Central Administrative Tribunal - Delhi
Kripal Singh vs Cpwd on 29 May, 2024
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Item No.28/C-1 OA No. 2421/2019
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No. 2421/2019
Reserved on : 14.05.2024
Pronounced on : 29.05.2024
Hon'ble Mr. Justice Ranjit More, Chairman
Hon'ble Dr. Anand S. Khati, Member (A)
Kripal Singh
Aged 61 years, Group 'A'
Executive Engineer (Retd.)
H.No. 386/13, D-32
Gali No.26, 27, Molarband Extn.
Badar Pur, Delhi-110044.
.. Applicant
(By Advocate: Mr. Om Prakash)
Versus
1. The Secretary
Min. of Housing and Urban Affairs
Nirman Bhawan
New Delhi-110011.
2. The Director General
CPWD
Nirman Bhawan
New Delhi-110011.
3. The Superintending Engineer
South-East (M), PWD
Sukhdev Vihar, Mathura Road
New Delhi-110025.
.. Respondents
(By Advocate : Mr. R.K. Sharma)
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Item No.28/C-1 OA No. 2421/2019
ORDER
Per Dr. Anand S. Khati, Member(A) The applicant, who retired as Executive Engineer from CPWD, has filed the instant O.A. challenging the order dated 09.01.2019, whereby he has been granted 3rd financial upgradation under MACP Scheme w.e.f. 01.04.2016 instead from the due date, i.e. 09.08.2011. By way of this O.A., the applicant has prayed for the following reliefs:
"A. To quash and set aside the impugned orders dt. 9th January 2019 of the respondent, whereby the MACP has arbitrarily been granted w.e.f. 01.04.2016, only to the extent of the date of effect of MACP.
B. To direct the respondents to conduct the review DPC or modify the date of effect of MACP and grant the 3rd (financial upgradation) MACP w.e.f. from 09.08.2011.
C. To direct the respondents to pay the arrears from 09-08-2011 to 31-03-2016 with all consequential benefits.
D. To direct the respondents to pay the simple interest @ 15% p.a. from the due date to the actual date of payment, on the amount of arrears.
E. The cost of instant petition Rs.50,000/- may kindly be awarded in favour of applicant and against the respondents.
F. Any other and future relief, which this applicant be found, entitled to or this Hon'ble Tribunal deems fit and proper may also be awarded in favour of applicant and against the respondents."3
Item No.28/C-1 OA No. 2421/2019
2. The brief facts in nutshell are that the applicant was appointed as Junior Engineer (Civil) and joined Central Public Works Department (CPWD) on 12.11.1979. Subsequently, he was promoted as Assistant Engineer on 15.07.1991 and granted 1st financial upgradation. After completion of 24 years' service, he was granted 2nd financial upgradation under ACP Scheme w.e.f. 09.08.2005 vide order dated 14.07.2011. Thereafter, the applicant was promoted to the post of Executive Engineer (Civil) on 31.05.2006 and superannuated from that post on 30.11.2018.
3. According to the applicant, the 3rd financial upgradation under MACP Scheme was due to him on 11.11.2009, i.e. after completion of 30 years of service, however, due to dies non period of 635 days, the same was deferred to 09.08.2011. Ultimately, he was granted 3rd financial upgradation w.e.f. 01.04.2016 vide order dated 09.01.2019. The short grievance of the applicant is that he was entitled to 3rd financial upgradation w.e.f. 09.08.2011, nevertheless, the respondents erroneously granted the same w.e.f. 01.04.2016.
4. Per contra, Mr. R.K. Sharma, learned counsel for the respondents did not dispute the main facts of the case. By 4 Item No.28/C-1 OA No. 2421/2019 referring to the counter affidavit, he drew our attention to the service particulars of the applicant, which are as under:
Sl. Particulars Date with
No. effect from
1. Date of Birth 01.12.1958
2. Date of Joining 12.11.1979
3. Due date of 3rd 12.11.2009 After completion of 30
MACP (as per years of service
rule)
4. Actual due date 09.08.2011 Because of 635 days of
of 3rd MACP Dies Non period in his
service.
