PJ Antony vs Union Of India & Anr.

Justice K.Haripal, Judicial Member

Review Applicant is the Applicant in the Original Application. He started service as Bosun (Certified) in the Integrated Fisheries Project, IFP on 20.10.1973. Then he was promoted as Mate in pay of Rs.6500-10500 as per the 5^th CPC scale with effect from 21.05.1980. Later, he was transferred to the office of the 2^nd respondent, Central Institute of Fisheries Nautical and Engineering Training (CIFNET), where he continued as Mate till his retirement on superannuation on 30.09.2009.

He was granted 2 financial upgradation under the ACP scheme in the scale of Rs.10000-15200 (corresponding to the pay structure of the grade pay of Rs.6600/-) with effect from 01.04.2002. The applicant contended that, that was the singular financial upgradation received by him during his entire service career. The post of Bosun(Certified) and Mate got merged so that even that promotion was liable to be ignored and he was entitled to get three MACPs. If he was granted MACPs, he would have received higher grades pay, initially of Rs.7,600/- and then Rs.8,700/- and would have retired with the latter grade pay. But, he had to retire from service after putting in such a long service with grade pay of Rs.6600/-. Aggrieved by the injustice meted out to him, he moved this Tribunal seeking grant of 2^nd and 3^rd MACPs. But, by Annexure-RA1 order dated 05.12.2024, his plea was turned down.

According to the applicant, the finding of the Tribunal fell in patent errors. The Tribunal went wrong in dismissing the O.A. and thus he has moved the Tribunal invoking Section 22(3)(f) of the Administrative Tribunals Act read with Order 47 Rule 1 of the CPC.

It is submitted by the applicant that the O.A. was dismissed since he did not acquire necessary benchmarks for getting higher grade pay of Rs.7600/- or Rs.8700/-, but the Tribunal did not consider his right for ^{upgradation of the grading of 'good' in ACR to 'very good'.}Central Administrative Tribunal ^{It is an error} apparent on the face of the record. If that was considered and the right of the applicant to get the gradings upgraded was acknowledged, the O.A. would have allowed. According to him, the Hon'ble Supreme Court has approved the decisions in Dev Dutt vs Union of India and others [(2008) 8 SCC 725] and Sukhdev Singh v. Union of India and others [(2013) 9 SCC 566]. He has also referred to the decisions in U.P. Jal Nigam and others v. Prabhat Chandra Jain and others [(1996) 2 SCC 363] and Amar Kant Choudhary v. State of Bihar and others [(1984) 1 SCC 694]. According to him, as per the decision in Sukhdev Singh, right of employee to seek upgradation of an entry in the ACR, which he feels unjustified has become crystalised. It is a consequential legal right that emanates from the duty cast upon the employer to communicate each and every entry in the ACR. Such a legal right of the applicant was not considered by the Tribunal and therefore, Annexure-RA1 order is sought to be reconsidered.

The respondents have opposed the RA. Before the grant of MACP benefit, the official should fulfill the benchmark criteria in the confidential report. The required minimum benchmark for financial upgradation with the grade pay of Rs.7600/- and above is 'very good'. The ACR grading of the applicant for 2003-2004, 2004-2005, 2005-2006, 2006-^{2007, 2007-2008 and 2008-2009 are good, good, not available, good, very}Central Administrative Tribunal good and very good respectively. Since his ACR for the period 2005-2006 was 'not available', the same was got written afresh and thus it was stated as 'good', which is below the benchmark required for grant of MACP.

Even though the applicant had represented to upgrade the assessment/gradings, the competent authority considered the same and by communication dated 19.09.2013, Annexure-A11, and Annexure-R2 communication dated 04.11.2013 informed the applicant that his grading for the said period are retained. This being the position, the applicant cannot insist the authorities to alter or upgrade his ACRs as per his requirement. He did not submit any appeal against that finding.

According to them, the O.A. was dismissed taking into consideration the relevant aspects and the Annexure-R1 order is not liable to be reviewed.

We heard Sri.R.Sreeraj, learned counsel for the applicant and Sri.M.K.Padmanabhan Nair, learned Additional Central Government Standing Counsel for the respondents.

Applicant had started service as Bosun (Certfied) on 20.10.1973. Later, he became Mate-II on 21.05.1980. Even though he was granted 1^st ACP under the ACP scheme on 09.08.1991 since the pay of both Bosun and Mate were merged, that did not have any effect. Evidently, he had retired from service on 30.09.2009 after more than 3½ decades, without further financial upgradation. He was not granted benefit of 2^nd and 3^rd MACPs. Thus he moved this Tribunal seeking the following reliefs:

Earlier, the O.A. was allowed restricting the arrears to three years prior to the filing of the O.A. Against that order, both the respondents and the applicant moved the High Court in OP(CAT). By judgment dated 28.05.2024, the matter was remitted back to this Tribunal for consideration of the entire issue. Thus the O.A. was considered again and by Annexure-RA1 order dated 05.12.2024 the O.A. was dismissed on the following lines:

It is peremptory that in order to attract Order 47 CPC, there must be discovery of new and important matter or evidence, which, after the exercise of due diligence, was not within the applicant's knowledge could not be produced by him at the time when the decree or order was passed or on account of some mistake or error apparent on the face of the record or for any other sufficient reason. The Review Application is liable to be rejected since none of these grounds can be inferred from the contentions. But, he has stated that this Tribunal did not consider his right for upgradation of the grade of 'good' in his ACR to 'very good', it is an error apparent on the face of the record. We have already extracted the reliefs sought by the applicant. He was only aggrieved by the non-granting of 2^nd and 3^rd MACPs. The Tribunal had considered the question and concluded against him. It was pointed out that ^{he was not entitled to get 2}Central Administrative Tribunal^{nd and 3rd MACPs claiming grade pay of Rs.7600/-}and 8700/-, for which benchmark grade is 'very good', which he did not possess. Even though he had made representation against the gradings, that were considered and rejected and materials were made available to say that the decision was communicated to him in his residential address.

It is very important to point out that the applicant had no case that the representation for upgrading the ACR was not considered appropriately on the aspect buttressed before the Tribunal. On the other hand, he has straight away sought the 2^nd and 3^rd MACPs. The Tribunal, after finding that he did not have the requisite benchmark grading in the ACR, was not entitled to get the benefits of higher grade pay. This grading in the ACRs remaining the same, which was not the subject matter of dispute or challenge in the O.A., reliefs as prayed for could not have been granted.

We need not point out that, something not done at the appropriate time has caused him damage. Now it is too late. It is said, 'it is no use closing the stable door after the horse has bolted'.

Now, basing on the decisions quoted supra, the petitioner wanted to say that he has a right to claim upgradation of entry in the ACR etc. It is the settled proposition of law that a review will not sustain, if an error, which is not self evident and which can be discovered by a long process of ^{reasoning. It cannot be treated as an error apparent on the face of the record}Central Administrative Tribunal justifying the exercise of power under Section 22(3)(f) of the Administrative Tribunals Act. The Review Application has been filed beyond the scope of pleadings in the O.A. On that ground alone, it is liable to be rejected.

In our reading, none of the requisite ground necessary for reviewing the order has been made out. The Review Application is dismissed. No costs.

Annexure RA1: True copy of the final order dated 5.12.2024 in OA 1106/2013 on the file of this Hon'ble Tribunal