G.Padmakumar vs John S.Paul on 24 February, 2025

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Kerala High Court

G.Padmakumar vs John S.Paul on 24 February, 2025

After having a series of litigation between the parties to the lis, particularly, the applicant John S. Paul, had been espousing his grievance of having denied the promotion from the post of Assistant Purchase Officer to the post of Deputy Director and the reason for declining was on account of having not obtained preceding 5 years of very good ACR, the details of which have been given in page No. 14 of the paper book. In the last round of litigation ie., OA No.865 of 2017, the Tribunal vide judgment dated 23.11.2023 had decided the same in the following manner:

18. For rendering Annexure-A4 order, this Tribunal had called for and perused the minutes of the Departmental Promotion Committee. Inter alia, it has been observed that the applicant had a rating of 'very good' for the period 2003-2004 and 2004-

2005. After referring to the numerical gradings given it was found that the applicant could get only 73 marks as against the benchmark fixed was 80.

19. Post of Deputy Director is a selection post. His promotion was rejected since there was only one vacancy for the post of Deputy Director and there was a better candidate before the selection committee. Once it is found that the applicant is not entitled to be promoted, as a necessary corollary, the respondents ought to have considered his case for grant of financial upgradation. That has not been done. In fact the very purport of introducing such a scheme is to deal with the problem of stagnation. Atleast when grading of 'very good" was granted to him he is entitled to be considered. That has not been done.

20. In the circumstances, we deem it appropriate to direct the respondents to consider the case of the applicant again, this time for granting MACP. The respondents shall cause the OP (CAT) NO. 180 OF 2024 3 2025:KER:15731 matter placed before the Screening Committee Screening Committee shall consider the COURT ACRs in the light of observations made by the Tribunal in O.A.1227/2011 and Annexure-A4 and will take a decision within 60 days from the date of receipt of a copy of this order. We do not know whether such ACRs are available. Even if the ACRs are not retained, the Committee can draw inferences from the above stated orders. If he has acquired benchmark grading during any spell after 01.09.2008, necessarily, he should be granted benefits of such upgradation.

2. After having complied the aforementioned order passed a fresh order dated 1.2.2024 Ext.P6 and rejected the case on the following grounds:

2. AND WHEREAS the petition was heard on 23.11.2023 and without going into the merits of the claim of the applicant, the Hon'ble CAT, Ernakulam Bench has disposed the OA No. 180/00865/2017 with no costs vide oral order dated 23.11.2023 with a direction to the respondent that "to consider the case of the applicant again, this time for granting MACP.

The respondents shall cause the matter placed before the Screening Committee. The Screening Committee shall consider the ACR's in the light of observations made by the Tribunal in OA No. 1227/2011 and Annexure-A4 will take a decision within 60 days from the date of receipt of a copy of this order. The certified copy of the order dated 23.11.2023 signed on 28.11.2023 by Section Officer (Judl.) was received by the Respondent No. 2 on 06.12.2023 through Senior Panel Counsel for Central Government.

3AND WHEREAS the Competent Authority in this Directorate has referred the matter to DAB with all the necessary documents including the copy of the Order dated 23.11.2023, APAR dossiers and Personal file for review of MACP recommendations which were made in the year 2011 by an appropriate Screening Committee.

4. AND WHEREAS DAE vide ID note dated 01.02.2024 has stated that in compliance with the directions passed by the Hon'ble CAT, Emakulam Bench vide Order dated 23.11.2023 in OA No 180/00865/2017 a meeting of the Screening Committee constituted by the Department vide OM dated 10.10.2023 to consider cases for grant of financial up-gradation to the Grade Pay of Rs. 7600/- (Level-12 of Pay Matrix) under MACP was OP (CAT) NO. 180 OF 2024 4 2025:KER:15731 held on 31.01.2024 in DAE Secretariat. After considering the APARs for the period from 01.04.2008 to 31.12.2012 along with the guidelines issued by DoPT vide OM dated 19.05.2009 and subsequent DOPT OM dated 21.12.2022, the Screening Committee recommended that Shri John Paul is not meeting the required bench mark "Very Good" throughout the aforesaid period and found him "Unfit" for grant of financial up- gradation under MACP:

5. NOW, THEREFORE, the Competent Authority in this Directorate as per the oral order dated 23.11.2023 of CAT Ernakulam Bench (certified copy received on 06.12.2023) has considered the recommendations of the Screening Committee and approved that Shri John S Paul is "Unfit" for grant of 2nd financial up-gradation under MACP Scheme to level 12 of Pay Matrix (Grade Pay of Rs 7600) and disposed off in compliance with the Order dated 23.11.2023 passed by the Hon'ble CAT, Ernakulam, Bench, Ernakulam.

