Central Administrative Tribunal - Ernakulam
Sandakumari M.T vs Union Of India on 26 March, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A.No.136/12
Tuesday this the 26th day of March, 2013
C O R A M :
HON'BLE Dr.K.B.S.RAJAN, JUDICIAL MEMBER
HON'BLE Ms.K.NOORJEHAN, ADMINISTRATIVE MEMBER
Sandakumari M.T
D/o Cheku, Sub Post Master
Payyoli Angadi
Vadakara
Residing at 'Keerthanam'
Puduppanam P.O
Vadakara - 673 105 ...Applicant
(By Advocate Mrs.R Jagada Bai)
V e r s u s
1. Union of India
represented by the Secretary
to Department of Posts,
New Delhi - 110 001
2. The Post Master General
Northern Region
Kerala Circle
Kozhikode - 673 011
3. Superintendent of Post Offices
Vadakara Division
Vadakara - 673 101 ...Respondents
(By Advocate Mr.Pradeep Krishna, ACGSC)
This application having been heard on 08th March 2013 this Tribunal
on 26.03.2013 delivered the following :-
O R D E R
HON'BLE MS.K.NOORJEHAN, ADMINISTRATIVE MEMBER
1. The applicant is aggrieved by the respondent's rejection to grant her second MACP.
2. The applicant who was appointed as Postal Assistant with effect from 31.05.1990, was granted first financial upgradation with effect from 31.05.2006. The Director General of Posts, vide Annexure A-1 O.M, has circulated the orders of the DOPT regarding introduction of MACP, which permits three financial upgradations on completion of 10,20 and 30 years of service. As such, the applicant avers that she is due for second MACP in Pay Band I of Rs.5200/- - Rs.20200/- with grade pay of Rs.4200/- with effect from 01.06.2010. While so, the third respondent, vide Annexures A-2 and A-6, communicated the entries in the Annual Confidential Reports for three years from 01.04.2006 to 31.03.2009 with instructions to her to submit representation for upgradation of the below benchmark grading in the ACRs to the second respondent. She produced copies of the ACRs as Annexures A-3, A-4 and A-5. She promptly submitted her Annexure A-7 representation to R2. The applicant contends that eventhough she had put in unblemished service in the department and had exhibited utmost integrity and devotion to duty, her request for upgradation of grading from 'average' to 'good' was turned down. The applicant avers that the first communication about MACP scheme was dated 19.05.2009 and hence the requirement of benchmark of 'good' for financial up gradation can have only prospective application. According to her, prior to 19.05.2009, the benchmark of 'average' was not a bar for financial up gradations. Moreover, as per Column II of the ACR form, the competent authorities are expected to make useful suggestion to the officials for achieving high standards of efficiency, economy in administration etc. The whole object of making this suggestion is to give to the officer concerned an opportunity to improve his performance and efficiency. The applicant claims that it is regrettable that no such suggestion was ever been made by the competent authority. It, therefore, shows that the reporting authority had not at all applied his mind while writing the ACRs of the applicant. She further adds that ACRs are written in a casual manner. Hence she contends that the denial of second MACP is illegal and arbitrary. The applicant produced a copy of the order in Original Applications No.471/2010 & 799/09 and averred that her case is squarely covered by the decision of Tribunal supra.
3. The respondents contested the Original Application and filed reply statement. They submitted that on receipt of Annexure A-1 O.M regarding introduction of MACP, action was initiated to constitute the Screening Committee. The Committee met on 19.11.2010 and considered the case of all officials of Vadakara Postal Division, which included the applicant also. Since the applicant did not get the minimum bench mark prescribed for the purpose of financial upgradation under MACPS, she was not found eligible for placement in the next higher grade. Therefore, as per the instructions contained in DG Posts letter dated 01.09.2010, the Scrutiny Committee was constituted for the purpose of reassessing the grading awarded to the applicant prior to the reporting period of 2008-09, so as to afford an opportunity to the applicant and other similarly affected officials to represent against the adverse remarks/below benchmark grading in their ACRs. The recommendation of the Scrutiny Committee will be considered by the second respondent for taking necessary steps to raise the benchmark as one time settlement of cases prior to 2009. The respondents stated that on perusal of representation submitted by the applicant, the Scrutiny Committee found that the applicant did not put forth any grounds to substantiate her achievements/improvement in work during the three years period under review and instead she only made some objectionable comments about the manner of making entries in the ACRs by the reporting officer without producing any evidence to support her claim. In the absence of any achievements in her performance being high lighted by the applicant, the Scrutiny Committee did not recommend up gradation of her grading to 'good'. The recommendation of the Scrutiny Committee was accepted by the second respondent. The above decision was conveyed to the applicant within the prescribed time limit of one month. The respondents pointed out that the applicant had not exhausted the official channels as she failed to submit a representation to the C.P.M.G, Kerala Circle, Thiruvananthauram.
