Central Administrative Tribunal - Mumbai
Prakash Dattatray Gangane vs M/O Mines on 24 March, 2023
I OA 2006/2021 Central Administrative Tribunal, Mambai Bench, Camp at Nagpur. O.A.2006/2021 Dated this Friday, the 24" day of March, 2023. Coram: Hon'ble Shri Justice MUG. Sewlikar, Member (fudicial) Hon'ble Dr Bhagwan Sahai, Member (Administrative). Shri Prakash Dattatray Gangane, R/o. Pavan Yor, Plot No.67, Kotwal Nagar, Nagpur -- 440 022. Email: epdattal@@email com Moab,: 9130082569, - - Applicant. (in Person }. to Lpes 'TRUS Union of India, through the Secretary, Department of Mines, Ministry of Mines, Shastri Bhavan, New Delhi - 110 011. E-Mail: secy-mines@@inic.in The Controller of General, Indian Bureau of Mines (BM). Indira Bhavan, Nagpur~ 440 001. E-mail: ce @iibm.govin Retd. Superintending Officer, Ore Dressing, IBM, Mr.8.M. Shende, R/o Plot no.2, Trisaran Nagar, Shastri Layout, Opp. Somabwar High School, Khamla, Nagpur ~ 440 025. .. Respondents. ( By Advocate Shri PH. Khobragade ). Order reserved on : 09.02.2033 Order pronounced on 124,03, 2023, ORDER | Per: Dr. Bhagwan Sahai, Member (A)
Shri P.D. Gangane has filed this C.A. on 24.09.2020 sveking ~
(i) setting aside of office order dated 15.07.2019 issued by Ministry of Mines, Government of India rejecting his representation of i CA 2008/2021 25.05.2013 for grant of 2° MACP and proceedings of Departmental Screening Corumittes on 16,02 22010 and 18.05.2011;
Gi} direction to the respondents to expunge adverse eniries/below benchmark grading of all 3 ACRs from 3004 to 2008 which had not been communicated to himy and fi) direction to the respondents to convene review Departmental Screening Committee Meeting by informing of adverse remarks / belaw benchmark grading from the above period as expunged while considering him for grant of benefit of MACP-2 from 01.09.2008 in the relevant Pay Band with Grade Pay of Rs.7600/- resulting in enhancement of his pension with interest (@ 18% p.a. From 01.09.2008. CN He also prayed for providme cost of this QA by responderits,
2. Summarized facts as stated by applicant ;
2a). He joined service in December, 1983 as Assistant Ore Dressing ONficer, then was promoted as Ore Dressing Officer and transferred to Ajmer, Rajasthan. He was granted benefit of 1° ACP in 2003 and retired in 2010, He claims that he was not granted benefit ¢ 2" MACP because of below benchmark record of previous 5 years which contained adverse remarks during 3 year ig 2(b). He had fled earlier O.A.2089/2014, which was disposed ofon 24.10.2018 directing the respandent no. 1 to consider and decide 3 GOA, 2006/2021 his representation dated 25.05.2013. That representation was.
subsequently decided and order on it dated 15.07.2019 was communicated to him. The applicant has challenged this order of the respondents in this O.A.
