Central Administrative Tribunal - Allahabad
Ashutosh Johari vs Textiles Commissioner on 2 March, 2026
O.A./805/2011
(Reserved on 24.02.2026)
Central Administrative Tribunal, Allahabad
Original Application No.805 of 2011
nd
Pronounced on this the 02 Day of March, 2026.
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Mr. Mohan Pyare, Member (A)
Asutosh Johari, S/o Late Sri Govind Johari, R/o 290, B-Block Panki,
Kanpur-208020.
...Applicant
By Advocate: Shri Jaswant Singh
Versus
1. Union of India through Notice to be served upon Ministry of
Textile through its secretary (Textiles) Udyog Bhawan, New
Delhi.
2. The Textile Commissioner (H.O.D.) Office of the Textile
Commissioner, 48, New C.G.O. Building, New Marine Lines,
Mumbai-20.
3. The Officer Incharge, Regional Office of the Textile
Commissioner, 181/184, Ist Floor, Sharda Nagar, Kanpur.
...Respondents
By Advocate: Shri Raghvendra Pratap Singh
ORDER
By Hon'ble Mr. Mohan Pyare, Member (A) Present Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:
"A. Hon'ble Tribunal may graciously be pleased to direct the respondent no.2 to grant the benefits of second A.C.P. to the applicant with effect from dated-25/06/2008, with grade pay of Rs.5400/-, within stipulated time as fixed by Hon'ble Tribunal. As per provisions of DOPT OM Digitally no.-35034/1/97-Estt(D), dated-09/08/1999, the second MADHU signed by KUMARI MADHU KUMARI Page 1 of 18 O.A./805/2011 ACP of the applicant was due on dated-25/06/2008, after completion of 24 years of service.
B. Hon'ble Tribunal may also be graciously pleased to direct the respondent no.2 to grant the arrears of all consequential benefits such as increase in gross salary per month w.e.f. 25/06/2008, difference of all retirement benefits such as gratuity, commutation of pension, leave encashment and any other benefit (if arise) as well as all post retirement benefits such as increased pension w.e.f. 01/02/18 and other benefits (if any) from the respective dates of applicability of these benefits, with a compound interest of 12% per annum. These benefits will arise due to revised pay fixation after grant of second ACP w.e.f. 25/06/2008 with grade pay of Rs.5400/-
C. Hon'ble Tribunal may be pleased to award costs of the proceedings hereto and hitherto in favour of applicant."
2. Brief facts of this case are that the applicant was appointed on the post of Technical Investigator in the office of the Textile Commissioner, Ministry of Textiles, Govt. of India (respondent no.-2) and was initially posted at Regional office of the Textile Commissioner, Ahmedabad. He joined duties in the Ahmedabad office on 25.06.1984. The applicant was granted first ACP on dated-09/08/99 with grade pay of Rs.4600/- and applicant's second ACP was due on 25.06.2008 with grade pay of Rs.5400/- after completing 24 years of service. The designation of the post of applicant was changed from Technical Investigator to Technical Officer vide office order dated 30.06.2004. A memo prepared on 30.12.2005 was served to applicant on 19.01.2006 that while posted at Powerloom service centre, Burhanpur (M.P. from Nov., 2003 to Sep., 2005, his ACR for the year 2004-05 was having adverse remarks. The applicant submitted his representation dated 24.01.2006 with all possible explanations and requested to expunge adverse remarks. Respondent no.-2 decided the applicant's representation dated 24.01.2006 on dated 05.01.2007 and respondents decided to retain adverse remarks in applicant's ACR for 2004-05. The applicant preferred an appeal before Textile commissioner (HOD), office of respondent no.-2 on dated 19.02.07 and the same was decided by the Textile Commissioner on dated 09.06.2008 and it was decided to retain the adverse remarks in ACR for 2004-05. The Deptt. screening committee Digitally MADHU signed by KUMARI MADHU KUMARI Page 2 of 18 O.A./805/2011 (DSC) meeting was convened on 15.10.2010 to consider the applicant's matter for grant of second ACP due since 25.06.2008, along with four other officials. In this meeting the DSC declared applicant "Not-fit" for grant of benefits of second ACP. The office order regarding decisions taken by DSC in its meeting held on 15.10.2010, was issued on 07.04.2011. This office order contained the name of other four officials only whose matter was also considered in DSC along with the applicant. The said order neither contained any decision in respect of the applicant nor his name appeared in it. Thus, the present original application.
