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