Facts
Under the O.M. dated 9.8.1999 issued by the Ministry of Personnel, Public Grievances and Pensions, Government of India, the respondents are claiming the benefit of the Assured Career Progression Scheme (for short ACP Scheme) for Central Government civilian personnel. Employees who did not receive a promotion after 12 years of service were eligible for financial upgradation to the next higher grade of pay under the ACP Scheme. After 24 years of service, a second upgradation is also possible.
Suman Lata Bhatia and Manju Arora, who had been assigned to the position of Senior Translator (Hindi), were offered regular promotions to the position of Translation Officer (Hindi). However, they declined the offered promotions owing to personal reasons. The respondents were given benefits under the ACP Scheme on 15.11.1999, but when it was discovered that they had been wrongfully granted, the benefits were revoked by orders dated 4.9.2002 and 10.10.2002 for Suman Lata Bhatia and Manju Arora, respectively. The withdrawal order referred to a clarifying O.M. dated 18.7.2001, which stated that people who denied vacancies-based promotions were not eligible for financial upgradation under the ACP Scheme.
The employee (respondent herein) cannot be deemed to be stagnating because she has refused advancement on several occasions and has chosen to remain in the grade of Senior Translator on her own initiative, as stated in the impugned order (Hindi). Taking note of the respondent's response to the show cause notice and rejecting it, the ACP benefit was revoked, and the respondent was restored to her previous pay grade. The other employee was subjected to the same procedures.
The withdrawal of ACP benefits for the two respondents and one other was challenged in OA No. 2673/2002 (Suman Lata Bhatia), OA No. 2674/2002 (Veena Arora), and OA No. 3021/2002 (Manju Arora) before the Central Administrative Tribunal, Principal Bench (for short the Tribunal).
The Tribunal referred to both OMs (9.8.1999 and 18.7.2001) in its similar order (28.8.2003), noting that the ACP Scheme is intended to provide relief to employees who have been stuck in the same job for a long time. However, the original applicants were found ineligible for the improved pay scale under the ACP Scheme due to the clarifying communication as well as the Scheme's purpose and the fact that they had denied ordinary promotion. The Tribunal held that an employee's reluctance to accept normal advancement cannot be called stagnation because she chose to remain in her current grade on her own initiative.
As a result, the employer's decision to terminate the ACP benefits of the three applicants was deemed to be legal, as it declared that they were not entitled to the benefits of an enhanced pay scale under the ACP Scheme. The proposed recovery of the differential pay due to the cancellation of the pay upgrade was, however, rejected, with the caveat that the higher pay scale was granted without any misrepresentation on their part.
The Tribunal's decision deeming the Original Applicants ineligible for ACP benefits was challenged in WP (C) No. 7227/2003 (Manju Arora) and WP (C) No. 7283/2003 (Suman Lata), and both matters were taken up for similar review.
The Division Bench referred to condition No. 5.1 as well as condition No. 10 in the O.M. dated 9.8.1999 to reach the conclusion that if an employee declined a promotion, their refusal would only affect their second upgradation. It was determined that the employees were entitled to the first upgradation benefit, which could not be revoked. As a result, the Tribunal's decision was overturned, and a directive was issued to restore the upgradation under the ACP Scheme to the affected employees.
The underlying facts are comparable in Civil Appeal Nos.7150-7151/2009, where the relevant respondents Kanta Suri and Veena Arora were also employed as Senior Translators (Hindi) in the Air Headquarters. Both Kanta Suri and Veena Arora were offered promotion to the post of Translation Officer (Hindi) on an officiating basis instead of regular promotion, with the stipulation that the promotes are subject to reversion if their seniors who are on deputation to other offices/posts return to their current cadre in the Air Force or due to any administrative reasons.
It should also be noted that the decision in favour of the employees, which stated that their refusal to be promoted would only affect their second upgradation, was based on the common judgement dated 21.11.2007 of the Delhi High Court Division Bench in the case of Suman Lata Bhatia and Manju Arora, which was previously mentioned.