3. Submission of learned counsel for the applicant is that second ACP of applicant was due on 25/06/08 (vacancy/panel year 2008-09) with G.P. of Rs.5400/- after 24 years of services. Benchmark grading "Good" was prescribed for ACP/promotion of the applicant. The respondents convened the Departmental screening committee (DSC) on dt.-15/10/2010, to consider the matter of grant of 2nd ACP to the applicant along with four other officials. However, the applicant was neither communicated with the decision of DSC nor any office order was issued, in respect of the applicant. The office order dt.-07/04/11, which was issued in respect of the decision taken in aforesaid DSC, neither contained the name of applicant nor any decision in respect of applicant was mentioned. Further, Shri Nallamandu (s.no.-4 of DSC minutes), who was junior to applicant, was granted 2nd financial up-gradation (2nd ACP) w.e.f. 23/07/08 with G.P. of Rs.5400/- under aforesaid ACP scheme, whereas, applicant's 2nd ACP was due on 25/06/08 i.e. prior to date on which his junior was granted 2nd ACP. As applicant's 2nd ACP was due on dt.-25/06/08 (vacancy/panel year 2008-09) therefore, as per OM dt.-16/06/2000 (para-2), 08/09/98 (model calendar for DPC) read with OM dt.-06/10/2000 (para-3), applicant's five ACRs liable to be considered in DSC, were for the period 2002-03 to 2006-07 only, which also matches with the guidelines of DOPT, quoted for illustration purpose in para-2 of OM dt.-16/06/2000, that for Digitally vacancy/panel year 2000-2001, ACRs up to year 1998-99 are MADHU signed by KUMARI MADHU KUMARI Page 3 of 18 O.A./805/2011 required to be considered irrespective of the date of convening of DPC (even if DPCs are held later than schedule prescribed in the model calendar). The ACR for 2007- 08 will not be available at the time schedule April/July,2007 (in present matter) prescribed for completion of ACRs etc. in para-3.2 [non-ACC cases, sub-heading (A)] of OM dt.- 08/09/98. Out of applicant's five ACRs for period 2002-03 to 2006-07 (liable to be considered in DSC), the grading in three ACRs for the years 2002-03, 2003-04 and 2006-07 was Good/Very good i.e. at par or higher than benchmark prescribed and below benchmark grading "Average" in rest two ACRs for period 2004-05 and 2005-06 was never communicated to applicant, which was mandatory in view of provisions of OM dt.-13/04/10. These two ACRs were prior to period 2008-09 and were considered in future DSC, because DSC was held on 15/10/10 i.e. after the date of issue of OM dt.-13/04/10. Thus, below benchmark grading in these two ACRs for 2004- 05 and 2005-06 remained as un-communicated below benchmark grading. Hence, such non-communication would be arbitrary and as such violative of Article 14 of Constitution.
4. Learned counsel for the applicant argued that as per Hon'ble Supreme Court decision dt.-22/10/08 in the matter of Abhijit Ghosh Dastidar v/s UOI, civil appeal no.6227 of 2008, applicant's aforesaid two ACRS for 2004-05 and 2005-06 were not reckonable in DSC and should be ignored by DSC. Thus, overall grading in applicant's five ACR liable to be considered in DSC was not below benchmark and there was no valid reason to declare applicant "Not-Fit". The respondents confirmed three times that DSC considered applicant's five ACRs for 2004-05 to 2008-09. Thereafter, in para-5, p-7 of suppl. counter (3) filed on 11/12/23, respondents changed their statement and stated that DSC considered five ACRs for the period 2003-04 to 2007-08. However, respondents never filed any document to show that DSC considered five ACRs for years 2003-04 to 2007-08. However, whether, DSC considered five ACRs for 2004-05 to 2008-09 or Digitally five ACRs for 2003-04 to 2007-08, in both the cases it was in MADHU signed by KUMARI MADHU KUMARI Page 4 of 18 O.A./805/2011 violation of provisions of OMs dt.- 16/06/2000, 08/09/98 and 06/10/2000 [referred in preceding para-6] as applicant's five ACRs for the period 2002-03 to 2006-07 only were liable to be considered in DSC. Further, even if DSC considered applicant's five ACRs for 2003-04 to 2007-08 then also applicant was "fit and entitled" for grant of second ACP as his three ACRs for 2003-04, 2006-07 and 2007-08 were having final grading "Good/Very Good" (detailed submissions in following para-9) and rest two ACRs for 2004-05 and 2005-06 were not reckonable due to un-communicated below benchmark grading. Thus, overall grading even in these five ACRs for 2003-04 to 2007-08, was not below benchmark.
