Central Administrative Tribunal - Cuttack
Dr Birabar Jena vs Posts on 9 July, 2025
1 O.A.No. 260/00255 of 2022
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.No. 260/00255 of 2022
Reserved on 24.06.2025 Pronounced on 09.07.2025
CORAM:
THE HON'BLE SHRI SUDHI RANJAN MISHRA, MEMBER (J)
THE HON'BLE SHRI PRAMOD KUMAR DAS, MEMBER (A)
Dr. Birabar Jena, Aged about 75 years, Son of Late
Durga Charan Jena, Chief Medical Officer (Retd.),
P&T Dispensary, Kota, Rajasthan at present
residing At- Flat No.202, Lomani Villa Apartment,
Near Times Gurukul College, P.O.-Malipada,
Bhubaneswar, Khurda-751003.
......Applicant
VERSUS
1. Union of India represented through its Secretary
to Government of India, Department of Personnel,
Public Grievances and Pensions, Nw Delhi-110
001.
2. Secretary to Government of India, Department of
Health & Family Welfare, CHS Division, Nirman
Bhawan, New Delhi, PIN-110 011.
3. Director General of Health Services, Nirman
Bhawan, New Delhi, PIN-110011.
4. The Director General of Posts, Dak Bhawan,
Sansad Marg, New Delhi, PIN-110001.
5. The Chief Postmaster General, Rajsthan Circle,
Jeypore, PIN-308 001.
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2 O.A.No. 260/00255 of 2022
6. The Postmaster General, Rajsthan Eastern
Region, Ajmer, Rajsthan, PIN-305 001.
7. Joint Secretary (HR) & Director of Grievances
(Nodal Officer), Ministry of Health & Family
Welfare (Department of Health), Nirman Bhawan,
New Delhi-110 011.
8. Confidential Secretary to Member (P),
Department of Posts, Dak Bhawan, Parliament
Street, New Delhi, PIN-110 001.
9. Assistant Director (Legal Cell), Office of the Chief
Postmaster General, Odisha Circle, Bhubaneswar,
Dist. Khurda, PIN-751 001.
10. Additional Director, Central Govt. Health Scheme,
Government of India, Unit IV, Bhubaneswar, Dist.
Khurda, PIN-751 001.
11. Under Secretary to Govt. of India, Ministry of
Health and Family Welfare, Department of Health
& Family Welfare (CHS-II Section), Nirman
Bhawan, New Delhi-110011.
......Respondents
For the applicant : M/s J.M.Patnaik, Jyotiranjan Behera, Counsel
For the respondents: Mr. R.S.Patnaik, Counsel
O R D E R
PRAMOD KUMAR DAS, MEMBER (A):
The applicant, while working as Chief Medical Officer, retired from service on reaching the age of superannuation in the afternoon of 31.01.2007. He is now in an around 80 years old. This is the fourth RAVI KUMAR 2025.07.09 17:35:11 +05'30' 3 O.A.No. 260/00255 of 2022 round of litigation he has filed challenging the order rejecting his prayer for granting him the benefit of Non-functional upgradation (NFU) to Super-time Administrative Grade (SAG) Level w.e.f. 03.01.2006 and Higher Administrative Grade (HAG) vide order No. C.17011/08/2018-CHS-II dated 29.03.2022. The relevant portion of the said order is quoted herein below:
"3. Due date for grant of NFU to SAG level to the officer is 03.01.2006 (Panel Year 2005-06), as such the reckonable period for assessmerit of his ACRs is 1999- 2000, 2000-01, 2001-02, 2002-03 & 2003-04. On examination of the said ACRs it was found that there are Non-initiation certificates for the period 2000-01 and 2003-04 (01.04.2003 to 09.11.2003). The benchmark for consideration of grant of NFU to SAG level is "Very Good in 4 ACRs out of 5 reckonable ACRs".