4. The applicant filed rejoinder and averred that the Reviewing Officer for the applicant is Director of Postal Services (DPS for brevity) in Northern Region, Kerala Circle. As the post was vacant, no review was conducted by the DPS. Hence, the only appellate authority to submit her representation for upgradation of grading is R-2 the Post Master General of Northern Region. No appeal lies on the decision of R-2 and hence the CPMG does not have any statutory power to supercede the decision of the Scrutiny Committee as approved by the P.M.G.
5. The respondents filed additional reply statement and stuck to their stand that the applicant had not submitted her appeal to the CPMG. The applicant and the respondents filed second rejoinder and additional reply statement which did not bring out any new points.
6. Heard the counsels for the parties and perused the records.
7. At the time of final hearing, the counsel for the applicant produced a copy of the judgment of the Hon'ble Supreme Court in the case of T.R Kapoor and Others Vs. State of Haryana & Ors reported in 1986 SCC Supplementary 584, wherein it was held that giving retrospective effect in 1984 to the Recruitment Rules of 1964 was ultra vires.
8. The applicant was due for second MACP as on 01.06.2010. Therefore, the ACRs for the period from 2005-06 to 2009-2010 should have been considered by the Screening Committee. The Screening Committee did not recommend her placement in the next higher grade as she had the grading of 'average' for 3 consecutive years from 2006 to 2009. A perusal of the ACR dossiers shows that the applicant got the grading of 'good' during 3 years from 2003 to March 2006. For the next three years from April 2006 to March 2009 the grading became 'average'. Once again for 2009-2010 the grading is good. For her APAR for the year 2010-2011, she got numerical grading of 5.5. In O.A 799/09 which was cited by the applicant, the common order in O.A 864/2006, 01/2007, 2003/2007 was followed. The relevant paras from the common order in O.As supra are extracted below.
"9. Arguments were heard and documents, including the ACRs and DPC Proceedings perused. The DPC took into account the ACRs for the years 2000 - 2001, 2001-2002, 2002-2003, 2003-2004 and 2004-2005. The grading awarded in each of the above year to each of the applicants is as under:-
Applicant 2000-01 2001-02 2002-03 2003-04 2004-
05
S. Preetha Very Good Average Good Averag
Good e
Shini Very Average Average Good Good
James Good
S. Jaya Good Good Average Good Averag
e
P.C.Beena Very Average Average Good Good
Good
10. The above would show that the graph of assessment has been fluctuating and in zig-zag motion. The sting of below benchmark grading would continue for five years. As for example, all the applicants have the grading of Average for the year 2002 - 2003 the adverse effect of which would prevail till 2006-2007. Again, Applicant in OA No. 1 of 2007 and 3 of 2007 have the below Bench mark grading for the year 2004-2005, the adverse effect of which would extend till 2009-2010.
11. Admittedly, the applicants have not been communicated with the average grading, which is below the prescribed Benchmark. The question is what is the impact of the same.
12. In State of Haryana v. P.C. Wadhwa, (1987) 2 SCC 602, the Apex Court has held as under:-
14. The whole object of the making and communication of adverse remarks is to give to the officer concerned an opportunity to improve his performances, conduct or character, as the case may be. The adverse remarks should not be understood in terms of punishment, but really it should be taken as an advice to the officer concerned, so that he can act in accordance with the advice and improve his service career.
13. Again, in Swatantar Singh v. State of Haryana, (1997) 4 SCC 14, it has been held -
"It is true that in view of the settled legal position, the object of writing the confidential reports or character roll of a government servant and communication of the adverse remarks is to afford an opportunity to the officer concerned to make amends to his remissness; to reform himself; to mend his conduct and to be disciplined, to do hard work, to bring home the lapse in his integrity and character so that he corrects himself and improves the efficiency in public service. The entries, therefore, require an objective assessment of the work and conduct of a government servant reflecting as accurately as possible his sagging inefficiency and incompetency. The defects and deficiencies brought home to the officer, are means to the end of correcting himself and to show improvement towards excellence."
14. Thus, from the above decisions of the apex Court, it is evident that the precise purpose of communication of adverse remarks is that it acts as a curve corrector, so that the employee could reform himself and improve in order to ensure that the career prospects are not hampered. It is not meant to penalize the individual.
15. Now, what is the consequence of non-communication of those remarks which ought to have been communicated? Answer to this question is available in the decision of the Apex Court in Union Public Service Commission v. Hiranyalal Dev, (1988) 2 SCC 242, wherein the Apex Court has held, "It cannot be gainsaid that the Selection Committee could not have taken into consideration the adverse remarks entered in the records which had not been communicated to Respondent 1". The Apex Court has in the case of Prabodh Sagar v. Punjab SEB, (2000) 5 SCC 630, opined, "The challenge, however, is based on two principle counts -- on the first it is the issue of mala fides and on the second it is the un-communicated adverse reports: undoubtedly both these counts are rather serious in nature and success in regard to any one of the counts would entitle the appellant herein to appropriate relief."
