Central Administrative Tribunal - Delhi
Sohender Pal vs M/O Home Affairs on 23 May, 2023
1
Item No. 32/ C-5 3749/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No. 3749/2016
This is the 23rd Day of May, 2023
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Chhabilendra Roul, Member (A)
Sohender Pal (Ret'd), LDC, 66 Years, Gp'C'
S/O Shri Simru Singh
R/O-J Extn.-3/134, Laxmi Nagar,
New Delhi-110092.
...Applicant
(By Advocate : Mr. T.N. Tripathi)
Versus
1. Union of India,
Through It's secretary, Ministry of Home Affairs,
North Block, New Delhi
2. The Under Secretary
Ministry of Home Affairs
Room No.96,
North Block, New Delhi-110001.
3. The Deputy Secretary
Inter-State Council Secretariat
(Ministry of Home Affairs)
Vigyan Bhawan Annexe,
New Delhi.
...Respondents
(By Advocate: Mr. Gyanendra Singh)
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Item No. 32/ C-5 3749/2016
ORDER (ORAL)
The present OA has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s):-
"(a) Quash and set aside the Impugned order dated 17/11/2014 and 03/03/2016 declaring as illegal, arbitrary and against the judicial pronouncement on the subject, thus bad in law.
(b) Direct the respondents to convene a review DPC in the case of the Applicant as early as possible and consider his case for grant of Assured Career Progression, ACP/MACP wef the due dates in the promotional hierarchy ignoring the below benchmark ACR for the period from 09/12/1991 to 31/03/1993 which were never communicated to the applicant and the applicant may be entitled for ACP/MACP alongwith arrears of pay and allowances and fixation of pension with arrears of pension alongwith interest @ 12%.
(c) To call for the complete records of the case.
d) Any other relief which this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case.
(e) Award Cost;"
2. The sum and substance of the arguments made by learned counsel for the applicant in the present OA is that the applicant was appointed as Peon on 02.02.1973. He was promoted as LDC on 21.12.1982 after qualifying the Limited Departmental Competitive Examination. He retired 3 Item No. 32/ C-5 3749/2016 on 30.09.2011 on attaining the age of superannuation.
Learned counsel for the applicant submits that except the aforesaid promotion, which was granted to the applicant after qualifying the LDCE, he was neither given any other promotion nor granted benefit of ACP/MACP Scheme. He fairly concedes to the fact that two criminal cases were pending adjudication against the applicant. He submits that the applicant filed an appeal against the order of conviction and sentence and the appeal of the applicant was allowed by Ms. Raj Rani Mittra:ASJ-05, South East Saket Courts, New Delhi vide judgment dated 12/02/2013 setting aside the judgment dated 28/06/2010 and order on sentence dated 16/11/2010.
3. Learned counsel for the applicant further pleads that after due diligence, the respondents passed an order dated 23/12/2013, by which the suspension period of the applicant w.e.f 02.02.1996 to 05.09.2007 was regularized.
It was further ordered that the period of suspension shall be treated as period spent on duty with salary and other consequential benefits as would have been accrued, had he not been placed under suspension. The copy of order dated 23/12/2013 is annexed and marked as Annexure-A/4.
4 Item No. 32/ C-5 3749/20164. It is not disputed by the learned counsel for the applicant that the applicant had superannuated on 30.11.2011 and by that time the order dated 23.12.2013 could not come into effect. The applicant made a representation dated 15.09.2014 which was rejected by the impugned orders dated, 03.03.2016 and 17.11.2014, Annexure A-I and Annexure A-II respectively.
5. The sum and substance of the arguments of learned counsel for the applicant is that though the Benchmark for promotion was 'Good' either for promotion or ACP/MACP, he did not fall within the Benchmark, the same lying 'average'. He would contend that by virtue of the impugned order he was declared unfit, however, the said ACRs were never communicated to the applicant nor an opportunity was given to him for improvement. No show cause notice was given, so as to enable him to prefer an appeal against the same.