3. Contentions of the applicant ;:
qn OA. rejoinder and during his submissions made personally on 09.02.2023, his contentions with alle saations are as under:
Bia). the respondents have failed to address bis important contention raised in the representation dated 25.05.2013 that his ACRs had been written by totally inexperienced and prejudiced Supervisor Shri S.M. Shende, Superintending Officer Ore Dressing from 2004 onwards. These reports were vitiated and illegal but the respondent heve not dealt with this issue in the impugned order. Shri Shende was posted during his career in Chemical Laboratory ie. Small Sub- Wing if Ore Dressing Division at Na azpur and thereafter transferred to Aimer 3b). Shri Shende lacked experience and expertise in Ore Division to guide or supervise the applicant and to objectively ase O88 his technical work. Supervision of work in Ore Dressing Investigation requires specialized technical knowledge and expertise but technical werk done by Shri Shende was nil. He expressed his inability to guide or supervise work of the applicant. Shri C.S. Gundewar was wor 'king 4 OA 3006/2021 as SSOD at Nagpur and he was also unable to supervise the work and performance of the applicant but ACR of the applicant from 2004 anwards should have been written by Shri Gundewar and not by Shri Shende;
3{c). in para 3.3 of DoPT OM dated 28. 05.1972, it was provided that officers writing confidential reports should have carefully observed work of subordinates and provided necessary training and guidance to them wherever necessary. But netther Shri Shende at Ajmer nor Shri Gundewar at Nagpur really observed or supervised technical work of the applicant. Thus both of 'them were not entitled ts report on the applicant. Therefore, the ACRuof the applicant from 2004 onwards were vitiated and iNegal.:
3¢d). in O.A. Shri S.N. Goswami Vs, Union of India and others, Bengaluru Bench of the Tribunal observed that. undecided disciplinary enquiry sannot be mentioned against the officer and, therefore, adverse entries made by Shri Shende against Shri Goswami were ordered to be expunged to consider Shri Goswami as elig igible for promotion. As per Supreme Court decision in case of E.G, Nambudri vs. Union of India, uncommunicated remarks or undisposed rTepresentahon ocannet be held against the officer in comparative selection for career advancement:
3 OA 2006/2023} Safe). the applicant's letter dated 09.05.2005 requesti ing that his ACR should not be reported by Shri Shends was not acted upon. Shri Gundewar accepted and admitted in 2007 that review report of the applicant's ACR of 2006-07 by Shri Shende was biased. In the impugned order the respondents have admitted that adverse remarks' below benchmark grading had not been communicated to the applicant In view of stipulations in DoPT OMs dated 28.05.1972, 28.03.2006 and 13.04.2010. But this stand of the respondents is not correct as the applicant has been communicated all adverse remarks and below benchmark gradin i@ in the year 2006-07. Thus they have themselves not followed the provisions of the DoPT OMs:
3h). the respondents in the impugned order have al so-stated that there were na adverse ACRS of the applicant and there were below benchmark gradings, The guidelines in DoPT OM dat ed 28.03.2006 that adverse entries / remarks have to be communicated are not relevant in the applicant's case for 5 ACRs form 2003-04 to 2007-08 which were rs considered by the Departmental Screening Committee. Adverse entries recorded in the applicant's ACR of 01.04.2005 te 31.03.2006 were communicated to him by the Indian Bureau of Mines dated 21.09.2006, but reply to the applicant's representation dated 19.12.9007 for quashing all those remarks/grading was not given. Thos non-disposal of his representation by Controller General, Indian Bureau of Mines, on & OA 2006/2071 Nagpur (Respondent No.2) amounted to non-communication of final remarks or grading to the applicant for the year 2008-06 and 2006-07:
aig). adverse entries'gradings for all the years 2004 to 2008 were not communicated to the applicant. DoPT OM dated 13.04.2010 (issued in pursuance to Supreme Court decision in Dev Dutt Vs. Union of India & Others Civil Appeal No.7631/2002 did not specifically provide 'that below benchmark or adverse remarks are ta he conumunicated in case of promotions only and not for other career benefits. Those instructions are applicable to both promotions and for considering for grant of MACP benefit. As per para 14 of that SC decision, every entry 'grading must be communicated In case of promotion or getting other career benefits which covers benefit like MACP. This is necessary to provide opportunity for making representation for upgradation which should be fairly decided by the toncemied authority. In view of this, the plea of the respondents that the guidelines in DoPT OM dated 13.04.2010 do not have any televance for grant of MACP benefit is wrong and needs to be struck down:
3(h). DoPT OM dated 19.05.2009 on X TACP provides that benefit of pay fixation or financial upgradation. under MACP will be the same for regular promotion. CAT, Jodhpur Bench in O.ASd6/2011 of Shri HUC. Singh, Sr, Mining Geologists ordered that MACP.2 7 QA.2006/202 | should be given to the applicant therein fom 01.09.2008 with consequential benefits, Challenge to that decision has heen upheld by the High Court and Apex Court in case of Sukhdev Singh Vs. Union of India & others in Civil Appeal No.5892/2006 dated 23.042 2013;
St}. in his representation dated 25.05.2013 the applicant had submitted that no finalized adverse remarks/erading had been communicated to him for the year 2004-05 to 2007-08 and representations against remarks in 2006-07 ACR were not replied by the Competent Authority, This amounted to nen-communication of final remarks/grading fer the year 2006-07. This action of the respondents: i assessing the applicant as unfit on the basis of uncommunicated remarks and undisposed representation was against the settled law in Dev Dutt Vs, Union of India, but the respondents have not addressed in the impugned order this concer of the applicant:
3). while the respondents have stated that since 'there were no adverse entries and as per DoPT OMs dated 28.05.1972, 28.93.2006 and 13.04.2010, they were not communicated for the year 2006-07, They also did not decide the applicar t's representation, The a applicant in his representation had also alleged that his ACR had been written by inexperienced, prejudiced and non-observing supervisor Shri Shende, Therefore, assessment of the applicant by Departmental screening Committes on 16.02.2616 and 18.05.2011 based on illegally written 8 OA 200G/202 1 ACRs was equally illegal, Due to denial of MACP-2 benefit to him the applicant was placed in lower grade pay of Rs.6600/- instead of Rs.7600/ in Pay-Band-3. This amounts ¢ f lakhs of rupees to him:
3(k). the stand of the respondents in their reply that the OLA, js barred by principle of res-judicat ia and deserves outright rejection is only an attempt to mislead the Tribunal, Since his representation dated 25.05.2013 had been pending for 6 years, the Tribunal in its order in OLA.2O892014 directed the respondents to decide that representation, But the impugned order of 15.07.2019 did not comply with the order of the Tribunal, as the issue of illegally written ACRs of the applicant by Respondent No.3 has not been considered. | The appleant never cast aspersions on any of the senior officers . and, therefore, allegations of the respondents in their reply in this regard is without any basis. In the decision of the Bengalurn Bench of the Tribunal in case of EG.
Namburi Vs. Union of India i has been clearly held that unconmmmunicated adverse remarks ar undisposed representation against such remarks cannot be held against the employee. The respondents and thelr CAO are in the habit of treating every averment of the applicant as imaginary, false or niyth; and
3). _ DoePT OM dated i 3.04.2010 does not specify that the stipulation to communicate adverse or below benchmark remarks is o OA 2006/2021 exclusively for promotion. The Hepblldents have attempted to add the word exclusively by manipulation. In the OM dated 19.05.2009 the benchmark has been specified as "Very Good" but there is no specific instruction that the below benchmark remarks should not be communicated. In the rejoinder he has also denied other contentions of the respondents rnaile in the reply.
3m). 'The applicant has also filed M.A.2011/2021 for condonation of delay contending that delay in submitting the O.A. is due to lockdown declared to prevent spread of Covid-19 Pandemic. 'Therefore, the delay in Ailing the O.A. should be condoned in view of Supreme Court order for condoning delay for periad of Cevid-19.
Contentions of the respondents :
Contentions of the respondents In their reply, sur-rejoinder and during arguments of their counsel are as under:
34a). the speaking order issued. by the respondents ot 18.07.2019 in pursuance to decision of the Tribunal dated 24.10.2018 in OLA.2089/2014 is as per the relevant rules and regulations which were applicable during service period of therefore, hit by principle of res-judicata and is able for outright repection 30}. the averments of the applicant in the OLA, do not have any merit, The procedure of writing ACR is a fool-proof two-tier system of f the applicant. The O.A. is, 10 OA.2006/202 I mitigating errors / misjudguenis, ete. As provided under DoPT OM., reporting on a Government servant is to be done by his immediate senior or supervisory officer and it has to be subsequently reviewed by still senior officer in the hierarchy. The applicant has all along worked under supervisic at Shri SM. Shende, Respondent No.3, the then yok.
