Uttarakhand High Court
SPA/359/2022 on 21 April, 2023
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
AND
THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA
SPECIAL APPEAL NO. 359 OF 2022
21ST APRIL, 2023
Between:
Union of India through
Ministry of Finance & others ...... Appellants
and
Uday Singh ...... Respondent
Counsel for the appellants : Mr. D.C.S. Rawat, learned Standing
Counsel for the Union of India
Counsel for the respondent : Mr. Mohinder Singh Bisht, learned
counsel
The Court made the following:
JUDGMENT: (per Hon'ble The Chief Justice Sri Vipin Sanghi)
Present special appeal is directed against the
judgment dated 05.07.2018, in Writ Petition (S/S) No. 3136
of 2018, preferred by the respondent.
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3) Learned Single Judge has allowed the writ petition,
and directed the appellant to grant 3rd ACP benefit of Grade
Pay Rs. 4,200/- to the respondent, and on that basis the
redetermination of pensionary benefit, payable to him.
4) The 3rd ACP benefit was denied to the respondent
on the ground that in his ACRs for the years 2005-06 to
2008-09, "Average" entries were recorded, whereas the
benchmark was "Good". The respondent / writ petitioner
claimed that he was never communicated the said adverse
entries, and, therefore, they could not be looked into for the
purpose of determining - whether, he was entitled to the 3rd
ACP benefit. The learned Single Judge has found merit in
this submission of the respondent / writ petitioner, and,
consequently, has allowed the writ petition.
5) The submission of learned counsel for the
appellant is that in the writ proceedings, the appellant had
been required to file an additional affidavit specifically on the
point - as to when the respondent had become aware of the
said adverse entries in the confidential record, by looking
into his service-book. The appellant had filed the additional
affidavit, along with the extract of the service-book, which
showed that the respondent had acknowledged having seen
his service-book on 11.12.2009. It is, therefore, argued that
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the respondent was aware of the adverse entries at least on
11.12.2009.
6) In our view, that does not help the case of the
appellant, for the reason, that the adverse entries for the
earlier years i.e., for the years 2005-06, 2006-07, and 2007-
08 should have been communicated to the respondent in the
following service years so that, firstly, the respondent could
represent against the same and seek upgradation of his
ACR, and, secondly, could improve his functioning to
improve his grading in subsequent ACRs. Admittedly, there
is no communication issued by the appellant to the
respondent, communicating the adverse ACRs. It was left to
him to inspect his service-book, which he happened to
inspect on 11.12.2009. Had he not himself inspected the
records, he would not have learnt of the said adverse entry
even on 11.12.2009. The appellant failed to communicate
the adverse entries even though they were obliged to.
7) For the aforesaid reasons, we concur with the view
taken by the learned Single Judge, that the said adverse
entries were liable to be ignored, while considering the
eligibility of the respondent to receive the 3rd ACP benefit.
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8) We are, therefore, not inclined to interfere with
the impugned judgment. The appeal is, accordingly,
dismissed.
9) Since we do not find any merit in the appeal, we
are not going into the issue of limitation.
_________________
VIPIN SANGHI, C.J.
_________________
ALOK KUMAR VERMA, J.
Dt: 21st APRIL, 2023
Negi