6. Per contra learned counsel for the respondents strongly opposes the present OA and submits that promotion from LDC to UDC is based on 'fitness', subject to qualifying the type test conducted by the SSC and exemption from which is available after completion of 45 5 Item No. 32/ C-5 3749/2016 years of age. Since Shri Sohender Pal, LDC was never found 'fit' for promotion to the grade of UDC by the Screening Committee, he could neither be promoted to the grade of UDC nor could he be granted financial upgradation under ACP/MACP Schemes. Regarding the claim of the applicant that he had not been considered for the grant of ACP/MACP, it is submitted that Shri Sohender Pal, LDC became eligible for consideration for grant of financial upgradation under ACP/MACP Scheme only after regularization of his period of deemed suspension from 22.1996 to 5.9.2007 after the order of the Trial Court vide Judgement dated 12.2.2013 and vide Government of India's Order dated 23rd December, 2013 (Annexure R-II) after his retirement in September, 2011 His case for grant of ACP/MACP was reconsidered, however, for the purpose of grant of both second and third financial upgradations to Shri Sohender Pal, LDC, the applicable benchmark is 'Good' and since Sh. Sohender Pal, LDC did not satisfy the overall grading of "GOOD", the Screening Committee adjudged him as UNFIT for grant of financial upgradations.
7. Learned counsel for the respondents further submits that the communication of the ACR does not arise in the 6 Item No. 32/ C-5 3749/2016 given facts and circumstance of case at relevant point of time. Therefore, non communication of the ACR cannot be supported by law. Learned counsel for respondents submits that decision should be rendered in that aspect at the relevant point of time and any decision subsequently passed by the Hon'ble Apex Court or any other Court can have a prospective application only and it cannot have a retrospective application.
8. Learned counsel for the respondents goes on to argue that the applicant was under suspension from 22.07.1987 to 21.12.1989 and from 02.02.1996 to 05.09.2007 in connection with ongoing criminal proceedings against him.
After revocation of the suspension in September, 2007 and regularization of the period of suspension in February, 2013, consequent to his acquittal in the criminal case, his case for grant of financial upgradations under ACP/MACP Schemes was considered by the Screening Committee on 16.10.2014 on the basis of available ACRS of four years i.e. (1) 09.12.1991 to 31.03.1992, (2) 01.04.1992 to 31.03.1993 (3) September, 2010 to 31.03.2011 and (4) 01.04.2011 to 30.09.2011 No ACRs for any other period were available The Screening Committee, however, adjudged him as 7 Item No. 32/ C-5 3749/2016 UNFIT for grant of financial upgradations on the ground that his overall grading of "Average" was below the prescribed benchmark of "GOOD". The applicant became eligible for consideration for grant of financial upgradation under ACP/MACP Scheme only after regularization of his period of deemed suspension from 02.02.1996 to 05.09.2007 after the order of the Trial Court vide Judgment dated 12.02.2013 which was implemented vide Government of India's Order dated 23rd December, 2013 (Annexure R-II). Since he had already retired in September 2011, before he actually became eligible for grant of financial upgradation under ACP/MACP Scheme, consequent to the regularization of the period of his deemed suspension in December, 2013, there was no ground for intimation of below benchmark ACRs to him before their consideration by the Screening Committee in October, 2014.
9. It is also submitted in this regard that Department of Personnel and Training (DOPT) vide subsequent Order dated 22.5 2014 had further clarified (Annexure R-III) that the Below Benchmark ACRs of the employees prior to 2008-09 are to be communicated for representation, if any, 8 Item No. 32/ C-5 3749/2016 to the concerned employee only where all the following conditions exist, namely:
a. where benchmark at one level varies from a benchmark at another level post (eg 'Very Good at SAG level and above Very Good/Outstanding at HAG and above), and b. where an employee is to be considered for promotion in a future DPC convened on or after 13 04 2010, and, c. where his ACRS prior to the period 2008-09 which would also be reckonable for assessment of his fitness in any DPC subsequent to the next promotion (including any empanelment/financial up gradation), during the course of his career, and d. where this ACR(s) may become below-benchmark ACR, because of the prescribed higher benchmark for any of the higher post/level;
10. In the case of the applicant, for the purpose of grant of both second and third financial upgradations, the applicable benchmark is 'Good' (both for financial upgradation from the level of LDC to UDC and from the level of UDC to Assistant). Hence the condition mentioned 9 Item No. 32/ C-5 3749/2016 at Sl. No. 1 above is not satisfied and resultantly the compulsory communication of Below Benchmark ACRs to Sohender Pal before consideration of these by the Screening Committee was not required in this case. ACR(s) did not become below-benchmark ACR, because of the prescribed higher benchmark for any of the higher post/level.
