Central Administrative Tribunal - Jabalpur
I.L. Joshi vs Union Of India on 4 September, 2013
RESERVED CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH, JABALPUR ORIGINAL APPLICATION No. 594 of 2011 Jabalpur, this , the day of , 2013 HONBLE MR. JUSTICE DHIRENDRA MISHRA, JUDICIAL MEMBER HONBLE MR.G.P.SINGHAL, ADMINISTRATIVE MEMBER I.L. Joshi S/o Shri Deshraj Joshi, Aged about 56 years Dy. Chief Engineer, Security Paper Mill Hoshangabad (MP), R/o D-3, Phase I, SPM Colony, Hoshangabad (MP) 461001 - Applicant (By Advocate Shri Swpnil Ganguly) V e r s u s 1. Union of India, Through Its Secretary, Ministry of Finance Dept. of Economic Affairs, North Block Central Secretariat, New Delhi 110001 2.Director General, Dte. of Currency Dept. of Economic Affairs, North Block Central Secretariat, New Delhi 110001 Thorugh its Secretary 3.Secretary, Dept. of Personnel & Training IIIrd Floor, Lok Nayak Bhawan, Khan Market New Delhi 110 003 (Responsible for Maintaining Central Surplus Cell) - Respondents (By Advocate Shri S.K. Mishra) (Date of reserving the order : 01.08.2013) ORDER
By G.P.Singhal,AM.-
The applicant in this OA, has prayed for the following reliefs:
i) Call for the entire material record pertaining to the instant controversy from the respondents for its kind perusal.
ii) Quash and set aside impugned order ANN-A/1 dated 24.09.2010;
iii) Direct the respondent authorities to grant and consider the case of applicant for grant of first and second MACPS benefits along with all consequential benefits of pay, perks and benefits along with appropriate rate of interest thereon;
iv) Grant any other relief/s, which this Honble Tribunal deems fit and proper in the facts and circumstances o the case to the applicant.
v) Award the cost of the instant lis to applicant.
2 The applicant submitted that, he was working as Deputy Chief Engineer in Security Paper Mills, Hoshangabad. After formation of Security Paper mill as a Corporation, since the applicant has not given his option for merger in the Corporation, his name is maintained by the Respondent No.3 in the Surplus Cell for merger/ allocation in the suitable post in the Central Government. Therefore, Applicants case is maintainable in this Tribunal.
3. The brief facts of the case are that the applicant was initially appointed as Assistant Engineer (Boiler) on 10.10.1984, in the pay scale of Rs.650-1200 (III Pay Commission scale), in the Security Paper Mill, Hoshangabad. Thereafter, he was posted as Operation Engineer (Utility) in the pay scale of Rs.3000-4500 vide order dated 25.5.1989 (Annexure A-3). The aforesaid post was later re-designated as Deputy Chief Engineer and the applicant is working on this post till now. The applicants contention is that thus he has not been given any promotion and therefore, deserves to be granted first and second financial upgradation in the modified Assured Career Progression (MACP) Scheme, which provides for grant of financial upgradation at the intervals of 10,20,30 years of continuous and regular service. The applicant submitted representations / reminders in this regard (Annexure A-5), and in response, he has been communicated vide impugned order dated 24.5.2010 (Annexure A-1) by the respondents that the case of applicant for grant of second financial upgradation under MACPS was considered, wherein he was not found fit and, thus he has been denied upgradation.
4 The applicant submitted that he has not been considered for grant of first MACPS even though he has never been given any promotion till now. In regard to his rejection by the respondents for second upgradation, the applicant submitted that at no point of time, he was communicated with any adverse remarks. Hence, his rejection on the ground of being unfit for upgradation is not maintainable. The applicants contention is that, if any of his ACRs were below bench mark, these were to be considered as adverse and communicated to him before consideration. (Reliance placed on the judgments of Honble Apex Court in the case of Dev Dutt Vs. Union of India, 2008 (8) SCC 725 and, Abhijit Gosh Dastidhar vs. Union of India, Civil Appeal No.26556/2004).