4. In view of the fact that the Officer has 02-ACRs in the reckonable period as Non-Initiation Certificates (2000- 01 and 2003-04 (01.04.2003 to 09.11.2003)], as such, the DoPT guidelines provides that "In cases where one or more CRs have not been written for any reason during the relevant period, the Committee should consider the ACRs of the years preceding the period in question and if in any case even these are not available, the Committee should take the ACRs of the lower grade into account to complete the number of ACRs required for the consideration...
5. On further examining the ACRs of the Officer for the previous years, it has been found that the Officer had secured ACR gradings as 'Good' for the assessment years 1997-98 and 1998-99 also which are below benchmark grading for consideration of his case for grant of NFU to SAG level. Accordingly, vide this RAVI KUMAR 2025.07.09 17:35:11 +05'30' 4 O.A.No. 260/00255 of 2022 Ministry's letter No. A.28021/05/2019-APAR dated 01.12.2021 the below benchmark ACRs for the years 1997-98 and 1998-99 were disclosed to Dr. Jena for making representations. However, no representation has been received from the Dr. Jena so far.
6. In the meantime, Dr. Jena had filed an M.A. No. 657/2021 in OA 208/2019 before the Hon'ble CAT, Cuttack and the Hon'ble CAT vide its order dated 18.01.2022, inter-alia directed to file a compliance report by 28.02.2022
7. In light of the above, the case of Dr. Birabar Jena for granting NFU to level of SAG was considered in this Ministry in the meeting of the Screening Committee held on 17.03.2022 under the Chairmanship of Secretary (HFW), Ministry of Health & Family Welfare for considering grant of NFU to SAG level w.ef 03.01.2006 1.r.o. Dr. Birabar Jena.
8. The Screening Committee observed that there are Non-initiation certificates (NICs) for the period 2000-01 and 2003-04 (01.04.2003 to 09.11.2003) and for the ACRs of previous years in lieu of NICs, it is seen that the Officer had secured ACR grading as 'Good' for the assessment years 1997-98 and 1998-99 also and these below benchmark ACRs for the years 1997-98 and 1998-99 were disclosed to Dr. Birabar Jena for making his representations through post as well as by e-mail However, no representation from the officer has been received. Thus, no representation of Dr. Birabar Jena is pending with the Ministry and therefore, the grading of "Very Good" is available for only 3-years and 04- months. Thus, the criteria of benchmark grading in ACRs for the reckonable period is not fulfilled in this case.
9. Accordingly, the Screening Committee did not recommend Dr. Birabar Jena for grant of Non- Functional Upgradation to Senior Administrative Grade (SAG) level w.e.f. 03.01.2006. Subsequently, the RAVI KUMAR 2025.07.09 17:35:11 +05'30' 5 O.A.No. 260/00255 of 2022 recommendations of the committee were also approved by Hon'ble Minister of Health & Family Welfare.
10. Further, as per DoPT OM No. AB. 14017/30/2011- Estt. (RR) dated 24.08.2012, the due date for grant of Non-Functional Upgradation (NFU) to Higher Administrative Grade (HAG) level for the Batch 1980 is 07.08.2012. Since the officer had retired on 31.01.2007, i.e. before the due date of grant of NFU to HAG level, he cannot be considered for the same."
2. Hence, by filing the instant OA, he has prayed for the following reliefs as under:
"i. To quash the letter under Annexure-A/12 dated 29th March, 2022 on face of the order under Annexure-A/11 dated 29.07.2021 in OA No. 208 of 2019 and order under Annexure-A/13 No. 657 of 2021; dated 13.05.2022 in MA.
ii. To direct the Respondents to grant the NFU under DACP to SAG and HAG as has been granted to similarly situated retired Doctors vide order under Annexures- A/6 & A/7 retrospectively;
iii. Accordingly, direct the Respondents to pay the differential salary, pension and other pensionary benefits upon grant of the NFU from the date he was entitled to till the payment s made with 12% interest.
iv. To pass any other order..............."