11. Heard the learned counsels for the parties and examined the pleadings on records thoroughly.
12. We have examined the aforesaid factual scenario in light of the decision rendered by the Hon'ble Apex Court in Union of India Vs. G.R. Meghwal in Civil Appeal No. 2021/2022 decided on 23.09.2022. The Hon'ble Apex Court while dealing with the similar contentions has discussed the issue in detail. Reference is drawn to para 6 to 10 of the same read as under:-
"6. In the present case, the learned Tribunal as well as the High Court have directed the department to review the case of the respondent by ignoring the below benchmark of "Good" in the year 2007-2008 mainly on the following grounds:- (i) that in the earlier years, the very reporting officer/reviewing authority awarded "Very Good" for the years 2005-2006 and 2006-2007 and the very reporting officer/reviewing authority has given below benchmark "Good" for the year 2007-2008 and therefore the same is arbitrary and there is no basis to award the below benchmark - "Good"; (ii) that before the below benchmark 10 Item No. 32/ C-5 3749/2016 ACR "Good" for the year 2007-2008, no opportunity was given to the respondent officer to improve himself and no deficiency was pointed out; and (iii) that no opportunity was given to the respondent officer to make representation against the proposed below benchmark ACR of the year 2007-2008. While giving the aforesaid findings and while arriving at the aforesaid final conclusion, the Tribunal as well as the High Court have heavily relied upon the decisions of this Court in the case of Sukhdeo (supra); Dev Dutt (supra); Abhijit Ghosh Dastidar (supra) and Sukhdev Singh (supra). However, on considering the aforesaid decisions, it emerges that in the aforesaid cases, the adverse ACRs either were not communicated at all and/or on facts found to be inconsistent and suffering from lack of bona fides.
6.1 In the case of Dev Dutt (supra), this Court has held in paragraphs 36 and 37 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.
37. We further hold that when the entry is communicated to him the public servant should have a right to make a representation against the entry to the authority concerned, and the authority concerned must decide the representation in a fair manner and within a reasonable period. We also hold that the representation must be decided by an authority higher than the one who gave the entry, otherwise the likelihood is that the representation will be summarily rejected without adequate consideration as it would be an appeal from Caesar to Caesar. All this would be conducive to fairness and transparency 11 Item No. 32/ C-5 3749/2016 in public administration, and would result in fairness to public servants. The State must be a model employer, and must act fairly towards its employees. Only then would good governance be possible." 6.2 In the instant case, the respondent was graded as "Very Good" in the ACRs for the years 2005-06 and 2006-07. However, in the year 2007-08 he was graded only "Good" despite the fact that for all the three years, the reporting and reviewing officer were same. In the case of Dev Dutt Vs. Union of India - [(2008) 8 SCC 725], it was observed that all entries in the ACR of a public servant must be communicated to him within the reasonable period so that he can make a representation for his upgradation despite there be no rule or government order to that effect. Pursuant to the judgment in Dev Dutta (supra), OMs dated 14.05.2009 and 13.04.2010 were issued by the appellant herein. The same are eXtracted as under:
"ANNEXURE P-2 No. 2101 1/1/2005-Estt (A) (Pt-II) Government of India Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) North Block, New Delhi, 14th May, 2009 OFFICE MEMORANDUM Subject:-
Maintenance and preparation of Annual Performance Appraisal Reports-
communication of all entries for fairness and transparency in public administration.
