Central Administrative Tribunal - Mumbai
Meena Shrikrishna Samant vs M/O Home Affairs on 6 March, 2024
1 OA No.747/2018 & 12 Ors.
CENTRAL ADMINISTRATIVE TRIBUNAL MUMBAI BENCH, MUMBAL ORIGINAL APPLICATION No.747/2018, 748/2018, 749/2018, 750/2018, 75/2018, 752/2018, 753/2018, 754/2018, _ 2355/2018, 769/2018, 770/2018, 71/2018 & 642/2018, Date this Wedassdajthe cth day of March, 2024 CORAM: Ms. Harvinder Kaur Oberoi, Member (J) Mr. Shri Krishna, Member (A) OA No.747/2018 Mrs. Amruta A Pansare Age 57 years, presently working as Data Entry Operator, Grade-B in the Directorate of Census Operations, Maharashtra B.M.C. Building, T-Ward, Second Floor, Devidayal Road, Mulund West, Mumbai 400 080. | R/at 124/4267, Lok Prabha, Tilak Nagar-II, Near Sahakar Plaza, Chembur 400 089, .. Applicant (By Advocate Shri Ramesh Ramamurthy ) VERSUS
1. Union of India, Through the Secretary, Ministry of Home Affairs, Government of India, North Block, New Delhi 110 011.
2. The Registrar General India, Government of India, Ministry of Home Affairs, 2A, Mansingh Road, New Delhi 110 011.
3. The Director of Census Operations Maharashira State, Exchange Building, 2 OA No.747/2018 & 12 Ors, Sir Shivsagar Ram Gulam Marg, Ballard Estate, Mumbai - 32. .. Respondents (By Advocate Shri A.A. Garge } OA No.748/2018 Mrs. Suman Ramchandra Kambli Age 62 years, lastly working as Data Entry Operator, Grade-B, _ Directorate of Census Operations, Maharashtra B.M.C. Building, T-Ward, Second Floor, Devidayal Road, Mulund West, Mumbai 400 080.
R/at 383, D. Vithal Bhai Patel Road, Girgaon, .
Mumbai 400 004. .. Applicant (By Advocate Shri Ramesh Ramamurthy ) VERSUS
1. Union of India, Through the Secretary, Ministry of Home Affairs, Government of India, North Block, New Delhi 110 011.
2. The Registrar General India, Government of India, Ministry of Home Affairs, 2A, Mansingh Road, New Delhi 110 011.
3. The Director of Census Operations Maharashtra State, Exchange Building, Sir Shivsagar Ram Gulam Marg, Ballard Estate, Mumbai - 32. .. Respondents ( By Advocate Shri A.A. Garge ) 3 OA No.747/2018 & 12 Ors. OA No.749/2018 Mrs. Meena Shrikrishna Samant, Age 62 years, lastly working as Data Entry Operator, Grade-B in the Directorate of Census Operations, Maharashtra Exchange Building, Sir Shivsagar Ram Gulam Marg, Ballard Estate, Mumbai 400 032.
R/at 12, Nilkanth Krupa CHS Ltd., 3" Floor, Shubhash Road, Near Maruti Mandir, Dombivali East, Distr. Thane. .. Applicant (By Advocate Shri Ramesh Ramamurthy ) ;
VERSUS
1. Union of India, Through the Secretary, Ministry of Home Affairs, Government of India, North Block, _ New Delhi 110 011.
2. The Registrar General India, Government of India, Ministry of Home Affairs, 2A, Mansingh Road, New Delhi 110 011.
3. The Director of Census Operations Maharashtra State, Exchange Building, Sir Shivsagar Ram Gulam Marg, Ballard Estate, Mumbai - 32. .. Respondents ( By Advocate Shri A.A. Garge ) OA No.750/2018 Mrs. Pushpa Rangarajan, Age 63 years, lastly working as Data Entry Operator, Grade-B/Senior Supervisor in the Directorate of Census - Operations, Maharashtra B.M.C. Building, T-Ward, Second Floor, Devidayal Road, Mulund West, 4 OA No.747/2018 & 12 Ors. Mumbai 400 080.
