Central Administrative Tribunal - Delhi
Sh. Dhruv Kumar vs Union Of India on 10 March, 2014
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-2829/2013
Reserved on : 28.02.2014.
Pronounced on :10.03.2014.
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
Sh. Dhruv Kumar,
Director (Retd.) Joint Cadre
S/o late Sh. J.S. Aditya,
Ministry of Social Justice & Empowerment, NCSC
New Delhi-1.
R/o 7 Temur Nagar, Opp-Gurudwara,
New Delhi-65. . Applicant
(Applicant in person)
Versus
Union of India,
The Secretary,
Ministry of Social Justice & Empowerment,
Shastri Bhawan, New Delhi. . Respondent
(through Mrs. P.K. Gupta, Advocate)
O R D E R
Mr. Shekhar Agarwal, Member (A) The applicant is aggrieved by denial of MACP benefits to him and has, therefore, sought the following relief:-
To grant financial benefits under MACP be granted to applicant which is due to him w.e.f. 01.09.2008 the date of implementing the order of MACP as per sixth pay commission. Humbly prayed to grant MACP to the applicant from his present scale/grade from Pb bend 3 to Pb bend 4 enhancing grade pay from Rs.7600 to grade pay of Rs.8700/-.
2. Briefly the facts of this case are that the applicant had been working on the post of Director in the Ministry w.e.f. 07.10.1993. He superannuated on 31.12.2011. According to him before his superannuation he had got only one promotion as Director and was, therefore, due for MACP benefit w.e.f. 01.09.2008. When the respondents were not considering for the same he filed OA-4530/2011. This was disposed of by this Tribunal vide its order dated 11.05.2012. The operative para of the order reads as follows:-
6. After conclusion of the inquiry and as per the result of the inquiry, the matter for grant of benefits of MACP Scheme to the applicant may be decided within a period of one month after expiry of the period of two months, and then if it is found that the applicant is entitled for the benefit of MACP Scheme, then it may be granted to him w.e.f. 1.9.2008 with all consequential benefits. We have ordered that this exercise may be completed within time frame as provided above. The disciplinary case shall be decided as per CCS(Pension) Rules, 1972. Pensionary benefits shall also be granted to the applicant as per law and if it is admissible to him, then immediately it may be granted to applicant. No costs. However, the department did not appear to be complying with this order. Therefore, the applicant filed CP-164/2013 in this O.A. This was ordered to be closed by this Tribunal on 19.07.2013 with the direction to the respondents to communicate their decision on MACP to the petitioner within two weeks. In compliance thereof the respondents communicated their decision on 23.07.2013 to the applicant. He was informed that the duly constituted Screening Committee had not found him fit for grant of MACP benefit. Aggrieved by the aforesaid order the applicant has filed this O.A. before us.
3. The applicant has stated that he has been exonerated in the inquiry that was pending against him. Therefore, there was nothing to prevent grant of MACP to him. However, the respondents have considered his case without complying with DoP&T O.M. No. 21011/1/2010-Estt.A dated 13.04.2010. He has further stated that DoP&T order can not now be implemented also because all concerned authorities have since retired. Thus, the applicant has been left without remedy and has been deprived of this benefit for no fault of his.
4. In their reply the respondents have stated that disciplinary proceedings under Rule-14 of CCS(CCA) Rules were initiated against the applicant on 10.05.2001. He was also placed under suspension on 29.11.2000. The suspension was revoked on 25.07.2005. The applicant had denied the charges and an inquiry had been conducted. After following the due procedure and after consultation with UPSC the matter was placed before the Disciplinary Authority (DA). The DA while noting that the applicant had superannuated meanwhile decided on 14.12.2012 not to impose any penalty under Rule 9(1) of CCS (Pension) Rules, 1962. As regards his case of MACP is concerned, it was considered by the Screening Committee in its meeting held on 21.05.2012. Since at that time disciplinary proceedings were pending against the applicant his assessment was kept in a sealed cover. However, when the proceedings against the applicant concluded the sealed cover was opened. It was found that the Screening Committee had considered available CRs of the applicant for the years 2005-06, 2006-07 and 2007-08. The overall grading of the officer was assessed only as good which was below the bench-mark. The Screening Committee, therefore, did not find the applicant eligible for grant of MACP benefit. Thereafter following the direction of this Tribunal in CP-164/2013 the decision of the Screening Committee was also communicated to the applicant.
5. We have heard both parties and have perused the material on record.
5.1 The main contention of the applicant is that he has not got a fair consideration from the respondents as they have not complied with the O.M. dated 13.04.2010 of DoP&T. We have perused the aforesaid O.M. It deals with communication of below bench-mark ACRs of the concerned employees. As per this O.M. if the ACRs of the applicant for the years 2005-06, 2006-07 and 2007-08 were below bench-mark they should have been communicated to him and he should have been given a chance to represent against the same. However, this does not appear to have been done in the instant case. From the reply of the respondents we notice that the respondents have denied that this O.M. was at all applicable in MACP cases. They have stated that since the Committee which considered the MACP cases was a Screening Committee and not a DPC this O.M. was not applicable in the instant case. They have further relied on the judgment of Honble Supreme Court in the case of UOI & Ors. Vs. S.K. Goel & Ors. (SLP (C) No. 2410/2007) to say that DPCs enjoy full discretion to devise its methods and procedure for objective assessment of suitability and merit of the candidates. Thus, in their opinion only negative ACRs were required to be communicated and since in this case there were no negative remarks but only overall grading was assessed as good it was not an adverse entry. Hence it was not communicated.
