Kerala High Court
Union Of India vs K. Madhusoodhanan on 20 June, 2014
Author: Anil K. Narendran
Bench: C.T.Ravikumar, Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
TUESDAY, THE 14TH DAY OF MARCH 2017/23RD PHALGUNA, 1938
OP (CAT).No. 149 of 2014 (Z)
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AGAINST THE ORDER IN OA 913/2012 of CENTRAL ADMINISTRATIVE
TRIBUNAL,ERNAKULAM BENCH DATED 20.6.2014
PETITIONER(S)/RESPONDENTS IN OA:
------------------------------------------
1. UNION OF INDIA
REP. BY THE SECRETARY TO GOVERNMENT OF INDIA,
DEPARTMENT OF POSTS, DAK BHAWAN,NEW DELHI-110001
2. THE CHIEF POST MASTER GENERAL
KERALA CIRCLE, TRIVANDRUM-695033
3. THE POST MASTER GENERAL , NORTHERN REGION
KERALA CIRCLE, KOZHIKODE- 673011
4. THE SUPERINTENDENT OF POST OFFICES
KASARAGOD DIVISION, KASARAGOD-671121
BY ADVS.SRI.THOMAS MATHEW NELLIMOOTTIL, SR.PANEL
BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
RESPONDENT(S)/APPLICANTS IN THE O.A.:
-----------------------------------------------
K. MADHUSOODHANAN
S/O.LATE GANGADHARAN NAIR K. V,
SAVINGS BANK CONTROL ORAGNIZATION,
KASARAGOD HEAD POST OFFICE, PODAVOOR P. O,
CHERUVATHUR (VIA), PIN-671313
BY ADV. SRI.MARTIN G.THOTTAN
BY ADV. SRI.R.JAGADA BAI
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 14-03-2017, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
OP (CAT).No. 149 of 2014 (Z)
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APPENDIX
PETITIONER(S)' EXHIBITS
-----------------------
P1:-TRUE COPY OF OA 913 OF 2012.
P2:-TRUE COPY OF REPLY STATEMENT DTD. 8/2/2013 IN OA 913/2012.
P3:-TRUE COPY OF THE REJOINDER FILED BY THE RESPONDENTS IN OA 913 OF
2012.
P4:-TRUE COPY OF THE ADDITIONAL REPLY DTD. 11/3/2013 IN OA 913/2012.
P5:-ORDER DTD 20/6/2014 OF CAT ERNAKULAM IN OA 913/2012.
RESPONDENT(S)' EXHIBITS:NIL
----------------------------
//TRUE COPY//
P.A. TO JUDGE
"CR"
C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ.
==========================
O.P. (CAT). No.149 of 2014
==========================
Dated this the 14th day of March, 2017
JUDGMENT
Anil K. Narendran, J.
This original petition arises out of Ext.P5 order passed by the Central Administrative Tribunal, Ernakulam Bench in O.A.No.913 of 2012. The respondent herein, who was working as Postal Assistant in the Savings Bank Organisation at the Head Post Office, Kanhangad filed the said O.A. seeking for an order to quash Annexure A3 order dated 25.7.2012 by which his request to review the entry in his Annual Confidential Report (for brevity, 'ACR') for the year 2007-08 was rejected. The respondent herein has also sought for a declaration that the assessment in his Confidential Report for the period from 1.4.2007 to 31.3.2008 once considered for 2nd financial upgradation under the Modified Assured Career Progression should not be a bar for his further promotions.
2. The reliefs sought for in the O.A. were opposed by the petitioners herein by filing Ext.P2 reply statement. The respondent herein filed Ext.P3 rejoinder, which was followed by Ext.P4 additional reply by the petitioners.
3. After considering the rival contentions, the Tribunal by Ext.P5 O.P.(CAT)No.149/2014 2 order dated 20.6.2014 allowed the O.A. holding that Annexure A3 order dated 25.7.2012 rejecting the representation of the respondent herein to upgrade the assessment in his ACR for the year 2007-08 from 'average' to 'good' shall not come in his way for promotion to the cadre of Lower Selection Grade (for brevity, 'LSG'). Accordingly, the petitioners herein were directed to adopt a proper methodology for considering the respondent herein for promotion to the cadre of LSG from the date on which his junior has been promoted, with all consequential benefits, within a period of two months from the date of receipt of a copy of the order. Feeling aggrieved by Ext.P5 order of the Tribunal, the petitioners herein are before this Court in this O.A.
4. We heard the arguments of learned Assistant Solicitor General of India for the petitioners/respondents in the O.A. and also learned counsel for the respondent/applicant.
5. The applicant, while working as Postal Assistant in the Savings Bank Organisation at the Head Post Office, Kanhangad was served with a copy of his Confidential Record for the period from 1.4.2007 to 31.3.2008, vide Annexure A1 communication dated 23.4.2012 of the Superintendent of Post Offices, Kasaragod Division, the 4th petitioner herein, wherein the overall assessment was recorded as 'average'. By Annexure A1 the applicant was asked to submit representation, if any, against such O.P.(CAT)No.149/2014 3 assessment, to the Chief Post Master General, Kerala Circle, the 2nd petitioner herein, through the 4th petitioner herein. The applicant submitted Annexure A2 representation dated 24.4.2012, which was rejected by Annexure A3 order dated 25.7.2012, stating that in Annexure A2 representation he has not furnished any academic/ professional achievements made by him or any important items of work or targets completed, to substantiate his claim for upgrading the ACR. Therefore, it was found that the overall assessment made by the 4th petitioner herein was with due care and attention and after taking into account all relevant materials. In such circumstances, Annexure A2 representation was rejected by Annexure A3 order stating that the applicant could not make out a case to change the entries recorded by the Reporting Officer in his ACR for the year 2007-08.
