The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 2222 of 2021 Uday Prasad Sharma, son of Late Vishnu Prasad Sharma, residing at – Q. No. D-2 (Old) Teachers’ Colony, IIT (ISM), Dhanbad, Jharkhand having permanent residence at Flat No. 1A, First Floor, alpine Block, Trinity Gardens, Beltand, Opposite Prabhatam Mall, Memko More, Dhanbad. V E R S U S … Petitioner 1. The Union of India. 2. The State of Jharkhand 3. The Ministry of Human Resources Development, Government of India, Department of Higher Education, Technical Section-II, Shastri Bhawan, New Delhi. 4. The Chairman, Board of Governors, IIT (ISM), Seraidhella, Dhanbad. 5. The Director, IIT (ISM), Seraidhella, Dhanbad. 6. The Registrar, IIT (ISM), Seraidhella, Dhanbad. … … Respondents. CORAM: HON'BLE DR. JUSTICE S. N. PATHAK For the Petitioner : Mr. Diwakar Upadhyay, Advocate For the Resp-State : Mr. Gaurang Jajodia, AC to GP-II For the Resp-IIT (ISM) : Mr. Anoop Kumar Mehta, Advocate 07/03.12.2024 2.
Legal Reasoning
Heard the parties. Petitioner has prayed for quashing the office order dated 10.08.2020 (Annexure-7), office order dated 17.09.2020 (Annexure-9) and office order dated 21.05.2021 (Annexure-12), whereby and whereunder the respondents have regretted the upgradation of Annual Performance Assessment Reports (APARs) grading to ‘very good’ on nonest grounds. Petitioner has further prayed for a direction upon the respondents to count his service for the period from 23.05.1995 to 31.07.1996 for calculation of retiral benefits. Petitioner has also prayed for a direction upon the respondents to take necessary action for correction of Annual Performance Assessment Reports grading of the petitioner. Further prayer has been made for a direction upon the respondents to consider his case RC 1 for grant of benefits of 2nd Assured Career Progression Scheme (ACP)/ Modified Assured Career Progression Scheme (MACP) in the Grade Pay of Rs.7,600/-, which is due from January, 2016 and other consequential benefits for which petitioner is duly entitled as per law. Petitioner has also prayed for a direction upon the respondents to pay arrears of salary after sanction of benefits of 2nd ACP / MACP from 2016 and other consequential benefits. 3. According to the petitioner, he was appointed as a Technical Officer in the Department of Petroleum Engineering at Indian School of Mines, Dhanbad vide officer letter dated 23.06.1995. On 31.07.1996, petitioner was terminated from the service which was later on recalled on 27.10.1997 with a condition that the period of termination will be treated as dies-non. Thereafter, vide office order dated 18.12.2007, petitioner was granted senior pay scale of Rs.10,000 – 325 – 15,200 with effect from 06.10.2007. Petitioner was granted grade pay of Rs.6,600 with effect from November, 2008. Petitioner was performing his duties to the utmost satisfactioin of the respondents with due care, sincerity and diligence. As per the Handbook for Personnel Officer, 2013, issued by the Government of India, Institute of Secretariat Training and Management (Department of Personnel & Training), Ministry of Personnel, Public Grievances and Pension, Rule 30.2.1 “APAR’s grading has to be communicated to the concerned officer after report is completed. Moreover, in Annexure-III, it is clearly mentioned that APARs will be disclosed to the concerned officer on 15 September of every academic year. As per office memorandum dated 27.09.2016, the MACP will continue to be administered at 10, 20 and 30 years as before, in the new pay matrix and as per office Memorandum dated 22.10.2019, Rule 17(ii) “very good” benchmark of APAR’s has been established for financial up-gradation to the grade pay of Rs.7,600 and above.” 4. It is case of the petitioner that though he was working to the best of his abilities, but he was not being provided APAR Report in every academic year. After representations made by the petitioner, the respondents, vide letter dated 26.06.2018, had given extracts of APARs RC 2 for the years 2014, 2015 and 2016 in one time which is violation of MACP Rules which says that when APARs grade in below benchmark, the employee should give a copy of APARs at the end of the year so that the employee can improve his performance. Being aggrieved by his grading, petitioner made a representation for upgradation of APARs grade from ‘satisfactory’ to ‘very good’ on the ground that he was never informed to improve his performance for last three years due to which he will lose the benefits of 2nd ACP in Grade Pay of Rs.7,600. However, representations of the petitioner was rejected vide Office order dated 10.08.2020. Thereafter, petitioner made further representations, but the same was rejected vide office order dated 17.09.2020 and office order dated 21.05.2021 without assigning any reasons. Being aggrieved, petitioner has been constrained to knock door of this Court. 5.
