Central Administrative Tribunal - Allahabad
A K Srivastava vs Union Of India on 15 May, 2024
O.A./1629/2011
(Reserved on 06.05.2024)
Central Administrative Tribunal, Allahabad
***
Original Application No.1629 of 2011
th
Pronounced on this the 15 Day of May, 2024.
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Mr. Mohan Pyare, Member (A)
1. Anil Kumar Srivastava S/o Late K.L. Srivastava R/o Mohalla
Parmanandpur, PO Kutchehari, District Jaunpur, presently
working as Carpet Training Officer under Carpet Weaving
Training-cum-Service Center Allahabad, Office of the
Development Commissioner (Handicrafts).
2. Avinash Chandra Srivastava S/O. Late L.N. Srivastava Presently
working as Carpet Training Officer under Carpet Weaving
Training-cum-Service Center Allahabad.
3. Abhay Raj Singh S/o Late D.P. Singh Presently working as Carpet
Training Officer under Carpet Weaving Training-cum-Service
Center Allahabad.
4. R.P. Upadhyay S/o. Late R.L. Upadhyay Presently working as
Carpet Training Officer under Carpet Weaving
Training-cum-Service Center Allahabad.
5. Suresh Bahadur Singh S/o. Late S.D. Singh Presently working as
Carpet Training Officer under Carpet Weaving
Training-cum-Service Center Allahabad.
6. Gaya Prasad S/O. Late B.R. Prasad Presently working as Carpet
Training Officer under Carpet Weaving Training-cum-Service
Center Allahabad.
7. Rajesh Kumar S/o. Late C.P. Sharma Presently working as Carpet
Training Officer under Carpet Weaving Training-cum-Service
Center Allahabad.
8. Ram Adhar S/o B.Ram Retired Carpet Training Officer under
Carpet Weaving Training-cum-Service Center Allahabad R/o
Village Bhur Kurahan, Post Mani Kalan, District Jaunpur.
9. Ashok Kumar Pandey S/o Late Baliraj Pandey Retired Carpet
Training Officer under Carpet Weaving Training-cum-Service
Center Allahabad R/o. Village Chhatami (Gopiganj), District Sant
Ravi Das Nagar (Bhadohi).
Page 1 of 18
MADHU KUMARI
O.A./1629/2011
10. Shiv Ram S/o. Late Sri Rajai Retired Carpet Training Officer
under Carpet Weaving Training-cum-Service Center Allahabad
R/o. 592, Old Katra, District Allahabad.
11. Munshi Lal S/O. Late Sukhlal Retired Carpet Training Officer
under Carpet Weaving Training-cum-Service Center Allahabad
R/o. House No. 135, Pragati Nagar, Canal Road, Hardoi.
...........Applicants
By Advocate: Shri S.K. Pandey
Versus
1. The Union of India, Ministry of Textile, Udyog Bhawan, New
Delhi-110001, Through its Secretary.
2. Development Commissioner (Handicrafts), West Block No.7,
R.K. Puram, New Delhi-110001.
3. Regional Director (Central Region), Office of the Development
Commissioner (Handicrafts) Kendriya Bhawan, 7th Floor,
Sector-H, Aliganj, Lucknow-226001.
4. Assistant Director (A&C), Service Centre, Allahabad, Office of
the Development Commissioner (Handicrafts), 1A/3A, Ram Priya
Road, District Allahabad-211001.
5. Assistant Director (A&C), Service Centre, Varanasi, Office of the
Development Commissioner (Handicrafts), Varanasi-221001.
...Respondents
By Advocate: Shri Krishna Kumar Ojha
ORDER
By Hon'ble Mr. Mohan Pyare, Member (A) Present Original Application has been filed by the applicant seeking the following reliefs:
"a. To quash the impugned orders dated 02.11.2011 (Annexure-1) passed by the Respondent No.2 and direct the Respondents to grant the 3rd Promotional grade in the grade pay of Rs. 7600/- to all the Applicants just after Page 2 of 18 MADHU KUMARI O.A./1629/2011 completing 30 year of satisfactory service in department under the MACP Scheme with all consequential benefits.
b. To issue any other suitable and equitable order or direction to the Respondents which the Hon'ble Tribunal may deem fit and proper in the circumstances of the present case."
