JUDGMENT/ORDER RAVINDRA V.GHUGE, J. - The Division Bench of this Court (Coram : Dr. Manjula Chellur, CJ and R.M. Borde, J.) passed an order on 29/6/2017, recording in paragraphs 2 to 9 as under:- "2] The petitioner entered the Department as a Junior Clerk and it is also not in dispute that she was given the benefit of Assured Progress Scheme (APS) benefit after completion of 12 years of service when she did not have the opportunity of getting promoted. Apparently, she appeared for a test conducted in terms of Subrule (b) of Rule 580 of the Civil Manual and failed to get bench mark of 40 marks in the said test. Therefore, the Department ultimately directed her to refund all the amount, which was paid to her under Assured Progress Scheme. Aggrieved by the same, the petitioner is before this Court. 3] Learned counsel for the petitioner places reliance upon two Division Bench judgments of this Court reported in 2005 (3) Maharashtra Law Journal, 245 in the case of Shrirang Atmaram Nikam v. District and Sessions Judge, Thane and others so also 2007 (6) Maharashtra Law Journal, 426 in the case of Ramesh Samhari More v. Registrar, District Court, Solapur and others. 4] The petitioner has placed on record two Government resolutions (GRs); one is of the year 2001 and another one is of 2010 wherein it is laid down, under what circumstances Assured Progress Scheme benefit should be extended and when and how it should be withdrawn and under what circumstances. According to the petitioner, GR of 2001 alone would apply since she was given the benefit of APS when GR of 2001 was in existence and force. However, it cannot be disputed that by the time she appeared for the test for the promotion as Senior Clerk, GR of 2010 was in existence. 5] So far as the facts of the present case are concerned, in the test prescribed by the committee in the process of selection so far as Senior Clerks are concerned, the petitioner did not get the qualifying marks to be considered for the post of Senior Clerk. Therefore, apart from not being promoted, she was issued with an intimation lateron for withdrawal of APS benefits so also directing her to refund the amount. Therefore, apart from not being promoted, she was issued with an intimation lateron for withdrawal of APS benefits so also directing her to refund the amount. At page no.32 of the petition, in the decision of Shrirang Atmaram Nikam v. District and Sessions Judge, Thane and others at page no.247, paragraph no.8 of GR of 2001 is reproduced. The GRs of 2001 and 2010 are same in verbatim so far as withdrawal of the APS benefit is concerned. 6] In the case of Shrirang, based on the average grading in annual confidential report, promotion was refused on the ground that it is a disqualification. Their Lordships were of the opinion that average grading in annual confidential report cannot by itself be adverse or a ground for disqualifying an employee for consideration. Illustration was given saying that if between the three candidates who fell in the zone of consideration against one post in terms of GR, the one securing the highest marks would alone be considered, therefore, other two candidates cannot be held as disqualified or ineligible. 7] In the second case, the main controversy was not allowing the candidates to appear for the test prescribed by the committee if such candidate failed in three attempts or if they had already appeared for three times in the similar test. Since it was against the Rule 580 which had no statutory force to sustain it, Their Lordships opined that there was no justification to disallow the candidates to appear for the examination since such procedure was beyond the scope of Rule concerned. However, while discussing in general with regard to the eligibility, ineligibility, qualification and disqualification, they referred to the case of Shrirang and then opined that the test ultimately should not be 'whether the candidate is promoted', but the test is 'whether the candidate is eligible'. 8] In the above two judgments, the Bench did not advert their mind to the fact, why such scheme was introduced extending financial benefit to those employees, who were not promoted for no fault of them. It could be on account of nonavailability of promotional post or delay in conducting the selection process or other reasons. By virtue of GRs of 2001 and 2010, the State has provided for withdrawal of such benefit under certain circumstances. It could be on account of nonavailability of promotional post or delay in conducting the selection process or other reasons. By virtue of GRs of 2001 and 2010, the State has provided for withdrawal of such benefit under certain circumstances. One of them is, if the candidates are promoted in the selection process, but refused to take the promotion, then the benefit, which was extended to them under APS, would be withdrawn and they are liable to refund the money. If such eligible candidates lose the benefit of APS on the ground of refusing to accept the promotion, we fail to understand why such benefit should be continued to those candidates who are not promoted on account of their ineligibility or disqualification in the test on the ground that till their retirement, they are entitled to appear for the selection process in the absence of any impediment. The very purpose of introducing the benefit is to encourage the employees and they should not suffer dissatisfaction or depression on account of no promotional chance after completing certain period of service. It was an encouragement for the employees. The very fact that they introduced withdrawal of the benefit would go to show that apart from completing service for a certain period, they should also qualify and become eligible to get or earn regular promotion. If they are not qualified by not acquiring bench mark in the qualification test, it is not fault of the Department or one cannot opine that there is no promotional avenue opened. In order to interpret the Rule concerned and the GRs issued by the Government, which are in existence, one has to see under what circumstances such benefit was introduced and under what circumstances one could legitimately withdraw the said benefit. 9] We find that there was no reference to such facts in the earlier two judgments, therefore, it requires consideration by Larger Bench. Hence, following reference is made to the Larger Bench : "Under what circumstances, in terms of the Government resolution, either of the year 2001 or 2010, could the benefits under the Assured Progress Scheme be withdrawn on the ground of ineligibility or disqualification ?"" 2. Hence, following reference is made to the Larger Bench : "Under what circumstances, in terms of the Government resolution, either of the year 2001 or 2010, could the benefits under the Assured Progress Scheme be withdrawn on the ground of ineligibility or disqualification ?"" 2. The above question framed by the learned Division Bench was placed before the Larger Bench of this Court [Coram : Prasanna B. Varale (as His Lordship then was), Ravindra V. Ghuge and R.G. Avachat, JJ.], which passed an order on 25/7/2019 as under:- "1. The question for consideration referred by the Division Bench of this Court under order dtd. 29/6/2017 to the Larger Bench is :- "Under what circumstances, in terms of the Government Resolution, either of the year 2001 or 2010, could the benefits under the Assured Progress Scheme be withdrawn on the ground of ineligibility or disqualification?" 2. Considering the above referred question for consideration, we deem it appropriate to seek response from the State Government. Accordingly, we permit Mr. Shah, learned Counsel appearing for the petitioner to add the State of Maharashtra, through its Secretary, General Administration Department, as party respondent, to the petition. 3. Amendment be carried out during the course of the day. 4. Mr. Girase, the learned Government Pleader waives service of notice for the added respondent No.7 and prays for time to submit a response. At his request, stand over to 8/8/2019." 3. On 20/10/2022, the learned AGP pointed out that the Finance Department had issued the concerned Government Resolution dtd. 1/4/2010 ('the 2010 GR'), and the Secretary, Finance Department, would be a necessary party. We, therefore, granted leave to add the Secretary, Finance Department, State of Maharashtra. After several chances to file an affidavit in reply, the State finally entered it's affidavit in reply on 26/9/2023 through the Joint Director, Accounts and Treasuries, Chhatrapati Sambhajinagar. 