v) Grant such other relief, which this
Honourable tribunal may deem fit and proper in
the circumstances of the case."
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2. The case in brief as set up in the O.A. was
that petitioner - applicant had on 31.10.2013 retired as
Mate, while working in Chennai Unit of Central Institute
of Fisheries Nautical and Engineering Training (CIFNET).
He had expressed the grievance with regard to non
granting of the third Modified Assured Career
Progression Scheme (MACP Scheme) and came to know
in 2011 that owing to the ACRs of 2005-06, 2006-07,
2007-08 and 2008-09, the said benefit was withheld.
3. The MACP Scheme came into effect in
1999 and it was modified on 01.09.2008 effective from
01.01.2006. The benefit of two financial upgradation was
granted under the erstwhile Scheme. As regards the
case, in 2012 applicant had, prior to the retirement, filed
O.A.No.817 of 2012 before the tribunal by challenging
the action of the respondents in issuing of several
adverse remarks in the ACR of 2009-2010. Learned
Tribunal vide judgment dated 14.08.2015 dismissed the
case, review application filed was also rejected, thus, the
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matter reached this court in O.P.(CAT) No.185 of 2016.
4. Noticing the rival contentions, this Court
in paragraph No.10 of the judgment, noticed that on the
communication/memos sent to the applicant vide
Annexures R1 to R10 therein only pointed out the
deficiency in service but not with regard to the adverse
remarks. It was also noticed that from 1980 till 2009, no
adverse were forthcoming through the reply statement
filed by the respondents. The aforementioned
observations were based upon the pleading in
O.A.No.817 of 2012, though, by that time, the adverse
entries of 2011, 2005 and 2009 had already been
communicated after a lapse of number of years. Noticing
all these facts, this Court allowed the O.A. by holding that
the applicant was not given opportunity before entering
the adverse remarks.
5. The dispute as noticed above is
pertaining to the order dated 03.08.2011 Annexure A9
whereby the applicant - petitioner was communicated
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adverse entries from 2005-06 to 2008-2009, which was
represented to and resulted into rejection vide order
dated 20.03.2017 which was assailed before the tribunal.
On perusal of the order of rejection of the representation
as well as order of the tribunal, prima facie, we are of the
view that the order of tribunal is a 'cut copy paste' of the
order rejecting the representation. For the sake of
brevity, we reproduce paragraph No.3 of the order
Annexure A15 dated 20.03.2017 rejecting the
representation and Paragraph Nos.5 and 6 of the order
rejecting the O.A., dated 06.11.2019 Ext.P4:
"(3) In compliance of the Hon'ble Tribunals above said
order dated 03-03-2016 the matter regarding the third
level financial upgradation under the MACP scheme
i.r.o Shri V,J Xavier to the pay band PB-3-Rs.15600-
39100 with grade pay of Rs.7600/- w.e.f 06-06-2010
has been considered and disposed by the Departmental
Screening Committee, as given below:
(7) (i) The Committee has examined the
relevant service records of Shri V.J Xavier. The
ACRs of Shri V.J Xavier for the period from
2005-06 to 2009-10 prior to and after reviewing
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has been scrutinized. It is observed that Shri
V.J Xavier has been given opportunity to
represent on the ACR's and based on his
representations in this regard the ACR's have
been reviewed and the matter communicated to
him. Shri V.J Xavier has been allowed the
financial upgradations under the earlier ACP
scheme (vide Annexure A6 dated 02-11-2010 of
the O.A No.750/2012) based on the Order dated
16-12-2009 in Ο.Α No.14/2009 of the Hon'ble
CAT, Ernakulam Bench and theOrder dated 16-
08-2010 in W.P No.25725/2010(S) of the
Hon'ble High Court of Kerala. The said Orders
have been carefully scrutinized and it is found
that the same are not found applicable for the
financial upgradation under the MACPs of Shri
V.J Xavier since he has already been
communicated the ACR's for the relevant
periods, i.e 2005-06 to 2009-10, and his
representations on the same have been
considered and the ACR's have been reviewed
by the competent authorities and
communicated to him. Even after review of all
the relevant ACR's, Shri V.J Xavier does not
meet the benchmark of 'Very Good' required as
per para 17 of Annexure-1 of the DOPT O.M
dated 19-05-2009 for the financial upgradation
to the grade pay of Rs. 7600/-.
(ii) On the applicability of the DOPT O.M
No.35034/3/2008-Estt(D) Vol-II dated 04-10-
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2012 which reads as "2. (ii) Benchmark for
MACP scheme.....under MACP scheme", the
same has been perused and it is found that Shri
V.J Xavier was granted the two financial
upgradations under the earlier ACP Scheme i.e
the first financial upgradation to that of the
next promotional post of Mate and the second
financial upgradation to the pay scale of the
second promotional post of Skipper since under
ACP scheme the financial upgradation is
allowed to the pay scale of the next promotional
post. There are no further promotional post for
Shri V.J Xavier. His third MACP is considered to
the grade pay of Rs.7600/- which is merely the
next immediate higher grade pay in the
hierarchy of the recommended revised pay
bands and grade pay, and this grade pay is not
that of a promotional post on non-selection
basis of Shri V.J Xavier nor that of a
promotional post of Shri V.J Xavier which
requires a benchmark lower than that
prescribed in the MACP scheme. Hence the
said DOPT O.M dated 04-10-2012 is not
applicable for the financial upgradation of Shri
V.J Xavier under the MACP scheme.
