Central Administrative Tribunal - Delhi
Nisha Mendiratta vs Deptt Of Electronics Information ... on 17 March, 2025
Item No.62 (Court - 5) O.A. No.1183/2023
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.1183/ 2023
Reserved on: 24.02.2025
Pronounced on: 17.03.2025
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S Khati, Member (A)
Mrs. NISHA MENDIRATTA, Age 54 years,
W/o Shri Vijay Kumar, Working as PA in Deptt
Deptt.
of Electronics and Information Technology,
Government of India, Electronic Niketan, 6,
CGO Complex,
C New Delhi-110003,
110003,
R/o WZ 5/1A, Sham Nagar, New delhi
delhi-18.
...Applicant
(By Advocate: Mr. Padma Kr. S)
Versus
1. Union of India, Through the Secretary
Department of Electronics and Information
Technology, Government of India CGO,
Complex, New Delhi-110003.
Delhi
...Respondent
(By Advocate: Mr. R S Rana)
----
Page 1 of 16
Item No.62 (Court - 5) O.A. No.1183/2023
ORDER
Hon'ble Mr. Manish Garg, Member (J):
(J):-
In the present Original Application, filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has prayed for the following relief(s):
"(a) Quash and set aside the impugned orders dated 22.10.2021 along 2006 2007 and Orders dated 20.03.2014, with ACR for the year 2006-2007 31.3.2014, 17.6.2014, 13.11.2014, 27.4.2015, 27.4.2015, 15.2.2016, 11.04.2016 at ANNEXURE A-1colly.
A
(b) Direct the respondents to ignore the ACR for the year 2006 2006-2007 on the ground of delayed initiation and without prejudice to the same on the ground of non-consideration non consideration of her representation on merit merit.
(c) Direct the respondents to consider the case of 2nd MACP from 2011 ignoring the ACR for the year 2006-2007.
2006 2007.
(d) Without prejudice to the above, direct the respondents to consider the Applicant for 2nd MACP from the year 2012 by reading down the provision that once an employee is found unfit, the employee will be granted the benefit only from the date of the Screening Committee, and release the benefits accordingly.
(e) Direct the respondents to release the arrears of pay and allowance with intere thereon.
interest
(f) Any other relief which this Hon'ble Tribunal may be pleased to issue."
2. Highlighting the facts of the case, learned counsel for the applicant submitted that the ACR of the applicant for the year 2006 2006-07 has been wrongly considered for her 2nd MACP which was due in 2011 was considered by the respondents by rejected by misdirection in rules and instructions vide Order dated 22.10.2021. The applicant is aggrieved by the denial of her 2nd MACP from the due date on account of the wrong reliance of ACR. Even when the applicant is not entitled to Page 2 of 16 Item No.62 (Court - 5) O.A. No.1183/2023 MACP w.e.f. 2011, she is entitled to the same from the next year, which was also denied to her. The applicant has also moved an M.A. No.67/2022 for condoning the delay,, which was condoned by this Tribunal vide order dated 10.02.2023. He further submitted that the applicant has completed 20 years of her regular service on 03.07.2011.
Accordingly, the applicant should have been considered and granted the benefit of 2nd MACP. However, vide Office order dated 08.04.2013 was issued granting the MACP to the employees who have completed 20 years from the date they completed 20 years, the applicant's name was not included. The applicant vide letter dated 15.04.2013 brought to the notice of respondents and requested to re-
consider for 2nd MACP. Subsequently, the applicant received OM dated 30.05.2013, which inter alia stated that the grading awarded in the ACR of the applicant for the period 2006 2006-07 is below the granting 2nd/3rd benchmark of "GOOD" and it cannot be considered for gra financial up-gradation up gradation under MACP. He further submitted that vide the said OM, the applicant was given ACR grading "Average" for the period 2006-07.
20062.1. Learned counsel for the applicant further submitted that the applicant preferred a representation representation dated 07.06.2013, wherein she made the following submissions:
"(a) Applicant stated that she had to be on leave for 134 days during the year 2006-07 2006 07 as she was in the family way and earlier she had suffered abortion on 0 1. 02.2006 and later when conceived, she was advised complete bed rest due to the earlier medical complication and she gave birth to her second child on 13.6.2007.Page 3 of 16
Item No.62 (Court - 5) O.A. No.1183/2023
(b) Notwithstanding the above, she carried out her work very very efficiently. She also made her submissions as uunder:
(i) Provided complete secretarial support in terms of taking down dictation, transcription and typing for preparation of notes, meeting notice, agenda papers, minutes of the working group meeting & other meetings, monthly reports, annual report etc.