R/at 17, Shiv Aradhana, Plot No.68 /70, Near Model English Shcool Ramchandra Nagar, Dombivli East, Dist. Thane - 421 201. .. Applicant (By Advocate Shri Ramesh Ramamurthy ) VERSUS
1. Union of India, Through the Secretary, Ministry of Home Affairs, Government of India, North Block, New Delhi 110 011.
2. The Registrar General India, Government of India, Ministry of Home Affairs, 2A, Mansingh Road, New Delhi 110 011.
3. The Director of Census Operations Maharashtra State, Exchange Building, Sir Shivsagar Ram Gulam Marg, Ballard Estate, Mumbai ~ 32. .. Respondents ( By Advocate Shri A.A. Garge ) OA No.751/2018 Mts. Shaila Simon Pareira, Age 59 years, presently working as Data Entry Operator, Grade-B in the Directorate of Census Operations, Maharashtra B.M.C. Building, T-Ward, Second Floor, Devidayal Road, Mulund West, Mumbai 400 080.
R/at Nalla Rane Bhat, Near Nalasopara Railway Station, Post Sopara, Tal . Vasai, Dist. Palghar 401 203 .. Applicant (By Advocate Shri Ramesh Ramamurthy ) 5 OA No.747/2018 & 12 Ors. VERSUS
1. Union of India, Through the Secretary, Ministry of Home Affairs, Government of India, North Block, New Delhi 110 011.
2. The Registrar General India, Government of India, Ministry of Home _ Affairs, 2A, Mansingh Road, New Delhi 110 011.
3. The Director of Census Operations Maharashtra State, Exchange Building, Sir Shivsagar Ram Gulam Marg, Ballard Estate, Mumbai - 32.
( By Advocate Shri A.A. Garge ) OA No.752/2018 Mrs. Ranjana Laxman Nikam, Age 61 years, lastly working as Data Entry Operator, Grade-B in the Directorate of Census Operations, Maharashtra B.M.C. Building, T-Ward, Second Floor, Devidayal Road, Mulund West, Mumbai 400 080, R/at A-1, Megh Jyot, 51, T.P.S. Road, Opp. Veer Savarkar Udayan, Borivali West, Mumbai 400 092.
(By Advocate Shri Ramesh Ramamurthy ) VERSUS
1. Union of India, Through the Secretary, Ministry of Home a Government of India, North Block, New Delhi 110 011.
. Respondents Applicant 6 OA No.747/2018 & 12 Ors.
2. The Registrar General India, Government of India, Ministry of Home Affairs, 2A, Mansingh Road, New Delhi 110 011.
3. The Director of Census Operations Maharashtra State, Exchange Building, Sir Shivsagar Ram Gulam Marg, Ballard Estate, Mumbai ~ 32. .. Respondents ( By Advocate Shri A.A. Garge ) OA No.753/2018 Smt. Vrushali Aniruddha Londe, Age 57 years, Presently working as Data Entry Operator, Grade-B in the Directorate of Census Operations, Maharashtra B.M.C. Building, T-Ward, Second Floor, Devidayal Road, Mulund West, Mumbai 400 080.
R/at Room No.304, Indra Prastha CHS Near Sita Kunj, Chulegaon, Thakurli East, Thane. .. Applicant (By Advocate Shri Ramesh Ramamurthy ) VERSUS
1. Union of India, Through the Secretary, Ministry of Home Affairs, Government of India, North Block, New Delhi 110 011.
2. The Registrar General India, Government of India, Ministry of Home Affairs, 2A, Mansingh Road, New Delhi 110 011.
7 OANo.747/2018 & 12 Ors.3. The Director of Census Operations Maharashtra State, Exchange Building, Sir Shivsagar Ram Gulam Marg, Ballard Estate, Mumbai - 32. .. Respondents ( By Advocate Shri A.A. Garge ) OA No.754/2018 Mrs. Rajashree Vijay Deshpande Age 62 years, lastly working as Data Entry Operator, Grade-B in the Directorate of Census Operations, Maharashtra B.M.C. Building, T-Ward, Second Floor, Devidayal Road, Mulund West, Mumbai 400 080.
