Central Administrative Tribunal - Allahabad
Mitaloo Ram vs General Manager E C Rly on 5 April, 2025
OA No. 826 of 2021
(Reserved on 24.03.2025)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD.
Allahabad, this the 05th day of April, 2025
Original Application No. 330/00826/2021
Hon'ble Mr. Justice Om Prakash VII, Member (Judicial)
Hon'ble Mr. Mohan Pyare, Member (Administrative)
Mitaloo Ram, aged about 61 years, S/o Late Ram Adhar Ram, Ex MCM
Under SSE/Sig/DN-Hump/MGS, R/o Village - Lakhempur (Kaithapur), Post-
Mughalsarai, District - Chandauli-232104.
....Applicant
By Advocate: Shri R.K. Dixit
Versus
1. Union of India through the General Manager, East Central Railway,
Hajipur, Bihar.
2. Divisional Railway Manager, East Central Railway Deen Dayal Upadhyay
Division, East Central Railway (Mughalsarai Div.), District -Chandauli.
3. Sr. Divisional Personnel Officer, East Central Railway Deen Dayal
Upadhyay Division, East Central Railway (Mughalsarai Div.), District
Chandauli.
4. Sr. Divisional Signal and Telecom Engineer, East Central Railway (DDU),
Division, District-Chandauli.
....Respondents
By Advocate: Shri Ashutosh Shukla
ORDER
By Hon'ble Mr. Mohan Pyare, Member (Administrative):
Shri R.K. Dixit, learned counsel for the applicant and Shri Ashutosh Shukla, learned counsel for the respondents are present.
2. By means of this OA, the applicant has sought the following reliefs :
"(i) The Hon'ble Tribunal may graciously be pleased to quash the Order dated 16.12.2019 (Annexure-A-1 of the O.A.), order dated 13.1.2020 (Annexure-A-2 of the O.A.) and order dated 8.10.2020 RAJEEV KUMAR MISHRA Page 1 of 10 OA No. 826 of 2021 (Annexure-A-3 of the O.A.) and further sought direction to the respondents to grant the financial upgradation GP 4600/- under MACP Scheme from the due date i.e. on 13.11.2018 with all consequential benefits viz. arrears arising out from such fixation pay with interest as such arrears till its payments.
(ii) The Hon'ble Tribunal direct the respondents to revise the pension and refix the pension with its arrears and difference accrued to the other benefits with 12% interest.
(iii) To issue any other suitable order or direction or which this Hon'ble Tribunal may deem fit and proper under the facts and circumstances of the case..
(iv) To award the costs of the application in favour of the applicant."
3. The brief facts of the case are that the applicant was appointed on 29.3.1989 on the post of ESM Gr-II. Vide order dated 16.7.2008, the applicant was promoted to the post of Sr. Technician (M.C.M.)/Signal Maintainer. After completion of 10 years service, the applicant sent a representation on13.9.2018 requesting to grant MACP benefits in GP 4600/- which was due on 13.11.2018, sent a detailed reminder representation on 10.6.2019. Vide order dated 16.12.2019, the respondent no.3 declared the applicant unsuitable without giving any reason. It is submitted that the applicant had completed more than 10 years service on the earlier post of MCM and next financial upgradation under MACP Scheme is due on 13.11.2018 GP 4600/- on the basis of seniority cum suitability. Against the order dated 16.12.2019, the applicant sent a representation on 06.01.2020 before respondent No.2 stating that the impugned order passed by the respondent no.3 is against the rule and further stated that the respondents have never communicated any adverse entry against the applicant and without communication of APAR the grant of MACP was rejected taking into consideration the same APAR. In pursuance of the aforesaid representation, the respondent no.3 again passed the impugned order on 13.01.2020. The applicant again sent representation on 03.02.2020 to the respondent no.3 and requested to upgrade his APAR for the year 2015-2016 and grant MACP benefits which was due on 13.11.2018. On 18.03.2020, the applicant sent a RAJEEV KUMAR MISHRA Page 2 of 10 OA No. 826 of 2021 representation to the respondent No.3 and 4 and stated that the adverse remarks was never communicated to him. It is settled law that respondents were duty bound to communicate adverse remarks to the employees but in this case respondents have never communicated any of adverse remarks to the applicant. The respondent no.3 again passed the impugned order on 08.10.2020 and rejected the claim of the applicant. Hence, this OA.