(ii) Attended various visitors and provided necessary assistance/information to them. Also handled incoming and outgoing calls for necessary follow follow-up action.
(iii) Provided necessary support for maki making administrative arrangements for meetings of the working group/PRSG meeting etc. This included arranging air tickets of non non-official members of WG/RGSGs and following up with C&A on settlement of TA/DA Bills.
(iv) Maintained various project files and pa papers/records required to be retained by the officer and kept record of the movement of files/papers passed by the officer. Followed Followed-up movement of files under submission of HoD/Finance Division/Secretary for necessary approval.
(v) Also performed other official icial work like maintaining record of official files, opening of new files, maintenance of diary register, dispatch register etc."
2.2. He further submitted that the respondents vide Office order dated 20.03.2014 granted the 2nd Financial Upgradation under the MACP in PB 2 Scale with Grade Pay of Rs. 4800/ 4800/-, granting the benefit w.e.f.
16.12.2013, i.e., the date of meeting of Screening Committee (2nd) instead of in 2012 even if ACR 2006-07 2006 07 is found to be below bench mark. Subsequently, vide order dated 31.0 31.03.2014, the respondents rejected the representation of the applicant dated 07.06.2013. He further submitted that vide an Appeal ppeal dated 20.01.2016, the applicant finally submitted an appeal to the Secretary, Department of Electronics and Information Technology Technology (DeitY) for re re-consideration of final grading in the ACRs (below bench mark) by the competent authority in a 'Quasi-Judicial 'Quasi Judicial Manner' as per DOPT's OM dated Page 4 of 16 Item No.62 (Court - 5) O.A. No.1183/2023 13.04.2010. However, the same was rejected vide order dated 15.02.2016. The applicant again, vide an appeal dated 21.03.2016, submitted an appeal to the Secretary/Dir. Grievance (Sr. Advisor), GoI, DeitY for re-consideration re consideration of final grading in ACRs.
2.3. He further submitted that vide letter dated 29.03.2016, the Deputy Director & Staff Grievance Officer sought comments on the matter along with supporting/relevant documents from the Dy.
Director (Pers III Section). The Director/Senior Officer of the applicant under whom she was working made his observations/recommendations to the Joint Secretary (P (Pers.) for reconsideration of her case particularly keeping in view existing ACR profile and the peculiar situation of the Applicant in the year 2006 2006- 2007, which reads as under:
"Ms. Nisha Mendiratta, PA has been working with me for last five years. During this period she has performed her task in a most satisfactory manner. She has been representing for review of her ACR for the period 2006 07. In this regard I would like to mention that I have also gone 2006-07.
through the APAR/issue for the said period and reques request that the comments in Part-III:
Part III: Assessment of the Reporting Officer in her below bench mark ACR for the period 2006-07 2006 07 may kindly be seen with regard to overall grading in the light of DOPT's O.M. No.22011/5/86 No.22011/5/86-Estt. (D), Dt.
10.4.1989 (copy enclosed).
2. After going through the comments in the APAR for the period of 2006-07, 2006 07, I feel that it would be logical that her APAR is upgraded to at least Very Good. If desired, the matter may also be reviewed by some expert/committee in the area of APAR or referred to DOPT to see whether the final grading given by the Reporting Officer is in tune with the comments given in Part-III.
Part III. It is also felt that the DPC has not taken into consideration the provisions mentioned in Para 6.2.1(e) of the above stated O.M of DOPT.
3. She worked with Mr. R.C.Meharde, Director for six months (May 2006 to March 2007) practically as she was on leave for a period of 134 days during the year 2006-07 2006 07 as she was advised complete bed rest by Doctor. Also, there is provision for review of A ACRS in Quasi-Judicial Page 5 of 16 Item No.62 (Court - 5) O.A. No.1183/2023 Manner in respect of specific comments/observation of Reporting Officer with regard to overall grading in the light of DOPT's O.M. No.21011/1/2010 Estt.A, Dt. 13.4.2010 (copy enclosed). No.21011/1/2010-Estt.A,
4. It is pertinent to mention here that her APA APARS/ACRs for the last 22 years are either Outstanding or Very Good except the one that is for 2006 2006- 07. Submitted for logical, kind and sympathetic consideration please."