5. In continuance of his arguments, learned counsel for the applicant submitted that the applicant was never communicated any adverse remark/below benchmark grading in his ACR since his inception into services on dt.-25/06/84 to the year 2003-04 (including ACR for 2003-04 i.e. 20 years in a row). The respondents never filed any document to show that grading in ACR for 2003-04 was below benchmark. Therefore, (even if) grading in applicant's ACR for 2003-04 or any other ACR prior to 2003-04, was below bench mark, then as per provisions of OM dt.-13/04/10, it remained as un-communicated below benchmark grading and as per decision of Hon'ble supreme court in matter of Abhijit Ghosh Dastidar, such ACRs including ACR for 2003-04 were/was not reckonable in DSC along with two more ACRs for years 2004-05 and 2005-06 and these ACRs should be ignored in DSC. Thus, the applicant's assessment by DSC was faulty and erroneous.
6. The applicant contends that Shri Balaraju was reviewing officer of applicant's ACRs for the year 2004-05 and first half of the year 2005-06 (April 05 to Sep. 05), in which below benchmark grading "Average" was awarded to the applicant (on 30/09/05, he was transferred to Kanpur). He was also the chairman of DSC, in which both of the aforesaid ACRs were considered for assessment of the applicant. Accordingly, Shri Balaraju was made judge for Digitally MADHU signed by KUMARI MADHU KUMARI Page 5 of 18 O.A./805/2011 his own cause, which is against the very purpose of principles of natural justice according to which nobody can be made judge for his own cause. The respondents also failed to follow time limit for communication of adverse remarks and in disposing-off applicant's representation against adverse remarks, in his ACR for 2004-05. The Hon'ble supreme court in the matter of UOI vs G.R.Meghwal, civil appeal no. 2021 of 2022, date of judgment 23/09/22, had also taken note of time limit in this regard (para-8.1 of judgment). The applicant was consistently having good records since the last 20 years of his services, however, all of a sudden adverse remarks were entered in his ACR for 2004-05, without any supporting document, warning. etc., to substantiate adverse remarks. Thus, adverse remarks in ACR for 2004-05 were vague, inconsistent and false. The respondents passed a non-speaking order and rejected applicant representation and appeal against adverse remarks without mentioning any reason for the same.
7. It is submitted by the applicant that DSC made assessment of five officials including applicant, on the basis of two norms /conditions prescribed for grant of ACP which were vigilance clearance/ACR grading, kept together in column-15 of minutes/ACP proposal. The word "cleared" was mentioned in this column against the names of all five officials including the applicant. However, DSC declared other four officials "Fit" and applicant "Not-fit" without mentioning any reason for the same. As both the norms of vigilance clearance/ACR grading were put together in column-15, therefore, word "cleared" recorded by DSC in column-15 will also apply for vigilance clearance/ACR grading both. Further, any adverse comment/finding in any respect including applicant's ACR grading/ vig. clearance was not recorded by DSC anywhere in minutes/ACP proposal. Hence, it is evident that applicant was clear from vigilance angle and ACR grading both. He was also fulfilling all conditions/norms prescribed for grant of ACP. There was no valid reason to declare the applicant "Not-fit". Thus, applicant's assessment by DSC was faulty and erroneous.