(iii) Due to the above reasons it is observed that
Shri V.J Xavier is not fit for the third financial
upgradation as per the MACP scheme to the
pay band PB-3-Rs. 15600-39100 with grade pay
Rs. 7600/-.
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(8). The committee therefore on the basis of the
ACRs and other relevant records and for the
reasons at para 7 above does not recommend
the third financial upgradation under the MACP
scheme to Shri V.J Xavier, Mate (Retired).
In view of the above, Shri V.J Xavier, Mate (Retired) is
not found eligible for the 3rd level financial upgradation
under the MACP scheme to the pay band PB-3-Rs.15600-
39100 with grade pay of Rs.7600/-."
Ext.P4
"5. The grievance of the applicant in the present case
is that he has not been granted the 3rd financial
upgradation despite having the requisite grading in
the ACR's except the adverse which were not
communicated to him. He should have been
considered for the 3rd financial upgradation and
granted the 3rd financial upgradation but on the
contrary the Department points a different picture
altogether and submitted that the applicant is not
having the requisite grading which is "very good".
The applicant is having only 4 "good" and one "below
average" reports. The applicant is seeking the 3rd
financial upgradation in PB-3 Rs. 15,600-39,100/-
with Grade Pay of Rs. 7,600/-. The case of the
applicant was duly considered by the screening
committee which observed as under:
"(7)(i) The Committee has examined the relevant
service records of Shri V.J. Xavier. The ACRs of
Shri V.J. Xavier for the period from 2005-06 to
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2009-10 prior to and after reviewing has been
scrutinized. It is observed that Shri V.J. Xavier
has been given opportunity to represent on the
ACR's and based on his representations in this
regard the ACR's have been reviewed and the
matter communicated to him. Shri V.J. Xavier has
been allowed the financial upgradations under
the earlier ACP scheme (vide Annexure A6 dated
2.11.2010 of the OA No. 750/2012) based on the
order dated 16.12.2009 in OA No. 14/2009 of the
Hon'ble CAT, Ernakulam Bench and the order
dated 16.8.2010 in WP No. 25725/2010 (S) of
theHon'ble High Court of Kerala. The said orders
have been carefully scrutinized and it is found
that the saine are not found applicable for the
financial upgradation under the MACPs of Shri
V.J. Xavier since he has already been
communicated the ACR's for the relevant periods,
i.e. 2005-06 to 2009-10, and his representations
on the same have been considered and the ACR's
have been reviewed by the competent authorities
and communicated to him. Even after review of
all the relevant ACR's Shri V.J. Xavier does not
meet the benchmark of 'Very Good' required as
per para 17 of Annexure-1 of the DOPT OM dated
19.5.2009 for the financial upgradation to the
grade pay of Rs. 7600/-.
(ii) On the applicability of the DOPT OM No.
35034/3/2008-Estt(D) Vol-II dated 4.10.2012
which reads as "2(ii) Benchmark for MACP
scheme...... under MACP scheme", the same has
been perused and it isfound that Shri V.J. Xavier
was granted the two financial upgradations under
the earlier ACP scheme i.e. the first financial
upgradation to that of the next promotional post
of Mate and the second financial upgradation to
the pay scale of the second promotional post of
Skipper since under ACP scheme the financial
upgradation is allowed to the pay scale of the
next promotional post. There are no further
promotional post for Shri V.J. Xavier. His third
MACP is considered to the grade pay of Rs.
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7,600/-which is merely the next immediate higher
grade pay in the hierarchy of the recommended
revised pay bands and grade pay, ad this grade
pay is not that of a promotional post on non-
selection basis of Shri V.J. Xavier nor that of a
promotional post of Shri V.J. Xavier which
requires a benchmark lower than that prescribed
in the MACP scheme. Hence, the same DOPT OM
dated 4.10.2012 is not applicable for the financial
upgradation of Shri V.J. Xavier under the MACP
scheme."
6. The respondents submitted that the allegation of
arbitrary and illegality in withholding the 3rd
financial upgradation is baseless. After considering
the rival contentions in the present case and on the
perusal of the records this Tribunal is of the view
that applicant's ACRs are not up to the mark for
grant of the 3rd financial upgradation. Even if we
consider the submission of the applicant that the
bench mark for the grant of 3rd financial
upgradation as per the OM dated 4.10.2012 is
"Good" instead of "VeryGood", then also the
applicant is not eligible. Applicant has preferred
appeal against the said remarks which were also not
found in favour by the concerned authority who had
rejected the appeal against the adverse remarks.
This Tribunal cannot assume the role of
administrative authority in this regard."
