Failure to communicate "below benchmark" ACR/APAR renders them non-reckonable for ACP/MACP.

Asutosh Johari (Applicant), a Technical Investigator, was appointed on June 25, 1984.

He was granted his first Assured Career Progression (ACP) on August 9, 1999, with a grade pay of Rs. 4600/-.

His second ACP was due on June 25, 2008, with a grade pay of Rs. 5400/-, after completing 24 years of service.

The Departmental Screening Committee (DSC) convened on October 15, 2010, to consider the applicant's second ACP.

The DSC declared the applicant "Not-fit" for the grant of benefits of second ACP, citing adverse remarks in his Annual Confidential Report (ACR) for 2004-05 and an "Average" grading in his ACR for 2005-06.

The adverse remarks for 2004-05 were communicated to the applicant on January 19, 2006, via a memo dated December 30, 2005.

The applicant's representation against these remarks was rejected by respondent no. 2 on January 5, 2007.

His appeal to the Textile Commissioner was also rejected on June 9, 2008, with the decision to retain the adverse remarks.

The "Average" grading for 2005-06 was, however, not communicated to the applicant.

Shri Balaraju, who was the reviewing officer for the applicant's ACRs for 2004-05 and part of 2005-06, also served as the chairman of the DSC that considered these ACRs.

The applicant was subsequently granted second MACP w.e.f. April 1, 2010, with a grade pay of Rs. 4800/-, and third MACP w.e.f. January 25, 2016, with a grade pay of Rs. 5400/-.

1. Whether the Departmental Screening Committee (DSC) was justified in declaring the applicant "Not-fit" for the grant of second ACP benefits, considering the communication and non-communication of adverse/below-benchmark remarks in his ACRs?

2. Whether the non-communication of below-benchmark grading for the year 2005-06 violated the principles of fairness and transparency, especially in light of DoPT OM dated April 13, 2010?

3. Whether the presence of the reviewing officer for the applicant's ACRs as the chairman of the DSC constituted a violation of natural justice?

The court referred to Section 19 of the Administrative Tribunals Act, 1985, as the jurisdictional basis for the application.

It primarily applied the principles derived from the Supreme Court's pronouncement in Dev Dutt Vs. Union of India [(2008) 8 SCC 725], which mandates that all entries in a public servant's ACR must be communicated to them within a reasonable period, even in the absence of a specific rule.

This principle was subsequently codified in DoPT OMs dated May 14, 2009, and April 13, 2010, which specified that below-benchmark gradings in ACRs prior to the 2008-09 reporting period, if reckonable for future promotions, must be communicated to the concerned employee for representation before being placed before the DPC/DSC.

The court also acknowledged the established legal position where the decisions of duly constituted DSCs are generally not interfered with, except on limited grounds of mala fides or procedural irregularity, citing cases such as Nutan Arvind Vs. UOI, UPSC Vs. H.L. Dev and Ors., Dalpat abasabah Solanke Vs. B. S. Mahajan, Anil Katiyar Vs. UOI and Ors., and Union of India and another Vs. S. K. Goel and Ors.

The court acknowledged that the adverse remark in the applicant's ACR for 2004-05 was duly communicated and upheld after his representation and appeal.

However, the court found that the "below benchmark" grading of "Average" in the applicant's ACR for 2005-06 was not communicated to him.

This non-communication was held to be a violation of the DoPT OM dated April 13, 2010, which specifically required the communication of below-benchmark gradings for relevant periods, even if no explicit adverse remarks were present.

The court emphasized that the purpose of such communication, as highlighted in Dev Dutt (supra), is to ensure fairness and transparency in public administration, a principle equally applicable to financial upgradation schemes like ACP/MACP.

The court further noted that the argument by respondents that the OM was only applicable for promotion and not ACP/MACP was unreasonable, as the underlying purpose of preventing stagnation is served by both.

Although the non-communication regarding 2005-06 was a procedural flaw, the court reasoned that even if this defect were rectified, the adverse remarks in the 2004-05 ACR, which were properly communicated and retained after due process, would still render the applicant "Not-fit" for the second ACP.

Consequently, rectifying the procedural irregularity for 2005-06 would be a "futile exercise" as the 2004-05 adverse remarks would still preclude the grant of the second ACP.

The court also dismissed the applicant's contention regarding the chairman of the DSC also being his reviewing officer, stating that this is not an "odd situation" and not sufficient to question the DSC's decision without deeper procedural irregularity or mala fides.

The applicant had already been granted subsequent MACP benefits, which the court deemed appropriate given his ineligibility for the second ACP at the time it was due.

It held that while there was a procedural irregularity in not communicating the "below benchmark" grading of "Average" for the year 2005-06 as per DoPT OM dated April 13, 2010, this irregularity would not alter the outcome for the applicant's second ACP.

The adverse remarks in the applicant's ACR for 2004-05, which were duly communicated and upheld, independently rendered him "Not-fit" for the second ACP.

Therefore, remanding the matter for fresh consideration of the 2005-06 ACR by communicating the below-benchmark would be a futile exercise.

The court concluded that the applicant’s claim for the second ACP was undeserved, and his subsequent grant of second and third MACP benefits was appropriate.

All associated Miscellaneous Applications were also disposed of, with no costs awarded.