Central Administrative Tribunal - Delhi
S P Garg vs Govt. Of Nctd on 1 August, 2023
1
Item No. 60 O.A. No. 2969/2017
Court No. III
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 2969/2017
This the 1st day of August, 2023
Hon'ble Mr. Anand Mathur, Member (A)
Hon'ble Mr. Manish Garg, Member (J)
S.P. Garg
S/o Late Sh. J. P. Garg
R/o AB-179,
Shalimar Bagh,
New Delhi.
Aged around 61 Years
Retired Assistant Engineer (Mechanical)
.........Applicant
(Through Advocate: Mr. Sourabh Ahuja)
Versus
1. Govt. of NCT of Delhi
Through its Chief Secretary
Delhi Secretariat,
Payers Building,
IP Estate,
New Delhi.
2. Secretary/ Principal Secretary
Irrigation and Flood Control Department
Govt. of NCT of Delhi
5/9, Under Hill Road,
New Delhi.
3. Deputy Secretary (Headquarters)
Irrigation and Flood Control Department
GNCT of Delhi
5/9, Under Hill Road,
New Delhi.
...Respondents
(Through Advocate: Mr. Girish C Jha)
2
Item No. 60 O.A. No. 2969/2017
Court No. III
ORDER (Oral)
Hon'ble Mr. Anand Mathur, Member (A) The present O.A. has been filed seeking the following reliefs:-
"8 (a) Quash and set aside the impugned orders dated 10.06.2015, 27.07.2015 and 30.07.2015, whereby the respondents refused to extend the benefit of judgment dated 19.05.2014 passed by this Hon'ble Tribunal in OA no. 89/2013 to the Applicant illegally and arbitrarily. And
(b) Direct the respondents to grant the benefit of 2nd financial up-gradation under ACP Scheme to the Applicant w.e.f. the due date (i.e. 23.05.2004). by ignoring the un-communicated below benchmark gradings in the relevant ACRs (2000-2001) with all consequential benefits, including re-fixation of his pay, pension and other retirement benefits and to pay resultant arrears and interest @ 18% per annum. And
(c) Award cost in favor of the Applicant and against the respondents. And/Or
(d) Pass any further order, which this Hon'ble Tribunal may deem fit, just equitable in the facts and circumstances of the case."
2. During the course of the arguments, learned counsel for the applicant mentions the following points:-
(i) That the applicant was appointed on 23.05.1980 as J.E. (Mechanical) thereafter he was promoted on a regular basis on 14.09.2006 as AE (Mechanical). Before this he was due to be given financial upgradation as per the ACP scheme w.e.f.
23.05.2004 i.e. after he had completed twenty four 3 Item No. 60 O.A. No. 2969/2017 Court No. III years of service. However, the same was denied to him against which he made a representation dated 15.11.2010, based on which the case for financial upgradation was considered by the respondents but he was granted the benefit from 23.05.2005 instead of 23.05.2004, hence he lost the benefit of one full year which has resulted him loss not only in fixation of pay but also pension and pensionary benefits.
(ii) The applicant superannuated on 31.08.2016, however, in case the benefit is extended to him on notional basis he would stand to gain in terms of his retiral dues even today.
3. Per contra, learned counsel for the respondents states that he was not extended the benefit from 2004 because as per the ACRs he did not fulfil the prescribed benchmark. Since there was no adverse entry in the ACR, hence it was not communicated, as the grading was given as 'Fair', whereas the bench mark was 'Good', therefore, the same cannot be treated as adverse remark hence not communicated. He also submits that the process of communicating the full ACR/APAR started after 2008-09, based on the judgment of Hon'ble Apex Court in Dev Dutt vs. Union of India and Others, (2008) 4 Item No. 60 O.A. No. 2969/2017 Court No. III 8 SCC 725. Therefore, the applicant has no case in as favour.
