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4. Per contra, Mr. R.K. Sharma, learned counsel for the respondents did not dispute the main facts of the case. By Item No.28/C-1 OA No. 2421/2019 referring to the counter affidavit, he drew our attention to the service particulars of the applicant, which are as under:
Sl. Particulars Date with
No. effect from
1. Date of Birth 01.12.1958
2. Date of Joining 12.11.1979
3. Due date of 3rd 12.11.2009 After completion of 30
MACP (as per years of service
rule)
4. Actual due date 09.08.2011 Because of 635 days of
of 3rd MACP Dies Non period in his
service.
5. Date of grant of 01.04.2016 Found unfit during
3rd MACP yearly assessment from
2011 to 2015 due to
below benchmark
ACRs/ APARs
The learned counsel submitted that 3rd financial upgradation was due to the applicant w.e.f. 12.11.2009 but the same was deferred to 09.08.2011 due to 635 days of dies non period, however, the same was granted to him w.e.f. 01.04.2016 as he was found 'unfit' during the annual assessment for the years 2011 to 2015, due to below benchmark ACRs/APARs.
5. However, learned counsel for the applicant opposed the submissions made by the respondents' counsel and contended that the ACRs/APARs for the assessment years 2005-06 to 2009-10 were never communicated to the applicant and the same were communicated only on 17.02.2017. Thereafter, the applicant preferred representation Item No.28/C-1 OA No. 2421/2019 dated 27.02.2017 to the Competent Authority to review the below benchmark ACRs/APARs, which was considered by the respondents and the same were upgraded to the required benchmark, as communicated vide letters dated 18.10.2017 and 23.02.2018. The learned counsel further contended that if the applicant had earlier been communicated about the below benchmark assessment in his ACRs/APARs, he would have an opportunity to make representation to upgrade the same in time. He has also placed reliance upon the decision of Hon'ble Supreme Court in Anil Kumar vs Union of India & Ors. in Civil Appeal No.888 of 2019 (Arising out of SLP(C) No. 32073 of 2016) dated 21.01.2019, which has affirmed the correctness of the view taken in Dev Dutt vs Union of India and Others, 2008 (8) SCC 725, and three Judge Bench decision in Sukhdev Singh vs Union of India & Ors. in Civil Appeal No.5892 of 2006 decided on 23.04.2013. The learned counsel for the applicant has also referred to various OMs issued by the DoPT on the subject.
8. However, the stand taken by the respondents is that the case of the applicant was considered by Screening Committee in the meeting held on 25.10.2016 but he was found 'unfit' due to below benchmark ACRs/APARs and, accordingly, he was communicated in this regard with copies of those ACRs/APARs to get the same reviewed. The 3rd financial upgration was not denied to him but only postponed due to his below benchmark ACRs/APARs, which is based on the extant rules.
Item No.28/C-1 OA No. 2421/2019
15. In normal practice, when adverse remark or below benchmark grading or downgraded ACR is communicated to an officer who has received such remarks in his ACR, he submits a representation against such remarks to the competent authority for upgradation. In the present case, the below benchmark ACRs/APARs were communicated to the applicant on 17.02.2017 and he represented to the Competent Authority for upgradation of the same on 27.02.2017, which was judiciously considered by the Competent Authority and upgraded the same. Therefore, we are of the considered opinion that had the applicant been earlier communicated about the below benchmark assessment in his ACRs/APARs, he would have made representation to upgrade the same timely and thus got entitled for 3rd MACP w.e.f. 09.08.2011.