The Division Bench of Supreme Court consisting of Justices R. Subhash Reddy and Hrishikesh Roy opined 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/he has suffered stagnation.
Facts and Procedural History
The respondents herein claimed the benefit of Assured Career Progression Scheme (in short “ACP Scheme”) for the Central Government civilian employees. 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.
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 offer. However, the benefits under the ACP Scheme were given to the respondents but when it was found that those were wrongly granted, the same were withdrawn. The ACP benefit was withdrawn, and the respondent was reverted to her earlier pay scale. Similar steps were taken for the other employee as well. Such withdrawal of ACP benefit for the two respondents and one other was challenged before the Central Administrative Tribunal, Principal Bench (“the Tribunal”). The Tribunal declared that they were not entitled to the benefits of upgraded pay scale, in terms of the ACP Scheme. However, it was observed that the upgraded pay scale was allowed without any misrepresentation from their side.
The above decision of the Tribunal was challenged respectively in different writ petitions and both cases were taken up for analogous consideration. The Division Bench concluded that the employees were rightly given the benefit of first upgradation, which could not have been withdrawn.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. The basic facts in the other Appeal are similar. 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.
Observations of the Court
The Bench observed that:
“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.”
“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.”
Judgment
The Bench, finding merit in the submissions of the first set of appeals, it was declared that the employees who refused the offer of regular promotion were disentitled to the financial upgradation benefits. However, in the second set of appeals, since the employees were not offered regular promotion but conditional promotion on officiating basis subject to reversion, they cannot be said to have exercised a choice between alternatives. The refusal of the promotion offered by the communication will not disentitle the two employees, Kanta Suri and Veena Arora to the benefits under the ACP Scheme.
Case Name: Union of India & Ors. vs Manju Arora & Anr.
Citation: Civil Appeal Nos.7027-7028 of 2009
Bench: Justice R. Subhash Reddy, Justice Hrishikesh Roy
Decided on: 3rd January 2022
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