Refusal To Take Promotion Cadre Test Disentitles Military Personnel From Financial Upgradation: AFT, Chandigarh

It is most vital to note that while pronouncing on a very significant legal point pertaining to the financial upgradation of military personnel, the Armed Forces Tribunal Regional Bench, Chandigarh at Chandimandir in a learned, laudable, landmark, logical and latest judgment titled Chanchal Singh vs Union of India and Others in OA 728 of 2020 that was pronounced as recently as on May 30, 2024 has minced just no words to hold in no uncertain terms that the refusal to undergo promotion cadre test disentitles defence personnel from the periodic financial upgradation under the Modified Assured Career Progression Scheme (MACP). It must be disclosed here that the Bench of Hon’ble Mr Justice Shekhar Dhawan, Hon’ble Mr Justice Sudhir Mittal and Hon’ble Mr Air Marshal Manvendra Singh pronounced this verdict on a reference to decide the controversy that pertained to the grant of financial upgradations to Personnel Below Officers Rank (PBOR). We need to note here that the AFT members said in its historic verdict that, “Financial up-gradation is to be given after 8, 16 and 24 years of service to break stagnation but if an individual gives unwillingness to undergo promotion cadre test or unwillingness for promotion or he is involved in any disciplinary proceedings or case involving inefficiency those are to be looked at separately by the competent authority and they were not entitled to financial up-gradation as per scheme of Modified Assured Career Progression (MACP).”

Interestingly enough, we also need to note here that the Bench at Chandigarh was constituted last year on the orders of AFT Chairperson in the case of Chanchal Singh who had joined the Army in 2002 and was invalidated out from the force in 2019. Though he had been granted the 1st MACP after eight years, the same was denied to him on the completion of 16 years as he had submitted his unwillingness for the Promotion Cadre Course. We thus see that in the present case, the AFT in its judgment dated May 30 decided the reference against the petitioner since he had submitted his unwillingness for Promotion Cadre Course.

At the very outset, this refreshing, robust, rational and remarkable judgment sets the ball in motion by first and foremost putting forth in para 1 that, “The present case has been referred for decision by Larger Bench as per order of Hon’ble Chairperson of Armed Forces Tribunal, Principal Bench, New Delhi, dated 01.11.2023 to decide the following controversy :-

“7. …..Whether financial up gradation is to be given after 08, 16, and 24 years of service to break the stagnation or any other conditions like unwillingness to go for promotion cases, involving inefficiency, grant of red ink entries and disciplinary proceedings are also to be looked into, at the stage.””

While dwelling on the background of case, the Bench then lays bare in para 2 that, “The background of this case is that the applicant, Chanchal Singh, and Others had filed the Original Applications under Section 14 of the Armed Forces Tribunal Act, 2007, for seeking the benefit under Modified Assured Career Progression Scheme (hereinafter referred as “MACPS”). After taking on record, the reply filed by respondents, the controversy had risen whether the benefit of MACP are to be given on completion of 08, 16 and 24 years of service to break stagnation or any other conditions like unwillingness to go for promotion cases and involving inefficiency, red ink entries, disciplinary proceedings are also to look into at that case. As per order dated 22.08.2023, the matter was referred to Hon’ble Chairperson of Armed Forces Tribunal, Principal Bench, New Delhi, with a request to constitute a Larger Bench to decide this controversy as similar judgements of both sides on this point. The other cases were adjourned for awaiting for order of Hon’ble Chairperson of Armed Forces Tribunal, Principal Bench, New Delhi.”

As we see, the Bench points out in para 3 that, “Hon’ble Chairperson of Armed Forces Tribunal, Principal Bench, New Delhi, vide his order dated 05.10.2023 has constituted Larger Bench of the undersigned and as such we have proceeded further to decide the present controversy.”

To put things in perspective, the Bench envisages in para 4 that, “The relevant facts of the case of OA No.728 of 2020 Chanchal Singh V/s Union of India and Others that he was enrolled in the Indian Army on 28.09.2002 and invalided out from Army on 30.09.2019 after rendering service of 17 years and 02 days for which he was granted service pension. Later on, vide Gazette Notification dated 30.08.2008, the Government of India accepted the grant of 3rdACP up gradation after 08, 16 and 24 years of service to Personnel Below Officers Rank (hereinafter referred as “PBOR”) and made it applicable w.e.f. 01.01.2006. Applicant is seeking his claim on the basis of said Notification.”

As it turned out, the Bench enunciates in para 5 that, “In reply the Union of India has taken the plea that the applicant was granted 1stMACP on 28.09.2010 on completion of eight years of continuing regular service. Before completion of 16 years, the applicant was detailed to attend the Promotion Cadre Course twice but on both occasions he rendered his unwillingness vide certificates dated 31.08.2017 & 09.04.2018. He was again detailed to attend the said promotion course and in the light of above he has again submitted his unwillingness certificate to attend the same and as such he was not granted 2nd MACP on completion of 16 years of service.”

Do note, the Bench notes in para 13 that, “Learned counsel for the applicant has also taken the plea that various judgements delivered by Hon’ble Benches of Armed Forces Tribunals, relief of MACP were given to the applicants who had even given unwillingness to attend the promotion cadre course but the respondents did not highlight them and implement the order. If that is the case, Union of India cannot distinguish between a similarly placed personnel and deny the same benefit of financial upgradation on the ground of unwillingness in one case and grant of financial upgradation in other cases. On this point, reliance was placed upon the following judgements:-

(a) Hon’ble Apex Court judgement rendered in Civil Appeal No. 1579 of 2021 titled as Union of India Vs. RK Sharma & Ors decided on 28.04.2021.

