Central Administrative Tribunal - Ernakulam
K. Mohanan vs Union Of India Represented By The ... on 4 November, 2016
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A. No.180/00296/2014
Friday, this the 4th day of November, 2016.
CORAM:
HON'BLE Mr. JUSTICE N.K. BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Mrs. P. GOPINATH, ADMINISTRATIVE MEMBER
K. Mohanan,
S/o. K. Kunhanandan,
Postal Assistant, Thalassery Head Post Office,
Residing at : Chaithanya, Ambilad,
Nirmalagiri (P.O) - 670 701. - Applicant
(By Advocate Mrs. R. Jagada Bai)
Versus
1. Union of India represented by the Secretary to
Department of Posts, New Delhi - 110 001.
2. The Chief Post Master General,
Kerala Circile, Thiruvananthapuram - 695 033.
3. The Post Master General,
Northern Region, Kerala Circle,
Kozhikode - 673 011.
4. Superintendent of Post Offices,
Thalassery Division,
Thalassery - 670 101. - Respondents
(By Advocate Mr. K. Kesavankutty, ACGSC)
The application having been heard on 26.09.2016, the Tribunal
on 04.11.2016 delivered the following:
ORDER
Per: Mrs. P. Gopinath, Administrative Member The Modified Assured Career Progression Scheme (MACP) for the Central Government Civilian Employees was implemented with effect from 01.09.2008. As per the MACP Scheme, the Central Government employees were allowed three financial upgradations on completion of 10, 20 and 30 years of service. The 'Bench Mark' for financial upgradations under MACP Scheme is prescribed as 'Good'. The applicant was due get his pay upgraded to the next higher scale of pay of MACP-III in the scale of pay of Rs. 5200-20200 with Grade Pay of Rs. 4600/- with effect from 26.10.2012.
2. The Superintendent of Post Offices, Thalassery Division, though his letter No. APAR/Misc dated 14.06.2012 communicated the entries of Annual Confidential Reports for the year 01.04.2008 to 31.03.2009, 01.04.2009 to 31.03.2010, 01.04.2010 to 31.03.2011 and 01.04.2011 to 31.03.2012 to applicant with directions to submit his representation against the below benchmark remarks. The applicant submitted a representation dated 25.06.2012 for upgradation of his bench mark as well as the grading. The appeal preferred was rejected by the respondent No.3 without any application of mind and in a mechanical manner vide Annexure A-7. Aggrieved by the order in Annexure A-7 the applicant preferred a petition to the respondent No. 2 on 15.03.2013.
3. The 4th respondent issued orders granting financial upgradation to the officials in Thalassery Postal Division to MACP-III and MACP-II vide his Memo No. B1/MACP/Dlg dated 01.07.2013. The Petition (Annexure A-8) was also rejected by the respondent No. 2 without taking into consideration the valid points raised in the petition. The ACR/APAR with adverse entry against the applicant should have been communicated to him immediately on making such an entry by the competent authority.
4. The respondents in their reply statement submit that the applicant was entitled for III MACP on completion of 30 years of service with effect from 26.10.2012 subject to the number of days of non- qualifying service and fitness. For upgradation under the MACP scheme, the benchmark of 'good' was applicable upto the grade pay of Rs. 6600/- in PB-3. A Scrutiny Committee was convened at Divisional level on 21.09.2012 for the revision and upgradation of the final grading in ACRs of Postal Assistants, prior to the reporting period 2008-09 of 14 officials and, for consideration of representation against their below benchmark remarks in their ACRs for the purpose of placement under MACP scheme III. The applicant was treated at par with all similarly placed officials and as per directions for implementation of MACP Scheme. A photocopy of the minutes of the said Scrutiny Committee dated 21.09.2012 is produced as Annexure R-1.
5. The representation of the applicant against the decision of the Scrutiny Committee was disposed of by the Post Master General vide Memo No. STA/30/AE/APAR/6/2012 dated 12.09.2013. Against the said order, the applicant preferred an Annexure A-8 appeal dated 15.03.2013 to the 2nd respondent. The 2nd respondent vide memo No. ST/101-M/APAR/2003 dated 12.09.2013 confirmed the grading in the ACR awarded to the applicant. The Screening Committee constituted as per the guidelines from Chief Post Master General, met on 28.11.2013 and considered the eligibility of Postal Assistants of Thalassery along with the case of applicant for the financial upgradation under MACP for the period upto 31.03.2014 and submitted its recommendations. The Screening Committee has not recommended the case of the applicant as he did not have the benchmark grading prescribed for III MACP. The 2nd respondent had afforded full opportunity to the applicant to represent against the below benchmark remarks furnished in his Annual Confidential Reports (APARs). This was done by the committee with the object of one-time settlement of these cases by review/reassessing the remarks in the confidential reports in the case of applicant and similarly placed cases so as to raise the benchmark to the minimum prescribed.