Digitally MADHU signed by KUMARI MADHU KUMARI Page 6 of 18 O.A./805/2011
8. Learned counsel for the applicant informs that vide office order dt.-28/11/14, applicant was granted second MACP w.e.f. 01/04/10 with G.P. of Rs.4800/- in place of second ACP, which was actually falling due on 25/06/08 with G.P. of Rs.5400/-. Similarly, vide office order dt.-15/05/18, applicant was granted third MACP w.e.f. 25/01/16 with G.P. of Rs.5400/-, which was actually falling due on 25/06/14 with G.P. of Rs.6600/-, after completion of 30 years of service. The applicant was fulfilling all conditions/ norms etc prescribed for grant of 2nd ACP and thus, he was completely entitled for grant of 2nd ACP w.e.f. 25/06/08 with G.P. of Rs.5400/- and third MACP w.e.f. 25/06/14 with G.P. of Rs.6600/-. The ACP scheme was operative till 31/08/08 and applicant's second ACP was falling due on 25/06/08 i.e. well within operational period of ACP scheme. The respondents granted second and third MACP to applicant, which were carrying less G.P. of Rs.4800/- and 5400/- respectively and also with a delay of 21 months and 19 months period respectively since due date of second ACP and third MACP. It was arbitrary, unlawful, and motivated with malafide intention. Therefore, second/ third MACP cannot be treated as replacement for 2nd ACP in the present matter of the applicant. He referred to the CAT, Ahmedabad's judgement in the matter of Rajendra Babu Nigam v/s UOI, OA no.-8 of 2009, date of judgment 22/04/10, which considered that normal promotion norms including benchmark are same both in ACP and DPC and held that "it would be amply clear from the norms extract that in case of ACP scheme also, norms required for promotion including prescribed benchmark in the ACRs have to be fulfilled. Further, the guidelines prescribed by DOP&T regarding the methods and procedures to be adopted by the DPCs are applicable not only to the DPC of UPSC but also to the screening committee for granting ACP benefits". It is next submitted that the CAT, Principal bench New-Delhi in matter of Govind singh Khairwal vs. Govt. of NCTD, OA no.-2349/2011, dt. of judgment 15/04/15, considered that "DSC has to follow the same norms to assess the fitness for ACP as a DPC will do for Digitally MADHU signed by KUMARI MADHU KUMARI Page 7 of 18 O.A./805/2011 judging fitness for promotion and the guidelines for DPC will also apply to DSC". Accordingly, all provisions of OMs dt.-16/06/2000 and 08/09/98 such as vacancy/panel year and crucial date of eligibility will apply on DPC and DSC both and thus for grant of ACP also. The shifting of vacancy year to calendar year and crucial date of eligibility from year 2009 are irrelevant in present matter as applicant's second ACP was due on dt.-25/06/08. The Hon'ble Delhi high court in the matter of UOI v. V.S. Arora, in the year 2012, in line with the Hon'ble Supreme Court's decision in the matter of Abhijit Ghosh Dastidar v UOI, settled the matter of non-communicated below benchmark ACRs by establishing that non-communicated below benchmark ACRs are arbitrary and violate Article 14, thus should be ignored by DPCs. CAT, Hyderabad, in the matter of P. Sankar Reddy, OA no.-849 of 2007, dt. of judgment 16/12/2009 and CAT, Principal bench, New-Delhi in matter of Govind singh Khairwal, OA-2349/2011, decided that non-communicated below benchmark ACRs are arbitrary and violate Article 14 of constitution and directed to ignore the un-communicated below benchmark ACRs, while considering promotion/ACP of officer in DPC/DSC. The same views have also been taken by Hon'ble supreme court in a catena of judgments [Abhijit Ghosh Dastidar, SLP civil no.- 26556/2004, G.R. Meghwal civil appeal no. -2021 of 2022, Sukhdev singh, civil appeal 5892 of 2006] etc. As per provisions of OM dt.-13/04/10, communication of below benchmark grading in ACRs for 2004-05 and 2005-06, was to be done before such ACRs are placed before DSC. Therefore, respondents failed to follow the provisions of OM dt.-13/04/10.
9. It is submitted that para-6 of CAT, Jabalpur in OA No 437 of 2015 filed by applicant to upgrade the grading in his APAR for 2011-12 order dt.-18/11/25 contains the observation that "we find that the applicant right from the year 2004-05 till 2011-12 has been given poor or average grading" are misconceived due to the following facts-
Digitally MADHU signed by KUMARI MADHU KUMARI Page 8 of 18 O.A./805/2011
1) That, in the ACRs for the year 2006-07 and 2007-08, applicant was graded "Very Good" itself by the concerned reporting and reviewing officers at the stage of writing and reviewing of these ACRs. This fact was also confirmed by respondents in factual matrix of grading awarded to applicant from the year 2004-05 to 2008-09, submitted by them.
2) That, low numerical grading in applicant's two APARs for the year 2009-10 and 2010-11 were subsequently up-graded to "4.0"
i.e. "Good", when the applicant approached CAT, Jabalpur. The APAR for 2011-12 was also written and reviewed by the same reporting and reviewing officers, who wrote and reviewed aforesaid two APARs for the year 2009- 10 and 2010-11.