3. The respondents filed counter in which they did not dispute the entitlement of financial upgradation to SAG under NFU w.e.f. 03.01.2006 as has been granted to other similarly situated employees but the only reason, for non-granting the said benefit to RAVI KUMAR 2025.07.09 17:35:11 +05'30' 6 O.A.No. 260/00255 of 2022 the applicant, given by them is that grant of financial upgradation under NFU to SAG Scale is subject to fulfillment of the eligibility criteria of four "Very Good" gradings out of five preceding years' APARs. But, a part period of APAR of 2003-2004 (01.04.2003 to 09.11.2003) was reported as "Non-initiation Certificates" (NICs) and, therefore, the previous assessment year 1997-1998 and 1998- 1999 was taken into consideration to grade the NICs period 01.04.2003 to 09.11.2003. It was found that the grading in his APARs for the period 1997-1998 and 1998-1999 were "good", which is the below benchmark for grant of NFU to SAG. It was seen that the APAR for the 1997-1998 and 1998-1999 were supplied to the applicant giving him opportunity to submit representation but there was no response. Hence, there being the grading of "Very Good" only for 3- years and 04-months, out of the requirement of four "Very Good"
grading in APARs of five years, he was not granted the NFU. It has also been stated that for getting HAG under NFU for the 1980 batch Doctors is 07.08.2012 and since the applicant retired on 31.01.2007, he is not entitled to HAG. Accordingly, respondents have prayed for dismissal of this OA.
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4. After giving due consideration to the facts of the matter, we have perused the records. According to the respondents, the date of granting SAG is 03.01.2006 (Panel year 2005-2006) and, therefore, the reckonable period of assessment of APAR is 1999-2000, 2000- 2001, 2001-2002, 2002-2003, and 2003-2004 and, that, for getting the SAG one has to achieve the benchmark of "very good" in four APARs out of five. It is the case of the respondents that for the year 2003-2004 there was non-initiation certificate from 01.04.2003 to 09.11.2003 and from 10.11.2003 to 31.03.2004 he was having "very good" in his APAR. Therefore, the applicant was having the benchmark of "very good" for three years and 4 ½ months as against four "very good" out of five APARs. According to the respondents, as per the norms, they have taken the grading of the APARs of the applicant for 1997-1998, 1998-1999, for assessing grading of the period of the Non-Initiation Certificates for the years 2000-2001 and 2003-2004, wherein the grading of the applicant was found "good"
and, therefore, he was not granted the SAG Scale.
5. According to Ld. Counsel for the applicant, as per the DoP&T OM No. 22011/5/86-Estt.(D) dated 10.04.1989 (Para 4.2.4), if the RAVI KUMAR 2025.07.09 17:35:11 +05'30' 8 O.A.No. 260/00255 of 2022 APAR for a particular year/period is not available and for valid/ justifiable reasons it cannot be made available, a certificate (No Report Certificate) should be recorded to that effect and placed in the respective APAR dossier and, that, the grading of the non-reported period shall be reckoned as per the recording of the previous year. In the instant case, the non-recording period is from 01.04.2003 to 09.11.2003, therefore, the previous recording year is 2002-2003 and in that year's APAR grading he was awarded "very good". Hence, the period from 01.04.2003 to 09.11.2003 should have been taken as "very good" instead of going much below the year 1997-1998. Further, it is the case of the respondents that on the correspondence between Ministry of Finance and Postal Department relating to the APAR for the year 2000-2001, the Postal Directorate vide letter dated 06.03.2019 has informed the Ministry of Health & Family Welfare with documentary proof that the APAR of the applicant for the year 2000-2001 was sent to MoHFW on 18.05.2001. But, despite the above, the period from 2000-2001 has been taken as "NIC". It is stated that taking into consideration the aforesaid fact, this Bench in earlier order dated 29.07.2021 in OA 208/2019 directed the RAVI KUMAR 2025.07.09 17:35:11 +05'30' 9 O.A.No. 260/00255 of 2022 authority concerned to grant the applicant SAG Scale. Further, Ld. Counsel for the applicant has placed reliance on the decision of the Hon'ble High Curt of Madhya Pradesh at Indore dated 13.07.2023 in W.P.