Central Administrative Tribunal - Delhi
Sh. Feroz Ahmed vs Delhi Development Authority on 3 July, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A.NO.2408 OF 2014 New Delhi, this the 3rd day of July, 2015 CORAM: HONBLE SHRI ASHOK KUMAR, ADMINISTRATIVE MEMBER & HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER Sh. Feroz Ahmed, (Aged about 59 > years and holding Group B Post), s/o (late) Sh.Saghir Ahmed, R/o House No.46, Street No.1, Zakir Nagar, Post Office: Zamia Nagar, New Delhi 110025, Presently working as Assistant Engineer (Elect.) in DDA .. Applicant (By Advocate: Mr. R.A.Sharma) Vs. 1. Delhi Development Authority, Through its Vice-Chairman, Vikas Sadan (B-Block), 1st Floor, Near INA, New Delhi 110023 2. Commissioner (Personnel), Delhi Development Authority, Vikas Sada (B-Block), Near INA, New Delhi 110023 Respondents (By Advocate: Ms. Sriparna Chatterjee) .. ORDER Raj Vir Sharma, Member(J):
In this Original Application, the applicant has prayed for the following reliefs:
(a) Quash and set aside order dated 10.06.2014 (Annexure A-1) and declare the recommendations of DPC held on 24.02.2012 and held on 24.02.2012 and held on 21.2.2014 and assessing the applicant unfit for the grant of 3rd MACP benefit in the Pay Scale (PB-3) of Rs.15600-39100 with Grade Pay of Rs.7600, as ultra vires the guidelines and instructions issued as well as the established law on the subject.
(b) A direction to the respondents to produce or cause production of the relevant records of the DPCs proceedings referred to in this application for perusal of this Honble Tribunal.
(c ) A further direction to the respondents to hold a review DPC to consider the case of the applicant for the grant of 3rd MACP benefit w.e.f. 1.9.2008 in the Pay Scale (PB-3) of Rs.15600-39100 with Grade Pay of Rs.7600 by ignoring the ACRs of the period 2002-03 to 2006-07 and instead considering the applicants ACRs of equal nos. of the preceding years and treating them as fulfilling the benchmark prescribed for the grant of above MACP benefit. It is important to bear in mind that the applicants ACRs of the preceding years fulfilled the benchmark prescribed for promotion to the post of AE and EE, i.e., up to the Grade Pay of Rs.6600/-.
(d) A further direction to the respondents to grant 3rd MACP benefit to the applicant w.e.f. 1.9.2008 in the pay scale of Rs.15600-39100 (PB-3) with Grade Pay of Rs.7600 and pay arrears of pay and allowances thereof.
(e) Pass any other order or orders as deemed fit and proper in the facts and circumstances of the case in favour of the applicant.
(f) Allow cost in favour of the applicant.
2. Brief facts of the applicants case are as follows:
2.1 The applicant joined as a Junior Engineer (Electrical) in Delhi Development Authority (hereinafter referred to as DDA) on 12.8.1976. He was promoted to the post of Assistant Engineer (Electrical) in the pay scale of Rs.6500-10500/- with effect from 20.1.2000. He was granted 2nd financial upgradation under the ACP Scheme in the pay scale of Rs.10000-15200/- with effect from 29.3.2001. The MACP Scheme, which was introduced by the Government of India with effect from 1.9.2008, was adopted by the DDA for its employees with effect from 1.9.2008. The DDA issued Esttt. Order No.836 dated 13.6.2012 granting 3rd financial upgradation under the MACP Scheme to Electrical Engineers, but the applicants name did not figure therein. The applicant, vide letter dated 1.2.2013, sought information under the RTI Act, as to why the benefit under the MACP Scheme was not granted to him. The Public Information Officer, vide letter dated 25.3.2013, informed the applicant that the DPC which met on 24.2.2012 considered his case for the grant of 3rd financial upgradation under the MACP Scheme, but found him Unfit due to non-achieving of the prescribed benchmark of Very Good. The applicant had never been communicated any ACR, whether adverse or otherwise. Therefore, he made application dated 8.4.2013 to the concerned authority for supplying him photocopies of his ACRs for the periods 2001-01 to 2010-11. The concerned authority, vide letter dated 14.6.2013, supplied him the photocopies of the said ACRs.
2.2 Being aggrieved by the non-grant of 3rd financial upgradation under the MACP Scheme, the applicant filed OA No.2828 of 2013. The Tribunal, vide order dated 28.2.2014, while disposing of the said O.A., directed that the applicant must file a representation to the competent authority, and that the respondents shall decide the applicants representation in accordance with existing rules, instructions and the law on the subject, by passing a reasoned order.
2.3 In compliance with the Tribunals direction, the applicant made a representation dated 12.3.2014 to the Vice-Chairman, DDA, seeking the following reliefs:
(i) This representation may be accepted.