4. In their counter reply, the respondents have submitted that the applicant was appointed as Trainee ESM-II on 29.03.1989. The applicant was found suitable for promotion as ESM-I in scale 4500-7000/-. Accordingly, his pay was fixed on Rs.5260/- p.m. w.e.f. 16.05.2003. Thereafter, he was promoted as Sr. Tech/Sig/Maintainer in the scale Rs.5000-8000/- (RSRP) and pay was fixed on Rs.6050/- w.e.f. 27.10.2008 which was raised under 6th CPC in PB-02 Gr.-4200/- and pay Rs. 11880+4200=16080/- w.e.f. 27.10.2008 was fixed. Thereafter, he was retired on 31.03.2020 in same grade pay of Rs.4200/-. It is submitted that the applicant has been replied vide letter dated 13.01.2020 and fully explained for the reason why he has not been given the benefit of MACP in GP-4600/-. The applicant has been declared unsuitable for the financial up gradation from 13.11.2018 under MACP vide order dated 16.12.2019 as his APAR for the year 2015-16 was 'AVERAGE', 2016-17 was 'GOOD' and 2017-18 was 'GOOD'. As per RBE No.29/2018 dated 27.02.2018, employee was to represent within 30 days for review of APAR grading pertaining to year 2015- 16 and 2016-17 for the purpose of APAR which he failed to do so. As per RBE No.86/2019, APAR grading 'GOOD' prior to 25.07.2016 has to be considered as 'VERY GOOD' for the purpose of financial up gradation under MACP but being his APAR grading AVERAGE, for the year 2015-16, the case of the applicant does not come under consideration as 'VERY GOOD'. RAJEEV KUMAR MISHRA Page 3 of 10 OA No. 826 of 2021 On the basis of above discussions, the respondents have submitted that the OA of the applicant is devoid of merit and deserves to be dismissed.
5. In his rejoinder, the applicant has narrated almost the similar points. The applicant has completed more than 30 years of service and in the entire service career, the applicant has got only two promotion in GP of Rs. 2800/- and GP of Rs. 4200/- and as such as per rule of MACP, the applicant is due for grant of 3rd MACP in GP of Rs. 4600/- on completion of 30 years of service in the department on 29.03.2019. It is further submitted that the punishments given to the applicant is only minor punishments and that could not be taken into account for the purposes of grant of financial up-gradation under MACP scheme. As per Railway Board letter dated 17.09.2010 (RBE No.136/2010) it is clearly directed that "be noted that only below bench mark ACR of the period relevant to promotion need to be disclosed". The respondents have never communicated to the applicant the below bench mark grading of APAR and as such as per settled principle of law declared by Hon'ble Supreme Court in catena of cases that denying promotion/financial up-gradation on the basis of non communicated below bench grading of mark APAR is totally illegal, arbitrary and against the principle of natural justice. The Hon'ble Supreme Court in the case of Abhijeet Ghosh Dastidar Vs Union of India has held that where the bench mark for next promotion is 'Very Good' and the government servant who was graded 'Good' but was not communicated to him, the entry 'Good' should have been communicated to him as it has a civil consequence because it may affect his chance for promotion and other benefits. It is a well settled law that the ACRs grading which are adversely effecting the promotion should be communicated to the government servant and be allowed an opportunity of submitting representation for upgrading the grading, failing RAJEEV KUMAR MISHRA Page 4 of 10 OA No. 826 of 2021 which the below bench mark shall not affect the up-gradation /promotion of the employees.
6. Considered the rival submissions, written argument filed by learned counsel for respondents and verified the documents available on record.