The OM dated 9.8.1999, which promised Assured Career Progression for Central Government Civilian Personnel, was meant to provide a safety net for employees who were experiencing actual stagnation and suffering due to a lack of suitable promotional opportunities. The government implemented the ACP Scheme after making necessary changes in response to the Fifth Central Pay Commission's recommendations. It was agreed under the Scheme that the first financial upgradation would be granted after 12 years of regular service, and the second one would be granted after 12 years of regular service from the date of the first financial upgradation, subject to the fulfilment of the defined conditions.
The OM dated 9.8.1999, which promised Assured Career Progression for Central Government Civilian Personnel, was meant to provide a safety net for employees who were experiencing actual stagnation and suffering due to a lack of suitable promotional opportunities. The government implemented the ACP Scheme after making necessary changes in response to the Fifth Central Pay Commission's recommendations. It was agreed under the Scheme that the first financial upgradation would be granted after 12 years of regular service, and the second one would be granted after 12 years of regular service from the date of the first financial upgradation, subject to the fulfilment of the defined conditions.
Issues
Under the O.M. dated 9.8.1999 issued by the Ministry of Personnel, Public Grievances and Pensions, Government of India, the respondents are claiming the benefit of the Assured Career Progression Scheme (for short ACP Scheme) for Central Government civilian personnel. Employees who did not receive a promotion after 12 years of service were eligible for financial upgradation to the next higher grade of pay under the ACP Scheme. After 24 years of service, a second upgradation is also possible.
Judgement
In a similar order (28.8.2003), the Tribunal referred to both OMs (9.8.1999 and 18.7.2001) and stated that the ACP Scheme was designed to help employees who had been stuck in the same job for a long time. However, the original applicants were found ineligible for the improved pay scale under the ACP Scheme due to the clarifying communication as well as the Scheme's purpose and the fact that they had denied ordinary promotion.
The employee's unwillingness to accept regular advancement could not be termed stagnation, according to the Tribunal, because she had chosen to remain in her current grade on her own volition. As a result, the employer's decision to terminate the ACP benefits of the three applicants was deemed to be legal, as it declared that they were not entitled to the benefits of an enhanced pay scale under the ACP Scheme. The proposed recovery of the differential pay due to the cancellation of the pay upgrade was, however, rejected, with the caveat that the higher pay scale was granted without any misrepresentation on their part.
The Tribunal's decision deeming the Original Applicants ineligible for ACP benefits was challenged in WP (C) No. 7227/2003 (Manju Arora) and WP (C) No. 7283/2003 (Suman Lata), and both matters were taken up for similar review. It was decided that if an employee was offered a conventional promotion but declined it before becoming eligible for a financial upgradation, she should not be entitled to a financial upgradation just because she had experienced stagnation.
This was since it was not a matter of a lack of promotion chances, but rather an employee choosing to decline an offered advancement for personal reasons. The High Court, on the other hand, failed to recognize this crucial feature when giving relief to the employees. As a result, the worried employees could not simultaneously approve and disapprove, or, to put it another way, "have their cake and eat it too."
The does not applicable to the two responder employees Kanta Suri and Veena Arora, who were offered conditional advancement on an officiating basis subject to reversion rather than regular promotion. Because these two employees did not have a choice between alternatives, the preceding Principle would not apply to them, and their unwillingness to accept the officiating promotion could not be used against them. The two employees, Kanta Suri and Veena Arora, would still be eligible for benefits underneath the ACP Scheme if they declined the promotion provided in the communication.
Court Order
Employees who declined a routine promotion offer were not eligible for the financial upgradation incentives outlined in the O.M. dated 9.8.1999. The aforesaid guideline, however, does not apply to employees who have been offered conditional promotion on an officiating basis and are subject to reversion.
This article is written by Aahana Gupta of Bennett University.