R/at 501 Rajashree Towers, Rambaug, Lane No.6, Murbad Road, Kalyan West, Dist. Thane. |... Applicant (By Advocate Shri Ramesh Ramamurthy ) VERSUS
1. Union of India, Through the Secretary, Ministry of Home Affairs, Government of India, North Block, New Delhi 110 011.
2. The Registrar General India, Government of India, Ministry of Home Affairs, 2A, Mansingh Road, New Delhi 110 011.
3. The Director of Census Operations Maharashtra State, Exchange Building, Sir Shivsagar Ram Gulam Marg, Ballard Estate, Mumbai ~ 32. .. Respondents ( By Advocate Shri A.A. Garge ) 8 OA No.747/2018 & 12 Ors. OA No.755/2018 Vijay Babaji Dalvi, Age 60 years, lastly working as Data Entry Operator, Grade-B in the Directorate of Census Operations, Maharashtra B.M.C. Building, T-Ward, Second Floor, Devidayal Road, Mulund West, Mumbai 400 080.
R/at Shrungar CHS, B-105, K.T. Village, 60 ft. Road, Ambadi Cross Road, 4, Vasai Road, Dist. Palghar, Maharashtra 401 202.
(By Advocate Shri Ramesh Ramamurthy ) VERSUS
1. Union of India, Through the secretary, Ministry of Home Affairs, Government of India, North Block, New Delhi 110 011.
2. The Registrar General India, _ Government of India, Ministry of Home Applicant Affairs, 2A, Mansingh Road, New Delhi 110 011.
3. The Director of Census Operations Maharashtra State, Exchange Building, Sir Shivsagar Ram Gulam Marg, Ballard Estate, Mumbai - 32.
(By Advocate Shri A.A. Garge ) OA No.769/2018 Mrs. Asmita Anil Lawate Age 61 years, lastly working as Data Entry Operator, Grade-B in the Directorate of Census Operations, Maharashtra Exchange Building, Sir Shivsagar . Respondents 9 OA No.747/2018 & 12 Ors. Ram Gulam Marg, Ballard Estate, Mumbai - 32. R/at 504, Jai Ambe, Rajendra Nagar, Borivali East, Mumbai 400 066. ... Applicant (By Advocate Shri Ramesh Ramamurthy ) VERSUS
1. Union of India, Through the _ Secretary, Ministry of Home Affairs, Government of India, North Block, New Delhi 110 011.
2. 'The Registrar General India, Government of India, Ministry of Home Affairs, 2A, Mansingh Road, New Delhi 110 011.
3. The Director of Census Operations Maharashtra State, Exchange Building, Sir Shivsagar Ram Gulam Marg, Ballard Estate, Mumbai - 32. ... Respondents ( By Advocate Shri A.A. Garge ) OA No.770/2018 Mrs. Anuradha Umakant Naidu, Age 62 years, lastly working as Data Entry Operator, Grade-B in the Directorate of Census Operations, Maharashtra B.M.C. Building, T-Ward, Second Floor, Devidayal Road, Mulund West, Mumbai 400 080.
R/at Swami Samarth Prasad, R/53, Sudarshan Nagar Cross Road 3, MIDC Dombivli East, Maharashtra - 421 203. .. Applicant (By Advocate Shri Ramesh Ramamurthy ) VERSUS 10 OA No.747/2018 & 12 Ors.
1. Union of India, Through the Secretary, Ministry of Home Affairs, Government of India, North Block, New Delhi 110 011.
2. The Registrar General India, Government of India, Ministry of Home Affairs, 2A, Mansingh Road, New Delhi 110 011.
3. The Director of Census Operations Maharashtra State, Exchange Building, --
sir Shivsagar Ram Gulam Marg, Ballard Estate, Mumbai - 32. .. Respondents ( By Advocate Shri A.A. Garge ) | OA No.771/2018 Kalidas Krishnaji Sawant Age 62 years, lastly working as Data Entry Operator, Grade-B in the Directorate of Census Operations, Maharashtra Exchange Building, Sir Shivsagar Ram Gulam Marg, Ballard Estate, Mumbai ~ 32.