4. The parties before us have entered their brief synoptical notes. We recorded their oral submissions on 25/1/2024 and 8/2/2024 and closed the matter for orders. SUBMISSIONS OF THE PETITIONER 5. The submissions of the Petitioner are as under:- (a) The Petitioner was appointed on 1/9/1985 as a Junior Clerk in the establishment of the District Court. She passed her Lower Standard Departmental Examination and subsequently, the Higher Standard Departmental Examination. (b) The GR dtd. SUBMISSIONS OF THE PETITIONER 5. The submissions of the Petitioner are as under:- (a) The Petitioner was appointed on 1/9/1985 as a Junior Clerk in the establishment of the District Court. She passed her Lower Standard Departmental Examination and subsequently, the Higher Standard Departmental Examination. (b) The GR dtd. 20/7/2001 ('the 2001 GR'), provided for an Assured Career Progression Scheme ('ACPS') to those employees who were stagnated on account of there being no posts available to promote them. (c) The Petitioner's pay scale was revised and she was placed at par with the promotional post of Senior Clerk w.e.f. 1/9/2001. (d) A Government Resolution issued on 1/4/2010 providing for withdrawal of benefits earlier extended to the Petitioner vide the 2001 GR. (e) Since the Petitioner could not clear the qualifying 40% score in the written exam, an amount of Rs.210670.00received by the Petitioner by virtue of the 2001 GR, was ordered to be recovered. (f) By the first order of this Court dtd. 27/2/2015, the Petitioner was protected against recovery. (g) The pay scale of the Petitioner was ordered to be reduced as the employer i.e. the District Judge, Dhule, directed that the Petitioner was not entitled for the benefits of the A C P S. She was denied promotion though she claimed to be seniormost and eligible. (h) The Petitioner was called for tests, in the process undertaken for granting actual promotions to the post of Senior Clerk, on 17/9/2013, 16/8/2014, 14/10/2014, 17/11/2014 and the result/ merit list of the candidates was never declared. (i) Since persons senior to the Petitioner were promoted, she did not raise any grievance as the rule of seniority was followed. (j) The Petitioner specifically contends that two written tests were held in the months of November and December, 2014 when written tests were introduced for the first time. (k) Directing a written test is contrary to the directions of the Bombay High Court issued on it's administrative side in October-November, 2005. (l) In the tests held on 4/12/2014, the Petitioner was the senior-most candidate and was eligible to be actually promoted to the post of Senior Clerk. (m) The impugned order was passed by the learned District and Sessions Judge, Dhule, on 5/12/2014 directing recovery of Rs.210670.00 against the Petitioner and for stopping the benefits of the Assured Career Progression Scheme ('ACPS'). (m) The impugned order was passed by the learned District and Sessions Judge, Dhule, on 5/12/2014 directing recovery of Rs.210670.00 against the Petitioner and for stopping the benefits of the Assured Career Progression Scheme ('ACPS'). (n) The Petitioner was not promoted as a Senior Clerk as she did not score 40% marks in the written examination held on 14/12/2014. (o) The impugned order is passed by misreading clause 3 of the 2010 GR and the said interpretation is contrary to the view taken by this Court in Ramesh Samhari More vs. Registrar, District Court, Solapur, 2007 (6) Mh.L.J. 426 . (p) The Petitioner received a letter dtd. 29/1/2015 on 30/1/2015, informing her that the authority has decided in it's meeting dtd. 27/1/2015, to reject her representation dtd. 16/1/2015. (q) The Petitioner was eventually promoted in September, 2020. (r) There is no need for a reference of any issue to this Court, as has been done vide the order dtd. 29/6/2017, in view of the law laid down by this Court in Shrirang Atmaram Mh.L.J. 245 and the judgment in the case of Ramesh Samhari More (supra). (s) Subsequently, the Government of Maharashtra issued the Government Resolution dtd. 23/12/2015 ('the 2015 GR') vide which, recovery has now been prohibited, which was not brought to the notice of the Division Bench, which passed the order referring the issue to this Bench. Therefore, the only issue that remains to be considered in the light of the reference order is, whether the payment of the benefits could be stopped. (t) The word in Marathi used in the 2010 GR is '??????' which means that a candidate is 'not eligible' or 'disqualified'. However, if a better candidate is available from amongst those candidates who were held eligible to appear for the written test and take the interview, it would not render the non-selected candidate, ineligible or 'xxxxx'. (u) Clause 5.1.1 of the Pay Commission Report by Shri K.P. Bakshi is relevant. (v) The circumstances in which the benefit could be withdrawn is clear from the recommendations of the Sukthankar Committee. (w) Criteria for selection is found in paragraph 580 of the Civil Manual. (u) Clause 5.1.1 of the Pay Commission Report by Shri K.P. Bakshi is relevant. (v) The circumstances in which the benefit could be withdrawn is clear from the recommendations of the Sukthankar Committee. (w) Criteria for selection is found in paragraph 580 of the Civil Manual. (x) Reliance is placed on the judgments delivered in Ramesh Samhari More (supra) (paragraphs 9 and 10), Dean, Dr.V.M. Medical College, Solapur vs. Subhash Vishnu Gondal, 2017 SCC Online Bombay 8701 (paragraphs 5 and 6) and the Union of India vs. Manju Arora, 2022 (2) SCC 151 (paragraphs 10 and 14) 6. The learned Advocate for the Petitioner submits that the eligibility of the Petitioner to receive the ACPS benefits after 12 years under the 2001 GR, cannot be disputed. A committee headed by the former Chief Secretary Shri D.M. Sukthankar identified that there were many employees who were in employment and lesser number of promotional posts that were available. There was a stagnation since employees were many and promotional avenues were less. Hence, the 2001 GR was introduced. SUBMISSIONS OF THE RESPONDENTS 7. The learned Advocate Shri Khandare has relied upon his written notes of submissions and has canvassed as under:- (a) The issue framed by the Division Bench vide order dtd. 29/6/2017 would indicate that this Court has to consider the circumstances in which the benefits under the Time Bound Promotion Scheme could be withdrawn. (b) The scheme is aimed at granting benefits of Higher Pay Scale to the Class III and Class IV employees under the Government Resolution dtd. 8/6/1995 (the 1995 GR) to those employees who have completed 12 years in service and did not get a chance for promotion due to stagnation. (c) The Time Bound Promotion Scheme (TBPS) declared in 1995, underwent a change of nomenclature as Assured Career Progression Scheme (ACPS). (d) The salient features of the ACPS are as under :- (i) It does not contemplate functional/ regular / actual promotion. (ii) It is purely for extending financial benefits. (iii) Such benefits are available in the absence of the availability of a permanent vacant post. (iv) The status of the concerned employee remains unchanged until he is actually promoted. (e) Substantial changes were introduced in the ACPS by the 2010 GR, which provided for withdrawal of benefits already granted. (ii) It is purely for extending financial benefits. (iii) Such benefits are available in the absence of the availability of a permanent vacant post. (iv) The status of the concerned employee remains unchanged until he is actually promoted. (e) Substantial changes were introduced in the ACPS by the 2010 GR, which provided for withdrawal of benefits already granted. (f) Under the 2010 GR, a candidate would be eligible for ACPS after completing 12 years of service upon stagnation on the same post for 12 years. (g) Clause 3 of the 2010 GR provides for two disqualifications viz., (i) if he is actually granted the functional promotion after he has received the benefits of the ACPS and he still refuses to accept promotion or work on the promotional post and (ii) the employee is held to be disqualified for promotion. (h) The contentions of Shri Khandare vide his written notes, are reproduced verbatim as under:- "Eligibility and qualification: Expressions Eligibility and qualification generally are used interchangeably to convey same meaning. However, in given circumstances, the expressions operate differently. Eligibility is a wider connotation having a broad meaning, whereas qualification is within the eligibility. In other words, eligibility is a general expression and qualification is species of eligibility. Grant of benefit is always subject to fulfilment of eligibility and qualification. To understand the difference between two with reference to the promotion we can say that, beside the attainment of eligibility i.e. having completed 12 years of service and having satisfied the condition of stagnation, the concerned employee has to fulfill qualification prescribed for promotion. These qualifications are, in addition to the basic criteria mentioned in the scheme i.e., 12 years' service and stagnation. When we speak of promotion the employee, in addition to the aforementioned eligibility, must possess the qualifications provided for the promotional post. Sometimes, beside the educational qualifications, some departments provide for some additional qualifying conditions such as passing of professional or departmental examination etc. Failure to pass such examination, it being essential qualification the employee may not get promotion, sometimes written test and/or oral interview is prescribed with condition of attainment of prescribed bench