Central Administrative Tribunal - Kolkata
Putul Bhowmik Majumder vs Employees State Insurance Corporation on 8 May, 2024
1 OA 2074/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH
KOLKATA
DATE OF HEARING : 04.03.2024
DATE OF JUDGMENT: 08.05.2024
Coram: Hon'ble Mr. Jayesh V. Bhairavia, Judicial Member
Hon'ble Mr. Suchitto Kumar Das, Administrative Member
O.A. 350/02074/2021
In the matter of :
Putul Bhowmik Majumder,
Wife of Joyanta Bhowmik, aged about 44 years, working as Staff
Nurse at ESI-PGIMSR & ESIC Hospital & ODC (EZ)/Joka at Male
Ortho Ward, residing at 388/C, Upen Banerjee Road, Kolkata-
700060.
.............Applicant
VS.
1. Union of India, service through the Secretary, Ministry of
Labour and Employment, Rafi Marg, Shram Shakti Bhawan, New
Delhi-110001.
2. The Director General, Employees State Insurance
Corporation, Hqrs. Office at CIG Marg, Panchadeep Bhawan, New
Delhi-110002.
3. The Additional Commissioner & Regional Director,
Employees State Insurance Corporation, Regional Office, Grant
Lane, Kolkata- 700012.
4. The Medical Superintendent, ESI-PGIMSR & ESIC Hospital
& ODC (EZ), Diamond Harbour Road, Joka, Kolkata- 700104.
5. The Dy. Medical Superintendent, ESI-PGIMSR & ESIC
Hospital & ODC (EZ), Diamond Harbour Road, Joka, Kolkata-
700104.
6. The Assistant Director (Admn.), ESI-PGIMSR & ESIC
Hospital & ODC (EZ), Diamond Harbour Road, Joka, Kolkata-
700104.
2 OA 2074/2021
7. Mrs. Rita Sarkar, The Assistant Nursing Superintendent,
ESI- PGIMSR & ESIC Hospital & ODC (EZ), Diamond Harbour
Road, Joka, Kolkata- 700104.
.........Respondents
O.A. 350/02075/2021
Jhuma Paswan,
Wife of Baliram Paswan, Daughter of Shiwlal Paswas, aged about
45 years, working as Staff Nurse at ESI-PGIMSR & ESIC Hospital
& ODC (E.Z.)/Joka, residing at Mangolik Abasan, B2(2), Joraghat
Strand Road, Hooghly, Chinsurah, Hooghly, West Bengal-
712101.
.............Applicant
VS.
1. Union of India, service through the Secretary, Ministry of
Labour and Employment, Rafi Marg, Shram Shakti Bhawan, New
Delhi-110001.
2. The Director General, Employees State Insurance
Corporation, Hqrs. Office at CIG Marg, Panchadeep Bhawan, New
Delhi-110002.
3. The Additional Commissioner & Regional Director,
Employees State Insurance Corporation, Regional Office, Grant
Lane, Kolkata- 700012.
4. The Medical Superintendent, ESI-PGIMSR & ESIC Hospital
& ODC (EZ), Diamond Harbour Road, Joka, Kolkata- 700104.
5. The Dy. Medical Superintendent, ESI-PGIMSR & ESIC
Hospital & ODC (EZ), Diamond Harbour Road, Joka, Kolkata-
700104.
6. The Assistant Director (Admn.), ESI-PGIMSR & ESIC
Hospital & ODC (EZ), Diamond Harbour Road, Joka, Kolkata-
700104.
7. The Assistant Nursing Superintendent, ESI- PGIMSR &
ESIC Hospital & ODC (EZ), Diamond Harbour Road, Joka,
Kolkata- 700104.
.........Respondents
3 OA 2074/2021
For The Applicant(s): Mr. Arpa Chakraborty, Counsel
For The Respondent(s): Mr. S. Chowdhury, Counsel
ORDER
Per: Hon'ble Suchitto Kumar Das, Administrative Member Due to parity in the nature of grievance and facts pleaded, OA/350/2074/2021 and OA/350/02075/2021 are being heard out analogously, upon due notice, to be disposed of by this common order, with consent of all the sides.