6. Shri John S. Paul may kindly acknowledge the receipt of this Speaking Order (copy enclosed).

7. This issues with the approval of the Competent Authority in this Directorate.

3. Instead of challenging the aforementioned order, respondent applicant preferred a contempt petition No.18 of 2024 in OA No.865 of 2017 alleging that the order dated 1.2.2024 was not passed strictly as per the directions of the Tribunal dated 23.11.2023.

Considering that fact, the Tribunal vide order under challenge dated 4.9.2024, Ext.P14 noticing that there was a specific directions in the order dated 23.11.2023 considering the case of the respondent-

applicant for promotion, notice of the contempt proceedings have been issued awaiting the return.

4. Mr. K.S Prenjith Kumar, learned counsel appearing on behalf OP (CAT) NO. 180 OF 2024 5 2025:KER:15731 of the Union of India submitted that the order dated 23.11.2023 in OA No.865 of 2017 was challenged before this Court in OP(CAT) No.172 of 2024 and issued a directions to the Union of India to pass a fresh order. However the factum of this order was also brought to the notice of the Central Administrative Tribunal as per the proceedings dated 6.1.2025 but the order under challenge was not recalled impelling the Union of India to challenge the same.

5. On the other hand, learned counsel appearing for the respondent submitted that the controversy with regard to consideration of ACR for the year 2010 and 2011 has already been upheld by this Court in OP CAT No.1 of 2021 decided on 26.3.2021.

Therefore the orders of the Union of India rejecting the case by relying upon OM dated 22.7.2021 is wholly inconsequential. It was next contended that the respondent-applicant was considered for promotion and consideration would only arise when eligible candidate having all the appraisal report and confirming the standards of appraisal reports as per the aforementioned OM. The petitioners are unnecessarily dragging the issue by one way or the other.

6. We have heard the learned counsel for the parties and appraised the paper book. The directions in the order dated 23.11.2023 extracted above have already been set aside by this OP (CAT) NO. 180 OF 2024 6 2025:KER:15731 Court in OP(CAT) No.172 of 2024 vide judgment dated 30.10.2024.

The same reads as under:

6. Having considered the pleadings and materials on record and the submissions made at the Bar, we deem it appropriate to dispose of this original petition by setting aside Ext.P5 order dated 23.11.2023 of the Tribunal in O.A.No.865 of 2017 to the extent of the finding contained in the last sentence that "if the applicant has acquired benchmark grading during any spell after 01.09.2008, necessarily, he should be granted benefits of such upgradation", for the reasons stated hereinbefore at paragraph 5. Ext.P5 order of the Tribunal is modified to the above extent. Consequently, Ext.P6 order dated 01.02.2024 passed by the 2nd petitioner-2 nd respondent will stand set aside. The petitioners-respondents are directed to reconsider the claim made by the respondent-applicant for the grant of MACP, in terms of the directions contained in Ext.P5 order, subject to the modification as above, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of this judgment. 7. The contentions raised by both sides, relying on Ext.P15 answer given in Rajya Sabha to an unstarred question No.431 on 22.07.2021, regarding MACP and Annexure R9 judgement of this Court in O.P.(CAT)No.1 of 2024, are left open to be raised before the petitioners-respondents. It would be open to the respondent-applicant to submit a written submission before the petitioners-respondents raising appropriate legal and factual contentions, which shall be adverted to while taking a decision on the claim made by the respondent-applicant for grant of MACP. The Deputy Solicitor General of India-in-

Charge would point out the pendency of C.P.(C)No.18 of 2024 before the Tribunal. The petitioners-respondents shall produce a certified copy of this judgment in the pending C.P.(C)No.18 of 2024 before the Tribunal.