Legal Reasoning
Mr. Diwakar Upadhyay, learned counsel representing the petitioner argues that providing APARs of three years together amounts to denying the benefits of natural justice. Petitioner is entitled for upgradation of APARs grading to the grade of ‘Very good’. Learned counsel further argues that had the petitioner been provided the APARs every year, he could have approached the respondents to seek the reason of him being provided lower grade of APAR and petitioner would have opportunity to improve his work, if required. Since petitioner was not provided any information of his APAR grading and, therefore, the authorities cannot deny him the benefits. Petitioner is entitled for grant of benefits of 2nd Assured Career Progression Scheme/ Modified Assured Career Progression Scheme in the Grade Pay of Rs.7,600/- which is due from January, 2016. The respondents cannot deny the benefits of 2nd MACP without communicating APARs yearly. 6. 7. To buttress his arguments, learned counsel places heavy reliance upon the Judgment rendered in the case of Anil Kumar Vs. Union of India and others reported in (2019) 4 SCC 276 and in the case of Dev Dutt Vs. Union of India and others reported in (2008) 8 SCC 725. Mr. Anoop Kumar Mehta, learned counsel representing IIT/ISM Dhanbad argues that at this stage it is not possible to upgrade APAR. RC 3 However, so far service period of the petitioner from 23.06.1995 to 31.07.1996 is concerned, the same has been approved by the competent authority vide office order no. 411534/1995-Estt. Dated 04.10.2021, superseding the earlier office order no. 411534/1995-Estt, dated 28.07.2021. In view of grading to be ‘Satisfactory’ for the relevant period, the MACP fell due in October, 2017 was not considered for upgradation under MACP. There is no arbitrary or discriminatory approach on part of the respondents. The representation of the petitioner was considered and rejected. Petitioner could not achieve benchmark of ‘Very Good’ and as such financial upgradation of Grade Pay of Rs.7,600/- under MACP could not be provided to him. There is no merits
Decision
and the writ petition is fit to be dismissed. 8. Having heard counsel for the parties and considering facts and circumstances of the case, in my considered opinion, the entries should have been communicated to the petitioner so as to enable him to make a representation praying that the said entry should be upgraded. Of course, after considering such a representation it was open to the authority concerned to reject the representation and confirm the entries made (though of course in a fair manner), but at least an opportunity of making such a representation should have been given to the petitioner and that would only have been possible had the petitioner been communicated the entry, which was not done in the instant case. Hence, I am of the opinion that the non-communication of the entry was arbitrary and hence illegal, and the decisions relied upon by the learned counsel for the respondent are distinguishable. 9. It is necessary to quote para-17 to 20 of the Judgment rendered in the case of Anil Kumar (Supra). “17. The grant of MACP benefit is not a matter of right and it is after the Screening Committee finds that the officer meets the benchmark that an upgradation can be granted. 18. Hence, we are of the view that the appellant should be granted an opportunity, within a period of four weeks from today to submit his representation in respect of the ACRs for the years concerned where he did not fulfil the benchmark for financial upgradation. Upon the submission of his representation, the respondents shall consider it and communicate the outcome to RC 4 the appellant within a period of two months thereafter. Based on that decision, the case of the appellant for financial upgradation shall be considered afresh. In the event his ACRs for the relevant period are upgraded, the case for financial upgradation shall be determined within a period of three months thereafter. 19. We also direct that in the event that the ACRs for the relevant period are upgraded, the case of the appellant for promotion to the post of Senior Deputy Secretary/Controller of Administration shall be considered afresh by the Departmental Promotion Committee expeditiously. This exercise shall be carried out with reference to the date on which his junior in service came to be promoted. 20. In the event that the case of the appellant is considered favourably, he would be entitled to all consequential benefits which flow from the financial upgradation and upon the grant of regular promotion to the post of Senior Deputy Secretary.” 