5 The respondents, in their reply, submitted that the applicant was promoted as Operation Engineer, initially on adhoc basis, and thereafter, on regular basis, and this fact has not been disclosed by him. Thus, he is only entitled for consideration in regard to second financial upgradation. Since, none of his ACRs had adverse remarks, these were not communicated to him. The grading of good in his ACRs was not to be treated as adverse. The communication of all ACRs is being done by the respondents in compliance of decision of Government, which was consequent upon the judgment of Honble Apex Court, and this is applicable after the ACR of 2008-09 on wards only.
6. The applicant, filed rejoinder to the reply, stating therein that, he was appointed on the post of Operation Engineer (Utility) and not promoted as is being claimed by the respondents. In this regard, the order dated 25.5.1989 (Annexure A-3) clearly mentions that, the applicant has been appointed as Operation Engineer (Utility). No where this order shows that it was a promotion. Therefore, he is entitled to get both the first and second financial upgradations.
7 In regard to contention of the respondents, that the applicant has not been granted benefits of second ACP, as his ACRs were found to be below Bench mark, the applicant submitted that, in the light of law laid down by the Apex Court in the case of Dev Dutt (Supra) any ACR which is below bench mark, is to considered adverse, and if it has not been communicated, it should be ignored by the respondents. Thus, the applicant deserves to get financial upgradation as no adverse ACRs were ever communicated to him during the relevant period.
8 We have heard the learned counsel for the parties and perused the pleadings and documents annexed therewith.
9 In this OA, the applicant is seeking grant of first as well as second financial upgradations under the MACP scheme. He has claimed that, he has never been given any promotion in his entire service period and therefore, he is entitled to get first as well as second financial upgradation. However, the respondents have submitted in their reply, that the applicant was promoted as Operation Engineer (Utility) in 1989 and thus he is only entitled for consideration for second financial upgrdation. As against this, the applicant claims that, by order dated 24.5.1989 (Annexure A-3), he was appointed on the post of Operation Engineer (Utility), and not promoted. Therefore he deserves two financial upgradations.
10 On perusal of MACP scheme (Annexure A-4), we find that it is for the first time that ACP scheme has been made applicable to Group-A services, only excluding organized Group-A service from it. Thus, the applicant has become entitled for consideration for financial upgradation under MACP scheme w.e.f. 01.09.2008. It is provided in para 22 of Annexure-1 of the scheme that Group-A Government employees shall be granted second or third financial upgradation directly by fixing their pay successively in the next 3/2 immediate higher grade pays in the hierarchy of revised Pay Bands and Grade Pays allowing the benefit of 3% pay fixation at every stage. Thus, the applicant was rightly considered for second financial upgradation.
11. On the issue of rejection of his claim for second financial upgradation, on account of Screening Committee finding him unfit for such upgradation, we find that the applicant has been found unfit on the basis of his ACRs, which were considered to be below bench mark, by the Screening Committee. However, the applicant claims that he was never communicated about any of his ACRs.
12 In the case of Dev Dutt (supra), the Principle laid by the Honble Supreme Court, is that, if any annual confidential report has the effect of denying the benefits of promotion or other service benefits, the same has to be communicated and consideration of such ACR can be considered only after communication. It is held by the Honble Supreme Court in the aforesaid case, that all such ACRs, which affect the service benefits on an employee are deemed adverse and warrant communication. The applicant in this case, has been denied benefit of upgradation only because some of his ACR gradings were below bench mark. Thus these gradings require communication before consideration by the Screening Committee.
13 In view of the above, we direct the respondents to communicate all such ACRs of the applicant which are below bench mark i.e. very good, within a period of one month from the date of communication of this order. On such communication, the applicant may submit his representation to the competent authority of the respondents within a period of one month and these representations shall be decided by the said competent authority within a further period of one month. Thereafter, the matter shall be placed again before the Screening Committee, to consider and decide the case in regard to second financial upgradation, within a period of 2 months. If the applicant is found fit for upgradation, the same shall be granted to him, with all consequential benefits within a period of one month from the date of order in this regard.
14 Thus, the OA is partly allowed with no order as to costs.
(G.P.Singhal) (Dhirendra Mishra) Administrative Member Judicial Member sk ??
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