Assured Career Progression Scheme: Supreme Court clarifies eligibility for financial upgradation upon refusal of promotion in Union of India vs. Manju Arora (2022)

Introduction

Date of the Judgment: 03 January 2022

Citation: [Not Available in Source]

Judges: R. Subhash Reddy, J. and Hrishikesh Roy, J.

Can a government employee who refuses a promotion still claim the benefits of financial upgradation under the Assured Career Progression (ACP) Scheme? The Supreme Court of India recently addressed this question, clarifying the conditions under which employees are eligible for financial benefits when they choose not to accept promotions. This judgment clarifies the scope of the ACP scheme and its applicability to employees who decline promotions. The judgment was delivered by a two-judge bench comprising Justice R. Subhash Reddy and Justice Hrishikesh Roy, with the 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 scheme was designed to provide financial relief to employees who did not receive promotions after 12 and 24 years of service. The respondents, Suman Lata Bhatia and Manju Arora, were appointed as Senior Translators (Hindi) and were offered promotions to the post of Translation Officer (Hindi). However, they refused these promotions due to personal reasons.

Initially, the respondents were granted benefits under the ACP Scheme on 15.11.1999, but these benefits were later withdrawn on 4.9.2002 and 10.10.2002, respectively. The withdrawal was based on a clarificatory Office Memorandum (O.M.) dated 18.7.2001, which stated that employees who refused promotions were not eligible for financial upgradation under the ACP Scheme. The respondents challenged the withdrawal of their ACP benefits.

The other set of employees, Kanta Suri and Veena Arora, were also appointed as Senior Translators (Hindi) and were offered promotions on an officiating basis, which meant they could be reverted if their seniors returned or due to administrative reasons.

Timeline

Course of Proceedings

The initial withdrawal of ACP benefits was challenged before the Central Administrative Tribunal (CAT). The Tribunal, in its order dated 28.8.2003, upheld the withdrawal of benefits, stating that the ACP Scheme was meant for employees facing stagnation, and those who refused promotions could not be considered as stagnating. However, the Tribunal did not allow the recovery of the differential pay, as the upgraded pay scale was allowed without any misrepresentation by the employees.

The employees then appealed to the Delhi High Court. The High Court, in its judgment dated 21.11.2007, ruled that the refusal of promotion would impact only the second upgradation under the ACP Scheme, and not the first. It held that the employees were rightly given the benefit of the first upgradation, which could not have been withdrawn. Consequently, the High Court directed the restoration of the upgradation under the ACP Scheme.

Legal Framework

The core of this case revolves around the Assured Career Progression (ACP) Scheme, introduced by the Government of India through an Office Memorandum (O.M.) dated 9.8.1999. The scheme aims to provide financial upgradation to employees who do not receive promotions within 12 and 24 years of service.

The relevant conditions of the O.M. dated 9.8.1999 are:

• Condition 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.” This condition specifies that financial upgradation is available only if no regular promotions have been availed within the prescribed periods.

• Condition 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.” This condition states that accepting ACP benefits implies acceptance of future promotions, and refusal of promotion leads to debarment.

The O.M. dated 18.7.2001 further clarified that employees who refused regular promotions before being granted ACP benefits are ineligible for the scheme.

Arguments

The appellants (Union of India) argued that the respondents were not entitled to the benefits of the ACP Scheme because they had refused regular promotions. The core of their argument was based on the interpretation of condition 5.1 of the O.M. dated 9.8.1999, which states that financial upgradation is available only if no regular promotions have been availed within the prescribed periods. The appellants contended that the respondents, by refusing promotions, had voluntarily chosen to remain in their existing grades and could not claim stagnation benefits.

The appellants also highlighted the clarificatory O.M. dated 18.7.2001, which explicitly stated that employees who had refused regular promotions before the grant of ACP benefits were ineligible for the scheme. They argued that the High Court had misinterpreted condition 10 of the O.M. dated 9.8.1999 by concluding that refusal of promotion would only impact the second upgradation.

The respondents, on the other hand, argued that they were entitled to the first financial upgradation under the ACP Scheme. They relied on the High Court’s interpretation of condition 10 of the O.M. dated 9.8.1999, which suggested that refusal of promotion would only impact the second upgradation. They contended that the ACP Scheme was meant to address stagnation, and they had indeed stagnated in their posts.

The respondents argued that the High Court correctly interpreted the scheme, and they should not be penalized for refusing promotions due to personal reasons. They also argued that the clarificatory O.M. dated 18.7.2001 should not be applied retrospectively.

The innovativeness of the argument of the appellants lies in highlighting the intent of the ACP scheme as a “safety net” for those who genuinely lack promotional opportunities, and not for those who voluntarily forgo them. The appellants also emphasized the administrative difficulties that arise when employees refuse promotions, as it can lead to vacancies and operational challenges.