(ii) The ACRs of the applicant for the years 2002-03 to 2006-07 which were downgraded below the bench mark of Very Good may be upgraded to the level of Very Good.
OR in the alternative, the said ACRs need to be ignored for the purpose of grant of 3rd MACP benefit w.e.f. 1.9.2008 to the applicant and ACRs of previous years preceding the year 2002-03 be considered.
(iii) A review DPC be held to consider the case of the applicant for the grant of 3rd MACP benefit w.e.f. 1.9.2008 and consider applicants ACRs of the previous years preceding the year 2002-03. It may be kept in view that the applicants ACRs of the previous years fulfilled the bench mark prescribed for the post of AE/EE, i.e., upto Grade Pay of Rs.6600/- and he was promoted to the post of AE (Elect.) and also granted the 2nd ACP benefit in the pay scale of Rs.10000-15200 (revised to Rs.15600-39100 (PB-3) plus grade pay of Rs.6600/-). Applicant was granted 2nd ACP benefit vide EO No.370 dt.29.3.2001. Therefore, applicant cannot be declared unfit for the grant of 3rd MACP benefit in the pay scale of Rs.15600-29100 with grade pay of Rs.7600/- w.e.f. 1.9.2008 even on the basis of his ACRs of the previous years preceding the year 2002-03.
(iv) Applicant be granted 3rd MACP benefit in the Pay Band of Rs.15600-39100 with Grade Pay of Rs.7600 w.e.f. 1.9.2008 and be paid arrears of pay and allowances. 2.4 The respondents, vide order dated 10.6.2014 (Annexure A/1), considered the applicants representation dated 12.3.2014, but rejected the claim of the applicant. The order dated 10.6.2014 (Annexure A/1) is reproduced below:
DELHI DEVELOPMENT AUTHORITY (CONFIDENTIAL BRANCH) F.No.CAT/PCV/4414/13/LEGAL/DDA-1896Dated 10.6.14 To Sh.Firoz Ahmed, A.E.(Elect.) Electrical Division No.11, DDA, Vikas Sadan, New Delhi 23 Subject: Grant of ACP/MACP.
Please refer to your representation dated 12.03.2013 (grounds of representations) in compliance of Honble CAT order dated 20.02.2014 of OA No.2828/13 on the subject cited above. In this context I am directed to inform you that your case was placed before senior Level DPC on 24.02.2012 & 21.02.2014 for grant of 3rd MACP in Next Grade Pay of Rs.7600/- in pay Band of Rs.15600-39100/-. The said DPC, assessed you Unfit on both the occasions owing to reason that you could not attain the prescribed Bench Mark Very Good. The status of ACRs for the relevant period are as under:
2002-03 --
2003-04 --
2004-05 Average 2005-06 Good 2006-07 Average 2007-08 Average Preceding 2001-02 Good 2000-01 Good 1999-20 Good 1998-99 Good S.No. Point Raised Reply 1 The applicant was never ever communicated any adverse entry or adverse ACRs nor supplied with the copy of the ACRs so as to enable him to represent against the same even after the judgment of the supreme Court in Dev Dutts case (supra). Thus the applicant had no occasion to know about his ACRs until obtained copies thereof under the RTI Act.
The system of communicating the entries in the APAR was made applicable prospectively only w.e.f. the reporting period 2008-09 which is initiated after 01.04.09 as per DOPT OM Dated 14.05.09 in accordance with the supreme Court judgment dated 12.05.08 in case of Dev Dutt VS. Union of India. The relevant ACR pertains to the years prior to issue of above OM.2
The applicant came to know about the bench mark of Very Goodfor grant of 3rd MACP benefit only after the MACP scheme was adopted by the DDA vide EO No.2157 dated 29.10.09.
The prescribed bench mark Very Good is required for grant of grade pay of Rs.7600/- which is available on DoPT website. Every officer is expected to himself acquaintance with his service rule/condition regarding upgradation/promotion.3
The applicant was never communicated any adverse entry/adverse ACR he had bonafidely believed that his ACRs were not adverse and were meeting the prescribed bench mark of Very Goodrequired for grant of 3rd MACP benefit.
As per instruction prior to issue of DOPT OM Dated 14.05.09 only adverse entries were to be conveyed. Since Average ACR are not considered as adverse remarks in respect of officers. Hence ACRs were not conveyed.4
As per the law well established even prior to the case of Dev Dutt, the ACRs which were graded below the prescribed Bench Mark would be adverse and if not communicated to the concerned employee, the same have to be ignored by the DPC.
No further comments in view of above.
Under the facts and circumstances narrated above, it is crystal clear that the DPC assessed you unfit as per DOPT guidelines.
Sd/ (Anil Sharma) DY Director (CR) 2.5 Hence, the applicant filed the present O.A., seeking the reliefs, as referred to earlier.