(C) No. 3296/2021 (Dr. Naresh Sinha Vs State of M.P. & Ors.) to contend that non-availability of the APARs is not attributable to the employee concerned and, therefore, the employee cannot be denied the benefit for non-availability of such APARs. Another submission of the Ld. Counsel for the applicant is that since the due date for grant of SAG is 03.01.2006 (panel year 2005-2006) for which five years ACARs is to be taken into consideration, therefore, the respondents ought to have taken into consideration the APAR grading of 2004-2005, which is very good, which having not been taken injustice was caused to him. In the event, the grading of very good in the APAR for the year 2004-2005 is taken then the APAR grading of the year 1999-2000 being very good the unreporting period will have to be treated as very good, thereby entitling the applicant for SAG scale. Hence, according to the applicant, he is entitled to the SAG and HAG scale as already directed by this RAVI KUMAR 2025.07.09 17:35:11 +05'30' 10 O.A.No. 260/00255 of 2022 Tribunal in earlier OA No. 208/2019, relevant portion of which is quoted hereunder:
"9. Going by the decisions referred to above and the facts that the APAR/ACR of the Applicant for the period from 1999-2000 and 2003-04 (10.11.2003 to 31.3.2004) have already been up graded from 'Good' 'Very Good' and the same has also been communicated to Ministry of Health and Family welfare by the Department of Posts and that ACR for the period 2000-2001 has been sent by the Postal Directorate vide letter dated 6.3.2019 to the Ministry of Health & Family Welfare the arguments advanced by learned counsel for the Respondents is of no consequence.
10. As according to the Respondent Nos. 1&2 the case of t Applicant was deferred due to below bench mark and non availability of ACR for particular period and the same having been meted out, the Respondent Nos. 1&2 ought to have reconsidered the case of the Applicant in pursuance of the direction of Hon'ble Delhi High Court dated 13.10.2014 in WP No. 4067/2014 & 4073/2014. We find that this OA was filed in the year 2019 when the age of the applicant was 72. Thus, more delay in- giving reconsideration is fatal when the ground of deferment has been made good long since.
11. Thus, taking into consideration the entire conspectus of the facts and circumstances of this case the we hold that non consideration of the case of the applicant despite up gradation of APAR from Good to Very good and available of APAR for the period 2000- 2001 till date is bad in law. As such, to secure the ends of justice, Respondents 1&2 are hereby directed to reconsider the case of the Applicant for grant of NFU under DACP to SAG and HAG, within a period of 60 (sixty) days from the date of receipt of a copy of this order and intimate the result of such consideration RAVI KUMAR 2025.07.09 17:35:11 +05'30' 11 O.A.No. 260/00255 of 2022 to the Applicant in a well reasoned/speaking order within the said period." (Emphasis added)
6. The relevant portion of the order dated 13.05.2022 in MA 657/2021 is quoted below:
"6. It appears from the order of rejection filed by the respondents through memo that "on examination of the ACRs of the Officer for the previous years, it has been found that the Officer had secured ACR gradings as 'Good' for the assessment years 1997-98 and 1998-99 also which are below benchmark grading for consideration of his case for grant of NFU to SAG level. Accordingly, vide this Ministry's letter No. A.28021/05/2019-APAR dated 01.12.2021 the below benchmark ACRS for the years 1997-98 and 1998-99 were disclosed to Dr. Jena for making representations. However, no representation has been received from the Dr. Jena so far." This was not the ground for deferment of the case of the applicant by the Selection Committee. The Committee had observed that his reckonable ACRs for the year 1999-2000 & 2003- 2004 are below benchmark and the ACR for the year 2000-2001 is not available. Based on the grounds stated by the respondents in their counter, this