mark. Concerned employee, if failed to secure necessary bench mark may be held disqualified for getting promotional post. Condition that confidential reports should be up to the mark is also considered as qualification. Concerned employee, if failed to secure necessary bench mark may be held disqualified for getting promotional post. Condition that confidential reports should be up to the mark is also considered as qualification. Promotion denied to an employee on the aforementioned grounds is a disqualification for getting benefit under ACPS scheme. It is irrespective of and in addition to the eligibility condition of 12 years' service and stagnation. Stagnation? Basic object behind the scheme is to remove stagnation and provide relief against stagnation. First and foremost, thing to be seen is whether employee is really stagnated. Many a times, for variety of reason, though the promotional avenues are open, promotions are not granted. May be for administrative reasons or other difficulties. Few of them can be illustrated as under: Notwithstanding of availability of promotional posts, recruitment process not undertaken, Govt. imposed a ban on filling of the posts, the issues regarding percentage of reservation/quota or otherwise are pending before the court of law etc. or post is isolated; as such promotion is not granted. In these illustrative situations and for many other reasons, if employee do not get promotion is said to have been stagnated. In such situation the employee is not contributing the stagnation as such benefits under ACPS is applicable. However, in absence of stagnation the benefit of scheme is not applicable can be read as no eligibility. Division Bench Judgment: - The proposition laid down in the Division Bench judgment is "The test is not whether a candidate would be promoted, the test is whether a candidate is eligible". If the test as laid down by the Division Bench is applied, fallowing consequences may arise. a) All the employees, who have completed 12 years of service would be entitled for grant of benefit regardless of the condition of qualification provided in the scheme. b) The qualifying condition provided in the scheme would become meaningless, nugatory and redundant. c) All employees, who have completed 12 years of service would have to grant benefit. d) As a consequence, employee would be hesitant to accept the promotional post and additional responsibility and work of higher post, if he gets the pay scale of that post and every person would enjoy financial benefits without testifying himself for rigors of promotional qualification. Proposition in Division bench judgment run counter to the scheme. d) As a consequence, employee would be hesitant to accept the promotional post and additional responsibility and work of higher post, if he gets the pay scale of that post and every person would enjoy financial benefits without testifying himself for rigors of promotional qualification. Proposition in Division bench judgment run counter to the scheme. The Division Bench has considered only one contingency i.e., smaller number of posts than the number of candidates and held that, all candidates are eligible, nevertheless for want of sufficient number of posts employee is unable to get promotion therefore they are entitled for the benefit. However, the division bench has not considered the contingency with reference to the qualification provided under scheme. Such as equal number of posts with equal number of candidates and more posts than the candidates. In both the situations posts are available and by applying qualifications candidates are not found suitable, they are refused promotion. The Division bench, left unconsidered the provisions made for disqualification under the scheme. As per Division bench ratio though the candidates considered not fit for promotion on merits still, he is entitled for the benefits because only eligibility is to be considered. Under the service jurisprudence unless a candidate found suitable for the post cannot be appointed maybe it is fresh recruitment or recruitment for promotion. This basic jurisprudence principle seems to have not been considered by the Division Bench. What is not considered by the Division Bench:- 1. Object of the scheme vis-a-vis stagnation. 2. Qualifications and its impact on promotion. 3. The Court was not called upon to consider and address on validity of Scheme or any of the provisions of the scheme. 4. Limitations of powers of judicial review under Article 226 of the Constitution while dealing with Government policy that court would be very slow in substituting its own view, resulting in changing the condition in the scheme. Answer to the question under reference: Benefits under the ACPS scheme are liable to be withdrawn in two conditions contained in Clause 3 of the 2010 G.R. i.e., (a) After getting 1st and 2nd benefit under the scheme, if employee is granted actual/functional promotion and if he refused such promotion. (b) an employee is held to be disqualified for promotion. Under these two conditions the benefits already granted are liable to be withdrawn and the recovery is to be made. (b) an employee is held to be disqualified for promotion. Under these two conditions the benefits already granted are liable to be withdrawn and the recovery is to be made. The Judgment of Division bench require re consideration in the above premise." (i) Shri Khandare has placed reliance upon Bhakra Beas Management Board vs. Krishan Kumar Vij and another, (2010) 8 SCC 701 (paragraphs 15, 23 to 27, 31, 33 and 36). He has also relied upon the judgment of the Honourable Supreme Court in Union of India and others vs. M.V. Mohanan Nair, (2020) 5 SCC 421 (paragraphs 7 to 9, 28 to 32 and 56) and Manju Arora (supra) (paragraphs 11 to 21). 8. The learned AGP has adopted the submissions of Shri Khandare. ANALYSIS AND OUR CONCLUSIONS 9. The relevant clauses 2 (1 to 8), from the 2001 GR, read as under:- 10. As per clause 2(2) of the 2001 GR, a candidate having completed 12 years on the said post, would be eligible for the ACPS monetary benefits. [It needs to be borne in mind that this GR provided only 1 ACPS benefit. It was the 2010 GR that introduced the 2nd ACPS benefit.] As per clause 2(4), if a vacancy is not available, the concerned candidate would be extended the pay scale of the said post. As per clause 2(5), a candidate will have to clear the scrutiny prescribed, including the eligibility test / departmental exam, if any. The entire procedure for testing the eligibility of a candidate for the ACPS pay scale, is prescribed in Clause 2(5), which indicates that a candidate who clears the requisite conditions and who satisfies the seniority/norms, clears the eligibility test/departmental exam, would be eligible for the promotional pay scale, because there is no vacant post available. Clause 2(6) indicates that a candidate can be eligible for such ACPS only once and would not be eligible for the said benefits, for the second time. Clause 2(7) indicates that once such monetary benefits under the ACPS are received by the candidate, he would not be entitled for the monetary benefits once again, if he is actually promoted to the promotional post. Clause 2(8) indicates that those candidates who refuse to work on promotional posts (when the actual promotion is awarded) or those candidates who are held disqualified for the promotional posts, would not be entitled for ACPS benefits. 11. Clause 2(8) indicates that those candidates who refuse to work on promotional posts (when the actual promotion is awarded) or those candidates who are held disqualified for the promotional posts, would not be entitled for ACPS benefits. 11. A conjoint reading of the above clauses 2(2), 2(5) and 2(8), would indicate that the scrutiny of candidates after 12 years, will have to be made under clause 2(5) and if found eligible, the monetary benefits would be granted. After having been held eligible for such benefits, if an employee declines to accept an actual promotion, as and when the occasion arises, at the relevant time or is held to be ineligible at the time of granting such promotion, clause 2(8) indicates that he/she would not be entitled for the benefits already granted. However, recovery would not be permissible. 12. By the GR dtd. 1/4/2010 (hereinafter referred to as 'the 2010 GR'), the 2nd ACPS benefit was introduced and the nomenclature of the ACPS was changed to Revised ACPS. It was made applicable w.e.f. 1/10/2006. It has not been mentioned in the 2010 GR, that the revised ACPS has replaced the 2001 GR. Rather, clause 2(B) indicates that the scrutiny for eligibility of the candidates will have to be done as per clause 2(5) of the 2001 GR. The monetary benefits available are termed as non-functional pay scales. A stagnated employee who has received the first benefit after 12 years, would also be entitled for the second monetary benefit, if he still continues to work on the same post due to his stagnation, for a further period of 12 years. If he is actually promoted after such second ACPS, he would not be entitled for any additional monetary benefits. 