6. The applicant alleges that, the ACR/APARs for the various period from 01.04.2008 to 31.03.2012, were written by the then Superintendent of Posts, Thalassery Division, with personal grudge and vengeance and without verifying the records. The said allegation is strongly denied by the respondents. Vide Annexure A-5, the applicant has requested the 4th respondent to intimate the reason for the denial of MACP Scheme III placement vide the order of the 4 th respondent dated 01.07.2013 which is annexed by the applicant as Annexure A-9. Annexure A-6 document is the representation of the applicant dated 28.09.2012 addressed to the 3 rd respondent. The 3rd respondent has replied to the representation by way of Annexure A-7, in which he categorically disagreed with the argument made by the applicant in blaming the then 4th respondent for awarding him lower grading. The 3 rd respondent had observed that the applicant has not brought any tangible proof to show that the numerical grading was awarded out of personal grudge without following principles laid down for the said purpose. The respondent argues that allegation in the absence of clear evidence can only be construed as a mere speculation and an after thought by the applicant. The minimum prescribed benchmark for considering the employees for placement under financial upgradation, MACP Scheme, in the cadre of Postal Assistant with grade pay upto Rs. 4200/- and above, is 'good' and the APAR grading of 'average' was treated as below benchmark after the introduction of MACP Scheme. As the remark, 'average' was not treated as an adverse remark during the period prior to the introduction of the MACP Scheme, no action was taken by the respondent to communicate the remark to the officials concerned as per the then existing provisions or giving opportunity to the official to represent against the same. Consequent to the introduction of MACP Scheme, directions were received treating the remark 'average' in the ACR of the official below benchmark remark, required to be communicated.
7. When the ACR/APARs of the applicant were verified by the Scrutiny Committee convened on 21.09.2012 for the purpose of considering his placement to the next higher grade under MACP Scheme, on completion of thirty years of service in the Postal Assistant cadre, it was found that the performance of the applicant was evaluated as 'average' during the said period by competent authority. Hence, taking a lenient view, the committee proposed to upgrade the benchmark in respect of the applicant and some others as 'good' and accordingly recommended the cases for placement under MACP III.
8. Heard the learned counsel for the applicant and respondents and perused the written submissions made.
9. This is a case where even though the adverse remarks were communicated belatedly, the applicant was not denied the opportunity to represent against the adverse remarks and for such a representation to be considered by the competent authority. The 2 nd and 3rd respondents observed that the applicant has failed to mention details of any instance of exemplary performance in his official duty to substantiate the arguments made by him in his representation and to show that his performance as an official during the period under review was above 'average' so as to be considered for upgradation of the grading made in the ACR/APARs during the reporting period. The respondents submit that applicant made some objectionable comments about the reporting officer who made the entries in his ACRs without producing any tangible evidence to support his claim.
10. MACP Scheme was introduced vide Annexure A-1 with effect from 01.09.2008. As per the instructions contained in Annexure A-1 implementing the MACP Scheme, the minimum prescribed benchmark to be considered for placement to the next higher grade on financial upgradation, after completion of 30 years service in the cadre was 'good'. The grade 'average' is below the benchmark prescribed for 3 rd MACP and the official was given 3rd MACP after MACP Scrutiny Committee upgraded the applicant and some other officials grading to 'good'. Hence, the upgradation of APAR rating was made by Scrutiny Committee while re-assessing the applicant for 3 rd MACP and the demand for ante-dating the promotion to a prior date is not justified. The contention of applicant that communication of APAR grading was withheld with malafide intention is challenged by respondents. The communication was made when applicant's name came up for MACP consideration as required under MACP implementation orders. Though the below benchmark remarks were communicated belatedly, the applicant has not been denied the opportunity to represent against the adverse remarks and hence the applicant cannot have any grievance of not being given an opportunity of being heard. The representation of the applicant was disposed with due application of mind by the respondent. No concrete arguments were made by applicant on the justification for upgrading the numerical grading awarded and nor did he put forth any evidence in support of the contentions made therein. Accordingly the representation was considered and rejected by the competent authority. The grading 'average' was not treated as an adverse remark during the period prior to the introduction of the MACP Scheme and respondent argues that no action was taken by the authorities concerned for communication of such remarks to the officials concerned as per the then provisions in operation. But such an opportunity of communication and representation was given subsequently and thus this is not a case of denial of opportunity.
11. Applicant makes an argument in favour of Rule 174(7) of Postal Manual Volume III which states as follows:
'(7) b�&....... with a view to enabling them (Officers) to make correct overall assessment of the work and conduct of their subordinates the reporting officers are required to maintain a memorandum of services in respect of each officer employed under them. All instances of good and bad work coming to the notice of the reporting officer at the time of visits and inspections, interview, etc should also be included in that memorandum.'