4. Heard learned counsel both the parties at length.
5. We find that the sole reason for denial of the benefit from due date i.e. 23.05.2004 was that the applicant's ACR/APAR was graded as 'Fair', which is below the benchmark of 'Good'. However, the fact remains that since his grading was lower than the benchmark, due to which he has been deprived of his promotion, it was incumbent upon the respondents to communicate the ACR/APAR to the applicant, so that he could improve his performance in future and could also make a representation against the said gradings. 5.1 Further, it is also seen that the applicant was given regular promotion as AE (Mechanical) w.e.f. 14.09.2006 and the period of consideration of ACRs is overlapping. Moreover, attention has also been drawn to the proceedings of the Screening Committee (page 50), which are as under:-
Sl. Name of Date of Date of Reason for Justification for review/ Remarks No. the JEs Appoin eligibilit deferment reconsideration by the (Sh/Shri) tment y for the / screening committee Snty No. 1st/2nd withholdin ACP g the name by last Screening Committee
1. S.P. 23.5. 23.5.2 Not On the Clear Garg 1980 004 recomm recommendation of Vigilanc 5 Item No. 60 O.A. No. 2969/2017 Court No. III (2nd ended DPC, the e ACP) by the competent clearan screenin authority promoted ce from g him from J.E. to DOV committ A.E. (Mech.) vide (placed ee for order dated at the 14.9.2006 in which Page-
reason case his ACRs for 172/C)
that the 2001-02 to 2005-
ACRs for 06 would have
the been considered.
years Hence he may be,
2001, exempted from
2002 & bench mark as in
2003 the case of
were promotion (placed
below at Page-159/C) for
the this period
Bench However, for
Mark. eligibility of ACP on
23.05.2004. ACR
for 1999-2000 to
2003-04 will have
to be assessed. As
ACR for 2000-01 is
also below bench
mark, ACP may be
deferred by one
year and may be
granted w.e.f.
23.5.2005
There is an apparent contradiction in that the applicant was given regular promotion as AE but has been denied the benefit of financial upgradation quoting the below benchmark mark gradings.
5.2 We also find that in a similar case a co-ordinate Bench of this Tribunal in O.A. No. 89/2013 (V. K. Khullar Vs. Govt. of NCT of Delhi) vide order dated 19.05.2014, inter alia had given the following directions:-
"8. The Hon'ble Apex Court in Dev Dutt vs. Union of India and Others, (2008) 8 SCC 725 and Abhijit Ghosh Dastidar v. Union of India and Others, (2009) 16 SCC 146 categorically held that non-communication of 6 Item No. 60 O.A. No. 2969/2017 Court No. III adverse remarks or below benchmark gradings in the relevant ACRs, vitiate the decisions taken on the basis of the said ACRS. The said view was also upheld by a Larger Bench of the Hon'ble Apex Court in Sukhdev Singh vs. Union of India and Others, JT 2013 SC 270. In view of the said settled position of law, the action of the respondents is unsustainable. Further, since the applicant retired from service on 31.12.2007 itself, we are also not proposing to direct the respondents to communicate the aforesaid ACRS which containing below benchmark gradings to the applicant, for making appropriate representation against thez same.
9. In the circumstances and for the aforesaid reasons the OA is allowed and the impugned Annexure A dated 09.08.2011 is quashed, and the respondents are directed to re-consider the case of the applicant for granting the 2nd Financial Upgradation under the ACP Scheme w.e.f. the due date, by ignoring the uncommunicated below benchmark gradings in the relevant ACRs, with all consequential benefits, including refixation of his pay, pension and other retirement benefits, and to pay the resultant arrears. This exercise shall be completed within 90 days from the date of receipt of a copy of this order. No order as to costs."
5.3 In the conspectus of the fact brought out above, we find that the directions given by a co-ordinate Bench in O.A. No. 89/2013 (Supra), hold good in the present matter also and no divergent view can be taken given the similar facts and circumstances of the present case. Moreover, the said order has also been implemented by the respondents vide their order dated 19.08.2014 (page 58). 5.4 Therefore, the impugned orders (Annexure-A) dated 10.06.2015, 27.07.2015 and 30.07.2015 are quashed and set aside, and the respondents are directed to re-consider the case of the applicant for grant of 2nd Financial Upgradation under the ACP Scheme w.e.f. the due date, by ignoring the un-communicated below benchmark gradings 7 Item No. 60 O.A. No. 2969/2017 Court No. III in the relevant ACRs. The consequential benefits including refixation of his pay, pension and other retirement benefits would be on a notional basis. This exercise shall be completed within 90 days from the date of receipt of a copy of this order.
6. The OA is disposed of with aforesaid orders/directions.
7. No order as to costs.
(Manish Garg) (Anand Mathur)
Member (J) Member (A)
/SG/