13. For ready reference, we deem it apposite to reproduce the relevant clauses of the 2010 GR hereunder :- benefits would be payable to him/her. Once such monetary benefits become payable, it pre-supposes that the eligibility of that candidate is established. 15. Vide Clause 3 of the 2010 GR, a candidate, who has already received the first and the second ACPS benefits, refuses the actual promotion or is held to be ineligible for actual promotion, would suffer withdrawal of all benefits as well as recovery of all monetary benefits already paid. 15. Vide Clause 3 of the 2010 GR, a candidate, who has already received the first and the second ACPS benefits, refuses the actual promotion or is held to be ineligible for actual promotion, would suffer withdrawal of all benefits as well as recovery of all monetary benefits already paid. Clause 4 indicates that after such benefits are taken away, the concerned candidate would be deemed to have not received any such ACPS benefits as if he was never ever awarded such benefits. As such, the State Government has declared that though the further payment of monetary benefits could be prohibited, there would be no recovery of the payments already made. 17. In Shrirang Atmaram Nikam (supra), this Court held in paragraphs 6 and 7 as under:- "6. From the record as we have now noted the petitioner herein had been graded as Good for 3 years namely 1997-1998, 1998-1999 and 2001-2002, positively good for one year namely 1999-2000 and average for the year 2000-2001. Even if average is taken as adverse entry, even then for 4 years the petitioner has 3 good and one positively good. Based on that the petitioner would have been in the field for consideration. In other words he would still be eligible. The fact that in 5 years for one year the petitioner had adverse entry by itself will not make him ineligible. All that would happen is that between him and other candidates, his rank in merit would be lower compared to those who are placed above him on merit. This clearly cannot be disqualification, for consideration for the time bound promotion scheme. It could be understood if a bench mark had been provided and considered for the purpose of granting time bound promotion scheme. As an illustration, a bench mark could be as under. If a candidate for 5 years has atleast good for 3 years than that would be the bench mark for consideration. In cases of assured career scale for the Civil Judges to get A.C.P. the bench mark fixed is average. We, therefore, see no reason as to why a similar bench mark or another comparable bench mark should not be adopted for consideration in the future for the purpose of assessment for time bound promotion scheme. In cases of assured career scale for the Civil Judges to get A.C.P. the bench mark fixed is average. We, therefore, see no reason as to why a similar bench mark or another comparable bench mark should not be adopted for consideration in the future for the purpose of assessment for time bound promotion scheme. Until such bench mark is fixed, for consideration of A.C.P. for the staff of Courts and Tribunals subordinate to the High Court in the State of Maharashtra for granting A.C.P., it would be sufficient if on consideration of the C.Rs. for the last five years, a candidate has at least 3 C.Rs. where he is rated as good and satisfies other requirements in terms of the Government G.R. The Registry to place the matter before the learned Chief Justice for necessary direction. 7. On the facts of this case, however, we find that the petitioner was eligible. He meets the desired bench mark for consideration for promotion and as such the petition will have to be allowed. In passing we may also mention that though average is considered to be adverse, at the highest that is to enable the employee to improve himself. Average, therefore, by itself cannot be by itself adverse or a ground for disqualifying an employee for consideration." 18. A candidate who has undergone the rigours of clause 2(5) of the 2001 GR, will be held entitled for the pay scale of the promotional post. Clause 2(8) indicates that a candidate who has refused the regular promotion or who is held ineligible for regular promotion, when such occasions arises, would not get the benefits of the said scheme, any further and would suffer withdrawal of the benefits. However, the monetary benefits of the pay scales given to them earlier, were not to be recovered. This position was altered by the 2010 GR, but, the earlier provision was restored by the 2015 clarificatory GR. 19. Nevertheless, the parties before us are ad idem that the 2001 GR and the 2010 GR are relevant in this case since, the Division Bench has formulated the question, only to the extent of whether a candidate can be deprived of the monetary benefits, if he is held to be ineligible for being considered for actual promotion. 19. Nevertheless, the parties before us are ad idem that the 2001 GR and the 2010 GR are relevant in this case since, the Division Bench has formulated the question, only to the extent of whether a candidate can be deprived of the monetary benefits, if he is held to be ineligible for being considered for actual promotion. So also, there is no dispute that the candidate who refuses to shoulder the responsibilities of the actual promotional post, upon being selected, shall be deprived of the benefits under the 2010 GR. 20. We find that the law on this issue of refusing actual promotion is settled by the Hon'ble Supreme Court in Manju Arora (supra). For brevity, we are reproducing paragraphs 17 to 19 of the said judgment, hereunder :- 17. We are quite certain that if a regular promotion is offered but is refused by the employee before becoming entitled to a financial upgradation, she/he shall not be entitled to financial upgradation only because she has suffered stagnation. This is because, it is not a case of lack of promotional opportunities but an employee opting to forfeit offered promotion, for her own personal reasons. However, this vital aspect was not appropriately appreciated by the High Court while granting relief to the employees. 18. 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 concerned employee very often refuse promotion in order to continue in his/her own place of posting. 19. In the above circumstances, we find merit in the submissions made on behalf of the appellants. 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 O.M. dtd. 9/8/1999. In this situation, the Scottish doctrine of 'Approbate and Reprobate' springs to mind. The English equivalent of the doctrine was explained in Lissenden v. CAV Bosch Ltd.1 wherein Lord Atkin observed at page 429, '............In cases where the doctrine does apply the person concerned has the choice of two rights, either of which he is at liberty to adopt, but not both. The English equivalent of the doctrine was explained in Lissenden v. CAV Bosch Ltd.1 wherein Lord Atkin observed at page 429, '............In cases where the doctrine does apply the person concerned has the choice of two rights, either of which he is at liberty to adopt, but not both. Where the doctrine does apply, if the person to whom the choice belongs irrevocably and with knowledge adopts the one he cannot afterwards assert the other............." The above doctrine is attracted to the circumstances in this case. The concerned employees cannot therefore be allowed to simultaneously approbate and reprobate, or to put it colloquially, 'eat their cake and have it too'. It is declared accordingly for the respondents in the C.A. Nos.7027-28/2009. 21. This leaves us to deal with the core issue of stoppage of benefits. In this context, an ancillary issue crops up, as to when should the selection parameters under clause 2(5) of the 2001 GR be made applicable and whether the said GR or even the 2010 GR permits such scrutiny to be conducted twice, i.e. (1) when the payment of the monetary benefits commences and (2) when the actual selection for promotion is to be done. It is our considered view that neither of the 2 GRs permit such scrutiny on two occasions. 