2.4. He further submitted that vide letter dated 11.04.2016, the applicant received an interim response, which reads as under:
"1. This has with reference to your grievance addressed to the Secretary/Dir. Grievance(Sr. Adviser) on the above subject.
2. That matter has been examined in the Pers Pers-III Section and has also been referred to Personnel Division for ascertaining the full full-facts and for consideration and approval of the competent authority. As soon as a final decision is taken in the matter, the same will be communicated to you.
2.5. He further submitted that since the respondents have not taken and communicated any decision as well as the applicant has also not been granted the 3rd MACP on completion of 30 years, the applicant requested for the final decision on the matter vide her representation dated 11.10.2021. However, the respondents respondents finally passed the impugned order dated 22.10.2021, rejecting the request of the applicant for reconsideration, which reads as under:
"Ms. Nisha Mendiratta, Personal Assistant, vide communication dated 11.10.2021 has sought the status ofher repres representation communication dated with reference to P-III P III Section's 11.04.2016 on the above subject.
2. It is stated that the matter was referred to Personnel Personnel-II Section for comments. Personnel-II Personnel II Section has conveyed that on receiving the additional ACR/APAR of Ms. Nisha, her case for MACP was placed before the Screening Committee on 16.12.2013 and she had been recommended for granting 2nd MACP w.e.f date of recommendation of the Committee. Any further information regarding grant of 2nd MACP to Ms Nisha Mendirattta may be obtained from Personnel Mendirattta Personnel-II Section.
3. Further, Ms. Nisha has been conveyed earlier regarding non non-
feasibility of her request for reviewing the decision of the Competent Page 6 of 16 Item No.62 (Court - 5) O.A. No.1183/2023 Authority for upgradation of her ACR for the year 20062006-2007. Therefore, it is reiterated that, further representation is not tenable in this matter."
2.6. Learned counsel for the applicant also submitted that there is no advisory issued or highlights that at the overall profile of the applicant in terms of Grading is 'OUTSTANDING', 'OUTSTANDING', which has been depicted in the O.A. in detail. For the sake of brevity the same is reproduced herein below:
Sl.No. Period Remarks
1. 2005-06 Very Good
2. 2006-07 Average
3. 2007-08 Non
Non-Initiation period due
to Maternity Leave and
other kind of Leaves.
4. 2008-09 Outstanding
5. 2009-10 Outstanding
6. 2010-11 Outstanding
7. 2011-12 Outstanding
8. 2012-13 Outstanding
9. 2013-14 Outstanding
10. 2014-15 Outstanding
11. 01.01.2015-31.03.2016 Outstanding
12. 01.04.2016-31.12.2016 Grading 7.5 (Very Good)
13. 01.01.2017-31.12.2017 Grading 8.95 (Outstanding)
14. 01.01.2018-31.12.2018 Grading 8.92 (Outstanding)
15. 01.01.2019-31.12.2019 Grading 9.5 (Outstanding)
16. 01.01.2020-31.12.2020 Grading 9.5 (Outstanding)
(APAR Grading between 6 and short of 8 is treated as 'Very Good' and Grading between 8 and 10 is treated as 'Outstanding'.) 2.7. Learned counsel for the applicant relied upon the decision rendered by the Hon'ble High Court of Punjab and Haryana in CWP No.23824 of 2018 dated 17.05.2019. The relevant paras of the order is reproduced herein below:
"17. Perusal of the photocopies of the ACRs produced before me, I find that there is no other blemish of work and conduct in the services rendered by the petitioner from the date he joined joined as Clerk on 24.11.1995. All the ACRs from 1997 to 2017, except the one in dispute in 2011, are recorded as 'Good', 'Very Good' or 'Outstanding' by the respective Presiding Officers. There is nothing in them which doubts his fitness for promotion. The episode is a solitary incident. I find also nothing in the written statement filed by the respondents which might change the proposed result of this petition. It was the duty of the Judge who passed the judgment dated 11.02.2012 to make it available to the office on that day itself.Page 7 of 16
Item No.62 (Court - 5) O.A. No.1183/2023
18. For the variety of reasons recorded above, I find substantial merit in this petition. The same is accepted. The order dated 18.05.2018 dropping further proceedings on the subject matter of the alleged misconduct is upheld, while the order dated 20.08.2018 is set aside. Accordingly, a mandamus is issued to respondent No.2 - learned District & Sessions Judge, Karnal to promote the petitioner w.e.f. 21.03.2014, the date when his 12 of 13 CWP No.23824 of 2018 junior/s were promo promoted to the post of Assistant/Reader Grade-III Grade III for the first time and to do so with all consequential benefits including arrears of difference of pay and allowances. Necessary orders of promotion be passed before the petitioner retires on superannuation on 31.08.2019 by re re-fixing last pay drawn, the actual benefit of arrears can be paid thereafter within reasonable time."