The undersigned is directed to invite the attention of the Ministries/Departments to the eXisting provisions in regard to preparation and maintenance of Annual Confidential Reports which inter-alia provide that only adverse remarks should be communicated to the „officer reported upon for representation, if any. The Supreme Court has held in their judgment dated 12.5.2008 in the case of Dev Dutt vs. Union of India (Civil Appeal No. 7631 of 2002)‟ that the object of writing the confidential report and making entries is to give an opportunity to the public servant to improve the performance. The 2 nd Administrative Reforms Commission in their 10 th Report has also recommended that the performance appraisal system for all services be made more consultative and transparent on the lines of the PAR of the All India Services.12 Item No. 32/ C-5 3749/2016
2. Keeping in view the above position, the matter regarding communication of entries in the ACRs in the case of civil services under the, Government of India has been further reviewed and the undersigned is directed to convey the following decisions of the Government:
(i) The eXisting nomenclature of the Annual Confidential Report will be modified as Annual Performance Assessment Report (APAR).
(ii) The full APAR including the overall grade and assessment of integrity shall be communicated to the concerned officer after the Report is complete with the remarks of the Reviewing Officer and the Accepting Authority wherever such system is in vogue. Where Government servant has only one supervisory level above him as in the case of personal staff attached to officers, such communication shall be made after the reporting officer has completed the performance assessment.
(iii) The section entrusted with the maintenance of APARs after its receipt shall disclose the same to the officer reported upon.
(iv) The concerned officer shall be given the opportunity to make any representation against the entries and the final grading given in the Report within a period of fifteen days from the date of receipt of the entries in the APAR. The representation shall be restricted to the specific factual observations contained in the report leading to assessment of the officer in terms of attributes, work output etc. While communicating the entries, it shall be made clear that in case no representation is received within the fifteen days, it shall be deemed that he/she has no representation to make. If the concerned APAR Section does not receive any information from the concerned officer on or before fifteen days from the date of disclosure, the APAR will be treated as final.
(v) The new system of communicating the entries in the APAR shall be made applicable prospectively only with effect from the reporting period 2008-09 which is to be initiated after 1st April, 2009.
(vi) The competent authority for considering adverse remarks under the eXisting instructions may consider the representation, if necessary, in consultation with the reporting and/or reviewing officer and shall decide the matter objectively based on the material placed before him within a period of thirty days from the date of receipt of the representation.
(vii) The competent authority after due 13 Item No. 32/ C-5 3749/2016 consideration may reject the representation or may accept and modify the APAR accordingly. The decision of the competent authority and the final grading shall be communicated to the officer reported upon within fifteen days of receipt of the decision of the competent authority by the concerned APAR Section.
3. All Ministries/Departments are requested to bring to the notice of all the offices under them for strict implementation of the above instructions.
(C.A. Subramanian) Director ANNEXURE P-3 No. 21011/1/2010-Estt.A Government of India Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training North Block, New Delhi Dated the 13th April, 2010 OFFICE MEMORANDUM Subject: Below Benchmark gradings in ACRs prior to the reporting period 2008-09 and objective consideration of representation by the competent authority against remarks in the APAR or for upgradation of the final grading. The undersigned is directed to say that prior to the reporting period 2008-09, only the adverse remarks in the ACRs had to be communicated to the concerned officer for representation, if any to be considered by the competent authority. The question of treating the grading in the ACR which is below the benchmark for neXt promotion has been considered in this Department and it has been decided that if an employee is to be considered for promotion in a future DPC and his ACRs prior to the period 2008-09 which would be reckonable for assessment of his fitness in such future DPCs contain final grading which are below the benchmark for his neXt promotion, before such ACRs are placed before the DPC, the concerned employee will be given a copy of the relevant ACR for his representation, if any, within 15 days of such communication, it may be noted that only below benchmark ACR for the period relevant to promotion need be sent. There is no need to send below benchmark ACRs of other years.