2. The applicant in OA/350/2074/2021 has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 praying for the following relief:
"i) Office order being No. 412-T-11/11/190 (OA No. 225 of 21)/2021 dated 28.05.2021 issued by the respondent no. 4 and Office Order being No. 412-A-11/20/MACP/2014-Estt./4060 dated 02/04.11.2019 issued by the respondent no. 6 is not tenable in the eye of law and as such the same may be quashed and thereby an order do issue directing the respondents to ignore the benchmark given in the APAR of the applicant for the year 2017-2018 and/or upgrade the same for the purpose of grant of MACP.
ii) An order do issue directing the respondents to include the name of the applicant in Office Order No. 44 of 2020 dated 18.05.2020 and/or Office Order No. 87 of 2019 dated 19.07.2019 issued by the respondent no. 6 and thereby to grant the applicant the 1st financial upgradation in the next grade pay under Modified Assured Career Progression Scheme with effect from 26.06.2019 at an earliest and thereby to grant all the arrears in favour of the applicant along with all consequential benefits along with revision of pay and interest accrued thereon.
iii) Grant all consequential benefits.
iv) Pass such further or other order or orders."
3. The applicant in OA/350/2075/2021 has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 praying for the following relief:4 OA 2074/2021
"i) Office order dated 28.05.2021 issued by the respondent no. 4 and Office Order being No. 412-A-11/20/MACP/2014-Estt./4046 dated 02/04.11.2019 issued by the respondent no. 6 is not tenable in the eye of law and as such the same may be quashed and thereby an order do issue directing the respondents to ignore the benchmark given in the APAR of the applicant for the year 2017-2018 and/or upgrade the same for the purpose of grant of MACP.
ii) An order do issue directing the respondents to include the name of the applicant in Office Order No. 44 of 2020 dated 18.05.2020 and/or Office Order No. 87 of 2019 dated 19.07.2019 issued by the respondent no. 6 and thereby to grant the applicant the 1st financial upgradation in the next grade pay under Modified Assured Career Progression Scheme with effect from 22.01.2019 at an earliest and thereby to grant all the arrears in favour of the applicant along with all consequential benefits along with revision of pay and interest accrued thereon.
iii) Grant all consequential benefits.
iv) Pass such further or other order or orders."
4. For the sake of brevity, the facts of OA/350/2074/2021 (Putul Bhowmik Majumdar ) is being delineated and discussed hereunder :
4.1 The applicant joined the service of the respondent as Staff Nurse on 26.06.2009.
4.2 On 19.07.2019, respondents published a list of employees who had been granted financial upgradation under MACP scheme. The name of the applicant did not figure in that list. Respondents issued a letter on 02/04.11.2019 intimating that her case was not recommended by the Committee for financial upgradation as she did not fulfill the benchmark criteria of APAR grading for MACP.
4.3 As per the applicant, she obtained the APAR of 2017-18 in the end of 2019, from which, she became aware of the fact that she had been provided below benchmark marks for the said period which was considered as 'Good' grading and therefore she has been denied the benefit of MACP. Being aggrieved, the applicant preferred an Original Application which was disposed of by this Tribunal with a liberty to the applicant to prefer a comprehensive representation to the competent respondent authority within 4 weeks and 5 OA 2074/2021 directed the respondents to examine the said representation in accordance with law, and, particularly applicability of the Office Orders and judicial ratio cited therein and issue a speaking and reasoned order on the claim of the applicant, within a period of 12 weeks.
4.4 The applicant preferred a detailed representation. Respondent no. 04 issued an Office Order dated 03.11.2020 rejecting the claim of the applicant.
Challenging the same, the applicant moved before this Tribunal by OA no. 225/2021 which was disposed of on 08.03.2021 with the following direction:-
"............
6. We gave our anxious consideration to the rival contentions and the implication of the DoPT OM as well as the decisions cited. Since the specific plea of the applicant, at hearing, is that the decisions relied upon by the applicant as well as the relevant DoPT OM dated 01.11.2010 and 04.10.2012 have not been taken into account while considering the representation of the applicant, we dispose of this OA directing the appropriate competent authority to consider the representation of the applicant afresh applying his judicious mind to the facts, law, decisions, administrative instructions referred to supra, and pass appropriate order within a further period of four weeks from the date of receipt of a copy of this order. In the event the applicant is found entitled, relief as sought for shall be extended within a reasonable period in accordance with law.
................."
Respondent no. 4 issued an Office Order dated 28.05.2021 rejecting the claim of the applicant. Hence, this OA.