2.8. Learned counsel for the applicant also relied upon the decision rendered by the Hon'ble High Court of Delhi in W.P. (C) 1302/2013 dated ed 21.12.2019. The relevant paras of the order is reproduced herein below:
"51. Furthermore, a Constitution Bench of the Supreme Court in Sukhdev Singh v. Union of India (2013) 9 SCC 566, held as under:
"8. In our opinion, the view taken in Dev Dutt that eevery entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work hard harder and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same, Communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of nnatural justice. We, accordingly, hold that every entry in ACR poor, fair, average, good or very good must be communicated to him/her within a reasonable period.
9. The decisions of this Court in Satya Narain Shukla v. Union of India and Ors. (2006) 9 SCC 699 and K.M. Mishra v. Central Bank of India and Ors. (2008) 9 SCC 120 and the other decisions of this Court taking a contrary view are declared to be not laying down a good law."
52. Another crucial infirmity in the conduct of the Respondents relates to the manner in which the representations of the Petitioner, specifically regarding the upgradation of his ACR grades, were dealt with by the Respondents. The rejections dated 8th November, 2010 and 10th June, 2011 of the Petitioner"s representations are perfun perfunctory at best. The Petitioner has not even been communicated the reasons of the Competent Authority for rejecting his representation for upgradation.
Page 8 of 16Item No.62 (Court - 5) O.A. No.1183/2023
53. In that view of the matter, the impugned orders of the CAT dated 9th January, 2012 in OA No.2493/2011, No.2493/2011, and 5th October, 2012 in RA No.61/2012 are hereby set aside. The recommendations of the DPC dated 28th January, 2011 are also set aside. The Respondents are directed to hold a Review DPC, in accordance with law, within a period of 8 weeks to consider the Petitioner for promotion first to the T T-5 grade and thereafter to T-6 T 6 by ignoring such of those ACRs containing the below benchmark grading which were not communicated and which, therefore could not have been taken into account while considering him for ppromotion in light of the legal position explained in Abhijit Ghosh Dastidar v. Union of India (supra).
54. If the Review DPC finds the Petitioner fit for promotions to TT-5 and T-6 on the above basis, such promotions will relate back to the date that they wereactually ereactually due and those will be the relevant dates for pay fixation. While the Petitioner shall not be entitled to arrears of pay, those dates will be relevant for all other consequential benefits.
55. The petition and the pending application are dispose disposed of in the above terms with costs of Rs.20,000/-
Rs.20,000/ which will be paid by the Respondents to the Petitioner within four weeks."
2.9. Learned counsel for the applicant submitted that by a non non-
speaking and cryptic order the case of the applicant has been rejec rejected which is also apparent from the bare perusal of the records itself. He also relied upon the order passed by this Tribunal in O.A. No.738/2020 dated 11.02.2025, which reads as under:
"6. CONCLUSION 6.1 In view of the above, the impugned orders dated 004.04.2019 and 02.12.2019 are quashed and set aside. Further, we direct the respondents to re-consider re consider the case of the applicant for grant of MACP benefit with effect from the due date by convening a Review -DPC ignoring the impugned APAR and if the applicant applicant is found fit, grant the same to him by revising his pay and grant arrears thereof. However, the arrears shall not entail any interest. The above direction shall be complied with within three months from the date of receipt of a certified copy of this or order.
6.2 Accordingly, the present Original Application is allowed in the aforesaid terms. All pending Applications, if any, shall also stand disposed of. No costs."
costs.
