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2022 DIGILAW 183 (UTT)

Uday Singh v. Union of India

2022-07-05

SHARAD KUMAR SHARMA

body2022
JUDGMENT : The brief facts of the case are that the petitioner was enrolled after being appointed on the post of the Driver with the respondent department, with his initial posting which was made on 2nd November 1977, when he was posted at SSB, Teju, Arunachal Pradesh, and after completing his satisfactory training, and during the tenor of his services, he was thereafter posted at different SSB centres, where he performed his duties. As per the scheme of extension of benefit of ACP, a regular member of the service, who has rendered 10 years, 20 years or 30 years of satisfactory services respectively, on completion of the aforesaid breakup of the services, would be entitled for the grant of the benefits of first ACP, second ACP and third ACP. 2. The grievance of the petitioner is, that as per his year of induction into the services and after rendering of his services with the respondent, which he contends, that it was satisfactory, he would be entitled for the grant of benefit of 3rd ACP, after 30 years of his satisfactory services, which he contends to have completed on 1st September 2008, but he was deprived of being granted with the grade pay of Rs.4200, which according to the petitioner, he was otherwise entitled to receive the same as per the MACP scheme, of extension of ACP benefit. Hence, the petitioner contends that he has raised his claim before the higher authorities, before, attainment of age of superannuation, for the purposes of extension of benefit of third ACP. When the same was not extended, the petitioner reiterated his claim vide his representation by way of the reminder before the Commandant 42nd Battalion SSB, but no action proceeded yet on it. Hence, he submitted a reminder prior to his attainment of age of superannuation on 30th July 2013, which was addressed to the Commandant of the SSB, but no action was still taken ultimately till the petitioner retired from the services after rendering 35 years of continuous satisfactory services i.e. on 31st August 2013 having retired from the post of Head Constable (Driver) from SSB centre at Nanpara, Bahraich-I, Uttar Pradesh. 3. 3. Based on the aforesaid contention, the petitioner submitted that he would be entitled for the grant of the benefit of third ACP, from the date of his entitlement i.e. the date when he became eligible to be extended with the benefit of the 3rd ACP with effect from 1st September 2008, when he had completed 30 years of service, when the petitioner was deprived of the same, he has preferred this writ petition on 6th September 2018 for the following relief :- “i) Issue a writ, order or direction in the nature of mandamus commanding and directing the respondents to grant benefit of 3rd MACP and Grade pay of Rs. 4200 to the petitioner w.e.f. 2008. ii) Issue a writ, order or direction in the nature of mandamus commanding and directing the respondents to pay the arrears of Grade pay of Rs. 4200 alongwith 18% interest to the petitioner which is fallen due after completion of 30 years of service and has not been paid to the petitioner till date but are being provided to the other similarly situated employees. iii) Issue a writ, order or direction in the nature of mandamus commanding and directing the respondents to revised the pension of the petitioner by re-fixing the same give the petitioner all the other retiral benefit alongwith prevailing interest. iv) Issue any other writ, order or direction, which this Hon'ble Court may deem fit and proper under the facts and circumstance of the case. v) Award the cost of the petition to the petitioner.” 4. iv) Issue any other writ, order or direction, which this Hon'ble Court may deem fit and proper under the facts and circumstance of the case. v) Award the cost of the petition to the petitioner.” 4. The respondents were noticed, and the respondents in response to it have filed their counter affidavit on 31st May 2019, making an effort to deny the claim which was raised by the petitioner for the extension of the third ACP benefit of grade pay of Rs.4200, as claimed by him to be made payable with effect from 1st September 2008, on the ground that, the petitioner service records carry an “average entry” pertaining to the year 2005-2006 to 2008-2009, wherein, he was graded by the authorities as having an average performance, and according to the respondents, as per the APAR scheme for the grant of MACP benefit, issued by the DoPT Department by Office Memorandum No.35034/3/2008 (Establishment), dated 19th May 2009, in order to enable an employee to avail a benefit of third ACP it was only on the completion of 30 years of service, to determine the aspect of satisfactory service the entry has to be “good”. 5. The respondent submitted that in view of the aforesaid office memorandum dated 19th May, 2009, since as per service records the petitioner’s entry was found to be average for the year 2005-2006 to 2008-2009, he would be disentitled for the extension of the 3rd ACP benefit with effect from 1st September 2008, as average entry cannot be taken into consideration, and treated as to be a good for the purposes of the extension of benefit. 