Assured Career Progression Scheme: Supreme Court clarifies eligibility for financial upgradation in service matters (2022)

LEGAL ISSUE: Whether employees who refuse promotions are eligible for financial upgradation under the Assured Career Progression Scheme.

CASE TYPE: Service Law

Case Name: Union of India & Ors. vs. Manju Arora & Anr.

Judgment Date: 3 January 2022

Introduction

Date of the Judgment: 3 January 2022

Citation: 2022 INSC 12

Judges: R. Subhash Reddy, J., Hrishikesh Roy, J. (authored the judgment)

Can a government employee who refuses a promotion claim financial benefits under the Assured Career Progression (ACP) Scheme? The Supreme Court of India recently addressed this question, clarifying the eligibility criteria for financial upgradation for central government employees. This judgment clarifies that employees who refuse regular promotions are not entitled to financial upgradation under the ACP scheme, as the scheme is intended to benefit those who face stagnation due to lack of promotional avenues, not those who voluntarily choose to remain in their current positions. The bench comprised Justices R. Subhash Reddy and Hrishikesh Roy, with the majority opinion authored by Justice Hrishikesh Roy.

Case Background

The case involves several employees of the Central Government who were initially granted financial upgradation under the ACP Scheme. The ACP Scheme, introduced by the Ministry of Personnel, Public Grievances and Pensions on 9 August 1999, aimed to provide financial relief to employees who did not receive promotions after 12 and 24 years of service.

Specifically, Suman Lata Bhatia and Manju Arora, appointed as Senior Translators (Hindi), were offered promotions to Translation Officer (Hindi) on a regular basis. However, they refused these promotions due to personal reasons. Despite this, they were initially granted benefits under the ACP Scheme on 15 November 1999. Subsequently, these benefits were withdrawn on 4 September 2002 and 10 October 2002, respectively, following a clarification issued on 18 July 2001, which stated that employees who refused promotions were not eligible for financial upgradation under the ACP Scheme.

Similarly, Kanta Suri and Veena Arora, also Senior Translators (Hindi) at Air Headquarters, were offered promotions on an officiating basis, which meant they could be reverted if their seniors returned from deputation or due to administrative reasons.

Timeline

Course of Proceedings

The initial withdrawal of ACP benefits was challenged before the Central Administrative Tribunal (CAT). The CAT, in its order dated 28 August 2003, upheld the withdrawal of benefits, noting that the ACP Scheme aimed to relieve stagnation, and employees who refused promotions could not be considered to be stagnating. However, the Tribunal interdicted the recovery of the differential pay as the upgraded pay scale was allowed without any misrepresentation from their side.

The employees then appealed to the Delhi High Court. A Division Bench of the High Court, in a judgment dated 21 November 2007, ruled that the refusal of promotion would only affect the second upgradation under the ACP Scheme, and the employees were entitled to the first upgradation. The High Court interfered with the order of the Tribunal and directed the restoration of the upgradation under the ACP Scheme.

Legal Framework

The primary legal framework for this case is the Office Memorandum (O.M.) dated 9 August 1999, which introduced the Assured Career Progression Scheme for Central Government Civilian Employees. The scheme provides for financial upgradation to the next higher grade of pay for those employees who could not get promotion after 12 years of service, with a second upgradation after 24 years of service.

Condition 5.1 of the O.M. dated 9 August 1999 states:

“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.”

Condition 10 of the O.M. dated 9 August 1999 states:

“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 second up-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.”

The O.M. dated 18 July 2001, clarified that employees who refused regular promotions before the grant of ACP benefits were ineligible for such benefits.

Arguments

The appellants (Union of India) argued that the ACP Scheme is intended to provide relief to employees who face genuine stagnation due to lack of promotional avenues. They contended that employees who refuse regular promotions are not eligible for financial upgradation under the scheme, as they have voluntarily chosen to remain in their current positions. The appellants relied on Condition 5.1 of the O.M. dated 9 August 1999, which states that financial upgradation is available only if no regular promotions have been availed during the prescribed periods of 12 and 24 years.

