30th June retirees case - Supreme Court passed comments- noncompliance costs as well as interest may be imposed.

In one division MACP was denied by taking into consideration of non-communicated APAR entries. the following is the common draft prepared and sent to them. May be useful for some.

 Sub      : Non grant of MACP due to application of non-communicated APARs by the SSPOs, Asansol division – request intervention and pray justice

Ref       : Fresh

I would like to bring to your kind notice that I, _________________ am working as a PA, ________SO/HO and my Date of entry into the department is ___________ and I have completed _____years of service as on 01.11.2020. 

As per the DOPT OM No.35034/3/2008-Estt (D) dated 19.05.2009 and 22.10.2019, all regularly appointed CG employees up to HAG level are eligible for MACP scheme in which employees who have completed 10, 20 and 30 years will move to immediate next pay level in the new matrix.

Also, as per DOPT OM No.35034/3/2008-Estt (D) dated 18.02.2015, DOPT has strictly advised to ensure strict compliance to the time limits indicated in MACPs for grant of benefits under the MACP scheme as and when the employees become eligible for such benefits.

But to my disappointment, MACP I/II/III was not accorded to me as I have completed 10/20/30 years of service as on ____________. But to the till date the MACP was not granted which is a colossal loss to me.

It is learnt that the due MACP has not been granted to me due to application of benchmark in the APAR which were not communicated to me and provided me a chance to represent against the low grading in the APAR.

As per DOP&T OM No. 21011/1/2005-Estt(A)(Pt-I) dated 23.07.2009, the APAR for the periods under reference should have been communicated to me in the month of SEPTEMBER of the respective year. If done so, I would have preferred appeal within 15 days as per DOP&T OM No.21011/1/2005-Estt(A)(Pt-II) dated 14.05.2009

Further, as per DOPT O.M. No.21011/1/2010-Estt.A dated 27.04.2010, undisclosed APAR should not be taken in consideration for grant of MACP and therefore application of the uncommunicated APAR for the grant of MACP is a farce and will tantamount to the denial of natural justice and breach of law of the land.

In this regard I wish to submit that as per the  DG(P) No.4-7 (MACPS)/20019-PCC dt 30.06.2011  “ Complete APAR is required to be communicated to the official concerned from the reporting year 2008-09” which was not done by the SSPOs. By not communicating the APAR  in time the SSPOs denied a chance to appeal against it to the Competent Authority for less grading. 

Moreover, it is appurtenant from the supreme court judgement{Dev Dutt v. Union of India and other, 2/2009, Swamysnews 74, 2008 2) SCC (L&S), 771 date of judgment 12.5.2008) on application of bench marks on promotion all gradings in the confidential reports are to be communicated to adhere to the principles of natural justice within a reasonable period after CRs are finalized.  Based on this judgment, the provision of representation become mandatory in the orders cited in para supra.

It is a settled law that uncommunicated and adverse ACRs cannot be relied upon in the process of selection for promotion in view of the decision in the case of Sukhdev Singh Vs Union of India [ 2013 (9) SCC 566 ]. The impugned judgement, Rukhsana Shaheen Khan v Union of India [2006 SCC Onine Del 1840 ] is set aside with the directions to ignore uncommunicated adverse ACRs and to take a fresh decision according to law giving opportunity of hearing in the process. (CA No. 32 of 2013)

In view of the above judicial pronouncements, I request the competent authority to take the decision in a judicious manner and by taking up my case for the next Departmental Screening Committee which is going to convene for the grant of MACP and issue favorable orders for granting the same.