V.J.Xavier vs Union Of India on 3 February, 2025

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Kerala High Court

V.J.Xavier vs Union Of India on 3 February, 2025

The present O.P.(CAT) is directed against the judgment dated 06.11.2019 of the Central Administrative Tribunal, whereby the following claims in O.A.No.802 of 2017 made by the petitioner - applicant has been rejected:

"i) Call for the records leading to Annexures A8, A9, A12 and A15 and set aside them.

ii) Declare that non-granting of the 3rd financial upgradation benefit under the MACP scheme to the applicant is arbitrary and illegal.

iii) Direct the respondents to grant the 3rd financial upgradation benefit under the MACP scheme to the applicant with effect from 6.6.2010 with all consequential benefits including the difference in arrears of pay with 12% interest.

iv) Award costs of and incidental to this applicant.

v) Grant such other relief, which this Honourable tribunal may deem fit and proper in the circumstances of the case."

OP (CAT) NO. 73 OF 2020 -4-

2025:KER:12745

2. The case in brief as set up in the O.A. was that petitioner - applicant had on 31.10.2013 retired as Mate, while working in Chennai Unit of Central Institute of Fisheries Nautical and Engineering Training (CIFNET).

He had expressed the grievance with regard to non granting of the third Modified Assured Career Progression Scheme (MACP Scheme) and came to know in 2011 that owing to the ACRs of 2005-06, 2006-07, 2007-08 and 2008-09, the said benefit was withheld.

3. The MACP Scheme came into effect in 1999 and it was modified on 01.09.2008 effective from 01.01.2006. The benefit of two financial upgradation was granted under the erstwhile Scheme. As regards the case, in 2012 applicant had, prior to the retirement, filed O.A.No.817 of 2012 before the tribunal by challenging the action of the respondents in issuing of several adverse remarks in the ACR of 2009-2010. Learned Tribunal vide judgment dated 14.08.2015 dismissed the case, review application filed was also rejected, thus, the OP (CAT) NO. 73 OF 2020 -5- 2025:KER:12745 matter reached this court in O.P.(CAT) No.185 of 2016.

4. Noticing the rival contentions, this Court in paragraph No.10 of the judgment, noticed that on the communication/memos sent to the applicant vide Annexures R1 to R10 therein only pointed out the deficiency in service but not with regard to the adverse remarks. It was also noticed that from 1980 till 2009, no adverse were forthcoming through the reply statement filed by the respondents. The aforementioned observations were based upon the pleading in O.A.No.817 of 2012, though, by that time, the adverse entries of 2011, 2005 and 2009 had already been communicated after a lapse of number of years. Noticing all these facts, this Court allowed the O.A. by holding that the applicant was not given opportunity before entering the adverse remarks.

5. The dispute as noticed above is pertaining to the order dated 03.08.2011 Annexure A9 whereby the applicant - petitioner was communicated OP (CAT) NO. 73 OF 2020 -6- 2025:KER:12745 adverse entries from 2005-06 to 2008-2009, which was represented to and resulted into rejection vide order dated 20.03.2017 which was assailed before the tribunal.

On perusal of the order of rejection of the representation as well as order of the tribunal, prima facie, we are of the view that the order of tribunal is a 'cut copy paste' of the order rejecting the representation. For the sake of brevity, we reproduce paragraph No.3 of the order Annexure A15 dated 20.03.2017 rejecting the representation and Paragraph Nos.5 and 6 of the order rejecting the O.A., dated 06.11.2019 Ext.P4:

"(3) In compliance of the Hon'ble Tribunals above said order dated 03-03-2016 the matter regarding the third level financial upgradation under the MACP scheme i.r.o Shri V,J Xavier to the pay band PB-3-Rs.15600-

39100 with grade pay of Rs.7600/- w.e.f 06-06-2010 has been considered and disposed by the Departmental Screening Committee, as given below:

(7) (i) The Committee has examined the relevant service records of Shri V.J Xavier. The ACRs of Shri V.J Xavier for the period from 2005-06 to 2009-10 prior to and after reviewing OP (CAT) NO. 73 OF 2020 -7- 2025:KER:12745 has been scrutinized. It is observed that Shri V.J Xavier has been given opportunity to represent on the ACR's and based on his representations in this regard the ACR's have been reviewed and the matter communicated to him. Shri V.J Xavier has been allowed the financial upgradations under the earlier ACP scheme (vide Annexure A6 dated 02-11-2010 of the O.A No.750/2012) based on the Order dated 16-12-2009 in Ο.Α No.14/2009 of the Hon'ble CAT, Ernakulam Bench and theOrder dated 16-

08-2010 in W.P No.25725/2010(S) of the Hon'ble High Court of Kerala. The said Orders have been carefully scrutinized and it is found that the same are not found applicable for the financial upgradation under the MACPs of Shri V.J Xavier since he has already been communicated the ACR's for the relevant periods, i.e 2005-06 to 2009-10, and his representations on the same have been considered and the ACR's have been reviewed by the competent authorities and communicated to him. Even after review of all the relevant ACR's, Shri V.J Xavier does not meet the benchmark of 'Very Good' required as per para 17 of Annexure-1 of the DOPT O.M dated 19-05-2009 for the financial upgradation to the grade pay of Rs. 7600/-.

(ii) On the applicability of the DOPT O.M No.35034/3/2008-Estt(D) Vol-II dated 04-10- OP (CAT) NO. 73 OF 2020 -8- 2025:KER:12745 2012 which reads as "2. (ii) Benchmark for MACP scheme.....under MACP scheme", the same has been perused and it is found that Shri V.J Xavier was granted the two financial upgradations under the earlier ACP Scheme i.e the first financial upgradation to that of the next promotional post of Mate and the second financial upgradation to the pay scale of the second promotional post of Skipper since under ACP scheme the financial upgradation is allowed to the pay scale of the next promotional post. There are no further promotional post for Shri V.J Xavier. His third MACP is considered to the grade pay of Rs.7600/- which is merely the next immediate higher grade pay in the hierarchy of the recommended revised pay bands and grade pay, and this grade pay is not that of a promotional post on non-selection basis of Shri V.J Xavier nor that of a promotional post of Shri V.J Xavier which requires a benchmark lower than that prescribed in the MACP scheme. Hence the said DOPT O.M dated 04-10-2012 is not applicable for the financial upgradation of Shri V.J Xavier under the MACP scheme.

(iii) Due to the above reasons it is observed that Shri V.J Xavier is not fit for the third financial upgradation as per the MACP scheme to the pay band PB-3-Rs. 15600-39100 with grade pay Rs. 7600/-.

OP (CAT) NO. 73 OF 2020 -9-

2025:KER:12745 (8). The committee therefore on the basis of the ACRs and other relevant records and for the reasons at para 7 above does not recommend the third financial upgradation under the MACP scheme to Shri V.J Xavier, Mate (Retired).

In view of the above, Shri V.J Xavier, Mate (Retired) is not found eligible for the 3rd level financial upgradation under the MACP scheme to the pay band PB-3-Rs.15600- 39100 with grade pay of Rs.7600/-."

Ext.P4 "5. The grievance of the applicant in the present case is that he has not been granted the 3rd financial upgradation despite having the requisite grading in the ACR's except the adverse which were not communicated to him. He should have been considered for the 3rd financial upgradation and granted the 3rd financial upgradation but on the contrary the Department points a different picture altogether and submitted that the applicant is not having the requisite grading which is "very good". The applicant is having only 4 "good" and one "below average" reports. The applicant is seeking the 3rd financial upgradation in PB-3 Rs. 15,600-39,100/- with Grade Pay of Rs. 7,600/-. The case of the applicant was duly considered by the screening committee which observed as under:

"(7)(i) The Committee has examined the relevant service records of Shri V.J. Xavier. The ACRs of Shri V.J. Xavier for the period from 2005-06 to OP (CAT) NO. 73 OF 2020 -10- 2025:KER:12745 2009-10 prior to and after reviewing has been scrutinized. It is observed that Shri V.J. Xavier has been given opportunity to represent on the ACR's and based on his representations in this regard the ACR's have been reviewed and the matter communicated to him. Shri V.J. Xavier has been allowed the financial upgradations under the earlier ACP scheme (vide Annexure A6 dated 2.11.2010 of the OA No. 750/2012) based on the order dated 16.12.2009 in OA No. 14/2009 of the Hon'ble CAT, Ernakulam Bench and the order dated 16.8.2010 in WP No. 25725/2010 (S) of theHon'ble High Court of Kerala. The said orders have been carefully scrutinized and it is found that the saine are not found applicable for the financial upgradation under the MACPs of Shri V.J. Xavier since he has already been communicated the ACR's for the relevant periods, i.e. 2005-06 to 2009-10, and his representations on the same have been considered and the ACR's have been reviewed by the competent authorities and communicated to him. Even after review of all the relevant ACR's Shri V.J. Xavier does not meet the benchmark of 'Very Good' required as per para 17 of Annexure-1 of the DOPT OM dated 19.5.2009 for the financial upgradation to the grade pay of Rs. 7600/-.

(ii) On the applicability of the DOPT OM No. 35034/3/2008-Estt(D) Vol-II dated 4.10.2012 which reads as "2(ii) Benchmark for MACP scheme...... under MACP scheme", the same has been perused and it isfound that Shri V.J. Xavier was granted the two financial upgradations under the earlier ACP scheme i.e. the first financial upgradation to that of the next promotional post of Mate and the second financial upgradation to the pay scale of the second promotional post of Skipper since under ACP scheme the financial upgradation is allowed to the pay scale of the next promotional post. There are no further promotional post for Shri V.J. Xavier. His third MACP is considered to the grade pay of Rs.

OP (CAT) NO. 73 OF 2020 -11-

2025:KER:12745 7,600/-which is merely the next immediate higher grade pay in the hierarchy of the recommended revised pay bands and grade pay, ad this grade pay is not that of a promotional post on non- selection basis of Shri V.J. Xavier nor that of a promotional post of Shri V.J. Xavier which requires a benchmark lower than that prescribed in the MACP scheme. Hence, the same DOPT OM dated 4.10.2012 is not applicable for the financial upgradation of Shri V.J. Xavier under the MACP scheme."

6. The respondents submitted that the allegation of arbitrary and illegality in withholding the 3rd financial upgradation is baseless. After considering the rival contentions in the present case and on the perusal of the records this Tribunal is of the view that applicant's ACRs are not up to the mark for grant of the 3rd financial upgradation. Even if we consider the submission of the applicant that the bench mark for the grant of 3rd financial upgradation as per the OM dated 4.10.2012 is "Good" instead of "VeryGood", then also the applicant is not eligible. Applicant has preferred appeal against the said remarks which were also not found in favour by the concerned authority who had rejected the appeal against the adverse remarks. This Tribunal cannot assume the role of administrative authority in this regard."

6. Learned Tribunal has not noticed the case from records that adverse entry has to be immediately communicated to the employees and not in OP (CAT) NO. 73 OF 2020 -12- 2025:KER:12745 the manner and mode where the party had been litigating for communication of adverse remarks since 2009, which was found to be untenable by this Court in the judgment dated 10.03.2023 in O.P.(CAT) No.185 of 2016. Though an attempt was made to correct the adverse entries on their own of one of the financial year, the fact remains no opportunity during all these periods was given as the adverse entries kept in the archives of the department upto 2011. There has to be a proper and reasonable opportunity within a reasonable period. Moreover, it appears that somebody in the department had been nursing rancour against the applicant for denying the benefit.

7. In our considered view, the finding of the tribunal is not in consonance with the settled proposition of law as well as the fact that in the previous round of litigation up to this court, adverse entries in ACR of 2019 has also been rejected for want of sufficient opportunity.