2. Brief facts of this case as narrated in the Original Application are that the applicants were appointed as Carpet Training Officer in the office of Respondent No.2 in the year 1978 to 1979. The Central Government had introduced the Assured Career Progression Scheme (ACP Scheme) on 09.08.1999 for the financial benefit of the employees who could not get promotion due to non availability of promotional post and as per the said scheme, the employees who had competed 12 years of satisfactory service on the post were entitled to get the 1st Promotional Pay Scale and after completion of 24 years of satisfactory service on the same post, the employees were entitled to get the 2nd Promotional Pay Scale. On the basis of the above, all the applicants have already received the 1st Promotional Pay scale on 09.08.1999, thereafter, all the applicants received the 2nd Promotional Pay Scale after completion of 24 years of service. Thereafter, the Sixth Pay Commission recommended the Modified Assured Career Progression Scheme (MACP Scheme) for the financial benefits of the Central Government civilian employees as per which the first financial up-gradation shall be available in the next higher grade pay when an employee completes 10 years of service, then a second financial upgradation after completing 20 years of service and lastly third financial upgradation after completing 30 years of service on a post. The Government implemented the MACP Scheme through an order dated 19.05.2009. The applicants completed 30 years of service in the years 2008 and 2009. According to para 17 of the aforesaid order implementing the MACP Scheme, the benchmark of "very good"
is necessary for Financial upgradation to the employees who are getting the salary in the grade pay of Rs.7600 and above. Vide impugned order dated 02.11.2011, the benefit of the third Page 3 of 18 MADHU KUMARI O.A./1629/2011 upgradation as per the MACP Scheme was denied to the applicants for not satisfying the requisite benchmark of 'very good' or above from 2003 to 2008.
3. We have heard learned counsels appearing for the parties.
4. Submission of learned counsel for the applicant is that the applicants completed 30 years of satisfactory service in the years 2008 and 2009 and according to confidential remark/entry they are fit for promotion, therefore, they are also entitled to get the third promotional pay scale under the MACP Scheme. He states that all the applicants received 'good' entry from 2003 to 2008 in annual confidential report. He further argues that the entry of 'good' or 'average' should have been communicated to the applicants for the years 2003 to 2008 within stipulated and prescribed time as per rule-8 of the All India Services (Confidential Rolls) Rules, 1970 but these entries had not been communicated to any of the applicants and due to non-communication of the annual confidential report to the applicants for the period between 2003 to 2008, their chances of getting the third Promotional Grade Pay under the MACP has been adversely affected since the applicants could not file any representation before the competent authority against the adverse remarks given by the reporting or reviewing authority for the purpose of para 17 of the MACP Scheme. He submits that applicant Nos. 8, 10 and 11 were communicated about the adverse remark by the respondent No.3 after more than 7 to 3 years delay while applicant Nos. 1 to 7 and 9 had not even been communicated about the same. He further argues that the Hon'ble Apex Court has already held that every entry which may be treated as adverse entry for the purpose of promotion or financial benefits must be communicated to the employee within stipulated and reasonable time and if the un-communicated entry have been taken into account for the purpose of promotion or financial benefit, then it is against the principal of natural justice. Learned counsel for the applicants argues that the condition of benchmark of "very good" which is mentioned in para 17 of the Page 4 of 18 MADHU KUMARI O.A./1629/2011 MACP Scheme for granting the third promotional grade pay to the employee cannot be applicable retrospectively and the above condition will be applicable from 19.05.2009 (date of issue of the MACP Scheme) in future, therefore, the respondents have illegally applied the aforesaid condition on the applicants and refused to grant the third financial upgradation to the applicants under the MACP Scheme vide the impugned order dated 02.11.2011. He further argues that uncommunicated confidential entry which has been given by the Reporting Officer or Reviewing Authority to the applicants from 2003 to 2008 should be treated as fit for promotion irrespective of the entries are 'good' or 'average' Moreover, the respondents have remarked that applicants are fit for promotion.
