Allowed

The Union of India, v. Shri Brahm Dev Prasad

Telangana HC28 Oct 2014WP/24127/2007

Case brief

AI extract

What is this about?

The High Court addressed writ petitions concerning financial up-gradation under the Assured Career Progression (ACP) scheme. It held that failure to communicate Annual Confidential Report entries to employees is arbitrary and violates Article 14, thereby prohibiting their use for up-gradation. Consequently, the petitioner in W.P.No.26126 of 2007 was granted the benefits.

What did the court decide?

Petitioner in W.P.No.26126 of 2007 granted 1st and 2nd financial up-gradations effective from date of juniors' benefit.

The Union of India, Vs Shri Brahm Dev Prasad — Pension and Retirement Benefits | Telangana HC (2014)

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THE HON'BLE SRI JUSTICE K.C.BHANU AND

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THE HON’BLE SMT JUSTICE ANIS

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WRIT PETITION Nos.24127 AND 26126 OF 2007

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COMMON ORDER:- (per Hon’ble Sri Justice K.C.Bhanu)

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W.P.No.24127 of 2007 is filed under Article 226 of the Constitution of India to call for the records relating to the order, dated 20.03.2007, in Original Application No.546 of 2004 passed by the Central Administrative Tribunal, Hyderabad Bench, Hyderabad (for short, ‘the Tribunal’) and quash the same. W.P.No.26126 of 2007 is filed to call for the records relating to the order, dated 28.03.2005, in O.A.No.321 of 2004 passed by the Tribunal and quash the same and consequently, direct the respondent to promote the petitioner under the Assured Career Progression (ACP) scheme on par with the juniors and extend benefits like Productive Link Bonus increments etc.

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2. Brief facts that are necessary for disposal of the present Writ Petitions may be stated as follows:

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Respondent in W.P.No.24127 of 2007 was appointed as Compositor-II on 16.01.1978 in the office of Flag Officer, Commandingin-Chief, Eastern Naval Command, Naval Base, Visakhapatnam. Later he was promoted as Compositor-I on 20.04.1984. Though he had completed 20 years of service, he was not conferred benefits under the ACP Scheme. He submitted representations to that effect, but there was no response. Hence, he filed O.A.No.546 of 2004 before the Tribunal, which was allowed directing the petitioners herein to consider the case of the respondent for grant of 2^nd financial upgradation by calling review Departmental Screening Committee within a period of two months from the date of communication of that order. Challenging the same, Government filed W.P.No.24127 of

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2007.

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3. Petitioner in W.P.No.26126 of 2007 was appointed as Graining Operator on 15.01.1979 in the Civil Post and he was not given any financial up-gradation even though he had completed 25 years of service, for want of channel of promotion. Respondents herein have introduced ACP scheme, under which he is entitled to get two financial up-gradations as his service record is unblemished. He made representations to the authorities, but of no avail. When a minor charge sheet was issued to him, he filed O.A.No.519 of 2001 before the Tribunal and the Tribunal by its order, dated 24.09.2003, quashed the charge sheet. Challenging the said order, respondents filed review and the same was dismissed. Aggrieved by not giving the benefit under ACP Scheme, he filed O.A.No.321 of 2004, which was rejected vide impugned order, dated 28.03.2005.

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4. In both the Writ Petitions, the plea of the Government is that the case of the petitioner in W.P.No.26126 of 2007 and the case of the respondent in W.P.No.24127 of 2007 were not considered under ACP Scheme after completion of 12/25 years for 1^st and 2^nd financial upgradation respectively as they were found not fit by the Departmental Screening Committee. Government of India, Department of Personnel and Training vide Office Memorandum No.35034/1/97 Estt(D), dated 09.08.1999, held that if a Government servant was appointed on a regular basis and if he has not got promotion even after 12 years of service, then he is entitled to up-gradation to the next higher grade of pay by grant of 1^st financial up-gradation. It was also held that the Departmental Screening Committee has to assess the suitability on the basis of confidential reports of five preceding years for recommendation of ACP scheme. As per the scheme, assessment of five years of an individual should be ‘Good’. Case of the petitioner in W.P.No.26126 of 2007 has not been considered by the Departmental

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Screening Committee because he has not got the bench marks in pursuance of the confidential reports of five years.

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5. The Tribunal in the impugned orders held that as entries in the ACRs have not been communicated to the applicants in the Original Applications, they cannot be taken into consideration for the purpose of conferring 1^st and 2^nd second financial up-gradation and allowed W.P.No.24127 of 2007 and dismissed W.P.No.26126 of 2007.