7. Learned counsel for the applicant has taken a plea that adverse entry in APAR due to which the applicant has been denied the grant of MACP has never been communicated to the applicant. In this regard, the applicant has submitted a representation, which was rejected without citing proper reason. Again, he has submitted an appeal to higher authority, which was also rejected arbitrarily. The Hon'ble Apex Court in the case of Dev Dutta Vs. Union of India & ors. has clearly established that any un-communicated entry in APAR could not be taken against the applicant. Hence, the action of the respondents is bound to be quashed. As per RBR No.29/2018 dated 27.02.2018 aggrieved employee has to submit his representation within 30 days from the communication of any entry which is 'Good' and below 'Good'. The respondents have rejected the representation of the applicant as it was submitted belatedly (six years). In his representation, the applicant has repeatedly submitted that he was not communicated the entries in his APAR and so he could not have opportunity to appeal against such entry in time.
8. Learned counsel for the respondents has mentioned in his counter affidavit that there was a punishment of stoppage of two sets of privilege pass were against the applicant in the order dated 07.08.2014. Learned counsel for the applicant has mentioned in his rejoinder that the above punishment is only a minor punishment and minor punishment cannot be an impeadment for grant of financial up-gradation under MACP Scheme. RAJEEV KUMAR MISHRA Page 5 of 10 OA No. 826 of 2021
9. In Dev Dutt Vs. Union of India and others reported in (2008) 2 SCC (L&S) 771, the Hon'ble Supreme Court in para 36, 41, 42, 43 and 44 has held as under:-
"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 entries (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 service (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 communication 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 government orders.
41. In our opinion, non-communication of entries in the Annual Confidential Report of a public servant, whether he is in civil, judicial, police or any other service (other than the military), certainly has civil consequences because it may affect his chances for promotion or get other benefits (as already discussed above). Hence, such non- communication would be arbitrary, and as such violative of Article 14 of the Constitution.
42. In view of the above, we are of the opinion that both the learned Single Judge as well as the learned Division Bench erred in law. Hence, we set aside the judgment of the Learned Single Judge as well as the impugned judgment of the learned Division Bench.
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.
44. We, therefore, direct that the 'good' entry be communicated to the appellant within a period of two months from the date of receipt of the RAJEEV KUMAR MISHRA Page 6 of 10 OA No. 826 of 2021 copy of this judgment. On being communicated, the appellant may make the representation, if he so chooses, against the said entry within two months thereafter and the said representation will be decided within two months thereafter. If his entry is upgraded the appellant shall be considered for promotion retrospectively by the Departmental Promotion Committee (DPC) within three months thereafter and if the appellant gets selected for promotion retrospectively, he should be given higher pension with arrears of pay and interest @ 8% per annum till the date of payment".
10. Similar issue again came up for consideration before the Full Bench of the Hon'ble Supreme Court in Abhijit Ghosh Dastidar Vs. Union of India reported in LAWS (SC) 2008 10 146 and in paras 4 and 5, the Court has held as under:-
"4. It is not in dispute that the CAT, Patna Bench passed an order recommending the authority not to rely on the order of caution dated 22.09.1997 and the order of adverse remarks dated 09.06.1998. In view of the said order, one obstacle relating to his promotion goes. Coming to the second aspect, that though the benchmark "very good" is required for being considered for promotion admittedly the entry of "good" was not communicated to the appellant. The entry of 'good' should have been communicated to him as he was having "very good"
in the previous year. In those circumstances, in our opinion, non-communication of entries in the ACR of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances for promotion or get other benefits. Hence, such non-communication would be arbitrary and as such violative of Article 14 of the Constitution. The same view has been reiterated in the above referred decision relied on by the appellant. Therefore, the entries "good" if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him.
5. Learned counsel appearing for the appellant has pointed out that the officer who was immediately junior in service to the appellant was given promotion on 28.08.2000. Therefore, the appellant also be deemed to have been given promotion from 28.08.2000. Since the appellant had retired from service, we RAJEEV KUMAR MISHRA Page 7 of 10 OA No. 826 of 2021 make it clear that he is not entitled to any pay or allowances for the period for which he had not worked in the Higher Administrative Grade Group-A, but his retrospective promotion from 28.08.2000 shall be considered for the benefit of re-fixation of his pension and other retrial benefits as per rules".
11. Again on the reference, Full Bench of Hon'ble Supreme Court in Sukhdeo Singh Vs. Union of India and others reported in 2013 ALL. C.J. 1154 considered the issue and in paras 08 and 10 has held as under:-
"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 others10 and K.M. Mishra vs. Central Bank of India and others11 and the other decisions of this Court taking a contrary view are declared to be not laying down a good law.