2. As per eXisting instructions, representations against the remarks or for upgradation of the final grading given in the APAR (previously known as ACR) should be eXamined by the competent authority in consultation, if necessary, with the Reporting and the Reviewing Officer, if any while considering the representation, the competent authority decides the matter objectively in a quasi-judicial manner on the basis of material placed before it. This would imply that the competent authority shall take into account the 14 Item No. 32/ C-5 3749/2016 contentions of the officer who has represented against the particular remarks/grading in the APAR and the views of the Reporting and Reviewing officer if they are still in service on the points raised in the representation vis-à-vis the remarks/gradings given by them in the APAR. The UPSC has informed this Department that the Commission has observed that while deciding such representations, the competent authorities sometimes do not take into account the views of Reporting/Reviewing Officers if they are still in service. The Commission has further observed that in a majority of such cases, the competent authority does not give specific reasons for upgrading the below benchmark ACR/APAR gradings at par with the benchmark for neXt promotion.
3. All Ministries/Departments are therefore requested to inform the competent authorities while forwarding such cases to them to decide on the representations against the remarks or for upgradation of the grading in the APAR that the decision on the representation may be taken objectively after taking into account the views of the concerned Reporting/Reviewing Officers if they are still in service and in case of upgradation of the final grading given in the APAR, specific reasons therefore may also be given in Inc order of the competent authority.
(C.A. Subramanian) Director" On perusal of OM dated 14.05.2009, it is noted that the new system of communicating the entries in Annual Performance Assessment Report (APAR) provides that the same should be communicated within a period of fifteen days from the date of receipt of the entries in the APAR. The new system is applicable prospectively with effect from the reporting period 2008-09, which is initiated after 01.04.2009.
6.3 Further as per OM dated 13.04.2010, it has been stated that the question of treating the grading in the ACR which is below the benchmark for ne X t promotion has been considered by the Department and it has been decided that if an employee is to be considered for promotion in a future DPC and his ACRs prior to the period 2008-09 which would be reckonable for assessment of his fitness in such future DPCs contain final grading which are below the benchmark for his neXt promotion, before such ACRs are placed before the DPC, the concerned employee will be given a copy of the relevant ACR for his representation if any, within fifteen days of such communication and only below benchmark ACR for the period relevant to promotion need be sent. There is no need to send below benchmark ACRs of other years.
7. In the instant case, the below benchmark ACR reporting the period from 01.04.2007 to 31.03.2008 was 15 Item No. 32/ C-5 3749/2016 communicated to the respondent vide communication dated 08.06.2010 in respect of which representation was made by the respondent on 19.06.2010. The same was rejected as per the communication dated 01.10.2010. According to the respondent, the reviewing officer was due for retirement on 31.03.2008 and the respondent submitted self-appraisal report on 15.04.2008 for the period 01.04.2007 to 31.03.2008 and reporting officer graded as "Good" on 17.04.2008. Further, reviewing officer signed and accepted the same without any date in spite of fact that he had retired on 31.03.2008 as per AnneXure A-6 to the application filed by the respondent before the Tribunal. According to the respondent, his representation was not being objectively considered. In the circumstances, Departmental Screening Committee subsequently assessed him unfit for grant of promotion i.e., grant of NFU in SAG of ITS Group-A.
8. The Tribunal on perusal of AnneXure A-4/being ACRs for three years i.e., 2005-06, 2006-07 and 2007-08 has noted that for the year 2007-08 highly damaging remarks have been recorded by the same reporting authority and endorsed by the same reviewing authority. The remarks are totally opposite to those entered by the same authority previous years. The comparison of the remarks made in the ACRs for the year 2007-08 and for the years 2005-06 and 2006-07 have been made and eXtracted in paragraphs 4 and 5 of the order of the Tribunal. The same are eXtracted as under:
"4. We agree with the respondents that an officer need not earn the same grading every year and the grading could be different each year based on his performance. If, this was not the case, the whole purpose of an annual assessment would stand defeated. However, a careful perusal of the copies of ACRs produced by the applicant at AnneXure A/4 for the 3 years i.e. 2005-06, 2006-07 & 2007-08 shows that in the year 2007-08 highly damaging remarks have been recorded by the same reporting authority and endorsed by the same reviewing authority.
