Central Administrative Tribunal - Delhi
Sh. V.K.Khullar (Retd.) vs Chief Secretary Of Nct Of Delhi on 19 May, 2014
Central Administrative Tribunal Principal Bench New Delhi O.A.No.89/2013 Order Reserved on: 08.05.2014 Order pronounced on 19.05.2014 Honble Shri V. Ajay Kumar, Member (J) Honble Shri V. N. Gaur, Member (A) Sh. V.K.Khullar (Retd.) Aged about 65 years R/o J-359 New Rajinder Nagar New Delhi 110 060. Applicant (By Advocate: Sh. Sanjeev Kumar for Sh. K.P.Sunder Rao) Versus Chief Secretary of NCT of Delhi Delhi Secretariat, IP Estate ITO Delhi 110 002. Irrigation & Flood Control Department Through its Principal Secretary 5/9, under Hill Road New Delhi. The Joint Secretary Irrigation & Floor Control Department 5/9, under Hill Road New Delhi. Administrative Officer (HQ) Irrigation & Floor Control Department 5/9, under Hill Road New Delhi. Respondents (By Advocate: Sh. Amit Anand) O R D E R By V. Ajay Kumar, Member (J):
The applicant, who is a retired Assistant Engineer (Civil), Irrigation and Food Control Department, Govt. of NCTD, Delhi, filed the present OA questioning the impugned Annexure `A dated 09.08.2011 of the respondents in rejecting his claim to grant the 2nd ACP benefit w.e.f. 09.08.1999 instead of 09.08.2002.
2. The brief facts of the case are that the applicant joined the service of the respondents as Junior Engineer (Civil) in the month of September, 1973. Thereafter, he was promoted to the post of Assistant Engineer (Civil) and finally retired, on attaining the age of superannuation, on 31.12.2007.
3. It is submitted that when the respondents in terms of the Assured Career Progression Scheme, not granted the 2nd Financial Upgradation on completion of 24 years of service by him, i.e., w.e.f. 09.08.1999, the applicant made representations, and the respondents finally granted the same to him w.e.f. 09.08.2002, instead of 09.08.1999. Since the applicant was entitled for the said benefit w.e.f. 09.08.1999, he again made representations to grant the said benefit w.e.f. 09.08.1999, and the respondents rejected the said claim on the ground that the Screening Committee has not recommended his case for granting the 2nd Financial Upgradation benefit under the ACP Scheme, w.e.f. 09.08.1999, since his ACR grading for the period from 28.10.1997 to 31.03.1998 and 1998-1999 were reported as FAIR/BELOW AVERAGE and Average respectively, which is not upto the required bench mark of Good, mandatory for promotion/ACP benefits. His representation to upgrade the said ACR gradings to Good or ignore those ACRs as they were not communicated to him was rejected vide the impugned Annexure `A, dated 09.08.2011.
4. The respondents vide their impugned order stated that the gradings of `Fair/Average by itself not considered adverse and hence, not communicated to the applicant and that the Screening Committee while granting the 2nd ACP benefit, considering the `Fair/Average ACR gradings of the applicant for the years 1997-1998, 1998-1999 and 1999-2000 and as the said gradings are below the requisite Bench-mark/Grading of `Good, not granted the 2nd ACP benefit to the applicant w.e.f. 09.08.1999.
5. The learned counsel for the applicant would submit that rejecting the 2nd Financial Upgradation, under the ACP Scheme from the due date to the applicant basing on the uncommunicated ACR gradings, is illegal and arbitrary.
6. The respondents though filed a detailed reply, but only tried to support the gradings given to the applicant for the subject years but not disputed the fact that the ACRs for the said years were not communicated to the applicant.
7. Heard the counsel appearing on both sides, and have been gone through the pleadings on record.
8. The Honble Apex Court in Dev Dutt v. Union of India and Others, (2008) 8 SCC 725 and Abhijit Ghosh Dastidar v. Union of India and Others, (2009) 16 SCC 146 categorically held that non-communication of adverse remarks or below benchmark gradings in the relevant ACRs, vitiate the decisions taken on the basis of the said ACRs. The said view was also upheld by a Larger Bench of the Honble Apex Court in Sukhdev Singh v. Union of India and Others, JT 2013 SC 270. In view of the said settled position of law, the action of the respondents is unsustainable. Further, since the applicant retired from service on 31.12.2007 itself, we are also not proposing to direct the respondents to communicate the aforesaid ACRs which containing below benchmark gradings to the applicant, for making appropriate representation against the same.
9. In the circumstances and for the aforesaid reasons the OA is allowed and the impugned Annexure `A dated 09.08.2011 is quashed, and the respondents are directed to re-consider the case of the applicant for granting the 2nd Financial Upgradation under the ACP Scheme w.e.f. the due date, by ignoring the uncommunicated below benchmark gradings in the relevant ACRs, with all consequential benefits, including refixation of his pay, pension and other retirement benefits, and to pay the resultant arrears. This exercise shall be completed within 90 days from the date of receipt of a copy of this order. No order as to costs.
(V. N. Gaur) (V. Ajay Kumar) Member (A) Member (J) /nsnrvak/