DECLINING REGULAR PROMOTION BEFORE THE DATE OF IMPLEMENTATION OF
ACP OR MACP SCHEME SHOULD NOT BE A BAR FOR GRANTING ACP/MACP
Refusal to accept promotion, earlier to 09.08.1999 when the ACP
scheme was promulgated, does not make an employee ineligible for grant of first
financial benefits under ACP scheme when the scheme came into force only on
09.08.1999
Facts: The Applicant (who was appointed on 08.03.1980),
while working as Radio Mechanic in India Meteorological Department refused his
promotion due to family circumstances, when his promotion order was issued on
30.07.1998.
The Assured career Progression Scheme came into force on
09.08.1999. The Applicant having completed 12 years of service and stagnating
in the same post of Radio Mechanic was rejected for the financial benefit of
ACP on the ground that he refused his promotion when offered on 30.07.1998
earlier to the introduction of ACP scheme on 09.08.1999.
Modified Assured Career Progression Scheme (MACP) was introduced
for financial upgradation on 19.05.2009. As per this scheme, an employee will
be entitled for three financial upgradation after completion of 10, 20 and 30
years of continuance of service. The Applicant became eligible for 1st ACP in 2000 and 2nd MACP in 2010. The grievance of the
Applicant is that, he was denied 1st ACP and 2nd MACP. Hence he filed this OA
challenging the Office Orders 10/11-12-2008 and 20-9-2010 whereby he was denied
the financial upgradation.
The Respondents state that he refused promotion issued by Order
dated 30.07.1998. In terms of DoP&T O. M. No. 35034/1/1997 Establishment
(D) (Vol. IV), dated 18.07.2001, the Applicant cannot be said to stagnate in
the same post. Hence the 1st ACP
benefits was refused. The Applicant annexed the judgement of Bombay Bench of
the Tribunal as appeared in Swamynews of July, 2008.
The Bombay Bench of the CAT held that “If an employee has refused
the promotion before the enforcement of ACP Scheme, the facts would remain that
he has actually not been given any financial upgradation which he could have
been before regular promotion. He remains on the scale of pay still stagnated”.
In view of this clarification, the clarification of Respondents cannot be
accepted. Ernakulam Bench of CAT in OA No. 768 of 2005 considered condition No.
10 makes it amply clear that if an employee is accepting ACP benefit, he is
deemed to have given unqualified acceptance for regular promotion on occurrence
of vacancy subsequently”. That precludes factoring of past refusal while given
ACP benefit.
In view of the above, refusals of promotion earlier to 9-8-1999,
has no effect on the grant of financial benefit under ACP scheme. Hence, the
clarification given no Doubt No. 38 by DoP&T cannot be accepted in this
case as the Applicant herein refused promotion earlier to the coming of ACP
Scheme. In that view, refusal of grant of 2nd financial upgradation under MACP
scheme amount to punishing him for the second time. Hence, the eligibility of
benefits under ACP scheme has to be recknoned on the actual date namely
9-8-1999. Hence declaining promotion earlier to 9-8-1999 is no reason to deny
the first ACP introduced on 9-8-1999. Hence, a direction was given to
Respondents to grant the Applicants benefits under the ACP scheme irrespective
of the fact of their refusal of promotion earlier to 9-8-1999. Time given for
implementation was 6 weeks.
In view of the above, same relief given by Bombay Bench is to be
followed in this case also.
In the result, the impugned Order, dated 10/11-12-2008 and
20-9-2010 are set aside. The Respondents are directed to grant financial
benefits under the ACP scheme to the Applicant in 12 weeks from the date of receipt
of this order.
This the OA stands allowed.
(Shri. Ganesh Bhavrao Shrote v. Secretary, Ministry of Earth
Sciences Mausam Bhavan, New Delhi, New Delhi, 8/2014, SwamynewS 98, (Bombay),
date of judgement 5-8-2013)
NB: Reproduced from Swamy’s News August 2014-Tribunal Judgements