12. The fourth respondent was the reporting authority. He would have a large number of post offices under him with a large number of employees working in the post offices. At the time of independence there were 23, 344 Post Offices in the country. Today there 1,54,882 Post Offices which has rendered physical visit and inspection of all post offices a virtual impossibility as also maintenance of memo of services of every official working in the post offices. The Postal Volumes are a legacy of the British era. The applicant presumes that the respondent would have the opportunity to visit every post office and make a note in writing of work of every employee in the Memorandum of Services. Further the applicant presumes in her averment that entry in APAR is an adverse remark. This is not so. The benchmark for MACP is 'good' and not 'average'. In the Annexure A-3 communication of APAR entries it is noted that the reporting officer has recorded in 2008-09 that the applicant is a worker of 'average' ability. In 2009-10 while recording 'average' in column 12 it is noted that applicant has 'no business initiative' and no achievement in BD (Business Development) activities and is 'indifferent'. In 2010-11 the APAR format having changed to a numerical one the applicant has been given a grading of 3.5 on a scale of 1-10. An observation of 'indifferent and negative in BD Scheme' has again been recorded. Further in the Col. 3 of Part III a recommendation for training in IT and Business Development skills has been made. In 2011-12 a grading of 3.6 has been given with an observation of 'indifferent negative in BD Scheme' made. Hence there has been a uniform observation of negative in promotion of Postal Business Development activities. Though these observations were not communicated in the respective years, the respondent subsequently communicated the remarks and did give an opportunity to applicant to represent against the observations made and considered the same before applicant's case was considered for upgradation under ACP. Annexure A-7 is a detailed speaking reply given by the 3rd respondent to the applicant's representation. Hence applicant was given opportunity to represent to two higher authorities who considered his representation in detail and furnished a detailed reply. The reply brings out that no tangible proof has been submitted to prove the applicant's contention that the grading had been made out of personal grudge. The second respondent in reply to applicant has observed that there was nothing exceptional in the performance of the applicant who was a Sub-Postmaster, a senior person in the functional hierarchy with 30 years of service. It is also noted that applicant has furnished no concrete reasons in his representation for upgradation of his APAR rating. Subsequent to the observations of Apex Court in Dev Dutt
- v. UOI, it is stated that GOI in May 2009 has circulated orders for making available the APAR to every official. Prior to pronouncement by Apex Court in Dev Dutt, there were no provision of the Government of India for communicating APAR to central government employees. Whereas communicating a good entry may actually have a good impact on a motivated employee, whether the communication of an adverse observation will bring about a work culture change or contribute to malicious aggression is not proved.
13. Applicant argues that the erstwhile Superintendent of Post Offices had given a low numerical grading below 4 but also detained the APARs without communicating them till 2012 upto the year of his retirement. Respondent argues that the grading awarded was not adverse and hence there was no need for communicating the same. However, the bechmark for MACP, which was introduced by VI CPC was very good. MACP upgradation was conditional on benchmark grading for different pay bands. MACP O.M contained a provision for communicating below benchmark grading to officials before MACP financial upgradation is considered by the Screening Committee, invite representations on the grading, and consider and pass orders on the same. The applicant was provided this opportunity and the case considered on merit and orders for retention of grading passed. Applicant cannot compare his case with any other who had also made representation, as each case is considered on merit and based on its own set of facts. Hence resting the blame on respondent for non grant of benchmark APAR is not accepted. We do not find any ill-will or malice on the part of the reporting officer.
14. Order in O.A No. 2889/2013 produced by applicant is not akin to applicant's case as the applicant in the O.A had alleged difference of opinion between him and the reporting officer over disciplinary proceedings of a third party. Applicant in this O.A has not alleged such difference of opinion with the reporting officer. There are no such pleadings, antecedent facts or circumstances in the case of applicant in this O.A.
15. In the interest of justice the applicant was given an opportunity to represent against the below benchmark remarks in his APAR and the representation was considered and a speaking reply was given. On a subsequent date, the Screening Committee suo moto upgraded the average grading of applicant and other similarly placed officials to 'good' and recommended them for grant of III MACP. But such a concession was extended equally and uniformly to all similarly placed and the applicant was also considered under such dispensation. The applicant has made no argument on the grounds of 'good work' or exemplary service, to be considered for MACP on a date prior to the extension of one time concession to all similarly placed persons.
16. The O.A is dismissed. No order as to costs.
(Dated, this the 4th day of November, 2016.)
(Mrs. P. GOPINATH) (N.K. BALAKRISHNAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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