5. In the counter reply, the respondents have argued that as per Office Memorandum dated 19.05.2009, in the event of consideration for grant of financial upgradation in the grade pay of Rs.7600/- the prescribed benchmark is very good and the same is considered only on the basis of fulfillment of the prescribed benchmark as referred under para 17 of the abovementioned office memorandum. Learned counsel for the respondents further submits that in terms of the instructions in the DoPT guidelines as enumerated in the office memorandum dated 19.05.2009 and 13.04.2010, only those ACRs are to be communicated which are not found as per the prescribed benchmark for grant of grade pay of Rs.7600/- and the ACRs which are being placed before the Departmental Screening Committee (DSC), if any of them is found below the benchmark only that specific ACRs is communicated.
6. The applicants have filed a supplementary affidavit in which it has been stated that the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel & Training) Establishment (D) issued an Office Memorandum on 04.10.2012 and made some clarification with regard to granting the benefits under the MACP Scheme and in sub para 2 (ii) of the above OM, it has been Page 5 of 18 MADHU KUMARI O.A./1629/2011 clarified with regard to benchmark for MACP Scheme that where the financial upgradation under the MACPS also happens to be in the promotional grade and benchmark for promotion is lower than the benchmark for granting the benefit under MACPS as mentioned in para 17 ibid, the benchmark for promotion shall apply to MACP also. It is argued that now it has been further clarified that whenever promotions are given on non selection basis i.e. on seniority-cum-fitness basis, the prescribed benchmark as mentioned in para 17 of Annexure -1 of MACP Scheme dated 19.05.2009 shall not apply for the purpose of grant of financial upgradation under MACP Scheme. It is further reiterated that the reviewing authority has granted the ACR to all the applicants from 2003-08 as good and he has also mentioned that the applicants are fit for promotion and from the above facts it is clear that all the applicants are legally entitled to get the grade pay of Rs.7600/- according to Office Memorandum dated 04.10.2012 issued by the DoPT.
7. In the supplementary affidavit filed on behalf of applicant nos. 4, 5 and 6 it has been further mentioned that during the pendency of this O.A, all of the applicants have retired from service and all the applicants except applicant Nos. 4, 5 and 6 have been allowed the Grade Pay of Rs.7600/- as their third financial upgradation. It is submitted that all the retired applicants were financially up-gradaded in GP 7600 irrespective of their APAR, whether it is 'average', 'good', 'very good' or 'outstanding' but applicant Nos. 4, 5 and 6 are being treated differently and arbitrarily.
8. Learned counsel representing the applicant Nos. 4, 5 and 6 argued that they joined their services in 1978 and their 30 years of regular services stood completed in 2008. He states that applicant no.6 received a letter dated 28.12.2011 informing him regarding non recommendation of his case by the DSC due to non fulfillment of eligibility criteria and inviting the comments/ views against the grading awarded in the ACRs for the years 2004-2005, 2005-2006, 2006-2007, 2007-2008 and applicant Nos. 4 and 5 Page 6 of 18 MADHU KUMARI O.A./1629/2011 also received similar letters. The relevant portion of the letter dated 28.12.2011 is quoted below:-
"The Headquarter Office vide letter No.A-50011/9/2009-Admn.I (Pt. F) 1719 dated 2.11.2011 has informed that DSC has not recommended your case for 3rd financial up-gradation under MACP Scheme due to non-fulfill of eligibility criteria of bench mark Your ACRs mentioned below, do not fulfill the prescribed bench mark grading.
ACR for 2004-2005, 2005-2006, 2006-2007, 2007-2008 Accordingly the copy of ACRs for the above said period are enclosed with the request that you may submit your comments/views on the "below bench mark grading" awarded by the respective Reporting Officer/ Reviewing Officer in the said ACRs."