R/at Vindhyachal Society Lok Dhara Complex, Kalyan East, Dist. Thane 421 306. .. Applicant (By Advocate Shri Ramesh Ramamurthy ) VERSUS
1. Union of India, Through the Secretary, Ministry of Home Affairs, Government of India, North Block, New Delhi 110 011.
2. The Registrar General India, Government of India, Ministry of Home Affairs, 2A, Mansingh Road, New Delhi 110 011.
11 OA No.747/2018 & 12 Ors.3. The Director of Census Operations Maharashtra State, Exchange Building, Sir Shivsagar Ram Gulam Marg, Ballard Estate, Mumbai - 32. ... Respondents ( By Advocate Shri A.A. Garge ) OA No.642/2018 Smt. Florie M. Fernandes Data Entry Operator Grade-B/ Sr. Superviosr, Directorate of Census Operation, D.D.E. Unit (Maharashtra) Devidayal Road, Near Panchrasta, T. Ward, B.M.C Bldg., (R.No.41), Mulund (W), Mumbai 400 080.
R/at 58 Bldg, 'B' Wing, Flat No. 31, 3°4 Floor, Vrindaban Society, Thane (W) ~ 400 601. .. . Applicant (By Advocate Ms. Annie Nadar ) VERSUS
1. Union of India, Through the Secretary, Office of Registrar General, Ministry of Home Affairs, Room No.114, A.P.A.R. Cell, Sewa Bhawan, R.K. Puram, New Delhi 110 066.
2. The Registrar General India, Ministry of Home Affairs, | Ad ~ Ill Section, 2A, Mansingh Road, New Delhi 110 011.
3. Dy. Registrar General, Directorate of Census Operation, Exchange Building, (274 Floor), Sportt Road, Ballard Estate,
12. QA No.747/2018 & 12 Ors.
Mumbai - 400 038. | .. Respondents ( By Advocate Shri A.A. Garge ) ORDER _ Per: Ms. Harvinder Oberoi, Member @D All the applicants are having similar grievances. They have prayed for similar reliefs in these OAs. On the prayer of learned counsels for the parties all matters were heard together. As such, a common order is being passed in all these _ OAs. OA No.747/2018 has been taken as a lead case,
2. Applicant in OA 747/2018, had joined the office of the Directorate of Census Operations at Mumbai as a Data Entry Operator. There are no promotional avenues for the post of Data Entry Operator and the applicant retired from the same post.
3. The present Original Application has been filed challenging the office order dated 18/22"4 May, 2018 issued by the respondents whereby the representation of the applicant for the upgradation of ACR has been rejected.
4. Second ACP benefit was granted to the applicant retrospectively w.e.f. 01.04.2007 in the Grade Pay of Rs.4600/-
vide order dated 14.10.2011. According to the applicant, the
13. OA No.747/2018 & 12 Ors, said second ACP granted was not in appropriate Grade Pay nor the same was granted from the actual due date. Thereafter, office order dated 18.01.2016 was issued and the second financial upgradation on the completion of 24 years of service was granted to the applicant in the Grade Pay of Rs.5400/- superseding the earlier orders, whereby the applicant was granted the Grade Pay of Rs.4600/-. This benefit was also granted retrospectively to some individuals, however, the applicant was not granted the same. The order of 14.10.2011 issued earlier was superseded by the respondents by the order of 18.01.2016. The applicant, whose name was included in the first order however, could not find her name in the order dated - 18.01.2016. Another office order was issued on 14.06.2017 | granting 3" MACP on completion of 30 years in the Pay Band "3 with Grade Pay Rs.6600/-. The applicant contends that she also ought to have been granted the same benefit. However, the applicant did not find her name in the said order also,
5. The Applicant received a letter dated 21/27 January, 2016 from the respondents enclosing the ACRs for the period 2000-2001 to 2004-2005 and communicating the grading 14 OA No.747/2018 & 12 Ors, in each of the 5 years to the applicant for the first time. It is contended that it is only after receiving this communication that the applicant became aware that "Average" grading in the year 2001-2002 and "Below Average" grading in the year 2002- 2003 had been given to her which apparently was a reason for non-granting/non-consideration for grant of second ACP benefit in the Grade Pay of Rs.5400/- w.e.f. 01.01.2007. The applicant represented for upgrading the ACRs. However, the same was rejected by the respondents vide order dated 18/2274 May, 2018. In the said rejection letter, it has been mentioned that since the Reporting Officer and Reviewing Officer of the employee had since retired from Government service, as such the representation of the applicant for upgradation cannot be considered. The applicant thus states that the second financial upgradation in the Grade Pay of Rs.5400/-and third financial upgradation in the Grade Pay of Rs.6600/- have been denied to her illegally from the due dates, |
6. The OA was filed and during the pendency of this OA with retrospective effect second and_ third | financial upgradations were granted to the applicant, however, not from 15 OA No.747/2018 & 12 Ors. the due dates but with deferment as mentioned in the chart give below:
S| Nameof | OA | Grantof 2" | Grantof | Grantof3 | Grantof3™ | Date of r.| Applicant | Wo. Financial and Financial Financial Retirem- N Upgradation | Financial Upagradation Upagradation ent
0. claimed | Upgradati- claimed w.e.f, | Btanited w.ef. wed, on granted --_ w.e£.