3) Accordingly, in the entire services of applicant for more than 33 years, his four ACRs only for years 2004-05, 2005-06, 2008-09 and 2011-12 were carrying below benchmark grading "Average"
after having blemishless service records in every respect consistently for 20 years since his inception into services on dt.-25/06/84 to year 2003-04.
4) The aforesaid four APARS for the year 2008-09, 2009-10, 2010-11 and 2011-12 are irrelevant in the matter of present OA. The rest two ACRs for the year 2004-05 and 2005-06 are only relevant in the matter of present OA. The below benchmark grading "Average" in these two ACRs for the year 2004-05 and 2005-06 was never communicated to the applicant in follow up of the provisions of OM dated-13/04/10. Therefore, these two ACRs are not reckonable in DSC and are to be ignored in DSC.
10. Thus, learned counsel for the applicant prayed that in view of facts submitted in all the preceding paras, the respondents should be directed to grant the benefits of second ACP to the applicant w.e.f. 25/06/2008 with grade pay of Rs.5400/- under ACP scheme vide DOPT OM no.-35034/1/97-Estt (D), dt.- 09/08/99 and to pay the arrears of all consequential benefits such as increase in gross salary per month w.e.f. 25/06/08, difference of all retirement benefits such as gratuity, commutation of pension, leave encashment and any other benefit (if arise) as well as all post retirement benefits such as increased pension w.e.f. 01/02/18 (as applicant has retired from his services on dt.-31/01/2018) and other benefits (if any) from the respective date of applicability of these benefits, with a compound interest of 12% per annum. Further, the cost of proceedings hereto and hitherto may be awarded in favour of the applicant.
Digitally MADHU signed by KUMARI MADHU KUMARI Page 9 of 18 O.A./805/2011
11. Per contra, learned counsel for the respondents has firmly denied that respondent no.2 has deliberately not granted second ACP to the applicant or deferred his case for next during the DPC held on 15.10.2010. He submitted that there are certain rules and procedures to be followed for grant of ACP to any government employee and respondent no.2 has followed those rules in which the applicant was found unfit. The memorandum dated 30.12.2005 issued from the office of respondent no.2 consequent upon the applicant getting an adverse remark in ACR of the year 2004-05 is a due official communication. The applicant was given opportunity to make representation against the adverse entry awarded in his ACR, pursuant to which he submitted his representation dated 24.01.2006. However, after thorough scrutiny of the matter, the office of the respondent no.2 has replied in its Memorandum dated 05.01.2007 that after a careful examination of the ACR for the year 2004-2005 of the applicant, office memorandum dated 30.12.2005 and the applicant's representation against such adverse remark, views of the reporting officer, and the reviewing officer on the said representation of the applicant, the competent authority has decided to retain the recorded adverse remarks. It is stated that ACP cases are considered as per the drawn guidelines of ACP Scheme, vide DoPT O.M. No.35034/1/97-Estt (D) dated 09.08.1999. Condition No.6 is "Fulfilment of normal promotion norms (bench-mark, departmental examination, seniority-cum-fitness etc.) for grant of financial up-gradation, performance of such duties as are entrusted to the employees together of old designations, financial up-gradation as personal to the incumbent for the stated purposes and restriction of the ACP Scheme for financial and certain other benefits (House Building Advance, allotment of Government accommodation, advances, etc) only without conferring any privileges related to higher status (e.g. invitation to ceremonial functions, deputation to higher posts etc) shall be ensured for grant of benefits under the ACP Scheme". This may be read with DoPT OM No.22011/7/98-Estt.(D) dated 06.10.2000. The main Digitally MADHU signed by KUMARI MADHU KUMARI Page 10 of 18 O.A./805/2011 condition of granting promotion/ACP is the reviewing of last 5 years ACR/APAR grading by expert members of DPC, to recommend the grant of ACP. The Constituted DSC is vested with certain powers vide DoPT O.M. dated 10.04.1989. Para 5 of the said O.M. refers that "each DSC should decide its own method and procedure for objective assessment of the suitability of the incumbents in consideration. Further it provides that the DSCs follow the prescribed guidelines and procedure for objective assessment of the suitability of candidates who are to be considered. The DSC should not be guided merely by the overall grading, if any, that may be recorded in the CRs but should make its own assessment on the basis of the entries in the CRs, because it has been noticed that some times the overall grading in ACR may be in consistent with the grading under various parameters or attributes". The Hon'ble Supreme Court of India has, held in a catena of judgments, that the decision of the duly constituted DSC cannot be interfered with a review of assessment in respect of an officer made by it cannot be directed except on the limited ground of malafides or procedural irregularity. Some of such cases are:-
(i). Nutan Arvind Vs. UOI & Another [(1996) 2 SUPREME COURT CASES 488]; (11). UPSC Vs. H.L. Dev and Ors. [AIR 1988 SC 1069]; (iii). Dalpat abasahab Solanke Vs. B. S. Mahajan [AIR 1990 SC 434]; (iv). Anil Katiyar Vs. UOI and Ors.
