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Employee who Refuses Promotion Offer Not Entitled to Financial up Gradation Merely Because She Suffered Stagnation: Supreme Court

Team SoOLEGAL 5 Jan 2022 3:17pm

Employee who Refuses Promotion Offer Not Entitled to Financial up Gradation Merely Because She Suffered Stagnation: Supreme Court

New Delhi: The Supreme Court stated that if a standard promotion is given but the employee declines it before being eligible for a financial up gradation just because he/she has experienced stagnation.

According to the Court, Central Government workers who have denied the offer of regular promotion are ineligible for the financial up gradation advantages outlined in the O.M. dated 09.08.1999.

When an employee declines an offered promotion, difficulties in manning the higher position may arise, giving rise to administrative difficulties, as the concerned employee frequently refuses promotion in order to continue in his/her own place of posting, observed the bench of Justices R. Subhash Reddy and Hrishikesh Roy.

Some workers in this case sought the benefit of the Assured Career Progression Scheme for Central Government Civilian Employees under the O.M. dated 09.08.1999 issued by the Ministry of Personnel, Public Grievances and Pensions, Government of India. The ACP Scheme offered for financial advancement to the next higher grade of pay for employees who were unable to be promoted after 12 years of services. After 24 years of services, a second up gradation is also possible.

Suman Lata Bhatia and Manju Arora, both recruited as Senior Translators (Hindi), were often awarded promotions to the higher position of Translation Officer (Hindi). However, owing to personal reasons, they declined the offered promotions. They did, however, get benefit under the ACP scheme. Later, the same were withdrawn after it was discovered that they had been granted incorrectly. They filed a complaint with the Central Administrative Tribunal, Principal Bench, challenging the withdrawal. They were deemed to be ineligible by the tribunal. Later, they High Court, in granting their writ case, ruled that the workers had been rightfully granted the advantage of first up gradation, which could not be revoked.

The Court stated in its decision that the OM dated 09.08.1999 guaranteeing Assured Career Progression for Central Government Civilian Employees was meant as a “safety net” to address the issue of true stagnation and hardship encountered by employees due to a lack of sufficient promotional options. According to the court, the ACP Scheme was implemented by the government with suitable modification based on the Fifth Central Pay Commission’s proposal. Taking notice of the circumstances, the bench noted:
“As can be seen, 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. 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 up gradation, even if they turn down the offer of promotion, as non – acceptance of such promotion would impact only their second up gradation. 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 stated that if a standard promotion is given but the employee declines it before becoming eligible for a financial up gradation; she/he would not be entitled to a financial up gradation just because she has experienced stagnation. The Court noted:
“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 up gradation benefits envisaged under the O.M. dated 09.08.1999. (Para 16 & Para 17”

The Court also stated that the Approbate and reprobate theory applied in this instance. Allowing the appeal, the court stated:
“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)”



Tagged: Supreme Court   Central Government workers   Justice R. Subhash Reddy   Justice Hrishikesh Roy  
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