1 JAmruta |747/ 01/01/07 |01/04/08 | 01/01 /13 01/04/14 31/12/2020 A 2018 Pansare Thus the dispute is with respect to grant of the ACP _ and MACP from due dates instead of deferred date.
7. The respondents have filed their reply and have stated that for grant of benefits under the ACP and MACP Scheme one of the conditions prescribed is fulfillment of the norms for promotion. The candidates required a bench mark of 'Good! in the ACRs/ APARs for the past 5 years. That prior to 2005, there were no instructions, Guidelines or | Office Memorandum on the subject of communication of below bench mark grading or adverse remarks in the ACR/APAR of an employee concerned. That it was with the decision of Hon'ble Apex Court in the case of Dev Dutt Vs. Union of India & Ors., (2008) 8 SCC 725 decided on 12% May, 2008 that law was laid down that Adverse entries / remarks ought to be communicated to the employee concerned time to time to make him aware of 16 OA No.747/2018 & 12 Ors. his shortcomings to enable him to improve and also to give opportunity of representation, if required. Hon'ble Supreme Court in the case of Dev Dutt (supra) has also laid down the guidelines and criteria in this regard. The DoPT had issued OM dated 13.04.2010 on this basis. Subsequently, Hon'ble Supreme Court in the case of Abhijit Ghosh Dastidar Vs. Union of India & Ors., (2009) 16 SCC 146, decided on 22.10.2008 and Sukhdev Singh Vs. Union of India & Ors, (2013) 9 SCC 566 decided on 23.04.2013, reiterated the ratio as laid down in Dev Dutt. (supra) in more details. It is submitted by the respondents that as the applicant did not fulfili the condition of 5 "Good", therefore, the financial upgradation could not be granted in the concerned Grade Pay. The Competent Authority, however, has taken the decision to grant the said upgradations with deferment which has also resulted in delay of third financial upgradation.
8. DoPT vide OM dated 13.04.2010 laid down the guidelines in the case of below bench mark gradings as under:
ese The undersigned is directed to say that prior to the reporting period 2008-09, only the adverse remarks in the ACRs had to be communicated to 17 OA No.747/2018 & 12 Ors. the concerned officer for representation, if any to be considered by the competent authority. The question of treating the grading in the ACR which is blow the benchmark for next promotion has been considered in this Department and it has been decided that if an 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. It may be noted that only below benchmark ACR for the period relevant to promotion need be sent. There is no need to send below benchmark ACRs of other years.