10. It is also relevant to quote para-13 to 18 of the Judgment rendered in the case of Dev Dutt (Supra): if there “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 is no benchmark, non- benchmark or not. Even communication of an entry may adversely affect the employee's chances of promotion (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. 14. In most services there is a gradation of entries, which is usually as follows: (i) Outstanding (ii) Very Good (iii) Good (iv) Average (v) Fair (vi) Poor A person getting any of the entries at Items (ii) to (vi) should be communicated the entry so that he has an opportunity of making a representation praying such a representation must be decided fairly and within a reasonable period by the authority concerned. 15. If we hold that only “poor” entry is to be communicated, the consequences may be that persons getting “fair”, “average”, “good” or “very good” entries will not be able to represent for its upgradation, and this may subsequently adversely affect their chances of promotion (or get some other benefit). its upgradation, and for RC 5 16. In our opinion if the office memorandum dated 10/11-9-1987, is interpreted to mean that only adverse entries (i.e. “poor” entry) need to be communicated and not “fair”, “average” or “good” entries, it would become arbitrary (and hence illegal) since it may adversely affect the incumbent's chances of promotion, or to get some other benefit. For example, if the benchmark is that an incumbent must have “very good” entries in the last five years, then if he has “very good” (or even “outstanding”) entries for four years, a “good” entry for only one year may yet make him ineligible for promotion. This “good” entry may be due to the personal pique of his superior, or because the superior asked him to do something wrong which the incumbent refused, or because the incumbent refused to do sycophancy of his superior, or because of caste or communal prejudice, or to for some other extraneous consideration. 17. In our opinion, every entry in the ACR of a public servant must be communicated to him within a reasonable period, whether it is a poor, fair, average, good or very good entry. This is because non- communication of such an entry may adversely affect the employee in two ways : (1) had the entry been communicated to him he would know about the assessment of his work and conduct by his superiors, which would enable him to improve his work in future; (2) he would have an opportunity of making a representation against the entry if he feels it is unjustified, and pray for its upgradation. Hence, non-communication of an entry is arbitrary, and it has been held by the Constitution Bench decision of this Court in Maneka Gandhi v. Union of India [(1978) 1 SCC 248 : AIR 1978 SC 597] that arbitrariness violates Article 14 of the Constitution. 18. Thus, it is not only when there is a benchmark but in all cases that an entry (whether it is poor, fair, average, good or very good) must be communicated to a public servant, otherwise there is violation of the principle of fairness, which is the soul of natural justice. Even an outstanding entry should be communicated since that would boost the morale of the employee and make him work harder.” 11. As a sequitur to the aforesaid rules, regulations, guidelines and in particular, the law laid down in the case of Anil Kumar (supra), the impugned office order dated 10.08.2020, office order dated 17.09.2020 and office order dated 21.05.2021 are hereby quashed and set aside. Since no opportunity was provided to the petitioner for improving his APAR, the petitioner is directed to file a representation in respect of APARs for years concerned, where he did not fulfil the benchmark for financial upgradation within a period of three weeks from the date of receipt / production of a copy of this order. RC 6 Upon receipt of such representation, the respondents shall consider it and pass a reasoned order thereon within a period of eight weeks thereafter. In the event, the case of the petitioner is considered favourably, he would be entitled for all consequential benefits, which flow from the financial upgradation including grant of regular promotion, as also MACP. Let it be made clear that if the APARs for the relevant period are upgraded, the case for financial upgradation by way of MACP shall be considered within a further period of eight weeks thereafter. 12. With the aforesaid observations and directions, this writ petition stands disposed of. Pending I.A., if any, is also stands disposed of. (Dr. S.N. Pathak, J.) RC 7