22. This Court ruled in Ramesh S. More (supra), by concluding in paragraph 5 that 'A reading of these paragraphs, therefore, would make it clear that it is only those employees who are held not eligible for regular promotion who will not get the benefit. In other words an employee either on account of not possessing the qualifications, experience or having a bad service record namely adverse entries would not be eligible to get the benefits of the scheme. In the case of promotion whether by selection or based on seniority-cum-fitness what is always considered is the number of posts and the zone of consideration. As an illustration if there be one post, depending upon the G.R. 3 persons may be considered. All the 3 employees may be having good record, but still as the vacancy is only one, the candidate in the case of selection post, having the best record would be selected. It does not mean that the other candidates are not fit for promotion. The test, therefore, is not whether a candidate would be promoted. All the 3 employees may be having good record, but still as the vacancy is only one, the candidate in the case of selection post, having the best record would be selected. It does not mean that the other candidates are not fit for promotion. The test, therefore, is not whether a candidate would be promoted. The test is whether a candidate is eligible." [Emphasis is supplied] 23. It is obvious that there is a judicial pronouncement in Ramesh More (supra), considering clauses 2(5) and 2(8) of the 2001 GR, concluding that it would be only those employees who are held not eligible for regular promotion, who will not get the benefits (under the said scheme). It has also been recorded, by way of an illustration, that when only one post may be available, there would be three candidates in the zone of consideration, by law. Naturally, the best candidate would be eligible to be selected for the promotional post. All the three candidates may be having a good record. However, since only one vacancy is available, naturally only one candidate would be appointed having put in a better performance. Nevertheless, it is noteworthy that Ramesh S More (supra), did not deal with the issue as to when can such scrutiny be conducted. Therefore, this Court mentioned in the issue referred to us, that the test is not whether a candidate would be promoted. The test is whether a candidate would be eligible. The question, therefore, is as to when should such scrutiny/test be performed. 24. In paragraph 6 of the judgment in Shrirang Nikam (supra), this Court concluded that a candidate having a good record as per the benchmark, would make him eligible to compete with other candidates, when the actual promotion is to be granted. If a better candidate is selected, the other candidates cannot be said to be disqualified. It has to be taken into account that the facts of the case in Shrirang Nikam (supra) as recorded in paragraph 2, would indicate that he had completed 12 years of service as a Bailiff. He had not received any promotion. He claimed that he was eligible for the benefits under the 2001 GR after completion of 12 years and his case was considered by this Court within the rigors prescribed by the 2001 GR, and he was held eligible for grant of monetary benefits. He had not received any promotion. He claimed that he was eligible for the benefits under the 2001 GR after completion of 12 years and his case was considered by this Court within the rigors prescribed by the 2001 GR, and he was held eligible for grant of monetary benefits. This Court, therefore, concluded that if he was eligible for the benefits under the 2001 GR, he not being actually promoted, would not be an impediment. The impediment would be whether, he was eligible to be considered for promotion, when the payment commenced. This Court then observed by concluding that 'We, therefore, see no reason as to why a similar bench mark or another comparable bench mark should not be adopted for consideration in the future for the purpose of assessment for time bound promotion scheme. Until such bench mark is fixed, for consideration of A.C.P. for the staff of Courts and Tribunals subordinate to the High Court in the State of Maharashtra for granting A.C.P., it would be sufficient if, on consideration of the C.Rs. for the last five years, a candidate has at least 3 C.Rs. where he is rated as good and satisfies other requirements in terms of the Government G.R.'. 25. In Ramesh S More (supra), this Court relied upon the view in Shrirang Nikam (supra). This Court dealt with the issue of the competent committee constituted under clause 580 of the Civil Manual, that barred some candidates from being considered for promotion on account of having availed of three attempts earlier. The committee further decided that any of the persons who were barred to apply for further promotion, including the aforesaid two employees, though they had completed 12 years of service, the benefits should be withdrawn as they were not eligible for further promotion. Accordingly, the committee had passed an order withdrawing the higher pay scales already granted to the candidates under the APS. 26. Clause 580 of the Civil Manual of the Bombay High Court reads as under:- "580. In the matter of promotions and confirmations, the District Judge should take into consideration the following principles:- (i) All clerks who pass the Lower Standard Departmental Examination should be confirmed immediately in the existing vacancies. Such confirmations should not be deferred till the passing of the said examination by their seniors. In the matter of promotions and confirmations, the District Judge should take into consideration the following principles:- (i) All clerks who pass the Lower Standard Departmental Examination should be confirmed immediately in the existing vacancies. Such confirmations should not be deferred till the passing of the said examination by their seniors. (Vide High Court Circular No.B-10135/50, dated the 5/12/1950) (ii)(a) Whenever vacancies to be filled by promotion are available, the District Judge shall consider for promotion thrice the number of eligible employees according to their seniority. (b) The District Judge may, if, for reasons to be recorded in writing, he considers it to be so desirable, appoint a Committee to subject the employees within the Zone of consideration to an appropriate test, and may also consider the result of such test. (c) While selecting an employee for promotion, the District Judge shall take into consideration :- (i) The entire service record, and more particularly annual confidential reports for the previous 5 years: (ii) Leave and punctuality record for the previous 5 years; (iii) Special reports called from the officers under whom the employees within zone of consideration are currently working: (iv) Nature of duties of the promotional post vis-a-vis the abilities of employees within zone of consideration. (d) In case promotion are not made according to seniority, a minute indicating reasons for selection shall be recorded by the District Judges. The seniority of Senior Clerks should be determined from the date of their appointment to the post i.e. The Senior Clerk and not reference to seniority in the cadre of Junior Clerk. (iii) If a clerk who is junior in service has passed the Lower Standard Departmental Examination before a clerk who is senior in service, the clerk junior in service should be confirmed, if there is a permanent vacancy, in preference to the clerk senior in service who has not passed the examination." 27. This Court concluded in paragraph 7 in Ramesh S More (supra), that clause 580 leaves it open to the discretion of the District Judge to subject the employees, within the zone of consideration, to an appropriate test. Directing a written test is within the meaning of the expression 'appropriate test'. It was thus, concluded that it would not mean that only a viva voce test and not a written test, would be permissible. Directing a written test is within the meaning of the expression 'appropriate test'. It was thus, concluded that it would not mean that only a viva voce test and not a written test, would be permissible. It was held that a written test along with viva-voce would not suffer from any illegality. The question that emerges before us is, as to what would be the fate of a candidate who has already been scrutinised, has been found eligible and has received the monetary benefits, but does not pass such test when he is in the zone of consideration and is being considered for actual promotion. Would he be held ineligible and would it then result in withdrawing of the ACPS benefits already granted to him? 28. On the aspect of whether a committee constituted by the Principal District Judge could bar candidates from taking any further attempt after having exhausted three attempts, this Court held in paragraph 9 in Ramesh S More (supra), as under:- "9. The third aspect of the matter is the decision of selection committee to bar the candidates if they had appeared for three times from appearing for further examinations. We are unable to read such a power under Clause 580 of the Civil Manual or any other provision which has been brought to our attention as to how a selection committee, which is only constituted for the purpose of selecting candidate, could go beyond the scope of the rules. In service jurisprudence, once there are rules framed and if there be any lacuna, the same can be rectified by administrative instructions, to the extent the administrative instructions are not inconsistent with rules made under Article 309 of the Constitution of India or any other provisions of law. The selection committee having not being conferred power to issue such administrative instructions could not have exercised a power not vested in them. The Committee presided over by the learned District Judge, therefore, could not have debarred the representationists from appearing for further examinations. In our opinion, considering Clause 580 the decision of the committee in debarring those candidate after three attempts to appear for the examination for promotion will be clearly arbitrary and violative of Article 14 of the Constitution of India. The Committee presided over by the learned District Judge, therefore, could not have debarred the representationists from appearing for further examinations. In our opinion, considering Clause 580 the decision of the committee in debarring those candidate after three attempts to appear for the examination for promotion will be clearly arbitrary and violative of Article 14 of the Constitution of India. That decision therefore, taken at the meeting of the committee which was held on 8/3/2005 though has not been challenged in these petitions, nonetheless considering the relief as sought for and the same having been brought to our attention, can be said to be contrary to Rule 580 of the Manual. It is not open to the committee to act contrary to Para 580 of the Manual and to lay down any condition barring candidates for being considered for promotion." 