He submits that the aforesaid letter dated 28.12.2011 would reveal that the comments were invited only on 28.12.2011 for the first time against the ACR for the years 2004-2005, 2005-2006, 2006-2007, 2007-2008 at such a belated stage, which is highly objectionable and against the mandatory instructions/ guidelines/ circulars in force according to which (i.e Rule 8 of the All India Service (Confidential Rolls) Rules, 1970), when the annual confidential report of a member of the service contains adverse remarks, it shall be communicated to him in writing together with a substance of the entire confidential report by the government or such other authority as may be specified by the government, within two months of the receipt of the annual confidential report. The actions of respondents frustrated the very purpose of writing ACRs and it is not convenient and possible for the applicants to give any statement regarding working in the years between 2004 to 2008 in December 2011 which has prejudiced the defence of the applicants. Learned counsel further avers that all the similarly situated employees have already been allowed third financial upgradation, but applicant Nos. 4, 5 and 6 are being deprived of the same without any justification. It is stated that the Office of Development Commissioner (H), New Delhi issued an order on Page 7 of 18 MADHU KUMARI O.A./1629/2011 24.03.2014 granting third financial upgradation in GP 7600 to applicant Nos. 1, 2, 3, 8, 9,10 and 11.
9. It is further submitted that applicant No.6 was promoted to the post of Assistant Director (A&C) in PB-II in pay scale of Rs.9300-34800 GP 4600 by the order dated 06.07.2015 passed by the office of Development Commissioner (Handicraft), New Delhi and was relieved by the Development Commissioner (Handicraft), Service Center, Allahabad from his duties on 17.07.2015 for joining at M&SEC, O/o the DC(H) Rewari on his promotion. Learned counsel for the applicant contends that all thereby all the adverse remarks given to the applicants by 06.07.2015 stood expunged, hence, applicant No.6 was liable to be allowed third financial upgradation, but the respondents failed to do so. He further argues that in response to the letter dated 28.12.2011 through which the comments of the applicant against ACR was invited, the applicant (Applicant No.6) submitted his representation on 12.01.2012 but the same was not taken into account by the Reviewing Authority, whereas, all the other similarly situated employees' representations were entertained.
10. Learned counsel representing applicant Nos. 4, 5 and 6 vehemently asserts that such cases have been settled upto the Hon'ble Supreme Court in a catena of Judgment including in the case of Sukhdev Singh Vs. UOI, 2013 AIR SC 2741: [2013] 9 SCC 566: 2013 (2) ESC 337 (SC), Dev Dutt Vs. UOI [2008] 8 SCC
725. It was held that every entry in the ACR of a public servant must be communicated to public servant within a reasonable period and in case not communicated the same cannot be taken into cognizance for denial of the promotion/financial upgradation. The case of the applicants is fully covered under the judgement and order passed by the Hon'ble High Court, Allahabad on 01.05.1995 in writ petition No. 2244 of 1994 (Prabhat Chand Jain and others Vs. UP Jal Nigam and others) which was upheld by the Hon'ble Supreme Court on 31.01.1996 and the same is reported in (1996) 2 SCC 363. It is further submitted that the Hon'ble Page 8 of 18 MADHU KUMARI O.A./1629/2011 Supreme Court has laid down certain principle for recording the confidential report in the case of Dev Datt Vs. UOI and others reported in (2008) Supreme Court Cases 7 to 6, in which the Union of the India was the main contesting respondent, but the respondents never bothered to follow the same. It has been further emphasized that it has been clarified in OM dated 04.10.2012, in its para 2(ii) which goes to say that "It is now further clarified that wherever promotions are given on non-selection basis (i.e. on seniority-cum-fitness basis), the prescribed benchmark as mentioned in para 17 of Annexure -I of MACP scheme dated 19.05.2009 shall not apply for the purpose of grant of financial upgradation under MACP scheme." He avers that in the present case, all the applicants have been declared fit for next promotion, hence, they cannot be deprived of their third financial upgradation.