(b) Hon’ble Apex Court judgement rendered in Civil Appeal No. 3744 of 2016 titled as Union of India & Ors Vs. Balbir Singh Turn & Anr decided on 08.12.2017.”

Most significantly, what constitutes the cornerstone of this brief judgment is encapsulated in para 16 wherein it is mandated that, “While arguing on this point, learned counsel representing Union of India, Shri Jagjot Singh Lalli, Deputy Solicitor General of India, fairly conceded that there is no dispute that the MACP was introduced to remove financial stagnation of the employees including defence personnel and the benefits as per modified policy was to be given after 8, 16 and 24 years of service. However, Government of India further made it clear that if any clarification is required that was to be given by Chief of Army Staff (for short COAS) and for scrutinizing the case of personnel there was a provision for Screening Committee as well. The said relevant provision of Government of India also has not been considered in the abovementioned judgement and this aspect has been discussed in detail by the Hon’ble Supreme Court in the latest judgement from three Hon’ble Judges in the case of DDA v. Narender Kumar; (2022) 11 Supreme Court Cases 641 decided on 08.03.2022. While deciding this controversy, earlier judgement from Hon’ble Supreme Court in case of Union of India V. R.K. Sharma; (2021) 5 SCC 579 : (2021) 2 SCC (L&S) 231 and Union of India Vs. M.V. Mohanan Nair; (2020) 5 SCC 421 : (2020) 2 SCC (L&S) 1 were also considered and the judgement made the subject matter in question amply clear which has not been considered in the earlier judgement and as a result of that point was required to be answered against the applicant. In every establishment, efficiency is the bench mark and to maintain that cadre test, if any, for promotion is to be conducted. Individuals are required to appear and not forego the same. Similarly, if an individual refuses for promotion, he could not claim financial up-gradation because the very object of MACP Scheme was to break financial stagnation because of longer time and if an individual is not getting any promotion, he has to be given financial up-gradation after 8, 16 and 24 years of service. But if the individual himself refuses for promotion, he could not get the benefits of the financial up-gradation. Similarly, if an individual’s case has been rejected because of disciplinary proceedings, the same cannot be the ground for grant of financial up-gradation, completely ignoring the same and as such, the present Original Application is liable to be dismissed and references in question are decided in favour of Union of India.”

Equally significant is what is then postulated in para 17 that, “We have gone through the entire controversy in detail and heard the learned counsel for the applicant and learned counsel for Union of India at length and with their able assistance appreciated the entire controversy. As there is no dispute on the facts that as per MACP policy, financial up-gradation was awarded to the employees after 8, 16 and 24 years i.e. to break the long stagnation in service and there being no promotional avenues have occurred to the applicant. Union of India maintaining the same policy in general and the matter arising for consideration before this Tribunal and for that there are certain cases where the individuals refuses the promotion offered to them. In such cases applicants are certainly not entitled to the benefits of financial up-gradation as per MACP Scheme. Similarly, it has been considered by the Hon’ble Supreme Court in the case of Vice Chairman, Delhi Development Authority Vs. Narender Kumar and Others; (2022) 11 Supreme Court Cases 641 decided on 08.03.2022 and Balbir Singh V. Union of India, 2014 SCC Online AFT 1128 that passing of promotion cadre test is essential to maintain the efficiency in the department and if an individual refuses to undergo promotion cadre test, he shall not claim that he has not been offered any avenues of promotion and if any, stagnation because of that. Disciplinary culmination of simply proceedings against an individual is certainly to be considered as barrier for grant of financial stagnation as well.”

Be it noted, the Bench notes in para 27 that, “In earlier judgements referred to by learned counsel for the applicant, this point was never raised and discussed and the latest judgement from Hon’ble Supreme Court makes it amply clear that financial up-gradation by way of MACP Scheme were to be granted as per scheme approved by the Government of India but subject to the conditions imposed by the Cadre Controlling Authority and the Cadre Controlling Authority had already clarified that unwillingness to undergo promotion cadre test and refusal for promotion and disciplinary proceedings against any individuals are to be considered against him while considering the case for financial up-gradation for grant of MACP after 8, 16 and 24 years of service.”

As a corollary, the Bench then directs in para 30 holding that, “Resultantly, the present reference is decided against the applicant to the extent that if financial up-gradation is to be given after 8, 16 and 24 years to break stagnation but if an individual refuses promotion or to undergo promotion cadre test, his case shall not be considered as financial stagnation for grant of MACP purpose and his case is to be dealt with separately. Similarly, cases involving red ink entries and disciplinary proceedings are also looked into separately as per law/rules. Pending Miscellaneous Application (s), if any, shall also stand disposed of.”

In a nutshell, we thus see that the AFT has made it crystal clear that refusal to take promotion cadre test disentitles military personnel from financial upgradation. The concurring judgment by Hon’ble Mr Justice Sudhir Mittal too fully concurred with main judgment and clearly stated in para 2 that, “The present judgment is only supplemental to the main judgment.” It was also further made absolutely clear here that, “Refusal to undergo a promotion cadre tantamounts to refusal of promotion as promotion is available only to those who have qualified the promotion cadre.” No denying it!

Sanjeev Sirohi, Advocate,

s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.