5.1 Learned Counsel for the applicant submits that the applicant was not aware of her grading in her APAR for 2017-18 as it was not communicated to her. When her name did not figure in the list by which MACP benefit was granted to the similarly circumstanced employees, the applicant visited the Matron Office and collected the APARs for the related period. It was only after the applicant obtained the APAR of 2017-18, she became aware of the fact that she had been given 5.6 marks for the said period which was considered as 'Good' grading . Therefore she has been denied the benefit of MACP as she lacks the grading 'Very Good' in the APAR for the period 2017-18. In the other 6 OA 2074/2021 APARs considered for the grant of MACP, the applicant has the required benchmark in her APAR. Although the applicant made a detailed representation with a request to review her APAR for the year 2017-18, the same was rejected on the ground that the stipulated period of representation is over in spite of the fact that the same had not been communicated by the respondents earlier.
5.2 Learned Counsel for the applicant submits that there was no complaint or charge-sheet ever against her. The applicant met the authorities on many occasions with requests for grant of MACP benefit but to no avail. The respondents passed another Office Order dated 18.05.2020 granting MACP benefit in favour of other similarly situated employees, which too did not contain the applicant's name. Learned Counsel submits that the speaking order issued in compliance of CAT's order is unreasoned, cryptic and myopic. 5.3 Learned Counsel for the applicant submits that the contention of the respondents about intimation of APAR through general notice on the notice board has got no basis in the eye of law since had it been a case of general information related to all the staff, the same could have done by pasting the notice in the Notice Board but when it is a case of an APAR related to service condition of an employee the same should have been communicated individually to her inviting her representation, if any. When the APAR was ready with respect to the applicant, the same should have been communicated directly to her but such an attempt had never been made and in order to manage the issue of non-communication of APAR as brought out by the applicant, a concocted story of intimation of APAR in general notice board has been cooked up by the respondents.
7 OA 2074/20215.4 Learned Counsel for the applicant submits that the respondents erred in alleging inaction on the part of the applicant in collecting the APAR in time. The concerned APAR was never supplied to her asking her to represent against it. It is only after her case was not considered for grant of MACP, she approached the authorities and came to know about the below benchmark grade in the concerned APAR. Question of preference of the representation at that point of time does not arise since she was never asked to do so by the respondents and the mandated period had already expired by then and the notification for grant of financial upgradation had already been issued by then.
5.5 Learned Counsel submits that the circular dated 22.05.2009 clearly stipulates that the employee shall be communicated the full APAR along with the overall grading and assessment of integrity after the review by the appropriate authority and such communication shall be with the clear stipulation that if no representation is received within the stipulated period it will be presumed that the employee has nothing to submit against the assessment in his/her APAR, but the respondents did not communicate the APAR to the applicant asking her to represent as mandated under the Circular. The applicant submits that had she been served with the concerned APAR requiring her to represent, she would have submitted her representation in time.
5.6 Learned Counsel for the applicant submits that the respondents erred in law even in applying the DoPT OM dated 22.10.2019 retrospectively in the instant case. The entitlement of the applicant to the MACP benefit is from June, 2019 whereas the Circular dated 22.10.2019 was issued after that. The applicant submits that APAR for the last five years are considered while 8 OA 2074/2021 granting MACP benefit in favour of the employee and in the instant case, the said period started from 2013 and/or 2014 when the benchmark of 'Very Good' did not exist. DoPT OMs of 2010 and 2012 governing the filed at that point of time required only 'Good' grading in APAR. Since the period of consideration started from 2013/2014, the requirement cannot be changed to 'Very Good' in the middle of the game.
5.7 Learned Counsel for the applicant further submits that the respondents did not justify the reasons of awarding below benchmark in the concerned APAR. The contents in the impugned APAR demonstrate her effectiveness, diligence and honest discharge of duties. Below benchmark grading is not commensurate with the contents in the APAR. The applicant submits that since the adverse entry made in the APAR for the year 2017-18 was never communicated by the respondent to the applicant asking her to represent, the same may not be given effect to and should be ignored, and the applicant should be granted benefit of MACP from the date of her entitlement. 5.8 The applicant states that even during the period of 2017-18, neither was the applicant served with any notice about the deterioration of her performance, nor was served with any show-cause or charge-sheet nor any displeasure with her performance had ever been conveyed to her. The applicant further submits that a bare perusal of the APARs would reveal that the applicant had been awarded below benchmark in APAR of 2017-18 without any reason. Perusal of the APARs would show that for her effectiveness and diligent and honest discharge of duties she has been awarded required benchmark in the other APARs whereas for discharging her duty with the same devotion, she has been awarded below benchmark grade in the APAR of 2017-18. The narrated attributes in APAR of 2017-18 are 9 OA 2074/2021 synonymous with the category of Very Good/ Outstanding. The Reporting Authority's grading of the applicant's performance as 'Good' contradicts the eulogization of the applicant in superlative terms while commenting on the applicant's performance by the Reporting Officer.