6. The Central Government, vide Annexure A4 Office Memorandum dated 19.5.2009, introduced the Modified Assured Career Progression Scheme (for brevity, 'MACP Scheme') applicable to all regularly appointed Group 'A', 'B', and 'C' Central Government Civilian Employees except officers of the Organised Group 'A' Service, with effect from 1.9.2008, in supersession of the previous Assured Career Progression Scheme (for brevity, 'ACP Scheme') and the clarifications issued thereunder. The details of the MACP Scheme and the conditions for O.P.(CAT)No.149/2014 4 grant of financial upgradation are given in Annexure-l to that OM. Para.1 of the Scheme provides for three financial upgradations, counted from the direct entry grade, on completion of 10, 20 and 30 years' service respectively. Such financial upgradation will be admissible whenever an employee has spent 10 years continuously in the same Grade Pay.
6.1. Annexure-I to OM dated 19.5.2000 makes it clear that, the MACP Scheme envisages merely placement in the immediate next higher Grade Pay in the hierarchy of the recommended revised Pay Bands and Grade Pay, as given in Section 1, Part-A of the First Schedule of the Central Civil Services (Revised Pay) Rules, 2008. The benefit of pay fixation available at the time of regular promotion shall also be allowed at the time of financial upgradation under the Scheme. There shall be no further fixation of pay at the time of regular promotion, if it is in the same Grade Pay as granted under the MACP Scheme. On grant of financial upgradation under the Scheme, there shall be no change in the designation, classification or higher status.
6.2. Para.17 of the MACP Scheme provides that, financial upgradation would be on non-functional basis, subject to fitness in the hierarchy of Grade Pay within the Pay Band-1 (for brevity, 'PB-1'). Thereafter, for upgradation under the Scheme the benchmark of 'good' would be applicable till the Grade Pay of 6,600/- in PB-3. The benchmark O.P.(CAT)No.149/2014 5 will be 'very good' for financial upgradation to the Grade Pay of 7,600/- and above. Para.19 of the Scheme makes it clear that, the MACP Scheme contemplates merely placement on personal basis in the immediate higher Grade Pay/grant of financial benefits only and shall not amount to actual/functional promotion of the employees concerned. Para.20 of the Scheme makes it explicitly clear that, financial upgradation under the MACP Scheme shall be purely personal to the employee and shall have no relevance to his seniority position.
6.3. At the time of introduction of the MACP Scheme vide Annexure A4 OM, the Department of Posts had its own scheme of Time Bound One Promotion (for brevity, 'TBOP') introduced with effect from 30.11.1983 and Biennial Cadre Review (for brevity, 'BCR') introduced with effect from 1.10.1991, for its employees. Based on the consent given by the Postal Federations, the MACP Scheme has been introduced in the Department of Posts for employees other than drivers. For drivers it has been decided to continue the existing structured promotion scheme, as the said scheme was considered beneficial to them. A detailed guidelines on implementation of the MACP Scheme were communicated vide OM No.4- 7/(MACPS)/2009-PCC dated 18.9.2009. Accordingly, the MACP Scheme has been given effect to from 1.9.2008 and the earlier schemes of TBOP and BCR were dispensed with.
O.P.(CAT)No.149/2014 6
6.4. After introduction of the MACP Scheme in the Department of Posts, many references have been received in the Directorate that, some officials are not getting the benefit of the said Scheme since Confidential Reports are not written keeping in view the prescribed benchmark and that, there has been no such prescribed benchmarks for considering the cases of financial upgradation under TBOP/BCR. The matter was taken up with the Department of Personnel and Training (for brevity, 'DoPT') and the Nodal Department has clarified that the requirement of fulfillment of prescribed benchmark would be mandatory as mentioned in Para.17 of Annexure-I. In view of the said clarification, vide Directorate letter No.4- 7/(MACPS)/2009-PCC dated 1.9.2010, it was made clear that the benchmarks prescribed by DoPT need to be scrupulously adhered to and financial upgradations under the MACP Scheme are to be considered on the basis of performance of the officials after considering their Confidential Reports for five years. The matter regarding grading of ACR's for the purpose of conferment of financial upgradation under the MACP Scheme has, therefore, been examined and the competent authority vide letter dated 1.9.2010 has ordered constitution of a Scrutiny Committee at Divisional Level for scrutinising the Confidential Reports of Postman, Postal Assistants/Sorting Assistants for the preceding five years on the basis of the entries made by the Reporting Officer and to grade the performance O.P.(CAT)No.149/2014 7 as 'average', 'good', 'very good', etc. The findings of the Scrutiny Committee have to be placed before the concerned Director of Postal Services/Postmaster General, who will be the Accepting Authority.
6.5. In order to make the purpose of constitution of the Scrutiny Committee clear to all concerned, the Directorate vide Annexure A5 letter dated 30.6.2011 has clarified that, the process of communication of Annual Performance Appraisal Reports (for brevity, 'APARs') [earlier ACRs] for regular promotion is equally applicable for consideration of financial ugradation under the MACP Scheme. As per the existing provisions, complete APAR is required to be communicated to the official concerned from the reporting year 2008-09 onwards. Where an employee is to be considered for promotion in a future Departmental Promotion Committee (for brevity, 'DPC') and his ACRs prior to reporting year 2008-09 reckonable for assessment of his fitness in such future DPC contain final grading which are below the benchmark for next promotion, the concerned employee is to be given an opportunity to represent within 15 days of its communication, before such ACRs are placed before DPC. Keeping in view the practice of writing ACRs in the Department, the Scrutiny Committee has to scrutinise the grading based on the entries in the ACRs, where there was no adverse entry, exclusively for the purpose of grant of financial upgradation under the MACP Scheme. In other cases, O.P.(CAT)No.149/2014 8 where there was an adverse entry in the ACRs prior to reporting year 2008-09, the process of communication of the same has to be applied and the representation decided in accordance with the existing provisions. The clarification given in Annexure A5 letter on issue No.3 reads thus;
Sl.No. Issue Clarification
3 Whether the Scrutiny Scrutiny Committee was required
Committee has to to reassess the entries of the
carry out the scrutiny/ preceding 5 years ACRs prior to grading of all the the reporting period 2008-09 in officials or has to carry respect of all the officials covered out the grading of only by the orders in the light of the those officials who are new system of communicating the due for MACP during entries in the APAR effective from the year? reporting period 2008-09 initiated after 1.4.2009.