11. In the supplementary counter affidavit, learned counsel for the respondents has submitted that applicant Nos. 4, 5 and 6 i.e. Shri Gaya Prasad, Shri R.P. Upadhyay and Shri Suresh Bahadur Singh were considered for grant of third financial upgradation in GP 7600/- under MACP Scheme by the DSC held on 03.03.2011, which is well before their retirement. The DSC found them unfit for the same due to non-fulfillment of eligibility criteria of bench mark of "very good" in their ACRs. He submits that the office vide letter dated 28.12.2011 gave opportunity to the applicants to submit comments/views on the "below bench mark grading" and since the reporting and reviewing officer retired from service their comments/ views could not be taken for review of these ACRs, the department took a lenient view and decided to upgrade the ACRs of CTOs with the criteria that the ACRs which were reported 'Good' by the reporting officer and graded 'Fit for Promotion' by the reviewing officer, were considered for upgradation by one stage and accordingly ACRs were upgraded from 'Good' to 'Very Good'. Subsequently, a DSC was held on 18.03.2014 and the applicant Nos. 4, 5 and 6 were found unfit for grant of third financial upgradation under MACP Scheme due to non-fulfillment of prescribed bench mark i.e. Very Good in spite Page 9 of 18 MADHU KUMARI O.A./1629/2011 of upgradation of the ACRs. He further states that the MACP Scheme was introduced in the year 2009 and at that point of time the ACRs were confidential document and only adverse entries in the ACRs were communicated to the employees. DoPT issued OM No.21011/2010-Estt.A dated 13.04.2010 for below benchmark grading in ACRs prior to the reporting period 2008-09 and objective consideration of representation by the competent authority against remarks in the APARs or for upgradation of the final grading. Accordingly, an opportunity was given to the applicants vide letter dated 18.12.2011 and there has been no delay in implementing the order of DoPT. Learned counsel for the respondents vehemently opposed the allegations leveled by the applicants that all the adverse remarks given to the applicants by 06.07.2015 stood expunged since the criteria for consideration of promotion and grant of financial upgradation are not the same as the promotion was in the GP 4600/- and third MACP was in GP 7600/-. It is further stated that the reference made by the applicant of the DOPT OM dated 04 October, 2012 clarifying that wherever promotions are given on selection basis i.e. on seniority-cum- fitness), the prescribed benchmark as mentioned in para 17 of Annexure-I of MACP Scheme dated 19.05.2009 shall not apply for the purpose of grant of financial upgradation under MACP Scheme. Regarding above rule position, this office sought clarification from DoP&T, who vide their ID No. 112190/12/CR dated 13.03.2013 had clarified that guidelines issued vide DoP&T's OM dated 04.10.2012 relating to 'Benchmark' applies only where the relevant RRs provides for promotion on non-selection basis. In this case, the relevant RRs for the post of Regional Director(H) in the pay of Rs.7600/- indicates appointment on "Selection". Accordingly, benchmark prescribed under para 17 of DOPT OM dated 19.05.2009 will be applicable for grant of financial upgradation under MACP Scheme. In view of the above clarification furnished by DoP&T, the contentions of the applicant that the benchmark as mentioned in Para 17 of MACP Scheme dated 19.05.2009 shall not apply for the purpose Page 10 of 18 MADHU KUMARI O.A./1629/2011 of grant of financial upgradation under MACP Scheme is not correct.
12. We have considered the rival contentions of learned counsel appearing for both the parties and perused the entire documents on record.