[1997(1)SLR 153); (v). Union of India and another Vs. S. K. Goel and Ors. In Appeal (Civil) No. 689 of 2007.
12. Learned counsel for the respondents argued that the OM no.-22011/9/98- Estt(D), dated 16/06/2000 and as per various OM of DoP&T, the vacancy /panel year is extracted from the roster register for promotion purposes only. The OMs quoted by the Applicant is related to the DPCs for promotion, the subject of which itself is evident in that aspect and not for DSCs for considering upgradation under ACP/MACP. Further, the paragraph extracted from the said OM, i.e; "Only such ACRs should be considered which became available during the year Digitally immediately preceding the vacancy/panel years even if DPCs are MADHU signed by KUMARI MADHU KUMARI Page 11 of 18 O.A./805/2011 held later than the schedule prescribed in the Model Calendar. In other words, for the vacancy/panel year 2000-2001, ACRs up to the year 1998-99 are required to be considered irrespective of DPC" is also related to "vacancy/panel year" and thus it is unambiguous that the said instructions are related to filling up of vacancies and not granting financial upgradation under ACP/MACP. Similarly, the OM No.22011/4/2013-Estt(D) dated 08th May, 2017 is also related to the DPC and not DSC. In the said OM also it is clearly spelt out that; "Only such ACRs (now APARs) should be considered which became available during the year immediately preceding the vacancy/panel years irrespective of the date of convening of the DPC". As per the said OM the crucial date of eligibility is as under:
(i) The vacancy year may be shifted to Calendar year from the year 2018 onwards, wherever the financial year based vacancy year is being followed now.
(ii) The crucial date of eligibility will be 1st of January of the Vacancy year w.e.f. 2019.
Further, the OM No.22011/9/98-Estt(D) dated 08/09/1998, as referred by the Applicant is related to the promotion and not applicable for financial upgradation under ACP/MACP.
13. It is submitted by the respondents that since benefits of financial upgradation under ACP/MACP is granted from the due date, i.e. on the date on which the incumbent has completed the required tenure of regular service (12 years in case of ACP and 10 years in case of MACP), the question of determination of "crucial date"
does not arise at all and the benchmark as applicable on the due date for grant of MACP benefits is required to be fulfilled by the incumbent, irrespective of the date of convening of the meeting of the Departmental Screening Committee (DSC). It is a fact that promotions considered through the Departmental Promotion Committee (DPC) is for functional performances, whereas the financial upgradation under ACP/MACP after putting regular a Digitally MADHU signed by KUMARI MADHU KUMARI Page 12 of 18 O.A./805/2011 particular grade for 12/10 years considered through the Departmental Screening Committee (DSC) on its due date is done on non- functional basis and it's criteria is totally different. Thus, the Crucial date for determining the eligibility for granting ACP/MACP is considered from the due date. It is submitted that whatsoever averments made in the Original Applications by the Applicant are hypothetical in nature and are not correct. Otherwise, it is a clear attempt of the applicant to mislead the Tribunal by quoting irrelevant provisions/OMs, which do not have any relation with the present case.
14. Thus, the respondents argue that the Departmental Screening Committee (DSC) has considered Annual Confidential Report (ACR) of the applicant for the preceding 5 years while determining his eligibility for extending benefits under 2nd ACP and found the applicant's ACR below the requirement for grant of ACP, therefore, his case was not recommended for extending benefits under the second ACP. Therefore, the contention of the applicant that there were no valid reasons with the respondents to declare the applicant "Not fit" for grant of his second ACP is incorrect and farther from the truth.