29. The issue as to whether, withdrawal of benefits under the ACPS could be possible merely because a better candidate has been selected leading to the non selection of the affected candidate, is dealt with and put to rest by this Court in paragraph 10 in Ramesh S More (supra), as under:- "10. The next contention namely withdrawal of the benefit under Assured Progress Scheme may now be considered. An Administrative relief has already been granted to the two representationists. The petitioner have really not raised the issue. The issue however, is raised from time to time and employee of this Court and the subordinate Courts are being either denied benefit or benefit granted is being withdrawn. The question is whether merely because of non-selection to the higher promotional post can the Assured Progress Scheme already granted to any employee can be withdrawn. In the case of Shrirang Atmaram Nikam v. The District Judge Thane and Ors. decided on 18/3/2005 in Writ Petition No. 6977 of 2004 [since reported in 2005 (3) Mh.L.J. 245 ] wherein the Government G.R. in the matter was considered. In Para 5 of the G.R. dtd. 20/7/2001 the first requirement is that the candidate should possess all the requisite qualifications for promotion. The other contention is that the employees who have refused the promotion and employees who are held non-eligible for regular promotions, shall not get benefit under this scheme. In Para 5 of the G.R. dtd. 20/7/2001 the first requirement is that the candidate should possess all the requisite qualifications for promotion. The other contention is that the employees who have refused the promotion and employees who are held non-eligible for regular promotions, shall not get benefit under this scheme. In case of employees who are given any benefit of the higher pay scale under the scheme and who have refused regular promotion, and who are held to be eligible for regular promotion, shall be withdrawn. However, the monetary benefit of the pay scales given to them will not be recovered. On the reading of the said G.R. this Court has taken a view that mere non-selection cannot be a ground for denying the employee the higher pay scale as there may be more meritorious candidates than the candidate who is not selected considering the number of vacancies. We had therefore, applied the following test: The test therefore, is not whether the candidate is promoted. The test is whether the candidate is eligible. On the administrative side this high Court has also issued directions to that effect. The time scale granted under A.P.S. therefore, could not have been withdrawn." 30. The 2010 GR is implemented with effect from 1/10/2006. In Dean, Dr. V. M. Medical College, Solapur (supra), this Court dealt with the 2010 GR and concluded in paragraphs 5 to 12, as under:- "5. One of the notorious features of Government service is that several employees, though eligible and ever willing to be promoted, do not actually secure such promotions, sometimes, during the entire tenure of their service. This stagnation, naturally leads to frustration. The State has consequently adopted schemes for redressal of such situation arising out of lack of sufficient promotional avenues and the consequent stagnation. Broadly, such schemes do not contemplate actual promotions to the next higher post, but by way of consolation, award the pay-scale of the promotional posts, generally, upon an employee stagnating in a particular post for twelve years or twenty four years respectively. Such schemes, were earlier referred to as Time Bound Promotion Schemes and are now referred to as Assured Career Progression Schemes. The ACP Scheme, with which, we are presently concerned was formulated by the State Government vide G.R. dtd. 1/4/2010. This G.R specifically states that the scheme will be applicable with retrospective effect, i.e., from 1/10/2006. 6. Such schemes, were earlier referred to as Time Bound Promotion Schemes and are now referred to as Assured Career Progression Schemes. The ACP Scheme, with which, we are presently concerned was formulated by the State Government vide G.R. dtd. 1/4/2010. This G.R specifically states that the scheme will be applicable with retrospective effect, i.e., from 1/10/2006. 6. The G.R. dtd. 1/4/2010 makes reference to the objective of the scheme, which is alleviation of the sufferings on account of stagnation. In case of Dwijen Chandra Sarkar and Anr. vs. Union of India and Ors., the Supreme Court had occasion to explain the objective of such schemes and further, the importance of such objective, in the interpretation of such schemes. At paras 11 and 12, it is observed thus:- "11. However, the position in regard to "time- bound" promotions is different. Where there are a large number of employees in any department and where the employees are not likely to get their promotion in the near future because of their comparatively low position in the seniority list, the Government has found it necessary that in order to remove frustration, the employees are to be given a higher grade in terms of emoluments while retaining them in the same category. This is what is generally known as the time-bound promotion. Such a time-bound promotion does not affect the normal seniority of those higher up. 12. If that be the true purpose of a time-bound promotion which is meant to relieve frustration on account of stagnation, it cannot be said that the Government wanted to deprive the appellants who were brought into the P&T Department in public interest of the benefit of a higher grade. The frustration on account of stagnation is a common factor not only of those already in the P&T Department but also of those who are administratively transferred by the Government from the Rehabilitation Department to the P&T Department. The Government while imposing an eligibility condition of 16 years' service in the grade for being entitled to time- bound promotion, is not intending to benefit only one Sec. of employees in the category and deny it to another Sec. of employees in the same category. The common factor for all these employees is that they have remained in the same grade for 16 years without promotions. The common factor for all these employees is that they have remained in the same grade for 16 years without promotions. The said period is a term of eligibility for obtaining a financial benefit of a higher grade." 7. The entire ACP Scheme, with which we are concerned is set out in great detail in the G.R. dtd. 1/4/2010. The salient features of the ACP Scheme, are as follows: i) The scheme is made applicable from 1/10/2006. However, for the period between 1/10/2006 till the date of G.R., i.e., 1/4/2010, the employees will be entitled to only notional benefits and not actual arrears. ii) Under this scheme, an eligible employee is entitled for the pay scale of next promotional post twice in his service career i.e. eligible for two financial upgradations on completion of 12 years and 24 years of service. iii) In the case of an employee who has been granted time bound promotion/ACP it would be presumed that he got the first benefit of this modified ACP Scheme on that date. iv) The second financial upgradation will be available to the employee on completion of 12 years of service from the date of first financial upgradation. 8. In order to combat certain practical difficulties in the matter of implementation of ACP Scheme, the State vide G.R. dtd. 1/7/2011 has issued certain clarification. At serial No.1 of Annexure to the said G.R. dtd. 1/7/2011, it is "clarified" that the benefit of ACP Scheme, as formulated in G.R. dtd. 1/4/2010 will not be available to employees, who have retired from service between the period 1/10/2006 (retrospective date from which scheme was made applicable) and 31/3/2010 (one day prior to the date of G.R. dtd. 1/4/2010, by which the scheme was directed to be implemented with retrospective effect). As noted earlier, it is this clarification, which has been struck down by the impugned judgment and order of the Tribunal. 9. Although, the formulation and extension of ACP Scheme may be in realm of policy, nevertheless, once such scheme is formulated and implemented by the State of its own accord, there is no question of State practising discrimination, as between the class of persons, otherwise uniformly entitled to benefit of such scheme. 