7. As per the aforementioned orders of this Court, petitioners have been directed to pass a fresh order considering the OM No.22.7.2021 with a liberty to the parties to make written submissions before the competent authority for the purpose of granting of Modified Assured Career Progression Scheme much less directions was also issued to the Deputy Solicitor General of India in OP (CAT) NO. 180 OF 2024 7 2025:KER:15731

- charge to point out the pendency of C.P(C) before the Tribunal about the order of this Court. No doubt, the learned Tribunal had passed the order under challenge on 4.9.2024 and awaiting the notice adjourned the matter to 7.10.2024 and again posted to 6.1.2025 and 14.2.2025 and the contempt has not been closed despite the order of this Court has been brought to the notice. Even otherwise, we have been informed by Mr.K.S Prenjith Kumar that a fresh order in terms of the directions of this Court in OP(CAT) No.172 of 2024 dated 30.10.2024 has been passed on 14.1.2025 and there is no challenge to the order. Therefore the contempt petition would not lie because the directions contained in the order dated 23.11.2023 have been clarified/modified as extracted above. For the reason aforementioned, the order under challenge is hereby set aside. Contempt petition is dismissed with a liberty to the respondent applicant to challenge the order dated 14.1.2025 passed by the petitioner in terms of the directions of this Court dated 30.10.2024 in OP(CAT) No.172 of 2024, in accordance with law.

Sd/-

AMIT RAWAL JUDGE Sd/-

sab                                      K. V. JAYAKUMAR
                                              JUDGE
 OP (CAT) NO. 180 OF 2024                 8

                                                        2025:KER:15731
                    APPENDIX OF OP (CAT) 180/2024

PETITIONER ANNEXURES

Annexure A1                TRUE COPY OF THE INTIMATION OF PAY FIXATION
                           ON PROMOTION DATED 04.02.1999

Annexure A2                TRUE COY OF THE PPO NO. 454531300087 2024-
                           10-09

Annexure A3                TRUE COPY OF THE SENIORITY LIST OF PURCHASE
                           OFFICERS PUBLISHED AS ON 1.1.2012

Annexure A4                TRUE COPY OF THE ORDER DATED 28.09.2016 IN
                           OA NO. 1139/13 2024-10-04

Annexure A5                TRUE COPY OF THE OM NO. 35034/3/2008.

ESTT(D) DATED 19.05.2009 ISSUED BY DOPT 2024-10-09 Annexure A6 TRUE COPY OF THE REPRESENTATION DATED 25.10.2016 ADDRESSED TO THE 2ND RESPONDENT 2024-10-04 Annexure R1 TRUE COPY OF REVISED PAY FIXATION DATED 07.08.2017 Annexure R2 TRUE COPY OF THE LETTER NO.

DPS/014006/RECTT./627 DATED 16.03.2011 2024-10-04 Annexure R3 TRUE COPY OF THE OM DATED 13.04.2010 2024- 10-04 Annexure r4 TRUE COPY OF THE LETTER DATED 02.08.2011 ISSUED BY ADMINISTRATIVE OFFICER III, DIRECTORATE OF PURCHASE AND STORES Annexure P1 TRUE COPY OF THE ORDER DATED23.11.2023 IN OA NO. 865 OF 2017 Annexure P2 TRUE COPY OF THE LETTER DATED 05.12.2023 Annexure P3 TRUE COPY OF THE ORDER NO.

DPS/ADM./GEN./36/1(93)/2017/1455 DATED 01.02.2024 OP (CAT) NO. 180 OF 2024 9 2025:KER:15731 Annexure R4 TRUE COPY OF DOPT OM NO. 35034/3/2008-

                           ESTT(D) DATED 19.05.2009

Annexure R5                TRUE COPY OF THE REPRESENTATION DATED
                           30.08.2011 SUBMITTED BY THE CONTEMPT
                           PETITIONER

Annexure R6                TRUE COPY OF REPLY NOTE NO.