16. The above decisions of the Apex Court as well as the Full Bench of the Tribunal, when read concurrently, would mean that any remark which has the effect of impairing the promotional prospects of an individual should be communicated and if not communicated, the un-communicated remark cannot be taken into account by the D.P.C.
17. Thus, following the decision of the Full Bench cited above, it could be safely stated that in view of the fact that the applicants have not been communicated the adverse remarks, such grading ought not have influenced the DPC in their recommendation.
18. Now, what should be the remedy? The only course left is that the DPC should consider afresh the case of the four applicants, without taking into account the un-communicated remarks and if otherwise found fit, the applicants should be recommended for promotion and the respondents may act on the basis of the same. Of course, in the event of promotion being made, the applicants shall be entitled only to notional fixation of pay, actual being available only from the date they hold the higher responsibilities. For, denial of promotion by the respondents in these cases was not deliberate but by an erroneous interpretation of the rules on the subject as to which entries are to be necessarily communicated.
19. In view of the above, the OAs are allowed to the extent that the impugned orders in all the O.As (Annexure A-1 to A-3 in OA No.864/2006, Annexure A-1 and A-2 in OA No. 1/2007 and Annexure A-1 and A-2 in OA No. 3/07 whereby it was informed that the DPC did not consider the applicants fit for promotion) are hereby quashed and set aside. Respondents are directed to hold a review DPC in respect of the applicants which would consider the case of the applicants, without taking into account the un-communicated grading below the benchmark and if otherwise found fit for promotion, the applicants shall be accordingly promoted to the post of U.D.C. However, it is made clear that such promotion shall be on notional basis, and would count for seniority and fixation of notional pay, and actual pay would be available only from the date the applicants enshoulder higher responsibilities.
20. This order shall be complied with, within a period of three months from the date of communication of this order."
9. In the case of the applicant, as per the instructions issued by the DOPT and circular by DG Posts, the below benchmark grading/adverse remarks for the period up to 2009 after the introduction of MACPS were communicated to the applicant. The applicant's representation for raising the benchmark from 'average' to 'good' was not recommended by the scrutiny committee, which was constituted for the purpose and the recommendation of the scrutiny committee was accepted by the appellate authority i.e, R2. The Scrutiny Commttee and R2 were of the opinion that when an opportunity was afforded to the applicant to show that she performed her duty diligently, efficiently and with devotion and sincerity, she failed to do so. She only pointed out that the Reporting Officer has not applied his mind and he made entries in the ACRs in a casual manner. While I find force in the contention of the respondents that the applicant made no attempt to narrate the way she performed her duty, there is no explanation by the reporting officer when the grading of the applicant from 'Good' up to March 2006 was suddently down graded to average for three consecutive years from 2006 to 2009. When such a down gradation of grading takes place, the Reporting Officer should have taken care to substantiate the need to down grade the grading by giving instances of her failure to attend to her assigned work. Eventhough, the respondents have submitted in their reply statement that the ACRs were written after giving due care to the entries made in the memo of service, no such fact is discernable by the way the remarks are made in the ACRs. R-3 was expected to send copies of the remarks made in the memo of services, for each instance of departure from the task as given in the memo of distribution of work to her. Equally, for giving a grading of 'good' for the next three years from 2009-2010 to 2011-2012 no remarks are made for such upgradation of grading as compared to the previous years. Hence, I tend to accept the plea of the applicant that the entires in the ACRs are made in a mechanical manner. It is quite possible that when the head of the Postal Division has to report about more than roughly 1500 Group C officials, he may not be in a position to assess the capability and nature of performance of each official working under him in his Division from the grade of Postmen onwards. The respondents have not pointed out any short coming in the performance of the applicant in their reply statement. Had she been slipshod in performance of her duties she would have come up for adverse notice as a lot of accounting of various transactions has to be done in the Post Office which is to be verified on a daily basis by the Head Post Office to which such daily accounts are submitted. Hence, we are of the view that taking the totality of her service there was no rationale or logic for giving her a grading of average only for 3 years from 2006 to 2009 in a span of 10 years. As pointed out by the applicant there was no oral or written counselling given to her to improve her standard of performance.
10. In view of the foregoing the applicant has to be considered as one who is similary situated like the applicants in O.A 799/09,864/2006, 01/2007 and 03/2007. Hence, the Annexure A-8 impugned order is quashed and set aside. The third respondent is directed to convene a review DPC to consider the case of the applicant for grant of second MACP expeditiously, at any rate not later than four months. The DPC, will take into account the ACRs upto March 2010 and will ignore below benchmark grading not communicated prior to April 2009.
11. The Original Application is allowed. No costs.
(Dated this the 26th day of March, 2013)
K.NOORJEHAN Dr.K.B.S.RAJAN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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