Staff who refused regular promotion disentitled to financial upgradation under 1999 office memo: SC

PTI, Jan 3, 2022, 8:05 PM IST

The Supreme Court Monday said that employees who have refused the offer of regular promotion are disentitled to financial upgradation benefits envisaged under the August 1999 office memorandum issued by the Ministry of Personnel, Public Grievances and Pensions.

The apex court said this while dealing with the matters in which some employees were claiming the benefit of the Assured Career Progression scheme for the central government civilian employees under the August 9, 1999, office memorandum.

A bench of Justice R S Reddy and Justice Hrishikesh Roy noted that the Assured Career Progression 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 and the second upgradation is similarly admissible after 24 years of service.

In its judgment delivered on pleas filed by the Centre against the Delhi High Court orders, the top court said if a regular promotion is offered but is refused by the employee before becoming entitled to a financial upgradation, he or she shall not be entitled to financial upgradation only because she has suffered stagnation.

The bench said 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 employee concerned very often refuse promotion to continue in his or her own place of posting.

”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 office memorandum dated August 9, 1999,” the apex court said.

The bench noted that two of the employees, who were appointed as a senior translator (Hindi) were offered a promotion to the higher post of translation officer (Hindi) on regular basis but they refused the offered promotions on personal grounds. It noted in the verdict that benefits under the Assured Career Progression scheme were given to them in November 1999 but when it was found that those were wrongly granted, they were withdrawn in 2002. The bench said the withdrawal order had adverted to the clarificatory office memorandum of July 18, 2001, which disentitled financial upgradation under the Assured Career Progression scheme to those who had refused vacancies based promotion.

The withdrawal of Assured Career Progression benefits for three employees was challenged before the Central Administrative Tribunal, which adverted to both the office memorandums and held they were disentitled to the upgraded pay scale in terms of the scheme.

Later, the matter came to the Delhi High Court which said the employees were rightly given the benefit of the first upgradation which could not have been withdrawn. The apex court, in its judgment, referred to the Scottish doctrine of ”approbate and reprobate”.

”The doctrine is attracted to the circumstances in this case. The employees concerned cannot, therefore, be allowed to simultaneously approbate and reprobate, or to put it colloquially, ‘eat their cake and have it too’,” the bench said.

The apex court also dealt with the matter of two other employees who were appointed as senior translator (Hindi).

The bench noted in this matter, instead of regular promotion, both the employees were offered a promotion on an officiating basis to the post of translation officer (Hindi) with the stipulation that the promotes are liable to reversion if their seniors who are on deputation to other office/posts, return to their present cadre in the Air Force or due to any administrative reasons.

It said the same principle would not apply to these two employees as they were not offered a regular promotion but conditional promotion on officiating basis subject to reversion.

”These two employees cannot be said to have exercised a choice between alternatives and as such the above Principle would not apply and their refusal to accept the officiating promotion cannot be held against them,” it said.

The bench said since these two employees have reached the age of superannuation in the meantime, the consequential relief under its order should be made available to them within three months, if not granted.