DPS/ADM/14/5/CR(COR)/2010 -VIG/4459 DATED 27.09.2011 ISSUED ADMINISTRATIVE OFFICER III, DPS Annexure R7 TRUE COPY OF THE OM DATED 13.04.2010 Annexure R8 TRUE COPY OF NOTIFICATION F NO. 16(1)/19- JUDL DATED 28.10.1992 ISSUED BY DEPARTMENT OF LEGAL AFFAIRS Annexure R9 TRUE COPY OF THE VAKALATHNAMA SUBMITTED BY THE RESPONDENT NO.3 IN CP NO. 18 OF 2024 Annexure R10 TRUE COPY ORDER DATED 27.11.2019 ISSUED BY THE CAT ERNAKULAM BENCH IN OA NO. 998/2018 Annexure R11 TRUE COPY OF LETTER NO. DPS/36/1(101)/2018- VIG/ADM/3389 DATED 23.06.2021 ISSUED BY ADMINISTRATIVE OFFICER-III DPS Annexure R12 TRUE COPY OF DOPT OM NO. 35034 /3/2015- ESTT.(D) DATED 22.10.2019 Annexure P4 TRUE COPY OF ORDER IN OA NO. 1227/2011 OF HYDERABAD BENCH DATED 08.02.2013 Annexure P5 TRUE COPY OF PART III OF (APAR) ALONG WITH TRUE TYPED COPY OF ANN. P5 Exhibit P1 TRUE COPY OF THE O.A. NO. 865/2017 FILED BY THE 1ST RESPONDENT HEREIN BEFORE THE HON'BLE CAT ERNAKULAM BENCH Exhibit P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS IN THE OA BEFORE THE HON'BLE CAT, ERNAKULAM BENCH OP (CAT) NO. 180 OF 2024 10 2025:KER:15731 Exhibit P3 A TRUE COPY OF THE REJOINDER FILED BY THE RESPONDENT HEREIN BEFORE THE HON'BLE CAT, ERNAKULAM BENCH Exhibit P4 TRUE COPY OF REPLY TO THE REJOINDER FILED BY THE PETITIONERS HEREIN BEFORE THE HON'BLE CAT ERNAKULAM BENCH Exhibit P5 A TRUE COPY OF THE ORDER DATED 23.11.2023 IN OA NO. 865/2017 OF THE HON'BLE CAT, ERNAKULAM BENCH Exhibit P6 A TRUE COPY OF SPEAKING ORDER NO.

DPS/ADM./GEN/36/1(93)/2017/1455 DATED 01.02.2024 ISSUED BY THE DIRECTORATE OF PURCHASE & STORES, DEPARTMENT OF ATOMIC ENERGY Exhibit P7 TRUE COPY OF CP (C) NO. 18/2024 IN OA NO.

865/2017 FILED BY THE RESPONDENT HEREIN BEFORE THE HON'BLE CAT, ERNAKULAM BENCH Exhibit P8 A TRUE COPY OF REPLY AFFIDAVIT FILED ON BEHALF OF RESPONDENTS IN CP (C) NO. 18/ 2024 IN OA NO. 865/2017 BEFORE THE HON'BLE CAT, ERNAKULAM BENCH Exhibit P9 A TRUE COPY OF REJOINDER FILED BY THE APPLICANT/ RESPONDENT HEREIN IN CP (C) NO. 18/ 2024 IN OA NO. 865/2017 BEFORE THE HON'BLE CAT, ERNAKULAM BENCH Exhibit P10 A TRUE COPY OF REPLY TO REJOINDER FILED BY THE 3RD RESPONDENT IN CP (C) NO. 18/ 2024 IN OA NO. 865/2017 BEFORE THE HON'BLE CAT, ERNAKULAM Exhibit P11 A TRUE COPY OF THE AFFIDAVIT DATED 15/05/2024 FILED BY 3RD RESPONDENT IN CP (C) NO. 18/ 2024 IN OA NO. 865/2017 BEFORE THE HON'BLE CAT, ERNAKULAM BENCH Annexure R9 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 26.03.2021 IN OP(CAT) NO. 1 OF 2021 Exhibit P12 TRUE COPY OF STATEMENT DATED 02.07.2024 OP (CAT) NO. 180 OF 2024 11 2025:KER:15731 FILED BY THE APPLICANT/ RESPONDENT HEREIN IN CP (C) NO. 18/ 2024 IN OA NO. 865/2017 BEFORE THE HON'BLE CAT, ERNAKULAM BENCH Exhibit P13 A TRUE COPY OF REPLY AFFIDAVIT FILED ON BEHALF OF THE RESPONDENTS IN CP (C) NO. 18/ 2024 IN OA NO. 865/2017 BEFORE THE HON'BLE CAT, ERNAKULAM BENCH Exhibit P14 A TRUE COPY OF ORDER DATED 4.9.2024 IN CP (C) NO. 18/ 2024 IN OA NO. 865/2017 OF THE HON'BLE CAT, ERNAKULAM BENCH Exhibit P15 A TRUE COPY OF ANSWER TO RAJYA SABHA UNSTARRED QUESTION NO. 431

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