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6. The short point that falls for consideration in these two Writ Petitions is whether the entries in ACRs are required to be communicated to the employees, and if not communicated, can they be taken into consideration for the purpose of granting 1^st and 2^nd financial up-gradation.

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7. Learned counsel, representing the Assistant Solicitor General, vehemently contended that as per the Rules there is no need to communicate entries in the ACRs to the employees; that as per the scheme, the Departmental Screening Committee has to assess the suitability of the candidates for granting financial up-gradations; that as the petitioner in W.P.No.26126 of 2007 has not come within the bench mark prescribed under the Rules, his case has not been considered and therefore, he prays to allow W.P.No.24127 of 2007 and dismiss W.P.No.26126 of 2007.

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8. On the other hand, learned counsel appearing for the petitioner in W.P.No.26126 of 2007 contended that every entry, whether it is ‘good’, ‘satisfactory’, ‘average’, or ‘below average’, should be communicated to the employee so that he can improve his work; that in the absence of communication of entries in the ACRs, the same cannot be taken into consideration for the purpose of granting upgradation; that the scheme under ACP does not indicate that there was no need to communicate entries in the ACRs to employee and

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therefore, she prays to allow W.P.No.26126 of 2007. She also placed reliance on a judgment of the Honourable Supreme Court in DEV DUTT V. UNION OF INDIA AND OTHERS^[1] , which will be referred to at appropriate time.

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9. Facts are not in dispute. Case of respondent in W.P.No.24127 of 2007 is that he was given 1^st financial up-gradation after completion of 12 years. It is not in dispute before this Court that he also completed 25 years of service even before filing of Original Application No.546 of 2004. In terms of ACP scheme, he is entitled to 2^nd financial upgradation.

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10. Insofar as petitioner in W.P.No.26126 of 2007 is concerned, though he had completed 12 years of service as well as 24 years of service, 1^st and 2^nd financial up-gradations have not been granted to him. The specific case of the department is that because the Departmental Screening Committee did not find the applicants fit for grant of financial up-gradation, it has not extended the benefit under the scheme.

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11. Government had introduced ACP Scheme for Central Government Employees with effect from 09.08.1999 vide GOI DOP &T OM No.35034/1/97-Estt (D), dated 09.08.1999.

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a) A Government servant appointed on regular basis to a post and if he has not got promotion even after 12 years regular service, is entitled for up gradation of his pay to next higher grade pay scale by grant of 1^st ACP

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b) If a Government servant initially appointed on regular basis to a post and did not get 2^nd promotion even after completion of 24 years of regular service, he is entitled for 2^nd up gradation of next higher grade pay scale by grant of 2^nd ACP.

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c) If an employee has got one regular promotion he is entitled for the second financial up gradation only on completion of 24 years of regular service under the ACP

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scheme.

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The following are the guidelines for grant of 1^st and 2^nd ACP:a) The Government servant should have 12/24 years regular service for grant of 1^st and 2^nd ACP respectively. b) The Government Servant should fulfill the normal promotion norms such as Bench Mark prescribed for promotion based on preceding five years performance and qualified in Departmental qualifying examination where applicable.

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c) A Board of Officers shall be appointed as Departmental Screening Committee (DSC) for assessing the candidates for grant of ACP.

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d) The Departmental Screening Committee shall assess the candidates as per the guidelines laid down at para 6.2.1 of DPC proceedings (copy enclosed) (AnnexureIII). As per the same, the Government servant should fulfill the normal promotional norms.

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e) As per the guidelines laid down in para 6.2.1 of DPC proceeding the Screening Committee has to assess the suitability on the basis of assessment reports of five preceding years for recommending ACP. (Basing on last five assessment reports the individual should be graded as GOOD equivalent to six marks for Industrial Staff by the Departmental Screening Committee).

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f) If the Government servant is under disciplinary proceedings, the Screening Committee shall keep the recommendations in a sealed cover (if selected) and the same will be acted upon only on finalization of disciplinary proceedings and on completion of punishment period, if punishment awarded.