5. Date of grant of 01.04.2016 Found unfit during
3rd MACP yearly assessment from
2011 to 2015 due to
below benchmark
ACRs/ APARs
The learned counsel submitted that 3rd financial upgradation was due to the applicant w.e.f. 12.11.2009 but the same was deferred to 09.08.2011 due to 635 days of dies non period, however, the same was granted to him w.e.f. 01.04.2016 as he was found 'unfit' during the annual assessment for the years 2011 to 2015, due to below benchmark ACRs/APARs.
5. However, learned counsel for the applicant opposed the submissions made by the respondents' counsel and contended that the ACRs/APARs for the assessment years 2005-06 to 2009-10 were never communicated to the applicant and the same were communicated only on 17.02.2017. Thereafter, the applicant preferred representation 5 Item No.28/C-1 OA No. 2421/2019 dated 27.02.2017 to the Competent Authority to review the below benchmark ACRs/APARs, which was considered by the respondents and the same were upgraded to the required benchmark, as communicated vide letters dated 18.10.2017 and 23.02.2018. The learned counsel further contended that if the applicant had earlier been communicated about the below benchmark assessment in his ACRs/APARs, he would have an opportunity to make representation to upgrade the same in time. He has also placed reliance upon the decision of Hon'ble Supreme Court in Anil Kumar vs Union of India & Ors. in Civil Appeal No.888 of 2019 (Arising out of SLP(C) No. 32073 of 2016) dated 21.01.2019, which has affirmed the correctness of the view taken in Dev Dutt vs Union of India and Others, 2008 (8) SCC 725, and three Judge Bench decision in Sukhdev Singh vs Union of India & Ors. in Civil Appeal No.5892 of 2006 decided on 23.04.2013. The learned counsel for the applicant has also referred to various OMs issued by the DoPT on the subject.
6. Having heard the learned counsel for the respective parties and after perusing the pleadings on record, the only question that arises for consideration is as to whether the applicant is entitled for 3rd financial upgradation w.e.f. 01.04.2016 or from the deferred due date, i.e., 09.08.2011. 6
Item No.28/C-1 OA No. 2421/2019
7. It is the case of the applicant that not even a single advisory/warning had been issued to him for upgrading his performance and, thus, the act of the respondents in non- communicating the below benchmark ACRs/APARs deprived him from an opportunity to improve his performance and to represent to the competent authority for upgradation of the same, and further denial of financial upgradation by the DPC has caused pecuniary loss to him. Moreover, imposing penalty upon him without giving him an opportunity to represent or being heard, is in violation of principles of natural justice and Article 14 of the Constitution of India.
8. However, the stand taken by the respondents is that the case of the applicant was considered by Screening Committee in the meeting held on 25.10.2016 but he was found 'unfit' due to below benchmark ACRs/APARs and, accordingly, he was communicated in this regard with copies of those ACRs/APARs to get the same reviewed. The 3rd financial upgration was not denied to him but only postponed due to his below benchmark ACRs/APARs, which is based on the extant rules.
9. The respondents have clarified that as per DoPT OM dated 14.05.2009, complete APAR (previously known as ACR) including the overall grading and assessment of integrity shall be communicated to the concerned officer for representation, 7 Item No.28/C-1 OA No. 2421/2019 if any, with effect from the reporting period 2008-09. However, prior to that, only adverse remarks in the ACR were required to be communicated for representation, if any. Further, as per OM dated 13.04.2010, if an employee is to be considered for promotion in future DPC and his ACRs prior to 2008-09 which would be reckonable for assessment of his fitness in such future DPCs contain final grading of below 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 representation, if any, within 15 days of such communication.