3. Opposing the O.A., the respondents have filed a counter reply. It is, inter alia, stated by the respondents that the case of the applicant was placed before the Senior Level DPC/Screening Committee in its meetings held on 24.2.2012 and 22.1.2014 for the grant of 3rd MACP in PB-3 with Grade Pay of Rs.7600/-. The Committee found him Unfit due to his not fulfilling the prescribed benchmark Very Good.
4. The applicant has filed a rejoinder reply refuting the stand taken by the respondents. It is, inter alia, stated by the applicant that the DPC, which met on 21.2.2014, considered the incomplete and below benchmark ACRs which were never communicated to him. His ACRs for the years 1998-99, 1999-2000, 2000-01 and 2001-02 were graded as Good, which was the benchmark for granting him 2nd ACP benefit and, therefore, the DPC could not have declared him Unfit for the grant of 3rd MACP benefit.
5. We have heard Shri R.A.Sharma, learned counsel appearing for the applicant, and Ms.Sriparna Chatterjee, learned counsel appearing for the respondents. We have also perused the written notes of submissions filed by the learned counsel for the parties.
6. Admittedly, the DPC, which met on 24.2.2012 and 21.2.2014, considered the case of the applicant for the grant of 3rd financial upgradation under the MACP Scheme in PB 3, Grade Pay Rs.7600/-, with effect from 1.9.2008, but found him Unfit, because of his not achieving the prescribed benchmark Very Good. It transpires from the minutes of the DPC, which met on 24.2.2012, that the DPC took into account the applicants ACRs/APARs for the years 1998-99, 1999-2000, 2000-01, 2001-02 and 2004-05, as his ACRs for 2002-03 and 2003-04 were found missing and ACRs for the years 2005-06 and 2006-07 were incomplete. His ACRs for the years 1998-99, 1999-2000, 2000-01, and 2001-02 contained the grading Good, while his ACR for the year 2004-05 contained the grading Average. However, the DPC, which met on 21.2.2014 and again considered the case of the applicant, took into account the applicants ACRs for the years 1999-2000, 2000-01, 2001-02, 2004-05, and 2007-08, presumably when it was found that the applicants ACR for the year 2006-07 was incomplete. Thus, it transpired that finally, the DPC found the applicant as Unfit on the basis of his ACRs for the years 1999-2000, 2000-2001, 2001-02, 2004-05 and 2007-08 which respectively contained the grading(s) Good, Good, Good, Average and Average. Paragraph 17 of the DoP&Ts O.M. dated 14.5.2009 stipulates that the benchmark will be Very Good for financial upgradation to the grade pay of Rs.7,600/- and above. Therefore, the DPC cannot be faulted for finding the applicant as Unfit for being granted the 3rd MACP financial upgradation in the Grade Pay of Rs.7,600/-. But the applicants claim is that the ACRs for none of the years, which contained below benchmark grading, having never been communicated to him, could not have been taken into account by the DPC, or for that matter by the respondents, while considering his case, and that the Reporting/Reviewing Officers having all retired from service in the meantime, the respondents ought to have upgraded the said ACRs to the level of Very Good, i.e., the required benchmark, and accordingly, granted him 3rd MACP financial upgradation. In support of his plea, the applicant has not produced before this Tribunal any rule, or executive instructions, showing that simply because the Reporting/Reviewing Officers are not in service, the below benchmark ACRs of an employee have to be upgraded to the level of benchmark required for his/her promotion. Therefore, we are not inclined to accept the said plea of the applicant. Thus, the question that arises for consideration is as to whether an employee can be denied promotion and/or financial upgradation on the basis of his below benchmark ACRs which have not been communicated to him and cannot be reviewed because the concerned Reporting/Reviewing Officers are not in service.
7. In Dev Dutt v. Union of India and others, (2008) 8 SCC 725, the Honble Supreme Court has held that every entry in the ACR of a public servant must be communicated to him/her within a reasonable period whether it is poor, fair, average, good or very good entry to achieve threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Second, 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 principles of natural justice.
8. In the case of Abhijit Ghosh Dastidar v. Union of India and others, (2009) 16 SCC 146, the Honble Supreme Court, following Dev Dutts case (supra), held in paragraph 8 of the judgment as follows:
Coming to the second aspect, that though the benchmark "very good" is required for being considered for promotion admittedly the entry of "good" was not communicated to the appellant. The entry of good' should have been communicated to him as he was having "very good" in the previous year. In those circumstances, in our opinion, non-communication of remarks in the ACR of a public servant whether he is in civil, judicial, police or any other service(other than the armed forces), it has civil consequences because it may affect his chances for promotion or get other benefits. Hence, such non-communication would be arbitrary and as such violative of Article 14 of the Constitution. The same view has been reiterated in the above referred decision relied on by the appellant. Therefore, the remarks "good" if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him.