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12. Petitioner in W.P.No.26126 of 2007 did not get 1^st and 2^nd financial up-gradation though he had completed 12/25 years of service respectively, whereas respondent in W.P.No.24127 of 2007, had already got 1^st financial up-gradation and he is seeking for grant of 2^nd financial up-gradation under the ACP scheme. Only ground taken by the Department is that as the petitioner and respondent in the Writ Petitions have not secured the minimum bench mark in preceding five

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years and therefore, they are not entitled to financial up-gradation. 13. Admittedly, entries like ‘average’, ‘good’’, ‘very good’ have not been communicated to petitioner as well as to the respondent. Learned counsel for petitioner in W.P.No.26126 of 2007 placed reliance on a judgment of the Honourable Supreme Court in DEV DUTT’s case (1supra), wherein it was held thus (paras 10, 13 and 41):

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“10. Hence, in our opinion, the “good” entry should have been communicated to the appellant so as to enable him to make a representation praying that the said entry for the year 1993-94 should be upgraded from “good” to “very good”. Of course, after considering such a representation it was open to the authority concerned to reject the representation and confirm the “good” entry (though of course in a fair manner), but at least an opportunity of making such a representation should have been given to the appellant, and that would only have been possible had the appellant been communicated the “good” entry, which was not done in this case. Hence, we are of the opinion that the non-communication of the “good” entry was arbitrary and hence illegal, and the decisions relied upon by the learned counsel for the respondent are distinguishable.

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13. In our opinion, every entry (and not merely a poor or adverse entry) relating to an employee under the State or an instrumentality of the State, whether in civil, judicial, police or other service (except the military) must be communicated to him, within a reasonable period, and it makes no difference whether there is a benchmark or not. Even if there is no benchmark, noncommunication of an entry may adversely affect the employee’s chances of promotion

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(or getting some other benefit), because when comparative merit is being considered for promotion (or some other benefit) a person having a “good” or “average” or “fair” entry certainly has less chances of being selected than a person having a “very good” or “outstanding” entry. 41. In our opinion, noncommunication 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 military), certainly has civil consequences because it may affect his chances for promotion or get other benefits (as already discussed above). Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution.”

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From the above decision, it is clear that every entry whether it is “good” or “satisfactory” should be communicated to the employee when the bench mark is prescribed. In the absence of communication of adverse entry, it amounts to violation of principles of natural justice. Therefore, non-communication of entries in the ACRs amounts to illegality and thereby violation of Article 14 of the Constitution of India.

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14. But, the learned counsel, representing the Assistant Solicitor General, contended that the decision relied upon by the learned counsel for the petitioner has no retrospective effect and therefore, it is not applicable to the present facts of the case. But, we are unable to accept the said contention for the reason that entries in the ACRs have to be communicated by the Department for conferring the benefits i.e., 1^st and 2^nd financial up-gradation because it will have a serious impact with regard to grant of financial benefits during the course of service or will have an effect on retirement benefits. Though the Department has taken up a plea that there was no need to communicate entries in the ACRs, there is no Rule or Circular

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instructions brought to our notice that entries in the ACRs need not be communicated to the employees. In the absence of any such Rule or Official Memorandum, employer is bound to communicate the entries in the ACRs, so that employees can rectify their mistake, if any, and improve their performance in discharging duties. Such a communication has not been, admittedly, made and thereby it amounts denial of their right to represent the same before the competent authority. Therefore, it amounts to violation of Article 14 of the Constitution of India and violation of principles of natural justice. The employer ought not to have taken into consideration the entries made in the ACRs of the both the petitioner in W.P.No.26126 of 2007 and respondent in W.P.No.24127 of 2007. Therefore, the impugned order in W.P.No.26126 of 2007 is liable to be set aside, whereas, the impugned order in W.P.No.24127 of 2007 needs no interference as none of the finding is shown to be perverse or contrary to law and the findings are based upon proper appreciation of evidence on record.

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15. Accordingly, W.P.No.26126 of 2007 is allowed and the petitioner is entitled to 1^st up-gradation on completion of 12 years of service and 2^nd financial up-gradation on completion of 24 years. We direct the respondents in W.P.No.26126 of 2007 to extend 1^st and 2^nd financial up-gradations to the petitioner after completion of 12/24 years of service respectively. But, the financial up-gradations should be given from the date on which his juniors were given such benefit and from that day onwards the petitioner is entitled for the same. W.P.No.24127 of 2007 filed by the Department is dismissed. There shall be no order as to costs. Miscellaneous petitions, if any, pending in these two writ petitions shall stand closed.

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JUSTICE K.C.BHANU

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OCTOBER 28, 2014 YVL

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JUSTICE ANIS

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THE HON'BLE SRI JUSTICE K.C.BHANU AND

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THE HON’BLE MRS JUSTICE ANIS

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WRIT PETITION Nos.24127 AND 26126 OF 2007