6.6. The Directorate, vide Annexure A5 letter dated 30.6.2011, directed all concerned to ensure that, where Screening Committees have not already met and completed the exercise, the same may be got completed within one month and a Division-wise compliance on the completion of this exercise shall be sent to the Directorate by 31.7.2011. In cases where the exercise has already been completed and the officials have not been benefitted by the above, despite the fact that there was no adverse entry in the ACRs scrutinised, the process of communication of ACRs may at once be initiated and representations called for within 15 days of such communication and such representations shall be decided by the officer superior to the Reporting Officer/Reviewing Officer. Thereafter, O.P.(CAT)No.149/2014 9 Screening Committee may be constituted for consideration of grant of financial upgradation under the MACP Scheme, wherever justified, and status thereof may also be reflected separately for each Division in the report to be submitted by 31.7.2011.
7. As per the instructions on DPCs and related matters, contained in DoPT OM No.22011/5/86-Estt.(D) dated 10.3.1989 and OM No.22011/5/86-Estt.(D) dated 10.4.1989 (as amended by OM No.22011/5/91-Estt.(D) dated 27.3.1997), in promotions upto and excluding the level in the pay scale of 12,000-16,500 (excepting promotions to Group 'A' posts/services from the lower group), if the mode happens to be 'selection-cum-seniority', then the benchmark prescribed is 'good' and officers obtaining the said benchmark are arranged in the select panel in the order of their seniority in the lower (feeder) grade. Thus, there is no supersession among those who meet the said benchmark. Officers getting a grading lower than the prescribed benchmark ('good') are not empanelled for promotion. However, in the case of promotions from lower Groups to Group 'A', while the mode of promotion happens to be 'selection by merit', the benchmark prescribed is 'good' and only those officers who obtain the said benchmark are promoted in the order of merit as per grading obtained. Thus, officers getting a superior grading supersede those getting lower grading. In other O.P.(CAT)No.149/2014 10 words, an officer graded as 'outstanding' supersedes those graded as 'very good' and an officer graded as 'very good' supersedes officers graded as 'good'. Officers obtaining the same grading are arranged in the select panel in the order of their seniority in the lower grade. Those who get a grading lower than the prescribed benchmark ('good') are not empanelled for promotion. Similarly, in promotion to the level in the pay scale of 12,000-16,500 and above, while the mode of promotion is 'selection-cum-merit', the benchmark prescribed is 'very good' and only those officers who obtain the said benchmark are promoted in the order of merit as per the grading obtained, and officers getting superior grading supersede those getting lower grading as explained above. Officers getting same grading are arranged in the select panel in the order of their seniority in the lower grade. Those who get a grading lower than the prescribed benchmark ('very good') are not empanelled for promotion.
7.1. The above mentioned guidelines which permit supersession in 'selection' promotion (selection by merit) have been reviewed by the Central Government and it has been decided that, there should be no supersession in the matter of 'selection' (merit) promotion at any level. In keeping with the said decision, DoPT vide OM F.No.35034/7/97-Estt.(D) dated 8.2.2002 issued revised guidelines as to the procedure to be observed by DPCs while preparation of panel. Para.3.1 of the revised O.P.(CAT)No.149/2014 11 guidelines provides that, in the case of 'selection' (merit) promotion, the existing distinction in the nomenclature ('selection by merit' and 'selection-cum-seniority') shall be dispensed with and the mode of promotion in all such cases shall be rechristened as 'selection' only. The element of selectivity (higher or lower) shall be determined with reference to the relevant benchmark ('very good' or 'good') prescribed for promotion. Para.3.2 of the revised guidelines provides further that, the DPC shall determine the merit of those being assessed for promotion with reference to the prescribed benchmark and accordingly grade the officers as 'fit' or 'unfit' only. Only those who are graded 'fit' (i.e., who meet the prescribed benchmark) by the DPC shall be included and arranged in the select panel in the order of their inter-se seniority in the feeder grade. Those officers who are graded 'unfit' (in terms of the prescribed benchmark) by the DPC shall not be included in the select panel. Thus, there shall be no supersession in promotion among those who are graded 'fit' (in terms of the prescribed benchmark) by the DPC.
7.2. Para.3.4 of the revised guidelines, which deals with promotion to grades below the revised pay scale (grade) of 12,000-16,500 (including promotions from lower groups to Group 'A' posts/grades/services) provides that, the mode of promotion, as indicated in Para. 3.1, shall be 'selection' and the benchmark for promotion shall O.P.(CAT)No.149/2014 12 continue to be 'good'. The DPC shall, for promotion to posts/grades/ services in the aforesaid categories, grade officers as 'fit' or 'unfit' only with reference to the benchmark of 'good'. Only those who are graded as 'fit' shall be included in the select panel prepared by the DPC, in the order of their inter-se seniority in the feeder grade. Thus, there shall be no supersession in promotion among those who are found 'fit' by the DPC in terms of the prescribed benchmark of 'good'.