3. Opposing the grant of relief the learned counsel for the respondents relied upon the averments contained in the counter affidavit. As per the directions he has produced the relevant records of Page 9 of 16 Item No.62 (Court - 5) O.A. No.1183/2023 the case. He relied upon brief history of the present case as highlighted ighlighted in the counter affidavit, which reads as under:
"Smt. Nisha Mendiratta was appointed as Stenographer in ETDC. Jaipur w.e.f. 03.07.1991 which is a Centre/Subordinate Office of STQC Dte. (an Attached Office of Ministry of Electronics and Informat Information Technology (MeitY). Later on, she was transferred to NSI, another subordinate office of STQC Dte. By ETDC, Jaipur vide Order dated 11.02.1994.
Further, consequent upon merger of NSI with Ministry of Electronics and Information Technology [erstwhile Min Ministry of Information Technology (MIT)], Smt. Nisha Mendiratta, Stenographer who was working on the strength of NSI was taken on the rolls of MIT along with post w. e. f. 15.05.2000.
A Departmental Screening Committee was constituted for considering the cases cases of 2nd/3rd financial upgradation under MACPS to the non-gazetted non gazetted eligible officials of Meity in which Smt. Nisha Mendiratta, PA was considered for 2nd MACP. The ACRS/APARs of Smt. Nisha Mendiratta for the year 2006-2012 2006 2012 were considered (excluding the ye year 2007 2007-2008 as 'No Report Certificate' has been placed). The final gradings for these 5 years are given below:
Sl.No. 1. 2. 3. 4. 5. 6.
Year 2006-2007 2007-2008 2008-2009
2009 2009-2010 2010- 2011-
2011 2012
Grading Average No Report OS 9 (OS) 10(OS) 10(OS)
Certificate
2. From the above it may be seen that the ACR grading for the year 2006 2007 is "Average" which is Below the Benchmark grading of "Good".
2006-2007 Since this ACRs was reckoned for financial upgradation by the DPC, the Below Benchmark grading for the year mentioned above has been communicated to her on 30.05.2013 (Annexure (Annexure- R/1) in order to give her an opportunity to represent against the Below Benchmark grading under DoPT instructions vide OM dated 13.04.2010 (Annexure (Annexure- R/2). As per instruction issued by DOPT vide O.M. dated 13.04.2010, it is stipulatedthat prior to the reporting period 2008-09, 2008 09, only the adverse remarks in the ACRs had to be communicated to the concerned officer for representation, if any to be considered by the competent authority.
3. The question of treating the grading in the ACR which is below the benchmark for next promotion has been considered in DOPT and it has been decided that if an employee is to be considered for promotion in a future DPC and his ACR prior to the period 2008 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 ACR are placed before the DPC, the concerned employee will be given a copy of the relevant 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."
Page 10 of 16Item No.62 (Court - 5) O.A. No.1183/2023 3.1. Counsel for the respondents does not dispute the fact that the adverse entries of APARs were communicated to the applicant on 30.05.2013 in order to give the applicant an opportunity to represent against the Below Benchmark grading under DoPT instructions vide OM dated 13.04.2010.
4. In rejoinder to the arguments put forth by the learned counsel for the respondents, the learned counsel for the applicant submitted that the respondents vide Office order dated 20.03.2014 granted the 2nd Financial Upgradation under the MACP in PB 2 Scale with Grade Pay of Rs.4800/-
Rs.4800/ grating the benefit efit w.e.f. 16.12.2013, i.e., the date of meeting of Screening Committee. However, the applicant was due for her entitlement w.e.f., 03.07.2011 instead of 16.12.2013.
5. Heard counsel for the parties at lengt length and perused the record of the case.
6. ANALYSIS 6.1 The decision in Dev Dutt vs Union Of India & Ors Ors. rendered on 12 May, 2008, wherein it was observed as under ::-
"13.