10. It is further clarified that earlier, as per DoPT OM dated 10.04.1989, the minimum benchmark for promotion upto pay scale of Rs.3700-5000 was 'Good' and 'Very Good' for pay scale of Rs.3700-5000 and above. Similarly, for MACP, as per DoPT OM dated 01.11.2010, the minimum benchmark for upgradation is 'Good' upto Grade Pay of Rs.6600/- and 'Very Good' from Grade Pay Rs.7600/-. Since this is for the first time that the applicant became entitled to Grade Pay of Rs.7600/- by way of 3rd financial upgradation, the below benchmark ACRs below 'Very Good' could be found out during this exercise only. Subsequently, in the Screening Committee meeting held on 24.05.2018, his case was reviewed to find his suitability on yearly basis, i.e. w.e.f. from 09.08.2011 to 8 Item No.28/C-1 OA No. 2421/2019 01.04.2016, but due to his below benchmark ACRs/APARs, which is 'Very Good' for Grade Pay of Rs.7600/-, even after upgradation he was found 'fit' by the Screening Committee only w.e.f. 01.04.2016. The respondents have relied upon the decision in Union of India & Another vs S.K. Goel & Others, 2007 (14) SCC 641, wherein the Hon'ble Supreme Court has observed as under:
".... it is now more or less well settled that the evaluation made by an Expert Committee should not be easily interfered with by the Court which do not have the necessary expertise to undertake the exercise that is necessary for such purpose."
and the same has been concluded as under:
"For the foregoing reasons, we hold that the DPC enjoyed full discretion to devise its method and procedure for objective assessment of suitability and merit of the candidate being considered by it. Hence, the interference by the High Court is not called for. Accordingly, the Civil Appeal stands allowed and the judgment of the High Court is set aside. However, there shall be no order as to costs."
11. As per the legal position on the issue, the Hon'ble Supreme Court in Dev Dutt vs Union of India and Others, 2008 (8) SCC 725, has taken up similar issues and by an elaborate judgment in a comprehensive manner decided that irrespective of the grading, the employees should be given the ACRs in order to represent if they feel like against any of the entries to ensure fairness and transparency in administration. Further, it has also been laid down that non-communication of below benchmark ACR is not only denial of opportunity to the 9 Item No.28/C-1 OA No. 2421/2019 employee but also illegal. The extract of paragraphs 10, 11 and 14 of the judgment read as follows:
"10. In the present case the bench-mark (i.e. the essential requirement) laid down by the authorities for promotion to the post of Superintending Engineer was that the candidate should have 'very good' entry for the last five years. Thus in this situation the 'good' entry in fact is an adverse entry because it eliminates the candidate from being considered for promotion. Thus, nomenclature is not relevant, it is the effect which the entry is having which determines whether it is an adverse entry or not. It is thus the rigours of the entry which is important, not the phraseology. The grant of a 'good' entry is of no satisfaction to the incumbent if it in fact makes him ineligible for promotion or has an adverse effect on his chances.
11. Hence, in our opinion, the 'good' entry should have been communicated to the appellant so as to enable him to make a representation praying that the said entry for the year 1993-94 should be upgraded from 'good' to 'very good'. ...."
xxx xxx xxx xxx xxx
14. In Dev Dutt case (supra) the Honourable Apex Court developing the new principles of natural justice has held that fairness and transparency in public administration requires that all entries (whether poor, fair, average, good or very good) in the Annual Confidential Report of a public servant must be communicated to him within a reasonable period so that he can make a representation for its up gradation. This in the opinion of the Honourable Apex Court is the correct legal position even though there may be no Rule / Government Orders requiring communication of the entry, or even if there is a Rule / Government Order prohibiting it, because the principle of non-arbitrariness in State action as envisaged by Article 14 of the Constitution requires such communication and Article 14 overrides all rules or government orders. The same view was reiterated by the Hon'ble Supreme Court in the case of Abhijit Ghosh Dastidar versus Union of India & Others decided on 22.10.2008 (Civil Appeal No.6227/2008)."