Even in regard to matters which could be regarded as personal attributes as different from performance parameters - such as communication skills, capacity for appraisal, ability to weigh pros and cons before taking a decision, organizing capability, domain knowledge in respect of the area of work etc. the remarks appear to be virtually the opposite of those entered by the same authority in the previous years. To illustrate, the reporting authority had entered the following remarks in his ACR of 2005-06, 2006-07 and 2007-08 :-16 Item No. 32/ C-5 3749/2016
ACR comments for the year 2005-06:
He has very good knowledge of technical field. Also level of application of related instructions was also very good. He has very good knowledge of administrative matters and his level of application related instruction was very good. He was willing to assume responsibility. He has very good organizing capability, motivating ability and timely and proper gu id ance giving c ap ab il ity. He has very good capacity/resourcefulness to anticipate problems in advance and to take action to handle such situations as well as unforeseen situations. He has very good quality of decision making and is able to weigh pros and cons of alternatives. He has good capability of communication and present arguments in oral and written way. He has very good skill and capacity of evaluating and recording performance of subordinates in an impartial and objective manner.
ACR Comments for the year 2006-07:
He has very good technical knowledge. He has very good administrative knowledge. He has very good capacity to set targets. He can anticipate change, understood environment and contributed new ideas. He was generally willing to assume responsibilities. He has very good organizing capacity and was able to motivate and provide timely and proper guidance to subordinates. He could handle unforeseen situations at his own and was willing to take responsibility. He has good skill and capacity in evaluating and recording performance of subordinates in an impartial and objective manner.
As against the aforesaid remarks, ACR of the officer for the year 2007-08 contains following remarks recorded by the same authority:
Technical knowledge is good. Financial knowledge is poor. Administrative knowledge is very poor particularly in tender work/rulings application. He was always have to be chased to set targets for himself and subordinates. He hardly understood the environment in anticipating change and contributing new ideas/methods of work he was just average. He was never willing to assume responsibility, had poor organizing capacity and was average in motivating/providing timely and proper guidance to staff. He was incapacitated and very poor in anticipating problems and handle unforeseen 17 Item No. 32/ C-5 3749/2016 situations on his own. He was never willing to take additional responsibility and new areas of work. He had very poor decision making quality and also very poor in weighing pros and cons of alternatives. He has average ability to communicate and present arguments in written and poor in verbal."
It would be clear from remarks entered for the year 2007-08 that they were clearly adverse which warranted communication to the officer within the time limits prescribed to enable him to submit his representation. Many of the remarks were the eXact opposite of the positive attributes found in him in the previous years by the same authority. Admittedly, remarks were not communicated to the applicant within the time limits prescribed for such communication under the prevailing rules governing ACRs. There is also no evidence of the attention of the officer being drawn during the year itself to his falling standards along with necessary caution/advice so as to give him a chance to improve."
8.1 The Tribunal has also noted that adverse remarks were not communicated to the respondent herein within the time limits prescribed for such communication under the prevailing rules governing the ACRs. Further attention of the officer was not drawn during the year itself, to supposed falling standards along with necessary caution/advice so as to give him a chance to improve. The Tribunal has further noted that it is not the case of below benchmark grading but a case of recording adverse remarks in the eXtreme. That the representations made by the respondent were not considered objectively, dispassionately, and fairly as there were contradiction in the qualities or attributes communicated in the said ACRs which were wholly contradictory to each other. In the circumstances, the Tribunal held that "adverse remarks made for the year 2007-08 were sweeping, eXtreme, and inconsistent with the previous remarks. Hence it was held that the rejection of the representation was unjustified and the same was set aside. It was further observed by the Tribunal that the assessment of 2007-08 were clearly arbitrary and inconsistent and ought not to be allowed to stand in the way of proper assessment of the respondent by the Screening Committee for his suitability to be promoted to a higher grade. Hence, a direction was issued to the Screening Committee to consider and reassess the suitability of the respondent herein for the purpose of grant of SAG by eXcluding the ACR of 2007-08 and if the respondent was found suitable for grant of consequential benefits. Against the order of the Tribunal the Union of India, the appellant herein preferred a writ petition before the High Court, which reiterated what had been observed 18 Item No. 32/ C-5 3749/2016 by the Tribunal in paragraph 6 of its order and dismissed the writ petition.
