Employee Who Refuses Promotion Offer Not Entitled To Financial Upgradation Merely Because She Suffered Stagnation : Supreme Court

The Supreme Court observed 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 he/she has suffered stagnation.

The court said that Central Government 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

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 bench comprising Justices R. Subhash Reddy and Hrishikesh Roy observed.

In this case, some employees claimed the benefit of Assured Career Progression Scheme for the Central Government civilian employees under the O.M. dated 9.8.1999 issued by the Ministry of 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.

Two such employees, 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 them. Later, the same were withdrawn on finding that those were wrongly granted. They challenged this withdrawal before the Central Administrative Tribunal, Principal Bench. The Tribunal found that they were disentitled. Later, the High Court, allowing their writ petition, held that the employees were rightly given the benefit of first upgradation, which could not have been withdrawn.

In appeal, the court noted that 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, the court said. Taking note of the conditions, the bench observed:

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, 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

The court said 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 observed:

"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. 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." (Para 16 and 17)

The court also observed that doctrine of "Approbate and Reprobate" also applies in this case. Allowing the appeal, it said:

"In this situation, the Scottish doctrine of "Approbate and Page 13 of 16 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, "…………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"." (Para 18)

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