13. It has been submitted by Shri S.K. Pandey, learned counsel representing applicant Nos. 4, 5 and 6, that all the other applicants have lost interest in pursuing this case since they have been granted the relief sought in this O.A. while the same has been arbitrarily denied to the applicant Nos. 4, 5 and 6. Learned counsel for the respondents submits that the APRs of applicant No. 4 namely Shri R.P. Upadhyay, applicant No. 5 namely Shri Suresh Bahadur Singh and applicant No.6 namely Shri Gaya Prasad, were reviewed for grant of financial upgradation under MACP Scheme vide order dated 26.09.2013 but even after that they do not qualify the benchmark "very good" which is required for financial upgradation to GP 7600/- as per the OM dated 19.05.2009. Learned counsel for the respondents has further argued that the office vide letter dated 28.12.2011 gave opportunity to the applicants to submit comments/views on the "below bench mark grading" and since the reporting and reviewing officer retired from service their comments/ views could not be taken for review of these ACRs, the department took a lenient view and decided to upgrade the ACRs of CTOs with the criteria that the ACRs which were reported 'Good' by the reporting officer and graded 'Fit for Promotion' by the reviewing officer, were considered for upgradation by one stage and accordingly ACRs were upgraded from 'Good' to 'Very Good'. Subsequently, a DSC was held on 18.03.2014 and the applicant Nos. 4, 5 and 6 were found unfit for grant of third financial upgradation under MACP Scheme due to non-fulfillment of prescribed bench mark i.e. Very Good in spite of upgradation of the ACRs.
14. The letter dated 26.09.2013 contains the list of officials who have submitted their representation for the ACRs graded below Page 11 of 18 MADHU KUMARI O.A./1629/2011 benchmark for the purpose of sanction of ACP/ MACP which contains the names of applicant Nos. 1 to 6, and 8 to 11. The letter contains that since most of the Reporting officer as well as Reviewing officer are not in service at present, their views could not be taken for review of these ACRs and that most of the aggrieved officials in their representations stated that they were never been communicated by their respective controlling officer for improving their performance and in most of the cases Reporting Officer/ Reviewing Officer mentioned that they are fit for promotion.
15. It has also been argued on behalf of applicant Nos. 4, 5 and 6 that whenever promotions are given on non selection basis i.e. on seniority-cum-fitness basis, the prescribed benchmark as mentioned in para 17 of Annexure -1 of MACP Scheme dated 19.05.2009 shall not apply for the purpose of grant of financial upgradation under MACP Scheme. To this effect, the respondents have referred to the letter No.A-50011/14/2013-Admn on the subject of 'Representation of Shri Sudha Ranjan Biswas, Ex-CTO-seeking of documents of Director (H), Office of the DC (H), New Delhi' in which it is mentioned that "In this context it may be stated that a number of representations were received in this office and the matter was referred to DOP&T for seeking clarification on this aspect. DOP&T vide their Dy.No.112190/12/CR dated 13.3.2013 (F/A) clarified that OM dated 4.10.2012 relating to 'Benchmark' applied only where the relevant RRs provides for promotion on non-selection basis. In the instant reference, relevant RRs for the post indicates appointment on 'Selection' and accordingly, 'benchmark' prescribed under para 17 of the Scheme will be applicable for grant of financial upgradations under MACPs'' and that "We may also, if approved, write to DD, CRO/ERO to take up the matter once again under relevant rules of DOP&T dated 13.4.2010 at the earliest possible so that his case can be settled as has been done in the case of other CTO's." The aforesaid letter dealing with the case of some Shri Sudha Ranjan Biswas Page 12 of 18 MADHU KUMARI O.A./1629/2011 merely makes some discussions which may need further clarification and hence, does not properly establish that the applicants shall not be covered under those cases where promotions are given on non-selection basis (i.e. on seniority
-cum-fitness basis) and as per DoPT OM dated 04.10.2012, for such cases, the prescribed benchmark as mentioned in para 17 of Annexure - I of MACP Scheme dated 19.05.2009 shall not apply for the purpose of grant of financial upgradation under MACP Scheme.
16. The submission that applicant No.6 was promoted in GP 4600 by the order dated 06.07.2015 and thereby all the adverse remarks given to the applicants by 06.07.2015 stood expunged and hence, applicant No.6 was liable to be allowed third financial upgradation, is not very convincing and the argument of the respondents that upgradation to GP 7600/- and promotion to GP 4600/- are different and command separate qualifying criteria can be accepted. However, as per DoPT OM.N0.35034/3/2008-Estt(D) dated 01/11/2010, "the financial upgradation would be on non- functional basis subject to fitness in the hierarchy of pay band and grade pay within PB-1. Thereafter, only the benchmark of 'Good' would be applicable till the grade pay of Rs.6600 in PB-3, the benchmark will be 'Very Good' for Financial upgradation to the grade pay of Rs.7600 and above. However, where the Financial upgradation under the MACPS also happens to be in the promotional grade and benchmark for promotion is lower than the benchmark for granting the benefits under MACPS as mentioned in para 17 of the Scheme, the benchmark for promotion shall apply to MACP also".
