Benefit of financial upgradation can’t be claimed by employee if he/she despite offer of regular promotion, refuses to accept same and chooses to remain in existing grade of own volition: SC

Read Judgment: Union Of India & Ors. V. Manju Arora & Anr 

Pankaj Bajpai

New Delhi, January 4, 2022: The Supreme Court has opined that if a regular promotion is offered but the same is refused by the employee before becoming entitled to a financial up-gradation, she/he shall not be entitled to financial up-gradation 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, added the Court. 

A Division Bench of Justice R. Subhash Reddy and Justice Hrishikesh Roy observed 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. 

Going by the background of the case, Manju Arora & Anr (Respondents) were claiming the benefit of Assured Career Progression Scheme (ACP Scheme) for the Central Government civilian employees under the Office Memo dated August 9, 1999 issued by the Ministry of Personnel, Public Grievances and Pensions, Government of India. The ACP Scheme provided for financial up-gradation to the next higher grade of pay for those employees who could not get promotion after 12 years of service. 

The Respondents Suman Lata Bhatia and Manju Arora who were appointed as Senior Translator (Hindi), were offered promotion to the higher post of Translation Officer on a regular basis. But due to personal reasons, they refused the offered promotions. Later on, the benefits under the ACP Scheme given to the respondents were withdrawn after finding that those were wrongly granted. 

The withdrawal order disentitled financial up-gradation under the ACP Scheme to those who had refused vacancies based promotion. Accordingly, the respondent was reverted back to her earlier pay scale. The withdrawal of ACP benefit for the two respondents and one other was challenged before the Central Administrative Tribunal, Principal Bench (CAT). 

The CAT 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 up-gradation was interdicted with the observation that the upgraded pay scale was allowed without any misrepresentation from their side.

The decision of the Tribunal declaring disentitlement of the Original Applicants to the ACP benefits were challenged before the High Court, wherein it was concluded that the employees were rightly given the benefit of first up-gradation, which could not have been withdrawn. Consequently, the High Court directed for restoration of the up-gradation under the ACP Scheme, to the concerned employees. 

After considering the submissions, the Apex Court found that the benefit of the financial up-gradation 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. 

Reading of the ACP Scheme shows that financial up-gradation 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, added the Court. 

Speaking for the Bench, Justice Roy observed that in the entire service career, an employee is entitled to financial up-gradation if the concerned employee had to suffer stagnation in the same post without benefit of any regular promotion and, the O.M. dated August 9, 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.

“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”, noted the Bench.

Consequently, the Top Court declared that the employees who had refused the offer of regular promotion would be disentitled to the financial up-gradation benefits envisaged under the O.M. dated August 9, 1999.