Central Administrative Tribunal - Chandigarh
Unknown vs Union Of India Through Its Secretary on 24 May, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
CHANDIGARH
Date of filing : 19.02.2015
Reserved on : 19.05.2016
Pronounced on :24.05.2016
OA No. 060/00144/15
Coram: Honble Mr. Justice L.N. Mittal, Member(J).
Honble Mrs. Rajwant Sandhu, Member(A).
P.K. Sarin, S/o Sh. S. N. Sarin, 234, Sector 4, Mansa Devi Complex, Panchkula, Haryana. Pincode - 134114
..Applicant
By Advocate : Self
Versus
1. Union of India through its Secretary, Ministry of Urban Development, Nirman Bhawan, New Delhi 110 011.
2. Directorate General of Works, C.P.W.D., Nirman Bhawan, New Delhi 110 011.
..Respondents
By Advocate : Sh. Sanjay Goyal
O R D E R
By Honble Mrs. Rajwant Sandhu, Member(A):-
1. This OA has been filed under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:-
(a) To quash recommendations of the Screening Committee dated 09.07.2012 declaring applicant unfit for grant of 3rd MACP in the Grade Pay of Rs. 7600 w.e.f. 1.9.2008.
(b) To quash recommendation of the Screening Committee dated 07.06.2014 to communicate the adverse ACRs to the applicant and wherein applicant was not declared fit for grant of 3rd MACP in the Grade Pay of Rs. 7600 w.e.f. 1.9.2008.
(c) Direct the respondents to grant the 3rd MACP in the Grade Pay of Rs. 7600 w.e.f. 1.9.2008.
(d) To grant the interest on the arrears of pay @ 10% per annum compound to be calculated quarterly as paid on fixed deposits for senior citizen in the nationalized banks in India.
(e) To fix the time limit to implement the order of Honble Tribunal.
(f) Cost amounting to Rs. 10,000 for avoidable litigation.
2. It is stated in the OA that the applicant joined as Junior Engineer with CPWD on 2.8.1976 and superannuated on 31.8.2014. The applicant was entitled to 3rd MACP from 1.9.2008 as he had completed 30 years of service on 2.8.2006. The record of the applicant was satisfactory and he had been granted 2nd ACP in the scale of Rs. 10000-325-15200 from 1.7.2006. On refixation, as per the 6th Pay Commission recommendations, the applicant was given Grade Pay of Rs. 6600. The next higher Grade Pay of Rs. 7600 was due to the applicant w.e.f. 1.9.2008. Earlier Efficiency Bar (EB) was allowed to the applicant w.e.f. 1.10.1990 vide OM dated 16.11.2000. As nothing was communicated to the applicant regarding 3rd MACP, the applicant filed RTI application on 3.11.2014. In response to the same, he was communicated the minutes of the meetings of the Scrutiny Committee dated 9.7.2012 and 7.6.2014 regarding consideration of his claim for 3rd MACP w.e.f. 1.9.2008 (Annexure A-1) as follows:-
Your case for 3rd MACP was put up in the meeting held on 09.07.2012 and found unfit and again your case for 3rd MACP was put on 07.06.2014 and screening committee had directed to communicate the below bench mark ACRs. Accordingly letter was issued on 29.09.2014. The applicant has stated that he never received the letter dated 29.9.2014.
3. In the grounds for relief, the applicant has, interalia, stated as follows:-
(i) The case is identical and fully covered by the judgement of the Honble Supreme Court of India in Abhijit Ghosh Dastidhar Vs. UOI, 2009 (16) SCC 146 (Annexure A-3) wherein in the case of a retired officer, the Honble Apex Court has directed for promotion w.e.f. the date when applicants junior was promoted declaring non-communication of below bench mark ACRs arbitrary and violative of Article 14 of the Constitution. Therefore, applicant is to be granted 3rd MACP from due date.
(ii) The case is identical and fully covered by the order of the Honble Central Administrative Tribunal, Jaipur dated 9.12.1992 in OA No. 9 of 1990 titled as Lakshman Singh Vs. UOI & Ors. (Annexure A-4) holding that three year delay in communicating the entry excessive and entries cant be taken into consideration for promotion. This law has been formed by considering the law in detail laid down by Honble Supreme Court of India {Honble Supreme Court of India in Baidyanath Mahapatra Vs. State of Orissa, 1989 (4) SLR 220 and State of Haryana Vs. P.C. Wahdwa, 1987(2) SLR 393, Honble Calcutta High Court in Himanshu Sekhar Jha Vs. State of West Bengal 1979(1) SLR 837 and Honble Delhi High Court in UOI Vs. Ranjit Singh Grewal, 1980(3) SLR 256 and Honble Tribunal Ernakulam Bench in Alphonse Louis Erarayil Vs. Secretary to Government of India, 1992(19) ATC 210}.