13. It has been held in Maneka Gandhi vs. Union of India & Anr. AIR 1978 SC 597 that arbitrariness violates Article 14 of the Constitution. In our opinion, the non-communication non communication of an entry in the A.C.R. of a public servant is arbitrary because it deprives the concerned employee from making a representation against it and praying for its up up-gradation. In our opinion, every every entry in the Annual Confidential Report of every employee under the State, whether he is in civil, judicial, police or other service (except the military) must be communicated to him, so as to enable him to make a representation against it, because non non-communication deprives the employee of the opportunity of making a representation against it which may affect his chances of being promoted (or get some other Page 11 of 16 Item No.62 (Court - 5) O.A. No.1183/2023 benefits). Moreover, the object of writing the confidential report and making entries in them is toto give an opportunity to a public servant to improve his performance, vide State of U.P. vs. Yamuna Shankar Misra 1997 (4) SCC 7. Hence such non-communication communication is, in our opinion, arbitrary and hence violative of Article 14 of the Constitution.
14. In our opinion, every entry (and not merely a poor or adverse entry) relating to an employee under the State or an instrumentality of the State, whether in civil, judicial, police or other service (except the military) must be communicated to him, within a reasonable period, and it makes no difference whether there is a bench mark or not. Even if there is no bench mark, non-communication non communication of an entry may adversely affect the employee's chances of promotion (or getting some other benefit), because when comparative merit is being considered for promotion (or some other benefit) comparative a person having a `good' or `average' or `fair' entry certainly has less chances of being selected than a person having a `very good' or `outstanding' entry.
15. In most services there is a gradation of entries, which is usually as follows:
(i) Outstanding
(ii) Very Good
(iii) Good
(iv) Average
(v) Fair
(vi) Poor A person getting any of the entries at items (ii) to (vi) should be communicated the entry so that he has an opportuni opportunity of making a representation praying for its upgradation, and such a representation must be decided fairly and within a reasonable period by the concerned authority.
16. If we hold that only `poor' entry is to be communicated, the consequences may be that that persons getting `fair', `average', `good' or `very good' entries will not be able to represent for its upgradation, and this may subsequently adversely affect their chances of promotion (or get some other benefit).
17. In our opinion if the Office Memorandum Memorandum dated 10/11.09.1987, is interpreted to mean that only adverse entries (i.e. `poor' entry) need to be communicated and not `fair', 'average' or 'good' entries, it would become arbitrary (and hence illegal) since it may adversely affect the incumbent incumbent's chances of promotion, or get some other benefit.
18. For example, if the bench mark is that an incumbent must have `very good' entries in the last five years, then if he has `very good' (or even `outstanding') entries for four years, a `good' entry fo for only one year may yet make him ineligible for promotion. This `good' entry may be due to the personal pique of his superior, or because the superior asked him to do something wrong which the incumbent refused, or because the incumbent refused to do sycophancy sycophancy of his superior, or because of caste or communal prejudice, or for some other extraneous consideration.
19. 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 non-communication of Page 12 of 16 Item No.62 (Court - 5) O.A. No.1183/2023 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 representation upgradation. Hence non-communication 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 arbarbitrariness violates Article 14 of the Constitution.
20. Thus it is not only when there is a bench mark 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."
6.2 In Civil Appeal No. 2021 of 2022 Union of India and Ors.
Versus G.R. Meghwal decided on 23.09.2022, it was observed by the Hon'ble Apex Court 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 2007-2008 mainly on the following grounds:-
grounds: (i) that in the earlier years, the very reporting officer/reviewing authority awarded "Very Good" for the years 20052005-2006 and 2006-2007 2006 2007 and the very reporting officer/rev officer/reviewing authority has given below benchmark "Good" for the year 2007 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 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.
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 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 suffe suffering from lack of bona fides.
6.1 In the case of Dev Dutt (supra), this Court has held in paragraphs 36 and 37 as under:-
under:
"36. In the present case, we are developing the principles of natural justice by holding that fairness and transparency in public administration requires that all entries (wh (whether poor, fair, average, good or very good) in the annual confidential report of a public servant, whether in civil, judicial, police or any other State service (except the military), must be communicated to him within a Page 13 of 16 Item No.62 (Court - 5) O.A. No.1183/2023 reasonable period so that he can make a representation for its upgradation. This in our opinion is the correct legal position even though there may be no rule/G.O. requiring communication of the entry, or even if there is a rule/G.O. prohibiting it, because the principle of non-arbitrariness ess in State action as envisaged by Article 14 of the Constitution in our opinion requires such communication. Article 14 will override all rules or government orders.