5.2 In our opinion the stand taken by the respondents is baseless and contrary to the law laid down by the Apex Court in the case of Dev Dutt Vs. UOI &n Ors., (2008) 8 SCC 725. In the said case the Apex Court ruled as follows:-
36. In the present case, we are developing the principles of natural justice by holding that fairness and transparency in public administration requires that all en-tries (whether poor, fair, average, good or very good) in the Annual Confidential Report of a public servant, whether in civil, judicial, police or any other State ser-vice (except the military), must be communicated to him within a reasonable period so that he can make a representation for its upgradation. This in our opinion is the correct legal position even though there may be no Rule/G.O. requiring communica-tion of the entry, or even if there is a Rule/G.O. prohibiting it, because the principle of non-arbitrariness in State action as envisaged by Article 14 of the Constitution in our opinion requires such communication. Article 14 will override all rules or gov-ernment orders.
37. We further hold that when the entry is communicated to him the public ser-vant should have a right to make a representation against the entry to the concerned authority, and the concerned authority must decide the representation in a fair man-ner and within a reasonable period. We also hold that the representation must be decided by an authority higher than the one who gave the entry, otherwise the like-lihood is that the representation will be summarily rejected without adequate con-sideration as it would be an appeal from Caesar to Caesar. All this would be condu-cive to fairness and transparency in public administration, and would result in fair-ness to public servants. The State must be a model employer, and must act fairly towards its employees. Only then would good governance be possible.
xxx
43. We are informed that the appellant has already retired from service. However, if his representation for upgradation of the 'good' entry is allowed, he may benefit in his pension and get some arrears. Hence we direct that the 'good' entry of 1993-94 be communicated to the appellant forthwith and he should be permitted to make a representation against the same praying for its upgradation.If the upgradation is allowed, the appellant should be considered forthwith for promotion as Superintending Engineer retrospectively and if he is promoted he will get the benefit of higher pension and the balance of arrears of pay along with 8% per annum interest. This view was reiterated by the Apex Court in the case of Union of India Vs. A.K. Goel & Ors. (Civil Appeal No.(s). 2872/2010) decided on 20.11.2013 in which the following has been held:-
"Leave granted.
In view of the apparent conflict between the decisions of this Court in Dev Dutt vs. Union of India & Ors. 2008 (8) SCC 725 on the one hand and Satya Narain Shukla vs. Union of India 2006 (9) SCC 69 and K.M. Mishra vs. Central Bank of India and others 2008 (9) SCC 120, these appeals are referred to a Larger Bench. Let the matter be placed before the Hon'ble the Chief Justice of India for this purpose."
3.The above reference is wholly and squarely answered by a three Judge Bench in Civil Appeal No. 5892 of 2006 - Sukhdev Singh Vs. Union of India and Others - decided on 23.04.2013 reported in (2013) 9 SCC 566. The three Judge Bench in Sukhdev Singh (supra) ruled as follows :-
"8. In our opinion, the view taken in Dev Dutt that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving 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 and equally important, 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. We,accordingly, hold that every entry in ACR - poor, fair, average, good or very good - must be communicated to him/her within a reasonable period.
9. The decisions of this Court in Satya Narain Shukla vs. Union of India and others, (2006) 9 SCC 69, and K.M. Mishra vs. Central Bank of India and others, (2008) 9 SCC 120, and the other decisions of this Court taking a contrary view are declared to be not laying down a good law."
5.3 Thus, there is no doubt that before considering cases for promotion the authorities are required to communicate the below bench-mark APARs of the employees. Thereafter, they have to be given an opportunity to represent against the same. If such a representation is made then it has to be decided by an authority higher than one who gave the entry. If the employee succeeds then he is also entitled for reconsideration for promotion.
5.4 In our opinion, there is hardly any difference between cases for grant of MACP and cases for promotion in this regard. Denial of both will have civil consequences and lead of deprivation of an employee from financial benefits. Thus principles of natural justice need to be observed in both the cases. Therefore, what holds good for DPCs for promotion should also hold good for Screening Committees considering the cases of employees for grant of MACP benefits.
5.5 However, we do not agree with the applicant when he says that he has been left without remedy as all the concerned officers have since retired. In our opinion if he makes a representation it should be decided by an authority higher than one who gave the entry as laid down by the Apex Court in the case of Dev Dutt (supra).
6. In view of the above analysis, we allow this O.A. and direct that the below bench-mark ACRs of the applicant will be communicated to him within a period of four weeks from the date of receipt of a certified copy of this order. Thereafter, the applicant may make a representation against this within a period of 15 days. The respondents will decide the representation of the applicant within a period of six weeks thereafter. In case there is upgradation of his ACRs a review meeting of the Screening Committee will be convened to reconsider the case of the applicant for grant of MACP benefit within four weeks. In case the applicant is found fit, he will be extended this benefit with consequential benefit of pay & pension fixation and payment of arrears. No costs.
(Shekhar Agarwal) (G. George Parakcen)
Member (A) Member (J)
/Vinita/