(iii) The law laid down by Honble Supreme Court of India in case of O.P. Gupta (Annexure A-5) that on arrears of pay and allowances, interest @ 12% is allowed.
(iv) The law laid down by Honble Supreme Court of India reported in 1994 (2) LLJ SC 509 Union of India Vs. Justice S.S. Sandhawalia (Retd.) and others (Annexure A-6) that once it is established that an amount legally due to a party was not paid to it, the party responsible for withholding the same must pay interest at a rate considered reasonable by the Court.
4. In the written statement filed on 8.4.2015 on behalf of the respondents, it has been stated that Sh. P.K. Sarin, AE (Civil) (DOB-16.08.1954) joined the department as Junior Engineer (Civil) on 02.08.1976 and completed the 30 years of regular service on 02.08.2006. He was eligible for the grant of 3rd Financial Upgradation in the Grade Pay of Rs. 7600 under MACP Scheme w.e.f. 01.09.2008 i.e. the date of implementation of MACP Scheme. As per DOPT guidelines, for granting the MACP w.e.f. 01.09.2008, the grading of the ACRs of the periods considered by the Screening Committee are as under:-
Eligibility date of 3rd financial upgradation under the MACPs Grading of ACRs for the last 5 years from the date when ACP due 1st 2nd 3rd 4th 5th Remarks of the Committee 01.09.08 2002-03 Under Suspension 2003-04 Good 2004-05 X 01.04.05 to 12.01.06 Very Good 2006-07 Very Good Unfit Below benchmark ACRs to be communicated
5. As the benchmark for granting the 3rd MACP in the Grade Pay of Rs. 7600 is Very Good, the Screening Committee had decided to take more than 2.5 years of ACRs having grading of Very Good out of previous five years for considering Fit in respect of the AEs/EEs for granting the higher Grade Pay under MACP Scheme. As Sh. P.K. Sarin had Very Good grading of ACRs only for the period 01.04.2005 to 12.01.2006 and 2006-07 i.e. for a period of 21 months (criteria for 3rd MACP is 30 months), he was declared Unfit for granting the 3rd MACP w.e.f. 01.09.2008. Thereafter, his eligibility was considered by the Screening Committee on 09.07.2012 for granting him 3rd MACP w.e.f. 01.09.2008, he was declared Unfit by the Screening Committee as he did not fulfil the criteria of having Very Good gradings in ACRs of 2.5 years or more. When his name was again considered for financial upgradation under MACP on 07.06.2014, the Screening Committee decided to consider the ACRs of year 1989-90 and 1990-91 instead of ACRs for the years 2002-03 and 2004-05. It was also decided by the Screening Committee to communicate the ACRs having below benchmark grading to Sh. P.K. Sarin. Accordingly, letter No. 24/4/2014-EC.III dated 29.09.2014 was sent to the O/o SE, Shimla Central Circle.
6. It is further stated that prior to the reporting period 2008-09, only the adverse remarks in the ACRs had to be communicated to the concerned officer for the representation and hence the ACRs for the year 2002-03 to 2006-07 were not communicated to Sh. Sarin at that time as he did not have any adverse remarks in those years. When the Screening Committee was held in 2014, the below benchmark ACRs prior to the reporting period of 2008-09 of Sh. P.K. Sarin were communicated to him vide Directorate letter dated 29.09.2014 (Annexure R-3) as per DOPT OM dated 13.4.2010 (Annexure R-4). Letter dated 29.09.2014 was issued to the office address of the applicant as he had himself said that he had retired and he did not have a permanent address. However, Sh. P.K. Sarin mentioned in his Personal Information Management System (PIMS) ID that his permanent address is 1178, Sector 18-C, Chandigarh, UT and in this OA, the permanent address mentioned is H. No. 234, Sector 4, Mansa Devi Complex, Panchkula.
7. Later, on 06.10.2015, additional affidavit was filed on behalf of the respondents wherein it was stated that criteria for grant of 3rd MACP and crossing Efficiency Bar was different. For the grant of 3rd MACP in the Grade Pay of Rs. 7600, the benchmark was Very Good while for crossing the EB, the work and conduct of the concerned official should be Good.
8. In the additional affidavit filed on behalf of the respondents on 23.11.2015, it was stated that the respondents had inadvertently allowed the applicant to cross EB in the year 1990 on the basis of below benchmark ACR for the period 1989-90 but this aspect could not be ignored while considering the claim of the applicant for third financial upgradation under MACPS. The applicant became eligible for financial upgradation under 3rd MACP w.e.f. 01.09.2008. Going by the MACP Rules, APARs for the preceding five years are to be considered i.e. from 2002-03 to 2006-07. Since his APAR for the period 2002-03 and 2004-05 are not available, the Screening Committee had decided to consider the ACRs of previous years. Since the applicant was under suspension from 29.01.1991 to 26.01.2003, no ACR was written during this period. Therefore, the department considered the ACRs just prior to 29.01.1991 i.e. for the years 1990-91 & 1989-90 in place of years 2004-05 & 2002-03 respectively. In the ACRs for the period 1984-85 to 1989-90 applicant was given Average/Fair grading.
