Central Administrative Tribunal - Delhi
Anju Rani vs Delhi Development Authority Delhi on 1 December, 2022
1
Item No. 27 O.A. No. 1376/2018
Central Administrative Tribunal
Principal Bench: New Delhi
O.A. No. 1376/2018
This the 01st day of December, 2022
Hon'ble Mr. Anand Mathur, Member (A)
Hon'ble Mr. Manish Garg, Member (J)
Smt. Anju Rani (Age 64 years)
W/o Sh. Bharat Bhushan Dhall
1/7670, Gali No. 4 East Gorakh Park
Shahadara
Delhi- 110032
...Applicant
[By Advocate(s): Mr. J K Nayyan for Mr. G L Verma]
Versus
1. Delhi Development Authority
(Through Vice Chairman)
Vikas, Sadan, INA,
New Delhi - 110023
2. Commisioner (Personnel)
DDA, B Block, 2nd Floor
Vikas Sadan
New Delhi - 110023
...Respondents
[By Advocate: Ms. Sriparna Chatterjee)
ORDER (ORAL)
By Manish Garg, Member (J) This Original Application has been filed by the applicant under Section 19 of Administrative Tribunals Act, 1985, seeking the following relief(s):
"(a) To direct the Respondents to grant 3rd MACP from the due date i.e. 01.09.2008 with all consequential benefits.
(b) To direct the Respondent to re-fix the pay and consequential retiral benefits accordingly.2 Item No. 27 O.A. No. 1376/2018
(c) To pass any order/ directive/ relief as this Hon'ble Tribunal may consider at its discretion just and proper."
2. The sum and substance of the case of the applicant is that she had made several representations on different date to the Respondents for grant of 3rd MACP from due date, i.e., 01.09.2008 as the un-communicated entries in APAR cannot form basis for the denial of the benefit accrued after the service for 30 years. However, no action has been taken by the respondents.
3. Learned counsel for the applicant to support his arguments relies upon the following judgment:-
(i) SLP No. 26556/2004 titled Abhijit Ghosh Dastidar Vs. UOI & Ors. decided on 22.10.2008 by the Hon'ble Supreme Court.
(ii) CA No. 7631/ 2002 titled Dev Dutt Vs. UOI & Ors. decided on 12.05.2008 by the Hon'ble Supreme Court
(iii) O.A No. 1233/2014 titled Gunjan Prasad Vs. Govt. of India decided on 28.04.2015 by this Tribunal.
4. It is not disputed that the applicant was entitled to 3rd MACP on 01.9.2008. However, she was granted the same vide office order dated 24.07.2017 w.e.f. 01.9.2011. As per the applicant, the reason for deferment of MACP was that 3 Item No. 27 O.A. No. 1376/2018 the ACRs were not communicated to her and subsequently, she was not able to represent, improve and do introspection which was the objective of such communication.
5. As can be seen from the records of the case, it is not disputed by learned counsel for the applicant that she was granted MACP during her tenure in the service as on 01.09.2011, and no representation was made on her behalf on or before the date of her superannuation, i.e., on 30.09.2013. It is also an admitted position that the applicant remain silent since 2013 till 2018 for non- communication of ACRs. It has been alleged that she made her first representation in 2018 and that too was sent by post.
6. Per contra, learned counsel for the respondents states that the Dy. Director (P) -I vide DPC note dated 20.03.2017 has intimated that the applicant was initially appointed as Stenographer on 31.01.1976 in the pre-revised pay scale of Rs. 330- 560/- and granted benefit of 1st ACP in the pre- revised pay scale of Rs. 6500-10500/- w.e.f. 09.08.1999 vide EO No. 758 dated 13.05.2013 and 2nd ACP in the pre- revised pay scale of Rs.10000-15200/- w.e.f. 31.01.2000 Vide EO NO.759 dated 13.05.2013. Further, the applicant was promoted to the post of Private Secretary in the pre- 4 Item No. 27 O.A. No. 1376/2018 revised pay scale of Rs.6500-10500/- vide EO No.1838 dated 13.08.2002. It has further highlighted that on completion of 30 years regular service in the grade as on 31.01.2006, she is eligible for grant of 30 financial upgradation under MACP Scheme in the next grade pay of Rs. 7600/- in the pay band of Rs. 15600-39100/- w.e.f. 01.09.2008 i.e. date of inception of MACP Scheme. Accordingly, the name of the applicant (now retired) was placed before Screening Committee in its meeting held on 12.06.2017 for grant of 3rd financial upgradation w.e.f. 01.09.2008 under MACP Scheme alongwith others. The said Screening Committee has considered the ACRs for the following years:
2002-03 2003-04 2004-05 2005-06 2006-07 V. Good (2 CRs) V. Good Good (2 CRs) Fair Good (2 CRs) As per the instructions and guidelines governing the grant of financial upgradation under MACP Scheme, the financial upgradation would be on non-functional basis subject to fitness, in the hierarchy of grade pay within the PB-1. Therefore, for all upgradation under the MACPs, the bench mark of 'GOOD' would be applicable upto the grade pay of Rs.6600/- in PB-III. Further the benchmark will be 'VERY GOOD' for financial upgradation to the grade pay of Rs.7600/- and above. In the present case, since the upgradation is from Grade Pay of Rs. 6600/- to Grade Pay 5 Item No. 27 O.A. No. 1376/2018 Rs. 7600/, therefore, the bench mark required is 'VERY GOOD'. The said Screening Committee had observed that since grading of ACRs during the years 2004-05 & 2006-07 were 'GOOD' and 2005-06 was Fair, which is below the prescribed bench mark of "VERYGOOD", therefore, she is not eligible for grant of 3rd MACP w.e.f. 01.09.08 in the grade pay of Rs. 7600/- for which the bench mark should have been as "VERY GOOD". To grant financial upgradation benefit w.e.f. 01.09.2008, ACRs from the year 2002-03 to 2006-07 are to be considered. The Screening Committee then considered the ACRs for the subsequent years i.e. 2007-08, 2008-09 & 2009-10 and recommended her FIT w.e.f. 01.09.2011 instead of 01.09.2008 on the basis of grading as VERY GOOD during 2007-08, 2008-09 & 2009-10. To grant financial upgradation benefit w.e.f 01.09.2011, ACRs for the year 2005-06 to 2009-10 are to be considered.