9. Although, the formulation and extension of ACP Scheme may be in realm of policy, nevertheless, once such scheme is formulated and implemented by the State of its own accord, there is no question of State practising discrimination, as between the class of persons, otherwise uniformly entitled to benefit of such scheme. Once, the State has taken a decision to formulate and implement the ACP Scheme, Article 14 of the Constitution will ensure that such scheme is not implemented with an unequal hand and that the employees who are otherwise entitled to avail the benefit of such scheme, are left out on basis of irrational or unreasonable parameters. Therefore, there is no merit in the submission of Mr. Walimbe that since the very formulation and implementation of ACP Scheme is in the realm of policy, the State has unfettered discretion in the matter of choice of beneficiaries or that such choice is not capable of judicial review. 10. The circumstance that the class of employees excluded on account of the impugned clarification were not capable of availing de facto promotions, is quite an irrelevant circumstance, particularly considering the terms of the ACP Scheme as stated in the G.R. dtd. 1/4/2010 and the objective of such scheme. In fact, the question of extension of benefits under the ACP Scheme arise, precisely because the employees are in no position to avail de facto promotions. That apart, since ACP Scheme has been made retrospectively applicable since 1/10/2006, for the period between 1/10/2006 and 31/3/2010, the employees, prior to their actual retirement, were theoretically capable of availing de facto promotions. Therefore, employees completing twelve years or twenty four years of service in any particular post between the period 1/10/2006 and 31/3/2010 cannot be deprived of the benefits of the scheme, merely on account of fortuitous circumstance that they may have retired between the period 1/10/2006 and 31/3/2010. Such exclusion appears to be arbitrary, unreasonable and based upon no rational criteria. This is admittedly not a case where ACP Scheme, by itself, has been made applicable with effect from 1/4/2010. This is a case where the scheme has been made applicable from 1/10/2006 retrospectively. Therefore, there is no justification in the creation of artificial classification on the basis of the impugned clarification. This is admittedly not a case where ACP Scheme, by itself, has been made applicable with effect from 1/4/2010. This is a case where the scheme has been made applicable from 1/10/2006 retrospectively. Therefore, there is no justification in the creation of artificial classification on the basis of the impugned clarification. Such classification bears no intelligible differentia whatsoever and in any case, differentia, if any, has no nexus whatsoever with the objective of the scheme, i.e., to compensate employees for stagnation on account of lack of promotional avenues, whilst in service. Thus, construed we detect no error in the view taken by the Tribunal in the impugned judgment and order. 11. The G.R. dtd. 1/4/2010 was quite clear in that the ACP Scheme was made applicable with retrospective effect from 1/10/2006. Accordingly, there was neither any reason nor any occasion for issuance of the impugned clarification, which has the effect of excluding employees, who are otherwise on par with the other employees, in the matter of receipt of benefits under the ACP Scheme. Besides, we note that the ACP Scheme contemplates only notional pay fixation for the period between 1/10/2006 and 1/4/2010, without there being any liability to make actual payment of arrears. In the absence of any ambiguity in the G.R. dtd. 1/4/2010, there was no question of issuance of impugned clarification. Further, it is impermissible for the State to substantively modify the G.R. dtd. 1/4/2010, under the guise of issuance of impugned clarification. Such a cut off date is clearly discriminatory. There is no rationale behind stating that the said scheme would not be applicable to those who have retired in between 1/10/2006 to 31/3/2010. If the said explanation is accepted, then those persons retiring before 1/10/2006 would be given the benefit of that scheme so also the persons retiring after 31/3/2010 would be given the benefit of said scheme and only those persons retiring in between 1/10/2006 to 31/3/2010 would be deprived of the said benefits which is clearly discriminatory and arbitrary and violative of Article 14 and hence, cannot be allowed. 12. There is neither any jurisdictional error nor any perversity in the view taken by the Tribunal in the impugned judgment and order. We are, accordingly, satisfied that there is no case made out to interfere with the impugned judgment and order, hence, the Writ Petition is rejected." [Emphasis is supplied] 31. 12. There is neither any jurisdictional error nor any perversity in the view taken by the Tribunal in the impugned judgment and order. We are, accordingly, satisfied that there is no case made out to interfere with the impugned judgment and order, hence, the Writ Petition is rejected." [Emphasis is supplied] 31. It is, thus, settled that the ACPS is available to a stagnated employee who has put in 12 years of service and there is no scope for promotion on account of there being no vacancy. The avowed object of the 2001 GR and the 2010 GR, is to compensate employees for stagnation on account of lack of promotional avenues, whilst in service. When we talk of stagnation, we mean and we recognize a candidate who is eligible, but is deprived of promotion on account of there being no vacancy. 32. As has been observed in Dean, V M Medical College (supra), 'One of the notorious features of Government service is that several employees, though eligible and ever willing to be promoted, do not actually secure such promotions, sometimes, during the entire tenure of their service. This stagnation, naturally leads to frustration. The State has consequently adopted schemes for redressal of such situation arising out of lack of sufficient promotional avenues and the consequent stagnation. Broadly, such schemes do not contemplate actual promotions to the next higher post, but by way of consolation, award the pay-scale of the promotional posts, generally, upon an employee stagnating in a particular post for twelve years or twenty four years respectively'. We are, therefore, fortified in our view that stagnation shall presuppose that an eligible candidate was due for promotion, but for the fact that there was no vacancy. Hence, we concur with the view taken in the cited reports that, his/her non-selection from amongst the competing lot of eligible candidates, in the face of better candidates having been actually promoted, would not be a ground for withdrawing of the monetary benefits granted under the ACPS, after completion of 12 years. He/she shall continue to receive the said benefits in such an eventuality. 33. For interpreting the word 'APAATRA', we need to re-visit the relevant clause of the 2010 GR, which is crucial for us to answer the question formulated. He/she shall continue to receive the said benefits in such an eventuality. 33. For interpreting the word 'APAATRA', we need to re-visit the relevant clause of the 2010 GR, which is crucial for us to answer the question formulated. The english version of the relevant clause is found in Dean, V.M. Medical College (supra), as under:- "ii) Under this scheme, an eligible employee is entitled for the pay scale of next promotional post twice in his service career i.e. eligible for two financial upgradations on completion of 12 years and 24 years of service. iii) '.. iv) The second financial upgradation will be available to the employee on completion of 12 years of service from the date of first financial upgradation." 34. There can be no debate that 'ANY' candidate completing 12 years in service would not be entitled for the ACPS benefits. It has to be a candidate who is 'ELIGIBLE' to receive such benefits after completing 12 years and upon being stagnated due to lack of vacancies for actual promotion. The decisive issue, therefore, is as to whether the competent authority scrutinises each case to verify the 'ELIGIBILITY', before bestowing the benefits of the ACPS (actual payment of monetary benefits) on a particular candidate. Clause 2(5) of the 2001 GR mandates such scrutiny and only after finding a candidate to be eligible, that the 1st ACPS monetary benefits are made payable. Such scrutiny is further permissible when the 2nd ACPS benefits are to be extended to an individual. 