Delhi High Court
Union Of India Through Secretary & ... vs Dhum Singh & Ors on 3 February, 2012
Author: Badar Durrez Ahmed
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on 03.02.2012
+ W.P.(C) 662/2012
UNION OF INDIA THROUGH SECRETARY & ORS. ... Petitioners
versus
DHUM SINGH & ORS. ... Respondents
Advocates who appeared in this case:
For the Petitioners : Ms Sonia Sharma
For the Respondents : Respondent-in-Person.
CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE G.P.MITTAL
BADAR DURREZ AHMED (ORAL)
CM 1432/2012(exemption)
Allowed, subject to all just exceptions.
The application stands disposed of.
W.P.(C) 662/2012 & CM 1431/2012(stay)
1. This writ petition is directed against the order dated 07.09.2011 passed in
OA No.1620/2011 by the Central Administrative Tribunal, Principal Bench, New
Delhi, whereby the said Original Application of the respondent No.1 was partly
allowed by directing that the condition of below benchmark ACRs ought not to be
considered and that he be granted the Assured Career Progression (ACP) benefits
from 09.08.1999 along with arrears and re-fixation of the retiral dues. The
Tribunal, however, did not grant the respondent interest, award of damages and
costs as the same were found to be unacceptable in the given circumstances.
2. The respondent No.1 had initially been appointed through the UPSC in 1973
as an Assistant Research Officer under the respondent No.3. That post was a
Group 'B' post. In 1999, he was promoted as Dairy and Agriculture Chemist
which post was in the grade of Rs 10,000-325-15200. The respondent No.1 took
voluntary retirement on 31.7.2000. Pursuant to the Fifth CPC recommendations,
the ACP Scheme was introduced with effect from 09.08.1999. The respondent
No.1 claimed that he was entitled for the second financial upgradation in the grade
of Rs.12000-375-16500 on completion of 24 years of service. The respondent
No.1 had been agitating the said claims and had filed Original Applications and
representations. The representations of the respondent No.1 were rejected from
time to time because the benefits under the ACP Scheme were restricted to Group
'B' employees only and had not been extended to Group 'A' employees. Since the
respondent No.1 had already been promoted to a Group 'A' post, the benefits were
not extended to him. However, in the light of his repeated requests, the claim of
the respondent No.1 had been forwarded to the Ministry of Defence and in
consultation with the DoPT, a view had been taken to consider his case for grant of
ACP on a special basis. This was because the said post was an isolated one and
there were no further promotional avenues for the officers of Group 'A'.
3. Accordingly, the matter had been considered by the Screening Committee
but the petitioners' case was not accepted inasmuch as the requisite benchmark
grading for the said scale being five overall gradings of "Very Good" had not been
attained by the respondent No.1.
4. The only point of contention before the Tribunal and before us is whether the
non-attainment of the benchmark could be held against the respondent No.1 in
view of the fact that the relevant ACRs had not been communicated to him. Even
before the Tribunal, the respondent No.1 had contended that the said remarks in the
ACRs have never been communicated to him. It is noted in the impugned order
that though the learned counsel for the petitioners herein made an oral submission
to the contrary, there was no supporting averment in the counter-affidavit or any
documentary proof of the ACRs having been communicated to the respondent No.1
prior to his retirement. It is in the absence of communication of the said ACRs that
the Tribunal came to the conclusion that the same could not be relied upon to deny
the benefits of the ACP Scheme to the respondent No.1. The exact words used by
the Tribunal are as under:-
"9. As per the settled proposition of law, denial of a
service benefit otherwise due to an employee, on the basis of
un-communicated ACR, would be violative of the principles
of natural justice.
Ordinarily, in such a situation, as per the law laid
down by the Apex Court in Dev Dutt's case, the natural
course for us would have been to issue directions to the
respondents to communicate to the officer the below
benchmark uncommunicated ACRs on account of which he
had not been found fit for the ACP benefits. In the given
circumstances, such an exercise would tantamount to be a
futile one. This is because the rationale behind
communication of the ACRs in question is to give a
meaningful opportunity to the employee to be able to
represent against them and to the employer to consider them
taking into account the comments of the assessing
authorities. However, given the fact that these ACRs would
now pertain to a period more than 10-15 years back, no
useful purpose would, therefore, be served. We also note
that as per the Screening Committee Minutes, there is no
other bar against the applicant. The fact of the present OA
being the third round of litigation, the applicant being a
senior citizen and the denial of ACP affecting the pensionary
dues also weigh with us.
In the totality of the circumstances, the impugned
orders are set aside. We find the present one a fit case to
give the respondents directions to ignore the below
benchmark ACRs and grant him the ACP benefit from
9.8.1999 along with arrears and re-fixation of the retiral
dues. However, the prayers for the interest, award of
damages and costs are not found to be acceptable in the
given circumstances.
Thus, the OA is partly allowed in terms of our
aforesaid directions which are to be complied with by the
respondents within a period of three months from the date of
receipt of a copy of this order. No order as to costs."
5. For the first time, the ACRs were sought to be communicated on 25.04.2011.
However, the respondent No.1, who is present in person, states that the ACRs were
never communicated and it is only through the order dated 06.04.2011 that he was
informed that his ACRs were below the benchmark. It is in this backdrop that the
Tribunal has concluded that the ACRs cannot be looked at for denying the ACP
benefits to the respondent No.1.
6. Consequently, the Tribunal, after setting aside the order impugned before it,
directed that the present case was a fit one in which the respondents ought to be
directed not to take the below benchmark ACRs into consideration inasmuch as the
same had not been communicated to the respondent No.1. Resultantly, the
Tribunal directed that the ACP benefits should be given to the respondent No.1
from 01.08.2011 along with the arrears and re-fixation of the retiral dues.
7. We see no reason to interfere with the impugned order as we find no
illegality in the same. The writ petition is dismissed. There shall be no order as to
costs.
BADAR DURREZ AHMED, J
G.P.MITTAL, J
FEBRUARY 03,2012
'sn'