The applicant vide letter dated 21/27.01.2016 was communicated for the first time the below bench mark gradings which reads as below:
OA No.747/2018:
Year 2000-01 2001-02 2002-03 2003-04 2004-05 Grading Good Average Below Average Good Good communicated to all applicants vide 18 OA No.747/2018 & 12 Ors. Similarly below bench mark gradings were 27/21.01.2016 & 16.02.2016 in the following manner:
separate letters dated OA No.748/2018:
Year 2001-02 ; 2002-03 | 2003-04 | 2004-05 2005-06 Grading | Average Average | Good Good Good OA No.749/2018:
Year |1999-2000; 2000-01 | 2001-02 | 2002-03 2003-04 Grading | Good Good | Average Average | Good
- OA No.750/2018:
Year | 2000-01 | 2001-02 2002-03 | 2003-04 | 2004-05 | Grading | - Good Average | Below Good Good Average OA No.751/2018:
Year | 2001-02 | 2002-03 | 2003-04 | 2004-05 2005-06 Grading | Average Average | Good Good Good OA No. 752/2018:
Year | 2000-01 | 2001-02 | 2002-03 | 2003-04 2004-05 Grading | Good Average | Average! Good Good OA No.753/2018:19 OA No.747/2018 & 12 Ors.
1999-2000 Year 2000-01 | 2001-02 | 2002-03 | 2003-04 Grading | Good | Missing | Average] Below Good Average OA No.754/2018:
Year /1999-2000) 2000-01 | 2001-02 | 2002-03 | 2003-04 Grading | Good Good | Average; Below Good Average OA No.755/2018:
Year 1999-2000! 2000-01 | 2001-02 | 2002-03 | 2003-04 Grading | Good | Missing | Average| Average | Good OA No.769/2018:
Year | 2000-01 ; 2001-02 | 2002-03 | 2003-04 | 2004-05 Grading | Good Below | Average| Average | Good Average OA No.770/2018:
Year 2000-01 | 2001-02 | 2002-03 | 2003-04 | 2004-05 Grading | Good | Average; Below Good Good | Average 20 OA No.747/2018 & 12 Ors. OA No.771/2018:
Year 2000-01 | 2001-02 | 2002-03 | 2003-04 2004-05 | Grading | Good | Average | Below | Good Good Average
10. The respondents submit that the DoPT OM referred . :
to above concerns a future DPC that if the ACR grading of an employee prior to the period 2008-09 would be reckonable for assessment of his fitness, only then the below bench mark grading was to be communicated. Accordingly, the ACRs were communicated to the applicant. The representation against the below bench mark ACR was considered by the Competent Authority and her request for upgradation was rejected as the Reporting and Reviewing Officer have retired. The matter was placed before the Departmental Screening Committee to decide the suitability of the applicant along with other employees for grant of second financial upgradation in Pay Band-3 with Grade Pay of Rs.5400/- under the ACP Scheme. The Screening Committee found the applicant 'fit' and accordingly she was granted second financial upgradation under the ACP scheme vide office order dated 24.10.2018 (during the pendency of the 21 OA No.747/2018 & 12 Ors. OA) w.e.f. 01.04.2008 after deferment instead of 01.01.2007 due to having below bench mark gradings for the period 2001-2002 and 2002-2003. The applicant was also found eligible for 374 MACP in the Grade Pay of R.6600/- and she has been granted the same w.e.f. 01.04.2014 after deferment instead of 01.01.2013 due to the below bench mark ACR grading for the period 2001-
2022 and 2002-2003. |
11. _ Similarly, upgradations were granted to all applicants, The case-wise due dates but with deferment are as mentioned in the chart give below:
Sr| Nameof | OA | Grant of 2! Grant af - Grant of 34 Grant of 3¢ ; Date of 'N| Applicant | No, | Financial and Financial Financial | Retirem-
0. Upgradation ; Financial Upagradation Upagradation ent daimed =| Uppradati- claimed w. ef, | granted w.e.f. wef, on granted wet.