6. What would be the important to remark, herein, is that the petitioner in paragraph no.20 of the writ petition has specifically come up with a case that the respondent had not given any information or any official communication informing the petitioner, about the “average entries” pertaining to the year 2005-2006 to 2008- 2009, which was now creating an impediment for the grant of the third ACP benefit, with effect from 1st September 2008. This pleading of the petitioner raised in paragraph no.20 of the writ petition has been refuted by the learned counsel for the respondent, by filing a counter affidavit, and a reply has been extended thereto in paragraph no.15, of the counter affidavit. Paragraph no.15, of the counter affidavit is extracted hereunder:- “15. This pleading of the petitioner raised in paragraph no.20 of the writ petition has been refuted by the learned counsel for the respondent, by filing a counter affidavit, and a reply has been extended thereto in paragraph no.15, of the counter affidavit. Paragraph no.15, of the counter affidavit is extracted hereunder:- “15. That the contents of para 20 of the writ petition are wrong, misconceived with the fact that every employee has to check his service book one annually.” 7. The contents of paragraph no.15, of the counter affidavit has to be splited into two parts, for its interpretation, wherein, the respondents have contended that their pleadings raised in paragraph no.20, of the writ petition, with regards to the non communication of the entries is wrong, but most important part, which will be the subject matter of consideration in the subsequent part of this judgment would be “every employee has to check his service books once annually”. The service jurisprudence is governed by the Rules, which specifically governs the field in relation to the subjects touching to the service conditions, of the employees, which in the instant case happens to be the “adverse entries”. 8. The Rules as framed, it provides that adverse entries of an employee has had to be mandatorily communicated by the employer, in order to enable him to represent his cause against the entries or the proposed entries to be made in the service records by invoking the provisions contained under the Uttarakhand Government Servant (Disposal of Representation against an Adverse Annual Confidential Report and Allied Matters Rules) 2002. In fact the process of deciding the statutory representation against the adverse entry, there has had to be a prior communication of the adverse entry to an employee in order to enable him to invoke the benefit of the Rules, as framed by the State in the exercise of its power under the proviso to Article 301 of the Constitution of India. The pleadings, which has been raised by the respondent in the counter affidavit, that it was rather the responsibility, which was to be shouldered by an employee to ensure and to scrutinize his service records once in a year, is not a preposition contained under service rules framed under proviso to Article 301 of the Constitution of India. 9. There are two reasons, for not to accept this contention (1). 9. There are two reasons, for not to accept this contention (1). That this is not a procedure, which is prescribed under the Statute. (2). This contention of the respondents raised in the counter affidavit otherwise also seems to be absolutely illogical, which cannot be commonly applied, to all the government servants, because otherwise it would be creating an absolute administrative chaos, as to when? and at what time? and as to how? an employee has to discharge his responsibility which now been shouldered by the counter affidavit, to check the service records at least once a year. Hence, this contention raised in paragraph no.20, of the counter affidavit is not acceptable by this Court. 10. In the rejoinder affidavit, which has been filed by the petitioner, in response to the counter affidavit of the respondents, he has rather reiterated the stand, about the effect of non communication of the adverse entries timely as per rules, and thus the payment of the grade pay of Rs.2800, in place of Rs.4200, the actual entitlement, was alleged to be arbitrary, as per the petitioner, in view of the principles, which has been laid down in the judgment referred therein as reported in 2008 (volume 8) SCC page 725, “Dev Dutt Vs. Union of India”. “9. In the present case the bench mark (i.e. the essential requirement) laid down by the authorities for promotion to the post of Superintending Engineer was that the candidate should have 'very good' entry for the last five years. Thus in this situation the 'good' entry in fact is an adverse entry because it eliminates the candidate from being considered for promotion. Thus, nomenclature is not relevant, it is the effect which the entry is having which determines whether it is an adverse entry or not. It is thus the rigours of the entry which is important, not the phraseology. The grant of a ‘good' entry is of no satisfaction to the incumbent if it in fact makes him ineligible for promotion or has an adverse effect on his chances. 