Superintending Officer Ore Dressing and the ACRs written by Shri Shende were reviewed at the next higher levels. Therefore, it cannot be construed that entries made by the reporting officer had attained finality:
3{p}. ss the applicant has tried to cast aspersions on a senior officer under whom he had worked all along and had been deployed by Head ofthe Department to fimetion at the Regional Ore Dessing Laboratory:
é& Pilot Plant at Ajmer. The applicant has no right to question skill of ey, Respondent No.3 and competence of other senior officers, The applicant was a sub-ordinate officer and had functioned under supervision of Shri Shende and naturally Shri Shende was 'the Reporting Oficer for him:
3{q)}. the applicant has unnecessarily made an attempt to mention an irrelevant matter slated to Shri S.N. Goswami. The rationale in E.G. Nambudri Vs. Union of India is not applicable in case of the applicant because the facts and circumstances were totally different in that case. Stipulations under DoPT OM dated 29,05.1972 i OA 2006/2081 were adhered to by the respondents and thus there is no illegality in writing of ACR of the applicant. Adverse remarks in applicant's ACR. for the year 2606-07 were communicated to him and subsequently finally graded as "Good" which was awarded to him. The ACRs of the applicant considered by the Departmental Soreening Committee did not have any adverse remarks. Prior to issuance of DoPT OM dated 13,04.2010, there was no stipulations in the rule for communicating below benchmark grading. Instructions in that OM do not provide such a procedure for cases to be considered for upgradation under MACP notified on 19.05.2009. Therefore, there was no infirmity in the procedure adopted by the respondents in not communicating the final grading in ACR to the applicant;
Mr}. there are no separate guidelines issued by DoPT for communicating below benchmark grading for the purpose of financial upgradation under MACP. The Departmental Screening Coninittes considered the applicant's case twice on 16.02.2010 and 24.05.2011 to assess him for grant of MACP benefit, but on both accasians he was found unfit due to below benchmark grading of assessment. His grading continuously during the years 2003-04 to 2007 -Q8 was only "Good" and for 2008-09 it was "Very Geod"'. "Very Good" is benchmark for grant of financial upgradation under MACP, for grade pay of Rs.7500/- which was applicable in case of the applicant.12 OA 2006/2031
Therefore, his case was rightly rejected by the Departmental Screening Cammittse;
3{s) Apex Court took note of conflicting views in Apex Court decisions in case of Dev Dutt, Satya Narain Shukla Vs. Union of India 2006(9) SCC 69 and K.M. Mishra Vs. Canara Bank of India & Ors, 2008 (9) SCC 120 and, therefore, by order of the Apex Court in case of Union of India Vs. ALK. Goe! th was referred to a Larger Beneh. Since the benchmark requirement for MACP with Grade Pay of Rs.7,600/- is "Very Good", the applicant's assessed grading for § years was only "Good" and, therefore, he was found to be unfit for grant of MACP benefit. In the order ef the Tribunal dated 24,10 2018 O.A-2089/2014 filed by the applicant, there was no direction that the rationale of Dey Dutt case was applicable to the claim of the applicant, The Apex Court decision in case of Union of India Vs. RK. Sharma and others in Civil Appeal No.1876/2 #1 G@SLP (c} NO.S872,2019 has observed that the benefits imder. ACP or MACP are inventives and not part of any pay. Therefore, OA. should be dismissed; A(t}. there was no ile evality in the matter of writing ACR of the applicant by Respondent No.3, who was then Supervising Officer for him. The entries in his ACP attained tinality on completion of 2 Her reporting and reviewing and the action taken by the respondents is within the ambit of relevant rules and regulations. Final e grading of the we 8 OA 2062034 applicant in his ACRs for the period 2003 to 2608 was as follows:
2003-04 * Good 2004-05 ~ Good 2005-06 Good 2006-07 is Good 2007-08 « Good 2008-09 Very goad Thus there was no adverse grading but Ht was below benchmarks required for eligibility for MACP with grade pay of Rs,7600/.. In view of these submissions the OA. should he dismissed,
4. Analysis and conclusions :
4{a). We have carefully considered the submissions made by the applicant in the O.A., rejoinder and contentions during his arguments, _ We have also carefully considered oontentions of the respondents. 4{b), {In the OLA. and rejoinder, the applicant has made a number of allegations against respondent no.3 about his con npetence, etc contending that he was rol competent to report upon his performance.
