Document Fragment View

Matching Fragments

                    iii)    Grant all consequential benefits.

                    iv)     Pass such further or other order or orders."
5. For the sake of brevity, the facts of OA/350/0646/2020 (Madhushri Maity @ Madhushri Das) are being delineated and discussed hereunder :

5.1 The applicant joined the service of the respondent as Staff Nurse on 01.06.2009.

6

OA 646/2020, OA 966/2020, OA 1051/2020 5.2 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. The applicant made representations to the authorities on 19.7.2019, 23.9.2019 and4.10.2019. On not getting a positive response from the respondents the applicant has filed this O.A. 6.1 Learned Counsel for the applicant submits that the applicant was not aware of her grading in her APAR for 2016-17 as it was not communicated to her. It was only later that the applicant visited the Matron Office and collected the APARs for the related period. It was only after the applicant obtained the APAR of 2016-17, she became aware of the fact that she had been given 5.8 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 2016-17. In the other 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 2016-17, the same has not elicited any response. 6.2 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.

OA 646/2020, OA 966/2020, OA 1051/2020 7.1 Learned Counsel for the respondents submits that almost every employee of ESIC Hospital, Joka had collected his/her copy of APAR. The applicant collected the copy of her APAR for the year 2016-17 on 14.9.2018. 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 14.9.2018. 7.2 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 2016-17, 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. 7.3 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 OA 646/2020, OA 966/2020, OA 1051/2020 submits that the grading given in APAR for the period 2016-17 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).

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. 8.2 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 OA 646/2020, OA 966/2020, OA 1051/2020 is a provision for making representation against the entries in the APAR 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. We find no reason to interfere directly with the entries or gradings in the APAR.

8.3 We also agree with the submissions of the respondents that since 'Good' grading is not an adverse assessment unlike 'Average' or 'Poor' grading, the Reporting Officer had no occasion to caution the applicant regarding her performance.

8.4 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. 8.5 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 :-