9. In a subsequent affidavit filed on 19.1.2016, it has been stated that the reason for not considering ACR for the year 2007-08 for grant of third MACP in the Screening Committee held on 09.07.2012 is that the applicant became eligible for financial upgradation under third MACP w.e.f. 01.09.2008. As per the MACP Rules, APARs which became available during the year immediately preceding the panel year in which he was eligible, are to be considered. As per guidelines contained in DOPT OM No. 22011/9/98-Estt.(D) dated 08.09.1998 (Annexure 1) read with OM of even number dated 16.6.2000 (Annexure 2) i.e. APARs from 2002-03 to 2006-07 were to be considered. Hence, ACR for the year 2007-08 (Annexure 3) was not considered as per rules. However, grading granted in the APAR of 2007-08 is Good which is also below benchmark for grant of 3rd MACP (DOPT OM dated 19.05.2009 at Sr. No. 17) (Annexure 4).
10. The applicant has rebutted the written statement and the additional affidavits filed on behalf of the respondents.
11. Arguments advanced by the applicant himself and learned counsel for the respondents were heard. The applicant narrated the background of the matter and stated that the respondents had rejected his case for grant of 3rd MACP w.e.f. 1.9.2008 on the basis of old ACRs while only the last ten years ACRs should have been considered. Besides, the ACRs that had below benchmark gradings had not been communicated to the applicant timely to enable him to file his representations against the same. The applicant also relied on judgements in the case of Inspector Kewal Krishan Vs. Chandigarh Administration & Ors. in OA No. 907-CH-2011 decided on 18.10.2011 that had been upheld by the jurisdictional High Court vide order dated 9.10.2015 in CWP No. 19039 of 2012. He also referred to Apex Court judgement in the State of Haryana Vs. P.C. Wadhwa, IPS, Inspector General of Police and Anr., 1987 SC 1201 in this regard wherein it had been held that communication of ACRs after inordinate delay was against the spirit of object of the rules regarding communication of ACRs.
12. Learned counsel for the respondents stated that ACRs were communicated before the claim of the applicant for grant of 3rd MACP was considered by the Screening Committee in 2014. The applicant had sought time to respond in the matter. At the time of earlier consideration in 2012, the case of the applicant for grant of 3rd MACP was considered on the basis of ACRs that had indeed not been conveyed to the applicant. The applicant had remained under suspension from 1991 to 2003 and ACRs were not available for these years. He was reinstated and this whole period was treated as Duty for all purposes.
13. We have given our careful consideration to the matter. Since the applicant had completed 30 years of service on 2.8.2006 and the MACPS was circulated in May, 2009 to be implemented w.e.f. 1.9.2008, the claim of the applicant for grant of 3rd MACP, in normal course was to be considered in the year 2009 and ACRs for the period 2002-03 to 2006-07 were to be taken into consideration. During 2002-03, the applicant was under suspension and no ACR appears to have been recorded for the year 2004-05. Hence, the Screening Committee was required to consider earlier ACRs and since the applicant was under suspension from the year 1991 to 2003, in order to consider five ACRs, it is the ACRs for the years 1989-90 & 1990-91 that could be considered. Although the applicant has claimed that only the last ten years ACRs should have been considered while considering his case for grant of 3rd MACP, but in the absence of requisite number of ACRs during the previous ten year period, there can be no objection to the ACRs for the period 1989-90 and 1990-91 being considered. The DOPT issued OM dated 13.4.2010 regarding communication of ACRs below the benchmark level while the earlier practice was only to convey adverse remarks in ACRs. While it is true that the applicant did not have the opportunity to represent against the ACRs in which the grading was below the benchmark level, but prior to 13.4.2010, there were no such instructions while, as already mentioned, in the normal course, the case of the applicant for the 3rd MACP w.e.f. 1.9.2008 should have been considered in the course of the year 2009. If the gradings in the ACRs for the years 1989-90, 1990-91, 2003-04, 2005-06 and 2006-07 are taken into account, as reiterated by the respondents, the applicant would not be graded as Very Good which is the benchmark for the Grade Pay of Rs. 7600. Hence, the claim of the applicant for grant of 3rd MACP in the Grade Pay of Rs. 7600 w.e.f. 1.9.2008 is without merit and the same is rejected. However, since the applicant has continued in service till 31.8.2014 when he superannuated, his claim for 3rd MACP is required to be considered by the respondents on yearly basis in 2010 and thereafter. The OA stands disposed of accordingly. No costs.
(RAJWANT SANDHU) MEMBER(A) (JUSTICE L.N. MITTAL) MEMBER(J) Dated:
ND* 1 OA No. 060/00144/15