The innovativeness of the argument of the respondents lies in relying on the High Court’s interpretation of condition 10 of the O.M. dated 9.8.1999, which suggested that refusal of promotion would only impact the second upgradation. They also tried to argue that the clarificatory O.M. dated 18.7.2001 should not be applied retrospectively.

Submissions

Issues Framed by the Supreme Court

The Supreme Court considered the following issue:

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

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

• Assured Career Progression Scheme (ACP): O.M. dated 9.8.1999. This scheme was the central point of contention, with the court interpreting its conditions 5.1 and 10.

• Clarification on ACP Scheme: O.M. dated 18.7.2001. This clarified that employees who refused regular promotions before the grant of ACP benefits were ineligible for the scheme.

• Lissenden v. CAV Bosch Ltd. [1940] A.C 412: The court used this case to explain the doctrine of “Approbate and Reprobate,” stating that an employee cannot simultaneously accept and reject the same benefit.

Authorities Analysis

Judgment

The Supreme Court allowed the appeals of the Union of India in the case of Manju Arora and Suman Lata Bhatia, holding that they were not entitled to the financial upgradation under the ACP Scheme. However, the court dismissed the appeals in the case of Kanta Suri and Veena Arora, holding that they were entitled to the benefits under the ACP Scheme.

The court emphasized that the ACP Scheme was intended to provide a safety net for employees who faced stagnation due to a lack of promotional avenues, not for those who voluntarily refused promotions.

The court referred to the doctrine of “Approbate and Reprobate”, citing Lissenden v. CAV Bosch Ltd. [1940] A.C 412, stating that the concerned employees cannot be allowed to simultaneously approbate and reprobate, or to put it colloquially, “eat their cake and have it too”.

The court distinguished the case of Kanta Suri and Veena Arora, noting that they were offered promotions on an officiating basis, which was not equivalent to regular promotion. Therefore, the principle of “Approbate and Reprobate” did not apply to them.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the intent of the Assured Career Progression (ACP) Scheme, which was designed as a safety net for employees facing genuine stagnation due to lack of promotional opportunities. The Court emphasized that the scheme was not meant to benefit employees who voluntarily refuse promotions, choosing to remain in their current positions for personal reasons. The court also considered the administrative difficulties that arise when employees refuse promotions, which can lead to vacancies and operational challenges.

The Supreme Court’s decision was also influenced by the legal principle of “Approbate and Reprobate,” which prevents individuals from simultaneously accepting and rejecting the same benefit. This principle was applied to the case of Manju Arora and Suman Lata Bhatia, as they had initially accepted the ACP benefits but later refused regular promotions, thus trying to approbate and reprobate.

Logical Reasoning

Key Takeaways

• Eligibility for ACP Benefits: Employees who refuse regular promotions are not entitled to financial upgradation under the ACP Scheme. The scheme is meant for those who stagnate due to lack of promotional opportunities, not for those who voluntarily choose to remain in their existing grades.

• Doctrine of “Approbate and Reprobate”: Employees cannot simultaneously accept and reject the same benefit. If an employee accepts ACP benefits but later refuses a promotion, they cannot claim the benefits of the scheme.

• Officiating Promotions: Employees who refuse officiating promotions (which are conditional and temporary) are not treated the same as those who refuse regular promotions. Refusal of officiating promotions does not disentitle them to the benefits of the ACP Scheme.

• Future Impact: This judgment clarifies the scope of the ACP Scheme and sets a precedent for future cases involving similar issues. It emphasizes the importance of the intent behind government schemes and the need to interpret them in a way that aligns with their purpose.

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, if not already granted.

Specific Amendments Analysis

[Not Applicable as there is no discussion on any specific amendment in the source]

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 (ACP) Scheme. The court clarified that the scheme is intended to address genuine stagnation due to lack of promotional avenues, not voluntary stagnation caused by refusing promotions. This judgment clarifies the interpretation of the O.M. dated 9.8.1999 and the application of the doctrine of “Approbate and Reprobate” in service law. The Supreme Court overruled the interpretation of the High Court.

Conclusion

In summary, the Supreme Court’s judgment in Union of India vs. Manju Arora clarifies that employees who refuse regular promotions are not eligible for financial upgradation under the ACP Scheme. The court emphasized that the scheme is meant for those who face stagnation due to lack of promotional opportunities, not for those who voluntarily forgo promotions. The court also applied the doctrine of “Approbate and Reprobate,” preventing employees from simultaneously accepting and rejecting the same benefit. However, the court made a distinction for employees who refused officiating promotions, holding that they are still eligible for the benefits of the ACP Scheme.