Tribunal in a well reasoned order directed for consideration of case of the applicant for grant of financial upgradation. Law is well settled by the Hon'ble Apex Court in the case of Mohinder Singh Gill & Anr. Vs The Chief Election Commissioner, New Delhi, reported in 1978 AIR 851, that "Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in its mind, or what he intended to, do. Public orders made by public authorities are meant to have public effect and are intended to effect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself." In view of the fact and law respondents RAVI KUMAR 2025.07.09 17:35:11 +05'30' 12 O.A.No. 260/00255 of 2022 are estopped under law to take different pleas only to sustain their action, which was held not justified in the order passed by this Tribunal in the O.A. Thus, the benchmark of 1997-98 and 1998-99 being an afterthought and was not the ground before the selection committee to take the same with a view to sustain their action for depriving the applicant from getting the benefit of upgradation. At the same time, we may record that this being an execution proceeding, right or wrong of the rejection can only be tested in appropriate proceeding." (Emphasis added)
7. On examination of the matter in its entirity, we are in agreement with Ld. Counsel for the applicant that the grading of non- reporting period from 01.04.2003 to 09.11.2003 would have been graded as per the grading of the previous year of 2001-2002 or 2002-2003, the grading of which are "very good". Further, we do not appreciate the action of the respondents in denying the benefit by treating the APAR for the period 2000-2001 as NIC, although it was specifically intimated by the Postal Directorate vide letter dated 06.03.2019 that the APAR of the applicant for the year 2000-2001 was sent to MoHFW on 18.05.2001. Further, the due date for grant of SAG being 03.01.2006, the previous period ought to have been taken starting from 2000-2001 till 2004-2005 but the respondents did not consider the APARs of the applicant for the period 2004-2005, the grading of which is "Very Good" and, that, in the above event, the RAVI KUMAR 2025.07.09 17:35:11 +05'30' 13 O.A.No. 260/00255 of 2022 non-reporting period from 01.04.2003 to 09.11.2003 ought to have been treated as "Very Good" as per the grading of the year 1999- 2000 instead of taking the grading of 1997-98 and 1998-99. Thus, we find that the Committee/authority concerned acted in a careless and senseless manner without due application of mind in not considering the APAR for the year 2004-2005, which shows the unfairness attitude shown in the matter. We also find that taking into consideration all those aspects, this Bench vide order dated 29.07.2021 in OA 208/2019 directed to grant the applicant NFU under DACP to SAG and HAG within a period of 60 days. The Tribunal also made the direction amply clear vide order dated 13.05.2022 in MA No. 657/2021. Despite the positive direction, after taking into consideration all the above, the respondents department illegally and arbitrarily denied the benefit to the applicant for the reasons, which are not sustainable in the eyes of law.
8. In the circumstances stated above, the OA succeeds. The impugned order dated 29.03.2022 is hereby quashed and it is held that the applicant is entitled to NFU under DACP to SAG and, thereafter, to HAG, if he comes within the residency period, as per RAVI KUMAR 2025.07.09 17:35:11 +05'30' 14 O.A.No. 260/00255 of 2022 rules, as has been granted to other similarly situated retired Doctors vide Annexure-A/6 and A/7. Since, the applicant is at the fag end of life, being 80 years old, the respondents are directed to complete the entire drill and pay the arrears within a period of 45 days from the date of receipt of a copy of this order, failing which, the applicant shall be entitled to interest @ 8% on the arrears from the date it became due till the payment is made and extra burden towards the interest shall be recovered from the officer(s)/official responsible for the delay.
9. In the result, the OA stands allowed. No costs.
(Pramod Kumar Das) (Sudhi Ranjan Mishra)
Member (Admn.) Member (Judl.)
RK/PS
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