12. The Hon'ble Apex Court has further affirmed the correctness of the view taken in Dev Dutt (supra) and three Judge Bench decision in Sukhdev Singh vs Union of India & Ors. in Civil Appeal No.5892 of 2006 dated 23.04.2013, in 10 Item No.28/C-1 OA No. 2421/2019 Civil Appeal No.888 of 2019 (Arising out of SLP(C) No. 32073 of 2016) dated 21.01.2019 in Anil Kumar (supra), wherein it has been held thus:
"In our opinion, every entry in the A.C.R. of a public servant must be communicated to him within a reasonable period, whether it is a poor, fair, average, good or very good entry. This is because non- communication of such an entry may adversely affect the employee in two ways : (1) Had the entry been communicated to him he would know about the assessment of his work and conduct by his superiors, which would enable him to improve his work in future (2) He would have an opportunity of making a representation against the entry if he feels it is unjustified, and pray for its upgradation. Hence non-
communication of an entry is arbitrary, and it has been held by the Constitution Bench decision of this Court in Maneka Gandhi vs. Union of India (supra) that arbitrariness violates Article 14 of the Constitution." and the Hon'ble Supreme Court concluded thus:
"We also direct that in the event that the ACRs for the relevant period are upgraded the case of the applicant for promotion to the post Senior Deputy Secretary/Controller of Administration shall be considered afresh by the Departmental Promotion Committee expeditiously. This exercise shall be carried out with reference to the date on which his junior in service came to be promoted.
In the event that the case of the appellant is considered favourably, he would be entitled to all consequential benefits which flow from the financial upgradation and upon the grant of regular promotion to the post of Senior Deputy Secretary."
13. Similarly, in Civil Appeal No.2021 of 2022 titled Union of India and Ors. vs G.R. Meghwal filed by the respondents - Union of India challenging the judgment of the Hon'ble High Court of judicature for Rajasthan at Jaipur in DBCWP No. 740 of 2016, by which the High Court has 11 Item No.28/C-1 OA No. 2421/2019 dismissed the writ petition preferred by the appellants vide Judgment dated 23.09.2022 and confirmed the judgment and order passed by the Tribunal allowing the O.A. No. 430 of 2011, the Hon'ble Supreme Court has observed as under:
"6. In the present case, the learned Tribunal as well as the High Court have directed the department to review the case of the respondent by ignoring the below benchmark of "Good" in the year 2007-2008 mainly on the following grounds:- (i) that in the earlier years, the very reporting officer/reviewing authority awarded "Very Good" for the years 2005-2006 and 2006-2007 and the very reporting officer/reviewing authority has given below benchmark "Good" for the year 2007-2008 and therefore the same is arbitrary and there is no basis to award the below benchmark - "Good"; (ii) that before the below benchmark ACR "Good" for the year 2007-2008, no opportunity was given to the respondent officer to improve himself and no deficiency was pointed out; and (iii) that no opportunity was given to the respondent officer to make representation against the proposed below benchmark ACR of the year 2007-2008. While giving the aforesaid findings and while arriving at the aforesaid final conclusion, the Tribunal as well as the High Court have heavily relied upon the decisions of this Court in the case of Sukhdeo (supra); Dev Dutt (supra); Abhijit Ghosh Dastidar (supra) and Sukhdev Singh (supra). However, on considering the aforesaid decisions, it emerges that in the aforesaid cases, the adverse ACRs either were not communicated at all and/or on facts found to be inconsistent and suffering from lack of bona fides."