17. It is pertinent to mention that the remarks received by the applicants was not 'adverse' which needed to be communicated to them so long as the MACP scheme did not come into existence. Thus, All India Services (Confidential Rolls) Rules, 1970 cannot be said to have been violated by the respondents. The applicants have indeed been given an opportunity vide letter dated Page 13 of 18 MADHU KUMARI O.A./1629/2011 28.12.2011 to submit comments/views on the "below benchmark grading" before once again taking up their cases for third upgradation under the MACP Scheme. The applicants have also admittedly submitted their representations in this regard. The case laws relied upon by the applicant including the judgement of the Hon'ble Supreme Court in the case of Sukhdev Singh Vs. UOI, 2013 AIR SC 2741: [2013] 9 SCC 566: 2013 (2) ESC 337 (SC) and Dev Dutt Vs. UOI [2008] 8 SCC 725, however, does support the cause of the applicant inasmuch as the impugned order dated 02.11.2011 has been passed without communicating the ACR grading to the applicants. However, subsequently, vide letter dated 28.12.2011, the comments had been invited with regard to the gradation in ACRs before once again taking up their cases for financial upgradation.
18. The averment of the applicants that para 17 of the MACP Scheme for granting the third promotional grade pay to the employee cannot be applicable retrospectively and the above condition will be applicable from 19.05.2009 in future does not sustain since the norms have been clearly laid down that need to be fulfilled for grant of financial upgradation under the MACP Scheme and if the cases of some employees fall immediately after or before the date of its implementation it will not be feasible to treat some employees differently merely for this reason and conditions laid down have to be equally fulfilled by all the employees claiming the same benefit under the said scheme.
19. Before proceeding further with the discussions in this case, the ACR grading of applicant Nos. 4, 5, and 6 is reproduced below:
Name Year Grading of Grading and comment of
Reporting Reviewing officer
Officer
Page 14 of 18
MADHU KUMARI
O.A./1629/2011
Shri Gaya 2004-05 Average Fit on his own turn
Prasad
2005-06 Average Fit
(Applicant No.6)
2006-07 Average Fit/Good
2007-08 Average Fit/Good
Shri S.B. Singh 2004-05 Average Fit on his own turn
(Applicant No.5) 2005-06 Average Fit
2006-07 Good Fit
2007-08 Average Fit/Good
Shri R.P. 2004-05 Average Fit on his own turn
Upadhyay
2005-06 Average Fit
(Applicant No.4)
2006-07 Good Fit/Good
2007-08 Average Fit/Good
20. The averment of the respondents is that the ACRs which were reported 'Good' by the reporting officer and graded 'Fit for Promotion' by the reviewing officer, were considered for upgradation by one stage.The stand taken by the respondents that the reporting officers and reviewing officers have retired and so their comments/ views could not be taken for review of these ACRs is contrary to the spirit of para 3 of the DoPT OM No.21011/1/2010-Estt.A dated 13.04.2010 which is reproduced below:
"3. All Ministries/Departments are therefore requested to inform the competent authorities while forwarding such cases to them to decide on the representations against the remarks or for upgradation of the grading in the APAR that the decision on the representation may be taken objectively after taking into account the views of the concerned Reporting/Reviewing Officers if they are still in service and in case of upgradation of the final grading given in the APAR, specific reasons therefor may also be given in the order of the competent authority."Page 15 of 18
MADHU KUMARI O.A./1629/2011 It is clear that if Reporting/ Reviewing Officers are not in service, at that point of time, the Committee is to take decision to upgrade or not to upgrade the ACRs in question based on relevant facts and contentions and issues raised in the representations of the aggrieved officers. We fail to understand the inherent logic behind this criteria for upgrading the ACRs without taking into consideration the overall performance of all the concerned officials as well as issues raised in their representations. For instance, where the reviewing officer has remarked the official as 'fit for promotion' and graded 'Good' although the reporting officer has given the grade 'average', why has the grading of only the reporting officer been taken into consideration for upgradation and not that of the reviewing officer? Just for example, a perusal of the ACR of Shri Ram Adhar, (applicant No.8, who is said to have been granted the benefit of the third financial upgradation in GP 7600/- under the MACP Scheme), reveals that he got "satisfactory" grading in the year 2007-08 and in the year 2006-07, he was 'not fit for promotion'. Thus, the upgradation of the ACRs for the purpose of MACP in this case does appear arbitrary in so far as the upgradation of the ACRs of applicant Nos. 4, 5, and 6 who were found fit for promotion in all the relevant years are concerned and their scope for defence has indeed been prejudiced due to delayed communication of their ACRs discriminately.