15. It is argued that the grading for the year 2003-04 mentioned by the applicant as good/ very good, is wrong and erroneous. The Proforma prescribed by the DOPT Govt. of India during the relevant period has no column of assessment of overall grading. In the absence of said column, it is the discretionary power of the Departmental Screening Committee to assess the overall grading by considering the remarks given by reporting/reviewing officers against each parameter in the ACR form. Accordingly, the Departmental Screening Committee had assessed the grading for the year 2003-04 below benchmark. Adverse remarks in ACR of the year 2004-05 were communicated to the applicant as per rules and provisions. There were no adverse remarks in the ACR for the year 2005-06 and there were no specific provisions to communicate if there is no adverse remark but overall it is Digitally MADHU signed by KUMARI MADHU KUMARI Page 13 of 18 O.A./805/2011 'average' remark to the individual, during the year 2005-06. In terms of O.M. 21011/1/2010-Estt. dated 13.04.2010 of DOPT, only below benchmark ACRs for the relevant promotion period need to be sent. The clarifications issued by the DOPT vide O.M. No. 43012/1/2015-Estt.(A-II) dated 21.04.2020 is relevant in this regard. In light of facts mentioned above, the Departmental Screening Committee had rightfully assessed the case of the applicant as not fit while considering him for grant of second ACP.
16. The respondents state that the applicant's claim for extending 2nd Financial Upgradation benefits under ACP w.e.f. 25.06.2008 is undeserved and unjustified. It is also submitted that the applicant has also been granted third MACP w.e.f 25.01.2016 vide Office Order No. 7/12/MACP/2017/Est-1/92 Dated 15.05.2018. The MACP was introduced by the Government of India as a replacement of ACP subsequently.
17. We have considered the rival submissions of learned counsel for the parties and perused the entire documents on record.
18. Having recorded the facts and submissions in the case above, it would now be relevant to observe the developments with regard to the provision of communication of adverse and below benchmark remarks in the APAR (previously ACR). In the case of Dev Dutt Vs. Union of India - [(2008) 8 SCC 725], it was observed that all entries in the ACR of a public servant must be communicated to him within the reasonable period so that he can make a representation for his upgradation despite there being no rule or government order to that effect. Pursuant to the judgment in Dev Dutta (supra), OMs dated 14.05.2009 and 13.04.2010 were issued by the department. The same are extracted as under:
Subject: Below Benchmark gradings in ACRs prior to the reporting period 2008-09 and objective consideration of representation by the competent authority against remarks in the APAR or for upgradation of the final grading.
The undersigned is directed to say that prior to the reporting period 2008-09, only the adverse remarks in the Digitally MADHU signed by KUMARI MADHU KUMARI Page 14 of 18 O.A./805/2011 ACRs had to be communicated to the concerned officer for representation, if any to be considered by the competent authority. The question of treating the grading in the ACR which is below the benchmark for next promotion has been considered in this Department and it has been decided that if an employee is to be considered for promotion in a future DPC and his ACRs prior to the period 2008-09 which would be reckonable for assessment of his fitness in such future DPCs contain final grading which are below the benchmark for his next promotion, before such ACRs are placed before the DPC, the concerned employee will be given a copy of the relevant ACR for his representation, if any, within 15 days of such communication. It may be noted that only below benchmark ACR for the period relevant to promotion need be sent. There is no need to send below benchmark ACRs of other years.
2. As per existing instructions, representations against the remarks or for upgradation of the final grading given in the APAR (previously known as ACR) should be examined by the competent authority in consultation, if necessary, with the Reporting and the Reviewing Officer, if any. While considering the representation, the competent authority decides the matter objectively in a quasi-judicial manner on the basis of material placed before it. This would imply that the competent authority shall take into account the contentions of the officer who has represented against the particular remarks regarding in the APAR and the views of the Reporting and Reviewing officer if they are still in service on the points raised in the representation vis-a-vis the remarks/gradings given bv them in the APAR. The UPSC has informed this Department that the Commission has observed that while deciding such representations, the competent authorities sometimes do not take into account the views of Reporting/Reviewing Officers if they are still in service. The Commission has further observed that in the majority of such cases, the competent authority does not give specific reasons for upgrading the below benchmark ACR/APAR gradings at par with the benchmark for next promotion.
3. All Ministries/Departments are therefore requested to inform the competent authorities while forwarding such cases to them to decide on the representations against the remarks or for upgradation of the grading in the APAR that the decision on the representation may be taken objectively after taking into account the views of the concerned Reporting Officers if they are still in service and in case of upgradation of the final grading given in the APAR, specific reasons therefor may also be given in the order of the competent authority.