The respondents (employees) argued that the refusal of promotion should only impact their second upgradation, not the first. They relied on the interpretation of Condition 10 of the O.M. dated 9 August 1999, which they argued suggests that refusal of promotion only leads to debarment for future promotions and does not disentitle them from the first upgradation.

The innovativeness of the argument by the appellant lies in the interpretation of the ACP scheme’s intent, emphasizing that it is a “safety net” for those genuinely facing stagnation due to lack of opportunities, not a benefit for those who voluntarily decline promotions.

Issues Framed by the Supreme Court

The Supreme Court framed the following issue:

1. Whether employees who have refused the offer of regular promotion are entitled to the financial upgradation benefits under the O.M. dated 9.8.1999.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Court considered the following authorities:

• O.M. dated 9 August 1999: Introduced the Assured Career Progression Scheme.
• O.M. dated 18 July 2001: Clarified that employees refusing promotions are ineligible for ACP benefits.
• *Lissenden v. CAV Bosch Ltd.* [1940] A.C 412 (House of Lords): The court used this case to explain the doctrine of “Approbate and Reprobate”

Judgment

The Supreme Court held that employees who refuse regular promotions are not entitled to financial upgradation under the ACP Scheme. The Court emphasized that the scheme is intended to address stagnation due to a lack of promotional opportunities, not to benefit those who voluntarily forgo promotions.

The Court referred to the doctrine of “Approbate and Reprobate,” explaining that an employee cannot simultaneously accept the benefits of a scheme while rejecting its conditions. The Court cited *Lissenden v. CAV Bosch Ltd.* [1940] A.C 412, where Lord Atkin stated, “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.”

However, the Court made an exception for Kanta Suri and Veena Arora, as they were offered promotions on an officiating basis, which was subject to reversion. The Court held that their refusal to accept the officiating promotion cannot be held against them, and they are entitled to the benefits under the ACP Scheme.

The Court directed that the consequential relief should be made available to the two eligible employees within three months.

The court stated that, “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.”

The court also noted 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.”

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the intent and purpose of the ACP Scheme, which is to provide relief to employees facing stagnation due to a lack of promotional avenues. The Court emphasized that the scheme is not meant to benefit employees who voluntarily refuse promotions and choose to remain in their current positions. The Court also considered the administrative difficulties that could arise if employees were allowed to refuse promotions and still claim the benefits of the scheme.

Key Takeaways

• Employees who refuse regular promotions are not eligible for financial upgradation under the ACP Scheme.
• The ACP Scheme is intended for employees who face genuine stagnation due to a lack of promotional opportunities.
• Refusing a regular promotion means an employee cannot claim the benefits of the ACP Scheme.
• The doctrine of “Approbate and Reprobate” prevents employees from accepting benefits while rejecting conditions.
• Employees offered promotion on an officiating basis are not considered to have refused promotion, and are eligible for the benefits under the ACP Scheme.

Directions

The Supreme Court directed that the consequential relief under this order should be made available to the two eligible employees (Kanta Suri and Veena Arora) within three months from the date of the judgment.

Development of Law

The ratio decidendi of this case is that employees who refuse regular promotions are not entitled to financial upgradation under the Assured Career Progression Scheme. This clarifies the interpretation of the scheme and provides guidance for future cases involving similar issues. This is a change from the position taken by the Delhi High Court.

Conclusion

The Supreme Court’s judgment clarifies that the Assured Career Progression Scheme is a safety net for employees facing stagnation due to a lack of promotional opportunities. It is not meant to benefit those who voluntarily refuse promotions. The Court’s decision reinforces the principle that employees cannot simultaneously accept the benefits of a scheme while rejecting its conditions. This judgment provides a clear interpretation of the ACP scheme and will serve as a precedent for similar cases in the future.