10. Insofar as the present case is concerned, we are informed that the appellant has already been promoted. In view thereof, nothing more is required to be done. Civil Appeal is disposed of with no order as to costs. However, it will be open to the appellant to make a representation to the concerned authorities for retrospective promotion in view of the legal position stated by us. If such a representation is made by the appellant, the same shall be considered by the concerned authorities appropriately in accordance with law.
12. Again issue came up for consideration before the Hon'ble Supreme Court in Rukhsana Shaheen Khan Vs. Union of India reported in LAWS (SC) RAJEEV KUMAR MISHRA Page 8 of 10 OA No. 826 of 2021 2018 8 85 and the Hon'ble Court in paragraph Nos. 2 and 3 has held as under:-
"2. In view of the decision of this Court in Sukhdev Singh Vs. Union of India & Ors. reported in (2013) 9 SCC 566, there cannot be any dispute on this aspect. This Court has settled the law that uncommunicated and adverse ACRs cannot be relied upon in the process.
3. This appeal is, accordingly, allowed and the impugned Judgment is set aside with the following directions :-
(a) The competent authority is directed to ignore the uncommunicated adverse ACRs and take a fresh decision in accordance with law.
(b) The appellant shall be afforded an opportunity of hearing in the process".
13. Again similar issue was considered by the Hon'ble Supreme Court in R.K. Jibanlata Devi Vs. High Court of Manipur through its Registrar General reported in LAWS (SC) 2023 2 59 and in para 7 and 8 has held as under:-
"7. In view of the above and for the reasons stated above, the case of the petitioner for promotion to the post of Assistant Registrar as on 09.04.2021 is required to be considered afresh ignoring the uncommunicated ACRs for the years 2016-17 and 2019-20 and her case is required to be considered afresh taking into consideration the ACRsfor the years 2017-18 & 2018-19 for which the petitioner was having "Very Good" gradings.
8. In view of the above and for the reasons stated above, present petition is allowed. The DPC proceedings dated 09.04.2021 denying the promotion to the petitioner for the post of Assistant Registrar are hereby quashed and set aside. The case of the petitioner for promotion to the post of Assistant Registrar as on 09.04.2021 i.e., the date on which the juniors came to be promoted is directed to be considered afresh ignoring the uncommunicated ACRs for the years 2016-17 and 2019-20 and thereafter the DPC/competent authority to take a fresh decision in accordance with law and taking into consideration the ACRs of remaining years, i.e., 2017-18 and 2018-19. Such an exercise be completed within a period of six weeks from today".
14. On the basis of above discussion, it is clear that applicant was denied grant of MACP due to below bench mark grading in his APAR for the year RAJEEV KUMAR MISHRA Page 9 of 10 OA No. 826 of 2021 2015-2016. It is also clear that the same below bench mark grading was not communicated to applicant when applicant has taken up the issue of improvement in grading with competent authority amongst the respondents, it was rejected as time barred.
15. The ratio developed in cases decided by Hon'ble Supreme Court as discussed above, it is clear that un-communicated below bench mark grading cannot be taken as a ground to deny the grant of MACP.
16. Similarly punishment awarded to applicant is also coming under minor penalty which is specific to department of respondents/applicants only. Respondents have not produced any authority regarding denial of MACP benefit to candidates who were given such penalties.
17. It is evident that balance of convenience is definitely in favour of applicant and we are of the considered opinion that OA is liable to be allowed. The order dated 16.12.2019, 13.01.2020 and 08.10.2020 are quashed and set aside. The respondents are directed to provide opportunity to applicant to submit fresh representation and consider it as if representation against the below bench mark entry has been filed in time, consider it and pass a reasoned and speaking order. In case, the below bench mark entry is upgraded, consider the same for grant of MACP and other consequential benefits. No order as to costs.
18. All MAs pending in this O.A. also stand disposed off.
(Mohan Pyare) (Justice Om Prakash VII)
Member(Administrative) Member(Judicial)
RKM/
RAJEEV KUMAR MISHRA Page 10 of 10