Central Administrative Tribunal - Ernakulam
R Mohanam vs Union Of India on 31 January, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A.No.888/11
Tuesday this the 31st day of January 2012
C O R A M :
HON'BLE Dr.K.B.S.RAJAN, JUDICIAL MEMBER
HON'BLE Ms.K.NOORJEHAN, ADMINISTRATIVE MEMBER
R Mohanam,
S/o Ramasami, Chief Instructor Marine
Engineering /deputy Director in charge (Retired),
Central Institute of Fisheries, Nautical & Engineering
Training, (CIFNET), Cochin.
Presently residing at 'Aarathi', Eroor P.O,
Thripunithura, Ernakulam District - 682 306. ... Applicant
(By Advocate Mr.Shafik M.A)
V e r s u s
1. Union of India
Represented by the Secretary to the Government of India,
Department of Animal Husbandry, Dairying
And Fisheries, Ministry of Agriculture, New Delhi - 110 011.
2. The Director,
Central Institute of Fisheries, Nautical & Engineering
Training, (CIFNET),
Fine Arts Avenue, Cochin - 682 011. ... Respondents
(By Advocate Mr.George Joseph, ACGSC)
This application having been heard on 25th January 2012 this
Tribunal on 31st January 2012 delivered the following :-
O R D E R
HON'BLE Dr.K.B.S.RAJAN, JUDICIAL MEMBER The facts of the case could be brought within a narrow compass in this O.A. The applicant initially joined the services of the respondents as Electrical Engineer on 30.10.1980 (this was preceded by 10 years service in the Navy of which we are not concerned). He was promoted as Chief Instructor (Marine Engineering) in the scale of Rs.3000-4500 vide order dated 2.8.1994, Annexure A-1 refers. The applicant superannuated in May, 2009.
2. Consequent to the recommendations of the 6th CPC, the Government of India introduced Modified Assured Career Progression Scheme with effect from 1.9.2008. According to this scheme, for those who could not get three promotions in 30 years, financial upgradation could be permitted subject to certain terms and conditions specified therein. The scheme was effective from 1.9.2008. It is the case of the applicant that as on 1.9.2008 he was in service and had fulfilled the requisite years of service for 2nd MACP. But he was denied the 2nd MACP. According to the applicant, the reason for non grant of MACP to the applicant was made known to him as his not having the bench mark for the next higher post. It is the case of the applicant that he had never been communicated any adverse remarks nor has he been communicated the grading which was below the bench mark grading and as such he could not have any opportunity to make any representation. The applicant has relied upon a number of decisions of the Tribunal as well as the Apex Court as contained in Grounds 'C', 'D', 'F' and 'G'. The applicant has prayed for the following reliefs :-
1. To call for the records relating to Annexure A-1 to Annexure A-3 and to declare that the applicant is entitled to be granted 2nd ACP as per the MACP Scheme with effect from 1.9.2008.
2. To direct the respondents to take appropriate action to grant the 2nd ACP to the applicant with effect from 1.9.2008 and to direct the respondents to disburse the arrears with interest at the rate of 18% immediately in the interest of justice.
3. To issue such other appropriate orders or directions this Hon'ble Court may deem fit, just and proper in the circumstances of the case.
4. To grant the costs of this Original Application.
3. Respondents in their brief counter admitted the aforesaid contention on facts and also conceded that the applicant was not communicated his grading as 'Good' since the same was not adverse.
4. Counsel for the applicant referred to the decisions by the Apex Court in the following cases and submitted that apart from the above even the DoPT has issued the general guidelines regarding the necessity to communicate the grading also.
5. Counsel for the applicant further submitted that in view of the above decisions, this application deserves to be allowed.
6. Counsel for the respondents submitted that no communication was sent to the applicant regarding the grading as they were no adverse entries.
7. Arguments were heard and documents perused. In 'Devdutt' 2008 (8) SCC 725 the Apex Court has held as under:-
"15. If we hold that only "poor" entry is to be communicated, the consequences may be that persons getting "fair", "average", "good" or "very good" entries will not be able to represent for its upgradation, and this may subsequently adversely affect their chances of promotion (or get some other benefit).
8. Following the above in Abhijith Ghosh Dastidar (2009) 16 SCC 146 the Apex Court has held as under :-
8. 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 annual confidential report 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 of promotion or getting 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 (Dev Dutt case , SCC p. 738, para 41) 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.
9. Based on the above decision in Dev Dutt the DoPT has issued O.M dated 13th April, 2010 and the same inter alia reads as under :-
"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 grading 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 the 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 too 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 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-a-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 representation 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 therefor may also be given in the order of the competent authority.
Sd/-
(C.A. Subramanian) Director"
10. In view of the above the requirement is that before taking cognizance of the below bench mark grading due notice should be given to the individual concerned. In the instant case, the same having admittedly not been given, the applicant is entitled for the following reliefs :-
(a) The respondents are duty bound to inform the applicant of the gradings on the ground of which the applicant's upgradation under the MACP could not be permitted and invite his representation within a reasonable time. They are directed to initiate action in this regard within a period of two months from the date of communication of this order.
(b) The applicant is entitled to make a representation against the said grading within the stipulated time.
(c) The respondents shall consider the representation in accordance with the provisions contained in the DOPT OM extracted above and arrive at a judicious conclusion whether to modify the grading and if so, and if such a modification happens to be at par with the benchmark or above, the case of the applicant shall be considered for MACP and the benefits thereof be made available to him including pay fixation and other consequential benefits in respect of terminal benefits.
(d) In case the grading is not required to be modified, giving the reasons for the same the applicant be informed.
11. This order shall be complied with in full, within a period of six months from the date of communication of this order.
12. Under the circumstances, there shall be no orders as to costs.
(Dated this the 31st day of January 2012)
K.NOORJEHAN Dr.K.B.S.RAJAN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
asp