1 |Amruta A|747/ |01/01/07 |01 /04/08 01/01/13 01/04/14 31/12/2020 Pansare [2018 |-
2 |Suman Rj 748/ |15/05/07 ° |01/ 04 /08 |13/05/13 01/04/14 31/08/15 Kamble =| 2018 3 |Meena $,|749/ |18/02/06 |o1/04/os 18/02/12 |o1/oa/1a__| 21/07/16 Samant 2018 4 |Pushpa 750/ |31/08/06 |01/04/08 [31/08/12 01/04/14 31/10/15 Rangaraja ; 2018 n 5 |Shaila $/751/ |01 /06/07 01/04/08 | 01/06/13 01/04/14 31/12/18 Pareira 2018 6 |Ranjana L, 752/ 22/08/06 |01/04/08 |22/08/12 01/04/14 31/07/17 Nikam 2018 7 |Vrushali A)753/ |06/01/08 [06/01/08 [06/01/12 |o1/o4a/14 (31/10/20 Londe 2018 8 jRajashree |754/ |10/01/06 {01/04/08 | 10/01/12 01/04/14 = [31/05/15 Vv 2018 Deshpande 22 OA No.747/2018 & 12 Ors. 9 | Vijay 758/ |10/01/06 j10/01/08 [10/01/12 Joryoas1a31aaa7 Dalvi 2018 10 Asmita -- |769/ [31/05/06 01/04/08 |13/05/12 loi/oayia (ai/a7/n8 Lawate 2018 11 | Anuradha |770/ | 02/09/06 01/04/08 | 02/09/12 01/04/14 30/04/15 Naidu 2018 12 | Kalidas 771/ 29/08/06 01/04/08 29/ 08/12 01/04/14 31/10/15 Sawant 2018
12. We have heard the learned counsel for the parties and have perused the pleadings and documents available on record.
13. Counsel for the applicant submitted that the appli- cants were communicated the below benchmark grading in the ACR in the year 2016 in view of the DoPT instructions dated 13th April, 2010. The counsel submitted that the bench mark requirement is five goods and the respondents were very well aware of the same. In case the below benchmark performance of the applicants for the year 2001-2002 and 2003-2004 in 2016, serves no purpose. Further representation of the applicant for upgradation of the ACR was rejected cursorily without consid- ering it on merits.
14. Applicant stated that it was for the first time that the below benchmark ACR had been communicated to him and that no such communication was made eatlier by the office 23 OA No.747/2018 & 12 Ors. during those respective years. He further submitted that as no information was given, it was presumed that his performance was as per the requirement and atleast not below the required gradings. The counsel submitted that when the OA was filed, the applicants were on the verge of retirement and the OAs were filed immediately challenging this action. He submits that the delay in communication has caused prejudice to them as the reporting and the reviewing authorities retired. It was argued that vide OM dated 13th April, 2010 DOPT issued instructions that when the ACRs prior to the period 2008-2009 would be reckonable for assessment, then such ACRs ought to have been communicated in 2010 itself when the DoPTs instructions were issued. This was not done by the respondents at that time and therefore applicants cannot be denied ACP/MACP w.ef, due dates. | 15, Learned counsel for the applicant vehemently states that the performance of the applicant during the period for which he has been arbitrarily given below bench mark gradings has been exceptional, but for no reasons, the applicant was assessed as 'Average'. The learned counsel also submits that the 24 OA No.747/2018 & 12 Ors. applicant was not called for any counseling for review of his performance and no show cause notice or memo was ever issued to him during the said period to complain about or question his performance or efficiency in the duties entrusted to him. The learned counsel also argued that the principles of natural justice entail procedural fairness followed by a fair decision by objective decision making and in the case of the applicant there is a flagrant violation of the principles of natural justice by down grading him in the said two ACRs without there being any objective assessment of his performance or any material to support the same. The learned counsel thus, submits that the conduct of the respondents in down grading the petitioner for the said years and for not deciding his representation objectively has resulted in gross violation of his Fundamental Rights as enshrined under Article 14 and 16 of the Constitution of India. The learned counsel also submits that arbitrariness and maliciousness in the acts of the respondents is writ large on the face of it because, based on the said two below benchmark ACRs, the applicant was not granted 2.4 ACP and 3™4 MACP on due date, was granted but with deferment.
25 OA No.747/2018 & 12 Ors.16. Per contra, Shri A.A. Garge, learned counsel for the respondents argued that the cases of the applicants were placed before the Screening Committee and the screening committee decided to declare the applicants fit for ACP/MACP but with deferment. That the applicants have accordingly been granted the second ACP and also the third MACP with deferment.
