accrue to him.
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10. Grant of higher pay scale under the ACP Scheme shall be
conditional to the fact that an employee, while accepting the said
benefit, shall be deemed to have given his unqualified acceptance
for regular promotion on occurrence of vacancy subsequently. In
case he refuses to accept the higher post on regular promotion
subsequently, he shall be subject to normal debarment for regular
promotion 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 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
UNION OF INDIA & ORS. v. MANJU ARORA & ANR.
[HRISHIKESH ROY, J.]
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(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,
asnon-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
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employee who had been offered regular vacancybased 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.1 wherein Lord Atkin observed
at page 429,
1 [1940] A.C 412
UNION OF INDIA & ORS. v. MANJU ARORA & ANR.
[HRISHIKESH ROY, J.]
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“…………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.The
refusal of the promotion offered by the communication dated 29.12.1988
will not disentitle the two employees, Kanta Suri and Veena Arora to the
benefits under the ACP Scheme. It is declared accordingly.
20. Since the respondents have reached the age of superannuation
in the meantime, the consequential relief under this order should be made
available to the two eligible employees (if not granted), within three
months from today.
21. For the foregoing, the first set of Appeals i.e. Civil Appeal
Nos.7027-7028 of 2009 are allowed. However, the second set of Appeals
i.e. Civil Appeal Nos.7150-7151 of 2009 stand dismissed. There shall be
no order as to costs.
Divya Pandey
Appeals disposed of.
(Assisted by : Roopanshi Virang, LCRA)