6. Learned Tribunal has not noticed the
case from records that adverse entry has to be
immediately communicated to the employees and not in
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the manner and mode where the party had been litigating
for communication of adverse remarks since 2009, which
was found to be untenable by this Court in the judgment
dated 10.03.2023 in O.P.(CAT) No.185 of 2016. Though
an attempt was made to correct the adverse entries on
their own of one of the financial year, the fact remains no
opportunity during all these periods was given as the
adverse entries kept in the archives of the department
upto 2011. There has to be a proper and reasonable
opportunity within a reasonable period. Moreover, it
appears that somebody in the department had been
nursing rancour against the applicant for denying the
benefit.
7. In our considered view, the finding of the
tribunal is not in consonance with the settled proposition
of law as well as the fact that in the previous round of
litigation up to this court, adverse entries in ACR of 2019
has also been rejected for want of sufficient opportunity.
We, accordingly, set aside the order of the
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tribunal and allow the O.A. Consequently the present
O.P(CAT) is also allowed and direct the respondents to
grand third MACP eligible to the petitioner - applicant
irrespective of the alleged adverse entries in 2005 to
2009, within a period of one month from the date of
receipt of the certified copy of the judgment.
Sd/-
AMIT RAWAL
JUDGE
Sd/-
K. V. JAYAKUMAR
JUDGE
vv
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APPENDIX OF OP (CAT) 73/2020
PETITIONER ANNEXURES
ANNEXURE A1 TRUE COPY OF THE OFFER OF APPOINTMENT
ORDER NO. F.13-15/79 ADM. DATED
9.5.1980 ISSUED BY THE 2ND RESPONDENT.
ANNEXURE A2 TRUE COPY OF THE ORDER NO.
PF.302.ADM.DATED 28.06.1980 OF THE 2ND
RESPONDENT.
ANNEXURE A3 TRUE COPY OF THE ORDER NO. 13016/02
ADM. DATED 15.9.2003 OF THE SECOND
RESPONDENT.
ANNEXURE A4 TRUE COPY OF THE ORDER DATED
16.12.2009 IN O.A. NO. 14 OF 2009
PASSED BY THIS HONBLE TRIBUNAL.
ANNEXURE A5 TRUE COPY OF THE JUDGMENT DATED
16.8.2010 WPC NO. 25725 OF 2010 PASSED
BY THE HONBLE HIGH COURT OF KERALA.
ANNEXURE A6 TRUE COPY OF THE ORDER NO. 14-1/2009-
ADM. DATED 2.11.2010 ISSUED BY THE 2DN
RESPONDENT.
ANNEXURE A7 TRUE COPY OF THE REPRESENTATION DATED
6.5.2011 SUBMITTED BY THE APPLICANT TO
THE 2ND RESPONDENT.
ANNEXURE A8 TRUE COPY OF THE ORDER PF NO. 269/ADM-
VOL -II/ADM DATED 16.8.2011 OF 3RD
RESPONDENT.
ANNEXURE A9 TRUE COPY OF THE MEMORANDUM F.NO. 5-
1/201/APAR DATED 3.8.2011 OF THE THIRD
RESPONDENT WITH ACRS OF THE APPARITION
FOR THE YEARS 2005-06, 2006-07, 2007-
08 AND 2008-09.
ANNEXURE A10 TRUE COPY OF THE REPRESENTATION DATED
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12.8.2011 SUBMITTED BY THE APPLICANT.
ANNEXURE A11 TRUE COPY OF THE REPRESENTATION DATED
26.8.2011 SUBMITTED BY THE APPLICANT.
ANNEXURE A12 TRUE COPY OF THE MEMORANDUM F.NO. 5-
1/2013 APAR DATED 9.10.2013 OF THE 4TH
RESPONDENT.
ANNEXURE A13 TRUE COPY OF THE OFFICE MEMORANDUM NO.
35034/3/2008-ESTT) (VOL.II), DATASET
4.10.2012 ISSUED FROM THE OF ICE OF
PERSONNEL, PUBLIC GRIEVANCES AND
PENSIONS.
ANNEXURE A14 TRUE COPY OF THE ORDER OF HONBLE
CENTRAL ADMINISTRATIVE TRIBUNAL IN OA
NO. 750/2012 DATED 3.3.2016.
ANNEXURE A15 TRUE COPY OF THE ORDER NO.
14-5/2012/ADM/595 DATED 20.3.2017 OF
THE SECOND RESPONDENT.
EXHIBIT P1 TRUE COPY OF THE OA NO. 180/00802/2017
FILED BY THE PETITIONER ALONG WITH
ANNEXURES.
EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT DATED
6.7.2018.
EXHIBIT P3 TRUE COPY OF THE REJOINDER DATED
23.9.2018.
EXHIBIT P4 TRUE COPY OF THE ORDER OF THE CENTRAL
ADMINISTRATIVE TRIBUNAL, ERNAKULAM
BENCH IN OA NO. 180/00802/2017 DATED
6.11.2019.