7.3. Vide Para.6 of DoPT OM dated 8.2.2002, the Ministries/ Departments were requested to take immediate steps to amend the Service Rules/Recruitment Rules of various services/posts/grades so as to appropriately incorporate the mode of promotion as 'selection' in place of 'selection by merit' and 'selection-cum-seniority', as the case may be. The powers to amend Service Rules/Recruitment Rules in this regard were delegated to the Ministries/Departments and it was made clear that, DoPT need not be consulted to carry out the required amendments. However, the Ministries/Departments failed to initiate action to amend the Service Rules/Recruitment Rules, in terms of DoPT OM dated 8.2.2002, and the Union Public Service Commission (for brevity, 'UPSC') was requested to hold DPCs in accordance with the existing Service Rules/Recruitment Rules, which provide for supersession. Therefore, the UPSC has decided that any proposal for DPC which is received and is found to be against the O.P.(CAT)No.149/2014 13 revised policy instructions, will be returned to the Ministries/ Departments and that, a proposal would be considered only when the relevant Service Rules/Recruitment Rules are amended as envisaged in DoPT OM dated 8.2.2002. In view of the above, DoPT vide OM No.35034/7/97-Estt.(D) dated 16.2.2005 requested all the Ministries/ Departments to ensure that they review all Recruitment/Service Rules and carry out amendments in conformity with the decision contained in DoPT OM dated 8.2.2002, through a time bound exercise.
7.4. As per the provisions under the Department of Posts (Lower Selection Grade in Savings Bank Control Organisations/Internal Check Organisation, Central Pairing Unit) Recruitment Rules, 1986 the mode of promotion to the post of Lower Selection Grade in Savings Bank Control Organisations/Internal Check Organisation, Central Pairing Unit was 33 1/3 percent by selection and 66 2/3 percent by non-selection. In supersession of the said recruitment rules and also the Indian Posts and Telegraphs (Selection Grade Posts) Recruitment Rules, 1976 the Government made the Department of Posts (Lower Selection Grade Posts) Recruitment Rules, 2011, which came into force on 2.2.2011. As per the Recruitment Rules of 2011, the mode of promotion to the post of Lower Selection Grade in Savings Bank Control Organisation shall be 'selection'. Promotion shall be made from Postal Assistants working in the Savings O.P.(CAT)No.149/2014 14 Bank Control Organisation in PB-1 of 5,200-20,200 + Grade Pay 2,400/- with five years of regular service in the grades.
8. In Dev Dutt v. Union of India [(2008) 8 SCC 725] the Apex Court held that, every entry in the ACR 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; (i) 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; (ii) 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 as held by the Constitution Bench in Maneka Gandhi v. Union of India [(1978) 1 SCC 248] arbitrariness violates Article 14 of the Constitution. Thus, it is not only when there is a benchmark but in all cases that an entry (whether it is 'poor', 'fair', 'average', 'good' or 'very good') must be communicated to a public servant, otherwise there is violation of the principle of fairness, which is the soul of natural justice. Even an outstanding entry should be communicated since that would boost the morale of the employee and make him work harder.
O.P.(CAT)No.149/2014 15
8.1. Prior to the reporting period 2008-09, only the adverse remarks in the ACRs had to be communicated to the concerned public servant for representation, if any, to be considered by the competent authority. In the wake of the law laid down by the Apex Court in Dev Dutt's case (supra) the Central Government decided to communicate the below benchmark ACRs, and in this regard issued Annexure R1 DoPT OM No.21011/1/2010-Estt.A dated 13.4.2010. The question of treating the grading in the ACR which is below benchmark for next promotion has been considered by DoPT and it has been decided that, if any 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. Only below benchmark ACR for the period relevant to promotion need be sent and there is no need to send below benchmark ACRs of other years. Accordingly, by Annexure R1 OM, all Ministries/Departments were 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 APARs (earlier ACRs), that the decision O.P.(CAT)No.149/2014 16 on the representation may be taken objectively after taking into account the views of the concerned Reporting/Reviewing Officers, if they are still in service, and in case of upgradation of the final grading given in the APAR, specific reasons thereof may also be given in the order of the competent authority.
9. In the instant case, by Annexure A6 memo dated 7.7.2010 of the 2nd petitioner, the applicant was granted 2nd financial upgradation under the MACP Scheme, in pursuance of OM dated 18.9.2009, by which the said scheme has been given effect to in the Department of Posts, with effect from 1.9.2008. The applicant is Sl.No.44 in Annexure A6 memo. According to the applicant, prior to the introduction of the MACP Scheme by the issuance of Annexure A4 OM dated 19.5.2009, the benchmark 'average' was not considered to be an adverse entry. Therefore, once the applicant was considered for financial upgradation under the MACP Scheme in terms of Annexure A4 OM and granted 2nd financial upgradation with effect 1.9.2008, the adverse entry in his Confidential Report for the period from 1.4.2007 to 31.3.2008 lose its significance. As such, he is legally entitled to be considered for further promotion to the cadre of LSG Supervisor, ignoring the said adverse entry in his Confidential Report. In order to buttress the said contention, the applicant relied on the decision of the Apex Court in Brij Mohan Singh Chopra v. State of Punjab O.P.(CAT)No.149/2014 17 [(1987) 2 SCC 188] and also Annexure A8 order of the Tribunal dated 11.2.2011 in O.A.Nos.799 of 2009 and 471 of 2010. The applicant has also challenged the grading as 'average' in his Confidential Report for the period from 1.4.2007 to 31.3.2008, contending that the competent authority has not applied its mind while grading him as such.
10. Insofar as the challenge made against the grading of the applicant as 'average' in the Confidential Report for the period from 1.4.2007 to 31.3.2008 is concerned, the said challenge stands virtually rejected by the Tribunal in Ext.P5 order, while holding that Annexure A3 order rejecting the representation of the applicant to upgrade the assessment in his ACR for the year 2007-08 from 'average' to 'good' shall not come in his way for promotion to the cadre of LSG. Further, as discernible from Ext.P5 order, the only question posed for consideration of the Tribunal was as to whether the applicant, who has already been granted 2nd financial upgradation under the MACP Scheme when the overall grading in his Confidential Report for the period from 1.4.2007 to 31.3.2008 was only 'average', can be denied promotion to the cadre of LSG based on such adverse entry for the period 2007-08. Therefore, in this original petition filed under Article 227 of the Constitution of India, this Court need not dwell upon the question as to the legality or otherwise of the grading of the applicant as 'average' in his Confidential Report for O.P.(CAT)No.149/2014 18 the period from 1.4.2007 to 31.3.2008. Moreover, it is well settled that, neither this Court nor the Tribunal can sit in appeal over the grading of an employee in his Confidential Report and the scope of judicial interference in such matters is legally permissible only when such assessment made by the competent authority is found to be totally perverse or patently illegal.