Further, it is also pertinent to mention here that as per DoPT OM dated 14.05.2009 which provides regarding communication of APAR, but it was initiated from 1 April, 2009. The gist is as under:
"The concerned officer shall be given the opportunity to make any representation against the entries and the final grading given in the Report within a period of 15 days from the date of receipt of the entries n the APAR. The representation shall be restricted to the specific 6 Item No. 27 O.A. No. 1376/2018 factual observations contained in the report leading to assessment of the officer in terms of attributes, work output etc. While communicating the entries, it shall be made clear that in case no representation is received within the 15 days, it shall be deemed that he/she has no representation to make. If the concerned APAR section does not receive any information from the concerned officer on or before 15 days from the date of disclosure, the APAR will be treated as final.
The new System of communicating the entries in the APAR shall be made applicable prospectively with effect from the reporting period 2008-09 which is to be initiated after 1st April, 2009."
She further places reliance on the OM dated 14.05.2009, wherein clause (5) of the same reads as under:-
"(v) The new system of communicating the entries in the APAR shall be made applicable prospectively only with effect from the reporting period 2008-09 which is to be initiated after 1st April 2009."
7. It is also noticed that said OM came into effect after decisions passed in Devi Dutt (supra).
8. Attention has also been drawn to decision rendered by co-ordinate bench of this Tribunal in OA No. 1379/2018 titled Anita Rani Sondhi Vs. DDA and Anr., relevant paragraphs of the same read as under:-
"6. It is fairly well known that the benefit of MACP is extended only on evaluation by the Committee almost on par with the DPC for promotion. The bench mark adopted by the Committee was 'Very Good'. The ACRs of the years 2003-2004, 2004-2005 and 2005-2006 became relevant. They were graded as 'Good' , whereas the bench mark was 'Very Good'. The applicant became eligible only in the year 2010 and accordingly the benefit was extended.7 Item No. 27 O.A. No. 1376/2018
7. There was no adverse entry against the applicant. It is only when the entry is adverse that it is required to be communicated. The obligation to communicate the ACRs even if they are not adverse arose only in the date of the judgement of the Hon'ble Supreme Court in Dev Dutt's case. In the OM dated 14.05.2009, the DOPT has indicated that the communication of a below bench mark ACRs shall be an obligation prospective in operation. Assuming that there was a failure or delay on the part of the respondents in communicating the below bench mark ACRs for the relevant years, the only course open to the applicant was to seek upgradation thereof and the respondents were under the obligation to consider the same despite the delay in submission of the representation.
8. The applicant however did not chose to make any representation. On the other hand, she straightaway made a request for preponement to the date of 3rd MACP. That cannot be acceded to, at all.
9. We do not find any merit in this OA and the same is accordingly dismissed. There shall be no order as to costs."
9. Learned counsel for the respondents further draws attention to another decision rendered by co-ordinate bench of this tribunal in OA No. 3278/2018 titled Kishore Kumar Vs. DDA and Anr., relevant paragraphs of the same read as under:-
"8. The applicant pleaded that the ACRS of 3 years, which were assessed as 'Good', ought not to have taken into account since they were not communicated. The occasion to communicate the ACRS would arise, if only anything adverse to the employee is mentioned. A below benchmark ACR cannot be treated as adverse entry. The benchmarks are also not statistic. At one level, it could be 'Good' and another level it could be 'Very 8 Item No. 27 O.A. No. 1376/2018 Good' and in certain cases 'Outstanding'. The nature of the remarks in the ACR, do not get altered with the relevant benchmark. At the same time, an employee can certainly make representations for upgradation of the ACRs at the relevant point of time.
9. Even after being aware of the factum of the nature of the ACRs for 3 years mentioned above and the consequent thereof, the applicant did not submit any representation for upgradation thereof, till he retired from service. In the impugned order, there is a mention to certain efforts made in this behalf. It was stated that the reporting officers for the relevant period have struck to the stand and in some cases they retained.
10. One of the pleas raised by the applicant is that his juniors were extended the benefit of 3rd MACP on completion of 3 years. It is not a case where the process is not one of relative assessment. The MACP is personal to an individual employee and much would depend upon his performance.
11. We do not find any merit in the OA. The OA is accordingly dismissed."
10. It is not disputed proposition of law that as per decision relied upon by the applicant ACRs have to be communicated. However, it is well settled law that if the applicant herself was sleeping over her rights, she is not entitled to relief on the short point of delay and latches. The facts of the present case is entirely different inasmuch as since the applicant herself when she was granted her 3rd MACP in the year 2017 chose to remain silent till her retirement.
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11. In the light of the aforesaid decision rendered by co- ordinate bench of this Tribunal, we find no merits in the present matter. The OA is accordingly dismissed.
There shall be no order as to costs.
(Manish Garg) (Anand Mathur) Member (J) Member (A) /sm/