19. The applicant's second upgradation under ACP was due on 25.06.2008 and the benchmark grading 'Good' was prescribed for ACP/Promotion. When the applicant's case was considered by the DSC on dt.15.10.2010, the applicant's case was found unfit for second ACP because of below benchmark grading in the ACR for Digitally MADHU signed by KUMARI MADHU KUMARI Page 15 of 18 O.A./805/2011 the relevant years under consideration. The respondents argued that the Departmental Screening Committee had assessed the grading for the year 2003-04 as below benchmark, that adverse remarks in ACR of the year 2004-05 were communicated to the applicant as per rules and provisions and there were no adverse remarks in the ACR for the year 2005-06, so, there was no specific provision to communicate it if there is no adverse remark but overall it is 'average' remark to the individual, during the year 2005-06. Admittedly, while the adverse entry for the year 2004-05 were communicated to the applicant and the same were kept intact up to the level of the appellate authority, yet the below benchmark gradings of the applicant for the year 2005-06 were not communicated to him with an opportunity to make a representation against it which goes against the provision of the aforesaid DoPT OM dated 13.04.2010 which was in effect by the time the DSC was convened on 15.10.2010. The DoPT OM dated 13.04.2010 clearly stipulated the communication of below Benchmark grading prior to the reporting period 2008-09 if the same is to be considered by a DPC. It is unreasonable to argue that the said provision would only be applicable for the purpose of promotion. The purpose of communication of the ACR/APAR grading as recorded in Dev Dutt (supra) is fairness and transparency in public administration. The financial upgradation schemes by the government are meant to benefit an employee by saving him from stagnation in career and is granted where promotion is not available even after a lapse of long service period. The various case laws referred to by the applicant as recorded in his submissions also corroborate his stand. Departmental Screening Committees (DSC) assessing fitness for ACP/MACP upgrades must follow the same strict norms, benchmarks, and procedural guidelines as Departmental Promotion Committees (DPC) do for regular promotions. The assessment focuses on fitness based on Annual Confidential Reports (ACRs) and seniority. However, it should also be kept in mind that even if, say, the average grading of year 2005-06 in the Digitally MADHU signed by KUMARI MADHU KUMARI Page 16 of 18 O.A./805/2011 ACR was communicated to the applicant and his gradings were improved after considering his representation, the ACR of the year 2004-05 which contained adverse remarks, which was communicated to the applicant but the remarks were not changed by the authorities even after the representation made by the applicant and it would still be relevant for the DSC's consideration regarding 2nd ACP benefit. Thus, the adverse entry in ACR of the applicant for consideration of this case for ACP would still remain below benchmark and his case would not be fit for grant of 2nd ACP because of the adverse remarks in his ACR for the year 2004-05. The applicant's contention that the person who gave him adverse grades was also a member of DSC is not a sufficient reason to question the decision of the DSC since it is not an odd situation that a member of the DSC can also be a reporting authority of an employee under consideration by it. Thus, it would only be a futile exercise to remand the matter for afresh consideration by communicating the below benchmark ACRs under consideration to the applicant or even review his case by ignoring it since the adverse entry in ACR of the year 2004-05 would still be relevant and applicable in the case of the applicant for his eligibility for the 2nd ACP.
20. The applicant has already been granted career progression as second and third MACP in the next grade pay when he became eligible. There are cases where grant of benefit under ACP was more beneficial to the employee than MACP, nevertheless, when the applicant became eligible by fulfilling the prescribed conditions for the grant of financial upgradation, he was covered under MACP scheme and rightly the benefits have been granted to him accordingly as this is not a case of delay where the ACP was to be granted from a back date, but a case of want of eligibility for grant of ACP, where current scheme would be applicable as on date of fulfilling the prescribed conditions.
21. In view of above, the relief sought by the applicant in this case cannot be granted to him and the O.A. is liable to be dismissed as Digitally MADHU signed by KUMARI MADHU KUMARI Page 17 of 18 O.A./805/2011 such. Accordingly, the O.A. stands dismissed. All associated Miscellaneous Applications also stand disposed of. No costs.
(Mohan Pyare) ( Justice Om Prakash VII)
Member (A) Member (J)
Madhu
Digitally
MADHU signed by
KUMARI MADHU
KUMARI
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