Learned Counsel for the applicant submits that the applicant was informed by some of her colleagues in other Department, that their APAR had been specifically communicated to them requiring them to represent within a stipulated time whereas the applicant was never granted that opportunity. 5.9 Learned Counsel for the applicant submits that, after the case of Dev Dutt and Abhijit Ghosh Dastidar, it has become the settled proposition that every entry must be communicated to the employee concerned. The Hon'ble High Court at Calcutta in WPCT no. 398 of 2012 (Suresh Babu vs. Union of India) following the ratio of Dev Dutt and Abjijit Ghosh Dastidar, had been pleased to pass direction for promotion to the petitioner in the said WP with effect from the same date as his immediate junior in service with a further direction for grant of all consequential benefits with effect from the said date. Learned Counsel also cites the case of Vijay Kumar vs. State of Maharashtra & Ors. in 1988 (Supp) SCC 674, State of Gujarat & Anr. vs. Suryakant Chunilal Shah in 1999 (1) SCC 529 and Ramasubbaiah vs. Railway Board & Ors. in OA no. 170/727/2016 decided by the Coordinate Bench at Bengaluru and T. Mang Min Thang vs. Union of India & Ors. in OA 1875/2015 of Kolkata Bench.
6. Per contra, Learned Counsel for the respondents submits that it is the usual practice followed in the respondent organization that the employees of the organization are communicated about their APAR being available for collection and representation by circulating/ affixing a notice on the Notice 10 OA 2074/2021 Board. This practice is followed by all the employees without exception and the APARs are accordingly communicated to each and every employee. In the present case, the applicant had not approached the Appropriate Authority in spite of the notice regarding availability of APAR. Therefore, the applicant cannot take the plea that her APAR was not communicated to her. 6.1 Learned Counsel for the respondents submits that almost every employee of ESIC Hospital, Joka had collected his/her copy of APAR. However, the applicant adopted a casual approach and took her own time to collect the copy of her APAR for the year 2017-18 on 29.07.2019, i.e., after more than one year. Even then, the applicant was supposed to make her representation for her non-acceptance of grading given by the Reporting Authority within 15 days of receipt of the APAR. However, the applicant made a representation after completion of the meeting and proceedings for MACP and circulation of Office Order 87 of 2019 and also after the stipulated time to represent against the APAR grading after receiving the copy of APAR on 29.07.2019. 6.2 Learned Counsel for the respondents submits that the Screening Committee constituted earlier had considered the APAR grading for granting MACP as per 7th CPC. Therefore, only the employees whose APAR gradings were 'Very Good' in the last five years were considered for grant of MACP benefit. Subsequently, the Competent Authority directed the Committee to reconsider the matter in the light of DoPT guideline dated 22.10.2019. Accordingly the Committee reconsidered the matter and issued another Office Order no. 44 of 2020 dated 18.05.2020. Since the applicant possessed lower benchmark in the year 2017-18, the Committee did not consider the name of the applicant for granting MACP benefit as the applicant is not eligible for MACP even in the light of revised guideline dated 22.10.2019. 11 OA 2074/2021 6.3 Learned Counsel for the respondents submits that the applicant being a Staff Nurse, the Reporting Authority of the applicant is a senior Nursing Personnel like Nursing Sister or Assistant Nursing Superintendent (ANS). Awarding grading in an APAR of a subordinate staff by a superior authority is actually the evaluation/ assessment of the work of that particular subordinate staff by his/her superior authority. If the subordinate staff feels that his/her gradation/ recording was not appropriate, then she/he has the right to represent the matter before the Competent Authority to review her/his gradation/ recording within a stipulated time period. In the instant case, the applicant did not follow the same. Hence, the present appeal of the applicant is not justified.