36. Thus, once a candidate is granted the first benefit of the ACPS as per the parameters prescribed in clause 2(5) of the 2001 GR, it presupposes that the candidate is eligible for promotion at the relevant time. Had there been a vacancy at that juncture, he/she would have been eligible for promotion. While granting the monetary benefits, the concerned employer/ authority is under a mandate to scrutinize each case of completion of 12 years in the same post so as to assess whether, such candidate is eligible for de-facto promotion. Once a candidate is cleared for receiving such benefit in the light of the parameters of the 2001 GR read with the 2010 GR, the decision so taken is deemed to be based on a foundational conclusion that the candidate was eligible for actual promotion. Once a candidate is cleared for receiving such benefit in the light of the parameters of the 2001 GR read with the 2010 GR, the decision so taken is deemed to be based on a foundational conclusion that the candidate was eligible for actual promotion. The question would be as to whether, such candidate can subsequently be held to be ineligible on the basis of subsequent annual assessments/bench mark and become liable for stoppage of monetary benefits. As noted above, the 2015 GR eliminates the recovery aspect. 37. A candidate has two service segments in relation to the ACPS benefits. His first lap/segment of service, in order to be eligible for such first benefit, is 12 years. Having crossed this stage/segment of service, there cannot be a 'turn around' to say that as he became ineligible in future, he would be deemed to be ineligible in retrospect. The doctrine of 'relation back' would not be applicable in the peculiar facts. The second benefit after twelve years is based on his performance in the second lap/segment of his service journey under the 2010 GR, having continued for further twelve years on the same post with the first benefit. While granting the second benefit, a similar verification is prescribed and, in our view, is justified. Such monetary benefits are not a bounty. An eligible candidate can alone be entitled. 38. We find from clause 2-D of the 2010 GR, more specifically sub-clauses (1), (2) and (3) as under:- 39. After minutely scrutinising the Marathi words/sentences/language used in the clauses reproduced above, we are of the view that the issue of entitlement of a candidate on completion of 12 years, to earn the ACPS monetary benefits, can never be a matter of debate. The object of introducing the scheme on 8/6/1995, was to reduce frustration amongst employees who did not get promotion after 12 years due to lack of vacancies and were stagnated. An improvised scheme was introduced vide the 2001 GR providing only one ACPS with the eligibility clause. A further improvisation was done by introducing the 2nd ACPS benefit vide the 2010 GR, by continuing the effect of the 2001 GR. An improvised scheme was introduced vide the 2001 GR providing only one ACPS with the eligibility clause. A further improvisation was done by introducing the 2nd ACPS benefit vide the 2010 GR, by continuing the effect of the 2001 GR. The issue that was bothering the Division Bench (which formulated the question for reference), was whether, a candidate, upon being held to be ineligible subsequently after the benefits were already granted to him under the 1st ACPS (when he was held to be eligible), could be subjected to withdrawal of such benefits. It is apparent that such candidate may be subsequently found to be below the benchmark, as and when the promotional post became vacant and available for actual promotion. Therefore, what should be the repurcussions, is the issue. 40. In the above backdrop, we would put forth some illustrations as under:- BY WAY OF ILLUSTRATIONS A] Candidate 'A' is found to be eligible for the first monetary ACPS benefit in 2014 and is granted the monetary benefits. Can he be held ineligible for the continued payment of the 1st ACPS benefits, in 2024, because the post became actually available for promotion and 'A' could not pass the written test or reach the Benchmark in 2024? Can the candidate be deprived of the benefits received for the earlier leg/segment of 12 years service ? In our view, these are two independent eventualities in the career of a candidate. When he was eligible in 2014, the post was not vacant. He had completed the first leg of his service of 12 years on the same post. He was found eligible as per the prescribed norms under the 2001 GR. However, when the post became vacant in 2024, he was not shortlisted as per the ratio 1:3 for filling up a vacancy by promotion, as his confidential reports or performance appraisal may be below the mark. Hence, because he was rendered ineligible in 2024, can he be declared ineligible, when he was found eligible after successfully completing the first leg/segment of his 12 years service and was granted the 1st benefit ? Doing so would amount to travesty of justice. B] Candidate 'B' was eligible for the first ACPS monetary benefit in 2012. He continued to receive the said benefits and reached the further stage of the 2nd ACPS monetary benefit in 2024. However, a vacancy occurred in 2024. Doing so would amount to travesty of justice. B] Candidate 'B' was eligible for the first ACPS monetary benefit in 2012. He continued to receive the said benefits and reached the further stage of the 2nd ACPS monetary benefit in 2024. However, a vacancy occurred in 2024. 'B' appeared for the written test and failed. Can it be said that 'B' was ineligible for the 1st ACPS monetary benefit w.e.f. 2012? When he was scrutinised and found to be eligible for the 1st benefit in 2012, upon successfully completing the first leg/segment of 12 years of service, whether the said eligibility can be called in question in 2024, only because he could not pass the written test or reach the bench mark in 2024? The worst that can happen is that he would not be eligible for the 2nd ACPS monetary benefits after completing further 12 years (24 years in all), as he was not able to reach the bench mark. The earlier benefits cannot be stopped. C] Candidate 'C' is held eligible for the 1st ACPS monetary benefit in 2020, after completing 12 years in service. In 2024, a vacancy arose and he was in the zone of consideration. He failed to clear the bench mark. Would this dent his eligibility of 2020, when he was found to be eligible and received the 1st ACPS benefit, due to stagnation? The only plausible and justifiable action in the light of the 2001 GR, the 2010 GR and the 2015 GR, would be that he would be disentitled for the 2nd ACPS. Once he was held eligible in 2020, he cannot be held ineligible in 2024. D] Candidate 'D' is found eligible in 2010 and received the 1st ACPS monetary benefit. After 12 more years, since there was no vacancy, he was scrutinised for his eligibility in 2022 for the 2nd ACPS benefit under the 2010 GR. He was found eligible and he received the 2nd benefit as well. Thereafter, a vacancy arose in 2024 and he could not reach the benchmark for actual promotion. Whether this would be the cause to deprive him of all the benefits received with effect from 2010 or 2022 ? Taking away either one or both the benefits would be unreasonable, when 'D' was scrutinised and cleared for receiving both the ACPS benefits in 2010 and 2022. 41. Whether this would be the cause to deprive him of all the benefits received with effect from 2010 or 2022 ? Taking away either one or both the benefits would be unreasonable, when 'D' was scrutinised and cleared for receiving both the ACPS benefits in 2010 and 2022. 41. We are, therefore, of the view that permitting the stoppage of payment of benefits, in the above peculiar circumstances, would cause more frustrations and anxiety to the affected employees. There could be multiple causes for the lowering or increasing of the performance of a candidate, after the completion of 12 years segment of service and after receiving the 1st benefit. At the stroke of completion of 12 years, he has to be scrutinised and found to be eligible. The only exception would be when such candidate actually gets selected for promotion and he refuses to shoulder the responsibility of the said post. He can then be divested of the benefits of the first or the second benefits, which suffering is his own creation. 42. In these circumstances, we conclude that it would be open to an employer/ establishment to meticulously verify each case on completion of 12 years (first segment) and 24 years (second segment) of service on the same post (meaning that he is stagnated). If at those stages, he is held eligible, the ACPS benefits would be extended to him. Once a candidate is held eligible for the 1st ACPS monetary benefits, the said benefits cannot be withdrawn for subsequently having been found ineligible at the time of the de-facto promotion. As like the examples cited above, declaring the person ineligible with retrospective effect or deprive him of the benefits which he has qualified to earn earlier, is irrational, illogical and unjustified. Therefore, for not reaching the benchmark, stoppage of the benefits, already extended after due compliance of clause 2(5) of the 2001 GR at the stage of completion of 12 years, is impermissible. This would not be applicable to a case of disqualification, viz. when a candidate refuses to accept the actual promotional post when selected and declines to shoulder the responsibilities of the said post. 43. We answer the issue referred to us, in the light of the above analysis and conclusion.