Since respondent no.3, Shri Shende was the Supervisory Officer of the applicant during the relevant period, whether he was competent or not we camot go into these dilegations of the applicant. This was exclusively upto the respondents to appoint and post sub-ordinate and supervisory officers in various posts.iq OA. 2006/2021
A{e}. The contention of the respondents is correct that ACRs of the applicant for preceding S years were to be considered by Departmental Screening Committee to assess his fitness for grant of MACP benefit in Grade Pay of Rs.7600/- in PB-3, For the adverse remarks in ACR of 2006-07, they were communicated to the applicant, he submitted his representation thereon and after considering his representation by the respondents, his final erading was assigned as "Goad". Therefore, the contention of the applicant that his representation was not considered is not correct. The contention of the respondents is also correct that as per Para 17 under MACP Scheme issued with DOPT OM dated 19.05.2009, the benchmark grading required for grant of benefit in Grade Pay of Rs. 7600/- was "Very. Good". The contention of the respondents is correct that before issuance of DOPT OM dated 14.05.2009 on conmmunication of all entries in APAR for fairness and transparency in public administration issued in pursuance of Supreme Court decision in Dew Dutt Vs. U ion of India dated 12.05.2008, only adverse remark entries in the ACRs were to be communicated as per earlier DOP OM dated 29.05.1972 and DOPT OM dated 28.03.2006. Thus, prior to reporting period 2008- ic 2009, only adverse remarks in the AC Rs were to be communicated to the concerned officers for representation, if any, to be considered by the Competent Authority bt Sate DOA.200G/202 | 4(d). The contention ofthe respondents is also correct that since MACP Scheme notified on 19.05.2009 came to be implemented from 01.09.2008, he was considered only after that date by the Departmental Screening Committee on 16.02.2010 and 24.05.2011. The contention of the respondents that Instructions for communicating adverse entries for promotion are as per DePT OM 13.04.2010 ts also correct, die). But in the context of grant of MACP benefit, the specific mention in Supreme Court decision in Dev Dutt's case dated 12.08.2008 that all entries in the ACR should be communicated to the concerned employees became operative with DoPT OM) dated 14.05.2009. As per Supreme Court decision in Creil Appeal | No.5892/2006, Sukhdev Singh Vs. Union of India & others dated.
23.04.2013 every entry in ACR ~ poor, fair, average, good or very good must be communicated to him/her within a reasonable period and this was confirmation of the Supreme Court decision in case of Dev Dult ¥s. Union of India & Others, With this, the earlier Supreme Court decision in the case of Satya Narain Shukla Vs. Union of India and KM. Mishra Vs. Canara Bank of India & Ors. and other Supreme Court decisions taking a contrary view were declared to be not laying down a goad law. Since the benelit of MACP is a compensating snetit for having got no promotion, fitness of an employee has to be assessed atid communication of remarks / comments in the ACR for the 16 QA2006/2021 relevant period of consideration also need to be communicated, This contention of the applicant is valid.
Ait). The Departmental Screening Committee of the respondents assessed fitness of the applicant for MACP benefit on 16.02.2010 and 24.05.2011. This.was after issuance of DOPT OM of 14.05.2009, As per DOPT OM dated 13.04.2010, if an employee is to be considered for promotion in future DPC and his ACRs prior to period of 2008-2008 are to be reckoned for assessment of his fitness in such future DPC, final grading which are below benchmarks for next promotion, they should be communicated before such ACR is placed before DPC. Therefore, they should have communicated to the applicant all entries in his ACR of previous five years of r elevant. period to be considered to assess his benchmark fitness for IT MACP. In case the applicant submitted any representation for ary changes in those ACRs, it should have been considered and only after decisian thereon, his ACRs should have been taken into account to agsess his benchmark grading for MACP henefit. This is the flaw in the procedure adopted by the respondents. Because of it, Bis assessment tor benchmark grading for I] MACP benefit has to be done afresh by communicating to hin all entrles in his AUCRs/APARs fom 2004-2005, 2003-2006, 2007-2008 and 2008-2005, if ANY representation is received from the applicant then consider that and thereafer finalize the grading eet ay OA2006/2021 of those ACRs/APARs. Since for the year 2006-2007 entries in his ACR at had already been communicated and the applicant submitted his representation against them and it was considered and thereafter his arading was assigned as Good, there is no need to conununicate the entries of the ACRs for the year 2006-2007.
ta Decision ¢ The OA is partly allowed. The respondents are directed to communicate all entries in ACRs of the applicant of the years 2004- 2065, 2005-2006, 20607-2008 and 2008-2009 for submission of representation, if any. Lf such representation is received, they should consider it and then finalize grading of those ACRs, and therealter the Departmental Screening Committee should assess afresh fines of the applicant for grant of benefit of I] MACP for Gr ade Pay of Rs.7 ; 600/-
and take further required necessary action. This exercise should be completed by the respondents within four months from the date of receipt of a certified copy of this order.
(Dr. BhheWawsahan (Tustice M,G.Sewlikar) Member (A) ' Member WD Hikrne*