21. The learned counsel for both the parties have referred to the All India APR rules invariably which is not applicable in the case of the present applicants as they don't belong to All India Services but the essence quoted by them is relevant to the case of the applicants too.
22. Taking into account the aforesaid facts and deliberations, we are of the considered opinion that the impugned order dated 02.11.2011 pertaining to the applicant Nos. 4, 5 and 6 is liable to be set aside and is, accordingly, quashed. Since the Tribunal has no power to direct promotion of a person, but can merely direct Page 16 of 18 MADHU KUMARI O.A./1629/2011 consideration/reconsideration, financial upgradation is also a similar situation where the Tribunal cannot substitute its own discretion for that of the authority. In this connection, Hon'ble Supreme Court in its judgement in the case of State of Madhya Pradesh v. Shri Srikant Chapekhar [JT 1992 (5) SC 638 ] has held as follows:-
"We are of the view that the Tribunal fell into patent error in substituting itself for the DPC. The remarks in the annual confidential report are based on the assessment of the work and conduct of the official/ officer concerned for a period of one year. The Tribunal was wholly unjustified in reaching the conclusion that the remarks were vague and of general nature. In any case, the Tribunal outstepped its jurisdiction in reaching the conclusion that the adverse remarks were not sufficient to deny the respondent his promotion to the post of Deputy Director. It is not the function of the Tribunal to assess the service record of a Government servant, and order his promotion on that basis. It is for the DPC to evaluate the same and make recommendations based on such evaluation. This Court has repeatedly held that in case where the Court/ Tribunal comes to the conclusion that a person was considered for promotion or the consideration was illegal, then the only direction which can be given is to reconsider his case in accordance with law. It is not within the competence of the Tribunal, in the fact of the present case, to have ordered deemed promotion of the respondent."
23. Hence, this matter is remitted to the Department for taking necessary actions. The respondents are hereby directed to constitute a committee for objectively and reasonably reviewing the ACRs of applicant Nos. 4, 5 and 6 taking into consideration their overall performance, the issues raised by the applicants in their representations and on the basis of the upgradation of the ACRs of other similarly placed officials in true spirit of the DoPT OM No.21011/1/2010-Estt.A dated 13.04.2010 and decide their case for grant of third financial upgradation in the GP 7600/- in light of the rules governing the matter and also the deliberations of this Tribunal as discussed above and grant all the consequential benefits to them if their case is found fit for grant of third financial upgradation under MACP Scheme w.e.f the date they completed thirty years of service along with the arrears of the same with a Page 17 of 18 MADHU KUMARI O.A./1629/2011 simple interest at the rate of 6% per annum. The aforesaid exercise should be completed within a period of five months from the date of receipt of a certified copy of this order.
24. Thus, the O.A. stands partly allowed with the above directions.
All the associated M.As. also stand disposed of. No costs.
(Mohan Pyare) ( Justice Om Prakash VII)
Member (A) Member (J)
Madhu
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