11. Before the Tribunal, the specific case of the applicant was that, after the grant of 2nd financial upgradation under the MACP Scheme, the adverse entry in his Confidential Report for the period from 1.4.2007 to 31.3.2008 lose its significance and as such, he is legally entitled to be considered for further promotion to the cadre of LSG Supervisor, ignoring such adverse entry. Per contra, the case of the petitioners herein in their reply statement filed in the O.A. was that, the applicant was granted 2nd financial upgradation under the MACP Scheme as per Annexure A6 memo dated 7.7.2010, without considering the below benchmark grading in his APAR for the year 2007-08, as there was no stipulation at that point of time that such below benchmark grading in the APAR should be strictly taken into account before deciding to grant financial upgradation to an official under the MACP Scheme.
12. Admittedly, the grant of financial upgradation to the applicant by Annexure A6 memo dated 7.7.2010 was made prior to the clarifications issued by the Directorate vide letter dated 1.9.2010, which was followed O.P.(CAT)No.149/2014 19 by Annexure A5 letter dated 30.6.2011. Vide Directorate letter dated 1.9.2010 it was clarified that, the benchmarks prescribed by DoPT need to be scrupulously adhered to and financial upgradations under the MACP Scheme are to be considered on the basis of performance of the officials after considering their Confidential Reports for five years. Accordingly, Scrutiny Committees were constituted at Divisional Level for scrutinising the Confidential Reports of Postman, Postal Assistants/Sorting Assistants for the preceding five years on the basis of the entries made by the Reporting Officer and to grade the performance as 'average', 'good', 'very good', etc. Thereafter, vide Annexure A5 letter dated 30.6.2011, it was also clarified that, the process of communication of APAR (earlier ACR) for regular promotion is equally applicable for consideration of financial ugradation under the MACP Scheme. As discernible from Directorate letter dated 1.9.2010, there had been no prescribed benchmarks for considering the cases of financial upgradation under the earlier schemes of TBOP/BCR applicable for the employees in the Department of Posts.
13. Admittedly, going by the provisions under the Department of Posts (Lower Selection Grade Posts) Recruitment Rules, 2011, which came into force on 2.2.2011 in supersession of the Recruitment Rules then in force, the mode of promotion to the post of Lower Selection Grade in Savings Bank Control Organisation shall be 'selection'. Such promotion O.P.(CAT)No.149/2014 20 shall be made from the Postal Assistants working in the Savings Bank Control Organisation in the prescribed Pay Band with five years of regular service in the grades. In the reply statement filed in the O.A., the specific case of the petitioners herein was that, as per the extant orders the grading in the APAR for the preceding five years has to be 'good' for granting promotion to the cadre of LSG Supervisor in Savings Bank Control Organisation, which is a norm based post carrying higher responsibilities than the post in the cadre of Postal Assistant, which the applicant is presently holding. On the other hand, upgradation under the MACP Scheme is only a financial upgradation and on such upgradation the official continues to occupy the same post.
14. As per Annexure R1 DoPT OM dated 13.4.2010, if any 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. Accordingly, the applicant was served with a copy of his Confidential Report for the period from 1.4.2007 to 31.3.2008, vide Annexure A1 communication dated 23.4.2012 of the 4th petitioner herein, wherein the O.P.(CAT)No.149/2014 21 overall assessment was recorded as 'average'. The applicant submitted Annexure A2 representation, which was rejected by Annexure A3 order of the 2nd petitioner herein, since the applicant could not make out a case to change the entries recorded by the Reporting Officer in his ACR for the year 2008-09. A copy of Annexure A3 order was communicated to the applicant on 1.8.2012. In view of the above position, the DPC which met on 19.10.2012 did not recommend the applicant for promotion to the cadre of LSG Supervisor in Savings Bank Control Organisation.
15. In Brij Mohan's case [(1987) 2 SCC 188] the Apex Court held that adverse entries, if any, awarded to any employee lose their significance on or after his promotion to a higher post and that the adverse entries awarded to an employee prior to his promotion to a higher post could not legally be taken into consideration in forming the requisite opinion to retire him prematurely from service. While considering the question of premature retirement, it may be desirable to make an overall assessment of the Government servant's record, but while doing that, more value should be attached to the confidential reports pertaining to the years immediately preceding such consideration. If entries for a period of more than 10 years past are taken into account, it would be an act of digging out past to get some material to make an order against the employee.
O.P.(CAT)No.149/2014 22
15.1. In Brij Mohan's case (supra) the Apex Court held further that, whenever an adverse entry is awarded to a Government servant it must be communicated to him. The object and purpose underlying the communication is to afford an opportunity to the employee to improve his work and conduct and to make representation to the authority concerned against those entries. If such a representation is made, it is imperative that the authority should consider the representation with a view to determine as to whether the contents of the adverse entries are justified or not. Making of a representation is a valuable right to a Government employee and if the representation is not considered, it is bound to affect him in his service career, as in Government service, grant of increment, promotion and ultimately premature retirement all depend on the scrutiny of the service records. The decisions in Gurdial Singh Fiji v. State of Punjab [(1979) 2 SCC 368] and Amar Kant Choudhary v. State of Bihar [(1984) 1 SCC 694] lay down the principle that, unless an adverse report is communicated and representation, if any, made by the employee is considered, it cannot be acted upon to deny promotion. The same consideration must apply to a case where the adverse entries are taken into account in retiring an employee prematurely from service. It would be unjust and unfair and contrary to principles of natural justice to retire prematurely a Government servant on the basis of adverse entries O.P.(CAT)No.149/2014 23 which are either not communicated to him or if communicated, representations made against those entries are not considered and disposed of.