Finally, the Hon'ble Apex Court dismissed the appeal as under:
"10. Therefore, in view of the above and in the facts and circumstances of the case and considering the fact that though the respondent was graded as "Very Good" in the ACRs for the years 2005-2006 and 2006- 2007 and was graded only "Good" in the ACR for the year 2007-2008 by the very same reporting and reviewing officer, despite the fact that specifically the respondent was given the opportunity against the ACR for the year 2007-2008. However, no valid reasons are given for rejecting the representation, we are of the opinion that in view of the aforesaid facts and circumstances, the learned Tribunal and the High Court have not committed any error in directing 12 Item No.28/C-1 OA No. 2421/2019 the Department to call for a review meeting of the Screening Committee to re-assess the suitability of the respondent for the purpose of grant of SAG and while doing so to exclude the ACR for the year 2007-2008. Therefore, in the facts and circumstances of the case, no interference of this Court is called for."
14. From a perusal of the assessment sheet enclosed along with the counter affidavit, which was considered by the Screening Committee in the meeting held on 24.05.2018 to assess the suitability of the applicant for grant of 3rd financial upgradation under MACP Scheme on the date of completion of 30 years' service (including dies non period of 635 days), i.e. on 08.08.2011, his grading of ACRs for the last 5 years, were as under:
2005-2006 2006-2007 2007-2008 2008-2009 2009-2010 01.04.05 to NA (NA) 01.04.08 to Unsatisfactory 31.05.05 24.10.08 (NA) (NA) ...... ....... (Upgraded as 25.10.08 to 'Good' by E-in-
01.06.05 to 01.04.02 to 2003-2004 31.03.09 Good Chief PWD) 31.03.06 31.07.02 (VG) Good Average .......
01.08.02 to
(Upgraded 31.12.02 2004-2005
as VG by E- Good (VG)
in-Chief 01.01.03 to
PWD 31.03.03
(VG)
However, the Screening Committee has declared the applicant 'Unfit', whereas he fulfilled the requirement of 2.5 years 'Very Good' benchmark ACRs/APARs out of preceding 5 years and, thus, ought to have been declared 'Fit'.
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Item No.28/C-1 OA No. 2421/2019
15. In normal practice, when adverse remark or below benchmark grading or downgraded ACR is communicated to an officer who has received such remarks in his ACR, he submits a representation against such remarks to the competent authority for upgradation. In the present case, the below benchmark ACRs/APARs were communicated to the applicant on 17.02.2017 and he represented to the Competent Authority for upgradation of the same on 27.02.2017, which was judiciously considered by the Competent Authority and upgraded the same. Therefore, we are of the considered opinion that had the applicant been earlier communicated about the below benchmark assessment in his ACRs/APARs, he would have made representation to upgrade the same timely and thus got entitled for 3rd MACP w.e.f. 09.08.2011.
16. Accordingly, taking into account the facts and circumstances of the case and the settled legal position on the issue, we come to the considered conclusion that the respondents have erred in denial of 3rd financial upgradation to the applicant w.e.f. 09.08.2011, as having not been communicated earlier the below benchmark ACRs/APARs, he has not been provided an opportunity to represent against the same and the same were communicated later on when Reporting and Reviewing Officers have retired, which is in violation of principles of natural justice. In the normal course, 14 Item No.28/C-1 OA No. 2421/2019 the case of the applicant for 3rd financial upgradation under MACP should have been considered in the year 2011 and, thus, the action of the respondents has caused prejudice to the applicant.
17. Resultantly, the O.A. is allowed in the following manner:
(a) The applicant is entitled for grant of 3rd financial upgradation under MACP Scheme w.e.f. 09.08.2011, instead of 01.04.2016;
(b) The respondents are directed to pass appropriate orders allowing 3rd financial upgradation to the applicant w.e.f. 09.08.2011; and
(c) The applicant shall be entitled to arrears for the period from 09.08.2011 to 31.03.2016, with all consequential benefits.
However, we are not passing any orders for payment of interest on such arrears become due. This exercise shall be completed by the respondents within a period of three months from the date of receipt of a certified copy of this order. In the facts and circumstances, there shall be no order as to costs.
(Dr. Anand S. Khati) (Justice Ranjit More)
Member (A) Chairman
/jyoti/