9. In Union of India & another v. V.S.Arora & others, W.P. ( C ) No. 5042 of 2002, decided on 31.5.2012, the Honble High Court of Delhi observed as follows:
24. Therefore, the position that emerges is that the decision in Abhijit Ghosh Dastidar (supra) holds the field. Now, what is it that Abhijit Ghosh Dastidar (supra) decides? It has, in the first instance, while affirming Dev Dutt (supra), concluded that non-communication of an ACR is violative of the constitutional rights of a government servant/employee. In the second instance, it has stated that such below benchmark ACRs ought not to be taken into consideration while the question of promotion of a particular government servant is in contemplation. Now, that leaves us with the further question as to what is to be done after we ignore/do not consider the below benchmark ACRs. In this regard, we have clear guidelines contained in Chapter 54 of the Manual on Establishment and Administration for Central Government Offices, which have been issued by the Government of India for DPCs (G.I., Dept. of Per. & Trg., O.M. No. 22011/5/86-Estt.(d), dated the 10th April, 1989 as amended by O.M. No. 22011/5/91-Estt.(d), dated the 27th March, 1997 as amended / substituted vide Dept. of Per. & Trg., O.M. No. 22011/5/98-Estt.(d), dated the 6th October, 2000). The relevant portion of the guidelines reads as under:-
6.2.1. Confidential Rolls are the basic inputs on the basis of which assessment is to be made by each DPC. The evaluation of CRs should be fair, just and non-discriminatory. Hence
(a) The DPC should consider CRs for equal number of years in respect of all officers considered for promotion subject to (c) below.
(b) The DPC should assess the suitability of the employees for promotion on the basis of their Service Records and with particular reference to the CRs for five preceding years irrespective of the qualifying service prescribed in the Service/ Recruitment Rules. The preceding five years for the aforesaid purpose shall be decided as per the guidelines contained in the DoP&T, O M. No. 22011/9/98-Estt. (D), dated 8-9-1998, which prescribe the Model Calendar for DPC read with OM of even number, dated 16-6-2000. (If more than one CR have been written for a particular year, all the CRs for the relevant years shall be considered together as the CR for one year.) xxxx xxxx
(c) Where one or more CRs have not been written for any reason during the relevant period, the DPC should consider the CRs of the years preceding the period in question and if in any case even these are not available, the DPC should take the CRs of the lower grade into account to complete the number of CRs required to be considered as per (b) above. If this is also not possible, all the available CRs should be taken into account.
Xxxx xxxx
25. From the above, it is clear that the DPC should consider the confidential reports for equal number of years in respect of all the employees considered for promotion subject to (c) mentioned above. The latter sub-paragraph (c) makes it clear that when one or more confidential reports have not been written for any reason during the relevant period, the DPC should consider the CRs of the years preceding the period in question and if, in any case, even these are not available, the DPC should take the CRs of the lower grade into account to complete the number of CRs required to be considered as per sub-paragraph (b) above. If this is also not possible, all the available CRs should be taken into account. We are of the view that the same would apply in the case of non-communicated below benchmark ACRs. Such ACRs would be in the same position as those CRs which have not been written or which are not available for any reason. Thus, it is clear that below benchmark ACRs, which have not been communicated, cannot be considered by the DPC and the DPC is then to follow the same procedure as prescribed in paragraph 6.2.1 (c), as indicated above.
10. In the instant case, admittedly, the DPC, while considering the applicants case, has taken into account his below benchmark ACRs which had not been communicated to him. In view of the law laid down by the Honble Apex Court in Abhijit Ghosh Dastidars case (supra), the said below benchmark ACRs of the applicant should not have been taken into account. As the Reporting/Reviewing Officers are not in service, those below benchmark ACRs cannot be reviewed at this distant point in time. Therefore, as has been held by the Honble High Court of Delhi in V.S.Aroras case (supra), all the available ACRs of the applicant should be taken into account by the respondents/DPC while considering his case for the grant of 3rd MACP financial upgradation in PB 3 with Grade Pay Rs.7600/-.
11. In the result, the O.A. is partly allowed. The impugned order dated 10.6.2014 (Annexure A/1) is quashed. The respondents are directed to hold a Review D.P.C. to consider the applicants case for the grant of 3rd MACP financial upgradation in PB-3 and GP Rs.7600/- with effect from 1.9.2008 by taking into account all the available ACRs of the applicant. The respondents are also directed to take appropriate decision on the recommendation of the DPC soon after its receipt, and to communicate the same to the applicant. The entire exercise shall be completed by the respondents within two months from today.
No costs.
(RAJ VIR SHARMA) (ASHOK KUMAR) JUDICIAL MEMBER ADMINISTRATIVE MEMBER AN