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'. 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. 34. Originally there were said to be only two principles of natural justice : (1) the rule against bias and (2) the right to be heard (audi alteram partem). However, subsequently, as noted in A.K. Kraipak's case (supra) and K.L. Shephard's case (supra), some more rules came to be added to the rules of natural justice, e.g. the requirement to give reasons vide S.N. Mukherji v. Union of India MANU/SC/0346/1990 : 1990 CriLJ 2148 a. In Maneka Gandhi v. Union of India (supra) (vide paragraphs 56 to 61) it was held that natural justice is part of Article 14 of the Constitution. 35. Thus natural justice has an expanding content and is not stagnant. It is therefore open to the Court to develop new principles of natural justice in appropriate cases.” 11. Even, this Court is of the view that at a much later stage, an uncommunicated entry in the service records, cannot be read in detriment to serve the benefit of the service condition to an employee, which he would have been otherwise entitled to under the Policy or the service conditions for the extension of the benefit of ACP. 12. In that eventuality, the stand taken by the respondents in the counter affidavit of shifting the burden of scrutinizing the service records, on the petitioner is not acceptable by this Court, for the aforesaid reasons, because its apparently unreasonable and contrary to applicable rule, which mandates a duty on the employer to communicate service record entries within the prescribed time. 13. 13. It is not in dispute, and apparent too by the pleadings raised by the parties, that the petitioner did complete his 30 years of satisfactory service on 01st September 2008, and had attained the age of superannuation, thereafter on 31st August 2013, after completing total 35 years of service. Till the date of the attainment of the age of superannuation i.e. on 31st August 2013, there was nothing on record to show that the service records entries were ever communicated to the petitioner by an official mode, informing him about his average entries for the service years of 2005-2006 to 2008-2009. Not even that, the petitioner’s claim for the extension of the benefit of 3rd ACP was even forwarded to be considered by the competent authority 42nd Battalion, Pithoragarh, but no decision as such has been taken on it. 14. This Court is of the opinion, that when the fact of the petitioner of having rendered 30 years of service, is a fact not disputed, which has also been attempted to be classified and distinguished by the respondents, that there was an “adverse remarks”, in his service records, the pleadings on the record itself shows, that it would be rather an admitted case of the respondent, that the entries were never communicated to the petitioner, because of the fact, that as soon as the respondents take a stand, that it was rather the responsibility, which was supposed to be shouldered by the petitioner annually so as to, to ensure to scrutinize the service record in a year, which is an argument extended contrary to the Rules applicable and even contrary to the Scheme providing for the purposes of extension of benefit of ACPs. The petitioner cannot be deprived of the extension of third ACP benefit, which he was otherwise entitled to receive with effect from 1st September 2008. 15. In that eventuality, this writ petition is allowed. The petitioner cannot be deprived of the extension of third ACP benefit, which he was otherwise entitled to receive with effect from 1st September 2008. 15. In that eventuality, this writ petition is allowed. A writ of mandamus is issued to the respondents to extend the benefit of third ACP to the petitioner with effect from 1st September 2008 i.e. date when he had completed his 30 years of service, which is a fact not disputed, by ignoring the entries of 2005 to 2009, and more particularly, when according to their own counter affidavit, they were the uncommunicated entries, which cannot be retrieved and derived out in order to deprive the petitioner’s legitimate benefit under the scheme of the extension of ACP benefit, to an employee. 16. Having said so, the respondent would extend the benefit of the third ACP to the petitioner, with effect from 1st September 2008, and would also determine its arrears as payable to the petitioner, till he attained the age of superannuation on 31st August 2013, and its on the basis of the enhanced entitlement of the third ACP benefit of grade pay of Rs.4200, the respondents would also redetermine the pensionary benefits which would be assessed to be payable on the basis of the enhanced third ACP benefit, which has been determined to be made payable to the petitioner with effect from 1st September 2008. 17. Subject to the aforesaid, the writ petition stands allowed.