We, accordingly, set aside the order of the OP (CAT) NO. 73 OF 2020 -13- 2025:KER:12745 tribunal and allow the O.A. Consequently the present O.P(CAT) is also allowed and direct the respondents to grand third MACP eligible to the petitioner - applicant irrespective of the alleged adverse entries in 2005 to 2009, within a period of one month from the date of receipt of the certified copy of the judgment.

Sd/-

AMIT RAWAL JUDGE Sd/-

K. V. JAYAKUMAR JUDGE vv OP (CAT) NO. 73 OF 2020 -14- 2025:KER:12745 APPENDIX OF OP (CAT) 73/2020 PETITIONER ANNEXURES ANNEXURE A1 TRUE COPY OF THE OFFER OF APPOINTMENT ORDER NO. F.13-15/79 ADM. DATED 9.5.1980 ISSUED BY THE 2ND RESPONDENT.

ANNEXURE A2 TRUE COPY OF THE ORDER NO.

PF.302.ADM.DATED 28.06.1980 OF THE 2ND RESPONDENT.

ANNEXURE A3 TRUE COPY OF THE ORDER NO. 13016/02 ADM. DATED 15.9.2003 OF THE SECOND RESPONDENT.

ANNEXURE A4 TRUE COPY OF THE ORDER DATED 16.12.2009 IN O.A. NO. 14 OF 2009 PASSED BY THIS HONBLE TRIBUNAL.

ANNEXURE A5 TRUE COPY OF THE JUDGMENT DATED 16.8.2010 WPC NO. 25725 OF 2010 PASSED BY THE HONBLE HIGH COURT OF KERALA.

ANNEXURE A6 TRUE COPY OF THE ORDER NO. 14-1/2009- ADM. DATED 2.11.2010 ISSUED BY THE 2DN RESPONDENT.

ANNEXURE A7 TRUE COPY OF THE REPRESENTATION DATED 6.5.2011 SUBMITTED BY THE APPLICANT TO THE 2ND RESPONDENT.

ANNEXURE A8 TRUE COPY OF THE ORDER PF NO. 269/ADM-

VOL -II/ADM DATED 16.8.2011 OF 3RD RESPONDENT.

ANNEXURE A9 TRUE COPY OF THE MEMORANDUM F.NO. 5- 1/201/APAR DATED 3.8.2011 OF THE THIRD RESPONDENT WITH ACRS OF THE APPARITION FOR THE YEARS 2005-06, 2006-07, 2007- 08 AND 2008-09.

ANNEXURE A10 TRUE COPY OF THE REPRESENTATION DATED OP (CAT) NO. 73 OF 2020 -15- 2025:KER:12745 12.8.2011 SUBMITTED BY THE APPLICANT.

ANNEXURE A11 TRUE COPY OF THE REPRESENTATION DATED 26.8.2011 SUBMITTED BY THE APPLICANT.

ANNEXURE A12 TRUE COPY OF THE MEMORANDUM F.NO. 5- 1/2013 APAR DATED 9.10.2013 OF THE 4TH RESPONDENT.

ANNEXURE A13 TRUE COPY OF THE OFFICE MEMORANDUM NO.

35034/3/2008-ESTT) (VOL.II), DATASET 4.10.2012 ISSUED FROM THE OF ICE OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS.

ANNEXURE A14 TRUE COPY OF THE ORDER OF HONBLE CENTRAL ADMINISTRATIVE TRIBUNAL IN OA NO. 750/2012 DATED 3.3.2016.

ANNEXURE A15 TRUE COPY OF THE ORDER NO.

14-5/2012/ADM/595 DATED 20.3.2017 OF THE SECOND RESPONDENT.

EXHIBIT P1 TRUE COPY OF THE OA NO. 180/00802/2017 FILED BY THE PETITIONER ALONG WITH ANNEXURES.

EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT DATED 6.7.2018.

EXHIBIT P3 TRUE COPY OF THE REJOINDER DATED 23.9.2018.

EXHIBIT P4 TRUE COPY OF THE ORDER OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH IN OA NO. 180/00802/2017 DATED 6.11.2019.

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