15.2. In Brij Mohan's case (supra) the appellant before the Apex Court, who was appointed as Superintendent Quality Marking Centre (Scientific Instruments) of the Government of Punjab was promoted in the year 1963 to the post of Deputy Director (Technical). In the year 1968 he was promoted to the post of Joint Director (Industries), which post he continued to hold till he was prematurely retired by Government order dated 19.3.1980 issued in exercise of the power under Rule 3 of the Punjab Civil Services (Premature Retirement) Rules 1975. The appellant made a representation against the order of premature retirement to the Government but the same was rejected and thereupon he challenged the validity of the Government order by means of a writ petition under Article 226 of the Constitution of India, which was dismissed in limine by the High Court on 5.8.1981. In the counter affidavit filed by the respondent State it was asserted that, the appellant during his service in the Industries Department earned adverse remarks in the ACRs on his work and conduct for the years 1960-61, 1963-64, 1964-65, 1969-70, 1970-71, 1971-72, 1972-73 and 1975-76 which indicate that the overall service record of the appellant was bad and his integrity was frequently challenged, which O.P.(CAT)No.149/2014 24 entries were taken into consideration in retiring the appellant. On a perusal of the service records of the appellant, the Apex Court found that the respondents took into consideration some of the adverse entries which related to remote past, prior to the promotion of the appellant to the post of Joint Director (Industries). Therefore, the Apex Court held that, adverse entries awarded to the appellant prior to 1968 could not be taken into consideration and therefore, the adverse entries for the years 1960-61, 1963-64 and 1964-65 could not legally be taken into consideration in forming the requisite opinion to retire him prematurely from service. In that context, the Apex Court held that adverse entries, if any, awarded to any employee lose their significance on or after his promotion to a higher post.
15.3. In Brij Mohan's case (supra) the order of premature retirement based on un-communicated adverse entries was set aside on two grounds namely; (i) It was not reasonable and just to consider adverse entries of remote past and to ignore good entries of recent past. If the entries for the period of more than 10 years past are taken into account it would be act of digging out past to get some material to make an order against the employee; and (ii) Since the adverse entries were not even communicated, it was unjust and unfair and contrary to the principles of natural justice to retire prematurely a Government employee O.P.(CAT)No.149/2014 25 on the basis of adverse entries which are either not communicated to him or if communicated, representations made against those entries are not considered and disposed of.
16. In Baikuntha Nath Das v. District Medical Officer [(1992) 2 SCC 299] a Three-Judge Bench of the Apex Court dealt with the second ground stated in Brij Mohan's case to set aside the order of premature retirement, namely, whether the principles of natural justice were required to be followed or it was permissible for the Government to take into consideration the adverse entries which were either not communicated to the employee or if communicated representations made against those entries were still pending. In Baikuntha Nath's case the main issue was as to whether the employer could act upon un- communicated adverse remarks and whether observance of the principles of natural justice was necessary before taking a decision to compulsorily retire a Government servant. The Apex Court answered both the questions in the negative holding that, it was permissible for the Government to even look into and consider un-communicated adverse remarks.
16.1. In Baikuntha Nath's case (supra) the Apex Court held that, since the premature retirement was not stigmatic in nature and such an action was based on subjective satisfaction of the Government, there was O.P.(CAT)No.149/2014 26 no room for importing facet of natural justice in such a case. In the process of discussion and giving reasons for the aforesaid opinion, the Apex Court took note of various judgments and the decision in Brij Mohan's case was also specifically dealt with. The second ground stated in Brij Mohan's case to set aside the order of premature retirement was held as not the correct proposition in law and principles of natural justice could not be brought in such a case. The Apex Court had noted that the said reasoning in Brij Mohan's case was in conflict with its earlier judgment in Union of India v. Col. J.N. Sinha [(1970) 2 SCC 458] and agreed with the view taken in J.N. Sinha's Case. In so far as the first ground in Brij Mohan's case, namely, consideration of adverse entries of remote past was inappropriate to compulsorily retire an employee, was not touched or discussed since, on the facts of Baikuntha Nath's case, this proposition did not arise for consideration at all. Therefore, Brij Mohan's case was overruled only on the second proposition.
16.2. In Baikuntha Nath's case (supra) the Apex Court held further that, judicial scrutiny of an order of compulsory retirement by the High Court or the Apex Court is not excluded altogether. While the Court would not examine the matter as an appellate Court, it may interfere if it is satisfied that the order is passed mala fide; or that it is based on no evidence; or that it is arbitrary in the sense that no reasonable person O.P.(CAT)No.149/2014 27 would form the requisite opinion on the given material in short; or if it is found to be a perverse order. The Apex Court has also held that, the Government (or the Review Committee, as the case may be) shall have to consider the entire records of service before taking a decision in the matter, of course attaching more importance to records of and performance during the later years. The records to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a Government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.
17. In Badrinath v. Government of Tamil Nadu [(2000) 8 SCC 395] the Apex Court held that, even if there are adverse remarks in the service career of an employee, they would lose their effect, when that employee is given promotion to the higher post and would not be taken into account when the case of that employee for compulsory retirement is taken up for consideration, except only those adverse entries in the confidential reports of that employee which touch upon his integrity. Thus, in Badrinath's case the Apex Court interpreted principle (iv) in Para.32 of its decision in Baikuntha Nath's case to mean such adverse remarks for the period prior to promotion, unless they are related to dishonesty, O.P.(CAT)No.149/2014 28 would be substantially weaken after the promotion.
18. This interpretation given by a Two-Judge Bench in Badrinath's case has not been accepted by the Three-Judge Bench of the Apex Court in Pyare Mohan Lal v. State of Jharkhand [(2010) 10 SCC 693]. After considering various judgments, the Apex Court clarified and spelled out the circumstances in which the earlier adverse entries/records would be wiped off and the circumstances in which the said records, even of remote past would not lose its significance.