6.4 Learned Counsel submits that the grading in the applicant's APAR was 5.6 which is 'Good' and as the respondent's Reporting Authority found her discharging her duties effectively, 'Good' grading was awarded to her. The grading in APAR is actually the evaluation of performances of an employee by his/her Controlling/ Reporting Authority. Since the APAR grading was 'Good', prior communication to the applicant was not considered necessary. He submits that the grading given in APAR for the period 2017-18 was 'Good' and hence there was no necessity of serving any notice or show cause/ charge sheet about the deterioration of her performance. Since her performance was 'Good' during the period 2017-18 questions of disqualification did not arise. The Reporting Authority may convey/issue Notice to the employee only if the grading in the APAR is below 4 (Average).
6.5 Learned Counsel for the respondents further states that the facts in WPCT no. 398 of 2012 (Suresh Babu vs. Union of India) in Hon'ble High Court at Calcutta are different from the facts in the present case. The case of T. 12 OA 2074/2021 Mang Min Thang vs. Union of India & Ors. is also different from the present case as the actual fact in the stated case is in the matter of DPC for promotion. OA no. 170/1875/2015 is also not similar in nature.
7. Heard both sides. Perused the documents on record.
7.1 The applicant has made the following arguments in support of her claim :-
(i) The applicant has been rated as 'Very Good' in the years preceding 2016-17 and also in the years after 2016-17 on the basis of same subjective assessment as narrated in her APAR for 2016-17. However, she has been rated as 'Good' in 2017-18 for which she has been denied benefits of 1st financial upgradation under MACP scheme. According to the applicant, it shows that due care has not been taken by the Reporting and Reviewing Officers in writing her APAR particularly the one for 2017-18. The applicant submits that she had been graded as 'Very Good' in the preceding years. She further submits that before downgrading her rating in the APAR for 2017-18, she was neither cautioned nor informed that her performance has deteriorated. This is against the ratio laid down in several judicial pronouncements that an employee should be given the opportunity to improve her performance before revising her performance downwards.
(ii) Eligibility for financial upgradation under MACP scheme has been changed from a rating of 'Good' to 'Very Good' in the five years preceding the year in which the employee becomes eligible for consideration for 1st financial upgradation, in the year 2016. Since the five year period in the case of the applicant began in 2014-15, rules in force in 2014-15 should apply while considering her case for 1st financial upgradation under MACP Scheme. In 13 OA 2074/2021 other words, in her case the requirement should be 'Good' in all five years instead of 'Very Good'.
(iii) Respondents did not follow the provisions regarding communication of full APAR as contained in DoPT Circular dated 14.05.2009. She disputes the claim of the respondents that a notice to the effect that APARs were available to all employees was pasted on the Notice Board. She argues that APAR is an assessment of individual's performance and as per the instructions of DoPT, it is to be communicated individually to an employee with a clear stipulation that the employee can make a representation within the specified period for a review of the APAR. Since no such communication was made to the applicant, she was deprived of the right and opportunity to make a representation.
Under the circumstances, respondent's reasons for not considering her representation on the ground of such representation having been made after the stipulated period is untenable. The applicant has cited several judicial pronouncements holding that APAR has to be communicated in full to an employee inviting her representation if she is aggrieved by the entries in APAR including the grading obtained by her. The applicant cites the order of the Hon'ble High Court at Calcutta in Suresh Babu (Supra) where the Hon'ble Court has directed that the applicant who did not have the required grade be granted promotion because the APAR was not communicated to him. 7.2 APAR is a review of the performance of an employee during a particular year. By definition, therefore, it is possible to rate an individual's performance differently in different years. Similarly the grading in APAR is based on an assessment of the employee's performance by her Reporting and Reviewing Officers who are best placed to undertake such assessment. There is a provision for making representation against the entries in the APAR 14 OA 2074/2021 within a stipulated period which is to be considered by the appropriate authority in the department. Ordinarily, in our opinion, there is no scope for a judicial intervention in a matter which is squarely in the domain of the executive. The applicant has no vested right to claim the same grading in her APAR year after year. We find no reason to interfere directly with the entries or gradings in the APAR.