17. The respondents submitted that at the relevant time i.e. when the ACRs were written it was not compulsory to com- municate the same to them to the officers. As such, the said ACRs could not be communicated at that time. Thereafter, after Dev Dutta (supra), when DoPT instructions dated 13th April,
- 2010 were issued they were communicated at the time they were to be assessed for ACP/MACP.,
18. The judgment in Dev Dutt case (supra) has been re- iterated by a larger Bench of the Supreme Court in the case of Sukhdev v. Union of India reported in 2013 (4) SLR 440 (SC) wherein it was held as under:-
"In our opinion, the view taken in Dev Dutt that ev-
ery entry in ACR of a public servant must be com-
municated to him/her within a reasonable period is legally sound and helps in achieving threefold objec-
tives. First, the communication of every entry in the ACK to a public servant helps him/her to work : af 26 OA No.747/2018 & 12 Ors. 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 prin- ciples of natural justice. We, accordingly, hold that every entry in ACR - poor, fair, average, good or very good - must be communicated to him/her within 2 reasonable period."
Following the dictum laid down by the Apex Court, it is clear that the average report relating to the year 2001-2002 and 2003-2004 which clearly had an adverse effect insofar as consideration of the petitioner for purposes of 2" ACP and 3'4 MAC, was required to be communicated to hirn. Accordingly, it is held that the ACR for the year 2001-2002 and 2003-2004 having not been communicated to the applicant was liable to be ignored while determining the bench mark.
19. We also find that there was a delay of 15 years in communicating the said ACRs to the applicant for which the respondents have given no cogent reason. Not only this, the representation made by the applicant vide his representation 27 OA No.747/2018 & 12 Ors. dated 5* February, was rejected by the Competent Authority by passing a very cryptic and non-speaking order, without giving any regard to the contentions raised by the applicant in his representation. There is no justification for said order which was passed on a representation by an officer seeking upgradation of his ACRs. Such a cryptic order is in gTOSs violation of principles of natural justice. Respondents ought to have decided the same based on the material placed before them within a period of 30 days from the date of receipt of the representation.
OA No.642/201820. The facts in OA 642/2018 are slightly different. In this case, it is the claim of the respondents that the ACR for the year 2002-2003 was communicated to the applicant by letter dated 03.07.2003, The applicant had sent her representation in response to the said letter. There was no decision on the » representation thereafter. As such, the applicant could have approached the Tribunal for upgrading of her ACR at the relevant point of time in the year 2003 itself. Having failed to do so, the respondents submit that this OA is barred by a 28 OA No.747/2018 & 12 Ors. limitation and should not be entertained.
21. The applicant admits that she had submitted her response to the letter dated 03.07.2003 by filing her representation against the same on 01.08.2003. However, the respondents did not take any final decision on her representation and the same remains pending.
22. We have gone through the letter dated 03.07.2003 which is annexed with the counter affidavit by the respondents. We notice that the complete ACR was not appended /annexed with this letter and only the adverse remarks for four columns were communicated. The final grading of the ACR was also not made known to the applicant and neither the complete ACR copy was served ic her. The respondents also admit that she had represented against this communication within the time prescribed. The respondents not having taken any final decision cannot now claim that the OA be rejected only on this ground alone. Moreso, when rest of the facts in the all the OAs are similar. By the letter of 21/27.01.2016 it was for the first time that the final gradings of the ACRs for 5 years for the period from 2001-02 to 2005-06 along with copy of the APARs i 29 OA No.747/2018 & 12 Ors. was supplied to the applicant in OA 642/2018. Therefore, applicant is also treated as similar to other applicants and similar directions are being issued. |
23. Taking into consideration the totality of the facts and circumstances of the present cases, we find no justification in. denying 2"* ACP and 34 MACP to the applicants from due _ date. While directing so, we further direct that the below bench mark ACRs shall not come in the way of grant of 2nd ACP and 3" MACP. The applicants shall also be entitled to all other consequential benefits. The same be paid to the applicants within a period of three months from the date of receipt of certified copy of this order. It is ordered accordingly.
24, With the aforesaid directions, the OAs are allowed.
Pending MAs, if any, stand closed. No costs, (Shri Krishinay (Harvinder Kaur Oberoi) Member (A) _ Member (J) dm.
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