18.1. The principle of law which stands crystallised after the judgment of the Apex Court in Pyare Mohan Lal's case (supra) is that, 'washed off theory' as regards adverse entries prior to promotion does not have universal application. It may have relevance while considering the case of Government servant for further promotion but not in a case where the employee is being assessed by the Reviewing Authority to determine whether he is fit to be retained in service or requires to be given compulsory retirement, as the Committee is to assess his suitability taking into consideration his 'entire service records'.
18.2. In Pyare Mohan Lal's case (supra) the petitioner before the Apex Court, a Judicial Officer of the State of Jharkhand, challenged the order of compulsory retirement made based on the recommendation of the High Court of Jharkhand on administrative side. He was selected in the O.P.(CAT)No.149/2014 29 Bihar Civil Services (Judicial Branch) in 1982 and was appointed to the post of Munsiff by the State. Vide order dated 11.3.1987 he was confirmed in the grade of Munsiff. He was further promoted to the Junior Selection Grade post in the cadre of Munsiff of the Bihar Judicial Service, vide order dated 23.9.1994. The Patna High Court issued notification dated 10.3.2001 promoting the petitioner to the post of Subordinate Judge. Consequent to the bifurcation of the State of Bihar and formation of the State of Jharkhand, the services of the petitioner were allocated to the Jharkhand State and he was appointed as a Sub-Judge at Ranchi, vide notification dated 21.4.2001 issued by the High Court of Jharkhand. Subsequently, the petitioner was placed at the disposal of the State of Jharkhand as Under Secretary-cum-Deputy Legal Remembrancer and Law Officer in the Law Department, vide order dated 1.8.2001. The service record of the petitioner revealed that he had not been promoted in the regular cadre of District Judge as he was not found fit for the same because of the adverse entries. However, High Court of Jharkhand recommended the name of the petitioner along with others for promotion to the post of Additional District Judge on ad hoc basis, vide letter dated 21.10.2001 and he was appointed as Additional District and Sessions Judge, (Fast Track), on ad hoc basis and was posted at Ranchi, vide order dated 14.12.2001. While continuing as such, the High Court of Jharkhand O.P.(CAT)No.149/2014 30 on administrative side, vide order dated 12.5.2003 recommended compulsory retirement of 6 judicial officers including the petitioner, and in pursuance thereof, the respondent State issued a consequential order of compulsory retirement of the petitioner dated 20.5.2003, in public interest, invoking the provisions of Rule 74(b)(ii) of the Jharkhand Civil Services Code, which order was under challenge before the Apex Court.
18.3. As discernible from Para.5 of the judgment, one of the contentions raised by the learned Senior Advocate for the petitioner was that, the petitioner had unblemished service record and there was no adverse entry against him and he had even been promoted to the post of Additional District and Sessions Judge (Fast Track), thus adverse entries, if any, stood washed off as the same had been prior to the date of his promotion. Therefore, the order of compulsory retirement passed by the respondent State is arbitrary, unreasonable and unwarranted. After analysing various decisions on the subject, the Apex Court held that the washed off theory does not have universal application. It may have relevance while considering the case of Government servant for further promotion but not in a case where the employee is being assessed by the Reviewing Authority to determine whether he is fit to be retained in service or requires to be given compulsory retirement, as the Committee is to assess his suitability taking into consideration his 'entire service O.P.(CAT)No.149/2014 31 record'. The law requires the authority to consider the 'entire service record' of the employee, irrespective of the fact that the adverse entries had not been communicated to him and the officer had been promoted earlier in spite of those adverse entries. In Para.30 of the judgment, with reference to the contention of the petitioner that the adverse entries, if any, stood washed off as the same had been prior to the date of his promotion as Additional District and Sessions Judge (Fast Track), the Apex Court observed as follows;
"30. Be that as it may, the service record of the petitioner revealed that he had not been promoted in the regular cadre of the District Judge as he was not found fit for the same because of the adverse entries. Petitioner was promoted as Additional District Judge on ad hoc basis and posted in the Fast Track Court. It was definitely not a promotion on merit (selection). The High Court had objectively decided to recommend his compulsory retirement and the State Authorities acted accordingly. No fault can be found with the decision making process or with the decision."
19. The legal principles that can be culled out from the decisions of the Apex Court referred to supra are that adverse entries, if any, awarded to any employee lose their significance on or after his promotion to a higher post. Therefore, if a Government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon O.P.(CAT)No.149/2014 32 seniority. However, in a case where the employee is being assessed by the competent authority to determine whether he is fit to be retained in service or requires to be given compulsory retirement, the competent authority has to assess his suitability taking into consideration his 'entire service record'.
20. In the instant case, vide Annexure A6 memo dated 7.7.2010 the applicant who was working as Postal Assistant was granted 2nd financial upgradation under the MACP Scheme, in pursuance of OM dated 18.9.2009 by which the said scheme has been given effect to in the Department of Posts with effect from 1.9.2008. According to the applicant, in view of the decision of the Apex Court in Brij Mohan's case (supra), once he was considered for financial upgradation under the MACP Scheme and granted 2nd financial upgradation with effect 1.9.2008, the adverse entry in his Confidential Report for the period from 1.4.2007 to 31.3.2008 lose its significance and as such, he is legally entitled to be considered for further promotion to the cadre of LSG Supervisor, ignoring the said adverse entry.
21. As discernible from Annexure A4 OM dated 19.5.2009, the MACP Scheme provides for three financial upgradations to a Central Government Civilian Employee counted from his direct entry grade, on completion of 10, 20 and 30 years' service respectively. It envisages O.P.(CAT)No.149/2014 33 merely placement of an employee in the immediate next higher Grade Pay in the hierarchy of the recommended revised Pay Bands and Grade Pay. Such financial upgradations are on non-functional basis, subject to fitness in the hierarchy of Grade Pay within the Pay Band, which will not confer such employees any change in their designation, classification or higher status. The Scheme contemplates placement of such employees on personal basis in the immediate higher Grade Pay/grant of financial benefits only, which will not amount to actual/functional promotion, as clarified in Para.19 of Annexure-I to that OM. Para.20 of of Annexure-I makes it explicitly clear that such financial upgradation will be purely personal to the employee concerned, which will have no relevance to his seniority position.