7.3 We also agree with the submissions of the respondents that the APAR is written by the Reporting Officer and the Reviewing Officers who are the concerned employee's direct superiors in the administrative hierarchy. There is no merit in the applicant's claim that since she worked in the OT her APAR should be written by the Doctor(s) in the OT. Similarly, since 'Good' grading is not an adverse assessment unlike 'Average' or 'Poor' grading, the Reporting Officer was not required to caution the applicant regarding her performance. 7.4 Eligibility criteria for grant of financial upgradation under MACP scheme was changed from 'Good' to 'Very Good' in the year 2016 with the stipulation that this change will apply prospectively from 2016-17. DoPT Circular of 22.10.2019 quoted by the respondents is merely a reiteration of the provisions contained in 2016 instructions. In the case of the applicant, even if her APAR gradings were 'Good' in 2014-15 and 2015-16, she would have been eligible for financial upgradation under MACP. We do not find violation of principles of natural justice in the provision revising the eligibility nor in implementation of said provision by the respondents in granting MACP. 7.5 DoPT, following the judgments in Dev Dutt and Abhijit Ghosh Dastidar, issued an OM on 14.05.2009. Para 2 (i) to (iv) of this OM is extracted below :- 15 OA 2074/2021
"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." The para above stipulate that the APAR in full is to be communicated to the employee with the advice that representation, if any is to be made within a specified period. The DoPT OM or any other instruction is however silent on the exact procedure to be followed or the manner in which this communication is to be made. The respondents claim to have made this communication through a notice on notice board, which the applicant vehemently claims not to have seen. The fact remains that the applicant was not aware of her APAR grading in 2017-18 till the first list of employees who were granted financial upgradation was published on 19.07.2019. The applicant prays that the APAR for 2017-18 should be ignored while considering her case for financial upgradation under MACP scheme as was done in the case of Suresh Babu(supra) decided by the Hon'ble High Court at Calcutta. We have gone through the judgment in the said case. In Suresh 16 OA 2074/2021 Babu(supra) , the applicant was denied promotion on account of his ACR grading in the year 2005 which was not communicated to him. It is worth noting here that Suresh Babu(supra), as well as OA no. 1875/2015 of this Bench and OA no. 170/727/2016 decided by the Coordinate Bench in Bengaluru relate to cases of promotion and not grant of financial upgradation under MACP. Suresh Babu(supra) and OA no. 170/727/2016 of Bengaluru Bench of CAT also deal with Performance Reports of the applicant for periods prior to Dev Dutt and Abhijit Ghosh Dastidar and also DoPT OM dated 14.05.2009. We, therefore, do not consider these judgments to be directly relatable to the case in hand.
7.6 As noted above, clear guidelines regarding the modus operandi to be adopted for communicating the APAR to an employee is not available in any of the instructions available on record. The respondents have claimed to have put up a notice on notice board. A copy of the notice has not been made available on record. Respondents have, however, filed documentary evidence to prove that a number of employees did receive their APARs from the Department in 2018 itself, i.e., in time to make representation against APAR entries before the decision on grant of financial upgradation under MACP was taken. There is however, no material on record to indicate that the employees in general and the applicant in particular were advised that they could make representations against the APAR entries within a given period of time. 7.7 At the same time, we do not find any merit in the prayer of the applicant that the APAR for 2017-18 be ignored and MACP benefit be granted on the basis of rest of the APARs. The system adopted by the respondents to communicate the APAR is applicable to APAR for other years also. If APAR for 17 OA 2074/2021 one year is ignored on the ground of its improper communication, all other APARs will also have to be ignored giving rise to an untenable situation. 7.8 In our considered opinion, justice will be served if the respondents are directed to re-examine the points raised in the representation of the applicant with respect to her APAR on its merits. Accordingly, we set aside the speaking order dated 28.05.2021 (Annexure-A/6) issued by the respondents. The applicant is given the liberty to file a fresh representation against the entries and grading in her APAR for the year 2017-18, within a period of 04 (four) weeks from the date of issue of this order. Respondents will consider the representation, if received, on merits, without insisting that the representation is time barred and without the influence of their earlier decision as conveyed by way of speaking order dated 28.05.2021, within a period of 08 (eight) weeks of receiving the representation. If the applicant is found to be eligible for grant of 1st financial upgradation under MACP Scheme, as a result of such re-examination of the representation and the APAR entries, benefits of financial upgradation will be extended to the applicant within a period of 04 (four) weeks thereafter.
8. OA stands disposed of. No order as to costs.
(Suchitto Kumar Das) (Jayesh V. Bhairavia) Administrative Member Judicial Member sl