37. We further hold that when the entry is communicated to him the public servant shouldd have a right to make a representation against the entry to the authority concerned, and the authority concerned must decide the representation in a fair manner and within a reasonable period. We also hold that the representation must be decided by an authority higher than the one who gave the entry, ootherwise the likelihood is that the representation will be summarily rejected without adequate consideration as it would be an appeal from Caesar to Caesar. All this would be conducive to fairness and transparency in public administration, and would result in fairness to public servants. The State must be a model employer, and must act fairly towards its employees. Only then would good governance be possible." 6.2 In the instant case, the respondent was graded as "Very Good" in the ACRs for the years 2005-06 and 2006-07.07. However, in the year 2007 2007-08 he was graded only "Good" despite the fact that for all the three 10 years, the reporting and reviewing officer were same. 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 be no rule or government order to that effect. Pursuant to the judgment in Dev Dutta (supra), pra), OMs dated 14.05.2009 and 13.04.2010 were issued by the appellant herein."
6.3 In Writ Petition No. 1209 of 2021 R.K. Jibanlata Devi vs. High Court of Manipur through its Registrar General and others decided on 24.02.2023, the Hon'ble Apex Court observed as und under :-
"7. In view of the above and for the reasons stated above, the case of the petitioner for promotion to the post of Assistant Registrar as on 09.04.2021 is required to be considered afresh ignoring the uncommunicated ACRs for the years 2016-17 and 2019-20 20 and her case is required to be considered afresh taking into consideration the ACRs for the years 2017 2017-18 & 2018-19 for which the petitioner was having "Very Good" gradings.
8. In view of the above and for the reasons stated above, pre present petition is allowed. The DPC proceedings dated 09.04.2021 denying the promotion to the petitioner for the post of Assistant Registrar are hereby quashed and set aside. The case of the petitioner for promotion to the post of Assistant Registrar as on 09.04.2021 09.04.2021 i.e., the date on which the juniors came to be promoted is directed to be considered afresh ignoring the uncommunicated ACRs for the years 2016-17 2016 17 and 2019 2019-20 and thereafter the Page 14 of 16 Item No.62 (Court - 5) O.A. No.1183/2023 DPC/competent authority to take a fresh decision in accordance with law and taking into consideration the ACRs of remaining years, i.e., 2017 2017-18 and 2018-19.
2018 19. Such an exercise be completed within a period of six weeks from today.
8.1 In case after fresh exercise as above the petitioner is promoted to the post of Assistant Registrar, it goes without saying that she shall be entitled to all the consequential benefits including the arrears, seniority etc. w.e.f. 09.04.2021 - the day on which the juniors came to be promoted. Present writ petition is accordingly allowed to the aforesaid extent."
6.4 Applying the ratio of Dev Dutt (supra) as well above cited decisions on touchstone of the factual matrix of the present case, the ACR pert pertains to year 2006-2007 2007 "Average"
"Average", which were communicated only to the applicant for the first time vide OM dated 30.05.2013, which inter alia stated that the grading awarded in the ACR of the applicant for for the period 2006 2006-07 is below the benchmark of "GOOD" and it cannot be considered for granting 2nd/3rd financial up-gradation gradation under MACP. He further further submitted that vide the said OM, the applicant was given ACR grading "Average" for the period 2006-07.
07.7. CONCLUSION In view of the above detailed discussions, we quash and set aside the impugned orders dated 22.10.2021 along with ACR for the year 2006- 2007 and Orders dated 20.03.2014, 31.3.2014, 17.6.2014, 13.11.2014, 27.4.2015, 15.2.2016, 11.04.2016 at ANNEXURE A-1 A (colly colly). We direct the respondents to ignore the ACR for the year 2006-2007 2006 2007 on the ground of delayed initiation to re re-
consider the case of 2nd MACP from 2011 ignoring the ACR for the year 2006 2006- 2007 and pass appropriate order(s) granting ting the benefit w.e.f., 03.07.2011 instead of 16.12.2013.
16.12.2013. The consequential relief(s) shall flow within a Page 15 of 16 Item No.62 (Court - 5) O.A. No.1183/2023 period of two months from the date of receipt of a certified copy of this order. All pending applications, if any, shall also stand disposed of. Costs made easy.
(Dr. Anand S Khati) (Manish Garg)
Member (A) Member (J)
/sb/
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