22. The MACP Scheme, which merely allows financial upgradation to the employee, cannot be equated with a regular promotion to a higher post though normal promotion norms are insisted for grant of such financial upgradation. Even after grant of financial upgradation under MACP Scheme, which is allowed as personal to the employee, he continues to hold the original post on regular basis, with same designation, classification, duties and responsibilities, etc. In other words, except being allowed to draw pay in a higher grade, the employee continues to be regular incumbent of the post to which he has been O.P.(CAT)No.149/2014 34 selected on regular basis as per the Recruitment Rules. Therefore, the mere placement of the applicant on personal basis in the immediate higher Grade Pay, while granting 2nd financial upgradation under the MACP Scheme, will not amount to his promotion to the higher post of LSG Supervisor. Even after the grant of such financial upgradation, the applicant continues as Postal Assistant, without any change in his designation, classification or higher status. Such financial upgradation will have no relevance to his seniority position as well.
23. Vide Directorate letter dated 1.9.2010 it was clarified that, the benchmarks prescribed by DoPT need to be scrupulously adhered to and financial upgradations under the MACP Scheme are to be considered on the basis of performance of the officials after considering their Confidential Reports for five years. Thereafter, vide Annexure A5 letter dated 30.6.2011, it was clarified further that, the process of communication of APAR (earlier ACR) for regular promotion is equally applicable for consideration of financial ugradation under the MACP Scheme. Admittedly, the applicant was granted 2nd financial upgradation vide Annexure A6 memo dated 7.7.2010 much prior to the above said clarifications issued by the Directorate and the specific stand taken by the petitioners herein in their reply statement filed in the O.A. was that, the applicant was granted financial upgradation as per Annexure A6 memo without considering the O.P.(CAT)No.149/2014 35 below benchmark grading in his APAR for the year 2007-08, as there was no stipulation at that point of time that such below benchmark grading in the APAR should be strictly taken into account before deciding to grant such financial upgradation to an employee.
24. As per the extant orders, the grading in the APAR for the preceding five years has to be 'good' for granting promotion to the cadre of LSG Supervisor in Savings Bank Control Organisation, which is a norm based post carrying higher responsibilities than the post in the cadre of Postal Assistant, which the applicant is presently holding. As per Annexure R1 DoPT OM dated 13.4.2010, if any 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. Accordingly, vide Annexure A1 communication dated 23.4.2012, the applicant was served with a copy of his Confidential Report for the period from 1.4.2007 to 31.3.2008, wherein the overall assessment was recorded as 'average'. He submitted Annexure A2 representation, which was rejected by Annexure A3 order. A copy of the said order was communicated to the applicant on 1.8.2012. In O.P.(CAT)No.149/2014 36 view of the above, the DPC which met on 19.10.2012 did not recommend the applicant for promotion to the cadre of LSG Supervisor in Savings Bank Control Organisation.
25. Therefore, in the case of the applicant, the below benchmark remark ('average') for the period from 1.4.2007 to 31.3.2008 was communicated in terms of Annexure R1 DoPT OM dated 13.4.2010 and he was afforded with an opportunity to represent against such adverse entry in his Confidential Record. The representation made by the applicant was rejected by Annexure A3 order before he was considered by the DPC for promotion to the cade of LSG. As we have already noticed, the challenge made in the O.A. against Annexure A3 stands virtually rejected by the Tribunal in Ext.P5 order, while holding that the said order rejecting the representation of the applicant to upgrade the assessment in his ACR for the year 2007-08 from 'average' to 'good' shall not come in his way for promotion to the cadre of LSG.
26. In Annexure A8 order dated 11.2.2011 in O.A.Nos.799 of 2009 and 471 of 2010, the Tribunal was dealing with a case in which the applicants therein were not communicated with the average grading, which was below the prescribed benchmark. Therefore, the Tribunal held that such grading ought not to have influenced the DPC in their recommendation. Accordingly, the respondents therein were directed to O.P.(CAT)No.149/2014 37 hold a review DPC in respect of the applicants therein, which would consider their case without taking into account the un-communicated grading below benchmark. Therefore, Annexure A8 order relied on by the Tribunal in Ext.P5 order while allowing the O.A. in the present case, was rendered on an entirely different factual matrix, which has no application to the facts of the present case. Similarly, since the 2nd financial upgradation granted to the applicant under the MACP Scheme cannot be equated with a regular promotion to a higher post, the law laid down by the Apex Court in Brij Mohan's case (supra) that adverse entries, if any, awarded to an employee lose their significance on or after his promotion to a higher post has no application to the facts of the present case.
27. We, therefore, find no valid reasons to sustain the view taken by the Tribunal in Ext.P5 order that, since the applicant has already been granted the scale of pay under the MACP Scheme, which is equivalent to LSG to which he is eligible after promotion, there is no question of denying him promotion to the aforesaid post in his turn on the ground that he had below average grading for the period 2007-08; and also the declaration in Ext.P5 order that, Annexure A3 order rejecting the representation of the applicant to upgrade the assessment in his ACR for the year 2007-08 from 'average' to 'good' shall not come in his way for O.P.(CAT)No.149/2014 38 promotion to the cadre of LSG. In such circumstances, Ext.P5 order of the Tribunal in O.A.No.913 of 2012 cannot be sustained.
In the result, this Original Petition is allowed, setting aside Ext.P5 order dated 20.6.2014 of the Tribunal in O.A.No.913 of 2012, thereby dismissing the said O.A. No order as to costs.
Sd/-
C.T. RAVIKUMAR (JUDGE) Sd/-
ANIL K. NARENDRAN (JUDGE) spc/ True copy PA to Judge