9. On perusal of what has been eXtracted by the Tribunal from the ACRs of 2005-06, we note that the respondent has been graded as "Very Good" since he has very good knowledge in technical field as well as of administrative matters; willing to assume responsibility; has good organizing capability; motivating ability and timely and proper guidance giving capability. The respondent has the capacity/resourcefulness to anticipate problems in advance as well as unforeseen situations. He has very good quality decision-making ability and is able to weigh pros and cons of alternatives and good capability of communication and present arguments in oral and written manner and good skill and capacity of evaluating and recording performance of subordinates in an impartial and objective manner.
Similarly in the remarks for the year 2006-07, it has been written that the respondent has very good technical knowledge as well as administrative knowledge. He has very good organizing capacity and was able to motivate and provide timely and proper guidance to subordinates. He has good skill and capacity in evaluating and recording performance of subordinates in an impartial and objective manner.
As against the aforesaid favourable remarks for the previous two years, in the year 2007-08 it has been stated that though the technical knowledge of the respondent is good, his financial and administrative knowledge is poor; that he has hardly understood the environment in anticipating change; that he was never willing to assume responsibility, and had poor organising capacity and cannot anticipate problems and unforeseen situations and does not take additional responsibility and has poor decision-making quality and average ability in communication and presenting case problems.
10. Therefore, in view of the above and in the facts and circumstances of the case and considering the fact that though the respondent was graded as "Very Good" in the ACRs for the years 2005-2006 and 2006- 2007 and was graded only "Good" in the ACR for the year 2007-2008 by the very same reporting and reviewing officer, despite the fact that specifically the respondent was given the opportunity against the ACR for the year 2007-2008. However, no valid reasons are given for rejecting the representation, we are of the opinion that in view of the aforesaid facts and circumstances, the learned Tribunal and the High Court have not committed any error in directing the Department to call for a review meeting of the 19 Item No. 32/ C-5 3749/2016 Screening Committee to re-assess the suitability of the respondent for the purpose of grant of SAG and while doing so to eXclude the ACR for the year 2007-2008. Therefore, in the facts and circumstances of the case, no interference of this Court is called for.
In view of the above and for the reasons stated above, present appeal fails and the same deserves to be dismissed and is accordingly dismissed."
13. We have also examined the records of the case. At page 21 of the paper book where report for period from September 2007 to March 2008 is placed, the applicant was given grading of 8 which is stated to be 'outstanding'.
For the period from March 2008 to 20.08.2008, again final grading given is 8, which is also stated to be outstanding. It is also noticeable from the records of the case that the suspension period of the applicant w.e.f 02.02.1996 to 05.09.2007 was regularized and it was further ordered vide order dated 23.12.2013 (Annexure A/4) that period of suspension shall be treated as period spent on duty with salary and all consequential benefits. This fact repeals the contention that only four ACRs were available for the four years. Since, he was already under suspension w.e.f 02.02.1996 to 05.09.2007, which was regularized on 23.12.2013, by virtue of the impugned order, question of self appraisal as well as recording of ACR does not arise. In fact, two ACRs already pointed out are graded 8 and above.
20 Item No. 32/ C-5 3749/201614. Therefore, in the fitness of things, and in view of the law laid down by the Hon'ble Apex Court in Union of India Vs. G.R. Meghwal (supra) case, we deem it fit to set aside the impugned orders dated 03.03.2016 and 17.11.2014.
We order accordingly. It is further directed that ACRs for the relevant period in question for which his case ought to be considered for grant of ACP/MACP Scheme, as per the rule position, may be construed to the satisfactory and within the Benchmark. In view of the same, the Competent Authority amongst the respondents is directed to convene the Review DPC and pass appropriate reasoned and speaking order within a period of 12 weeks from the date of receipt of a certified copy of this Order. Needless to say that the applicant shall be entitled to all consequential benefits, along with arrears, if any, on notional basis.
15. The OA is disposed of in the aforesaid terms. There shall be no order as to costs.
(Dr. Chhabilendra Roul) (Manish Garg)
Member (A) Member (J)
/daya/