High Court of KeralaSingle Judge2020-03-09Writ Petitions disposed of with directions to c...

K.V.G ACHARI v Union of India & Others; Jacob Thomas v Union of India & Others

Case / Petition Number:WP(C).26358/2015(T); WP(C).35360/2016

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P.V.ASHA
Judgment Date: 2020-03-09
Court Decision / Holding: The writ petitions are disposed of accordingly. The respondents are directed to consider the petitioners for 3rd MACP without taking into account uncommunicated ‘good’ remarks. They shall place the petitioners’ cases before the Screening Committee for 3rd MACP and pass orders within three months. Thereafter, pay shall be refixed, pension and pensionary benefits recomputed and sanctioned, and arrears of pension and pensionary benefits shall be disbursed within two months.
Final Disposition: Writ Petitions disposed of with directions to consider MACP without uncommunicated grading, and with scheduling of screening, pay refixation, pension recomputation and arrears within specified timelines.

Parties to the Case

Appellants / Petitioners

K.V.G ACHARI
JACOB CHANDA PILLAI
J.SUDHIRANJAN
C.C. CHANDRAMOHAN
Jacob Thomas

Respondents

Union of India
Chairman, Export Inspection Council of India
Director, Export Inspection Council of India
Joint Director, Export Inspection Agency-Kochi

Legal Representation & Advocates

Counsels for Petitioners

• Adv. SRI. JOHN T. PAUL

Counsels for Respondents

• SRI. T.V.VINU, CGC

Case Synopsis & Summary

The Kerala High Court, before Justice P.V. ASHA, heard two connected writ petitions—WP(C) Nos. 26358 of 2015 (K.V.G. Achari, et al.) and 35360 of 2016 (Jacob Thomas)—challenging denial of Modified Assured Career Progression (MACP) benefits for employees of the Export Inspection Council of India who retired between 2010 and 2012. MACP, introduced by the government in 2009 (Ext. P1), provides financial upgradation after 30 years, with benchmarks linked to grade pay: “good” for certain upgrades up to Rs. 6600 and “very good” for higher grades. The petitioners contend that denial was based on uncommunicated ACR remarks that allegedly indicated only “good,” which should not bar MACP, especially since some promoted officers received Joint Director posts with a lower bench mark. They rely on Supreme Court authorities Dev Dutt v. Union of India (2008) 8 SCC 725 and Abhijit Ghosh Dastidar v. Union of India (2009) 16 SCC 146, as well as a Rajasthan High Court decision (Ext. P8), to argue that non- communicated remarks cannot defeat MACP. The respondents counter that eligibility requires the benchmark, and Dev Dutt requires communicating remarks before decisions, with Ext. P8 cited as support. The court ultimately holds that MACP should be considered without counting an uncommunicated “good” remark, directs screening committee action within three months, and orders pay refixation and pension recalculation with arrears to be disbursed within two months.”

Provisions of Law Cited

MACP Scheme, OM No.35034/3/2008-ESTT(D) dated 19.05.2009Export Inspection Agency (Recruitment) Rules, 1980, Rule 5(1)(i)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners argued that MACP benefits should be considered without regard to uncommunicated ACR remarks such as an alleged ‘good’ grade. They relied on Abhijit Ghosh Dastidar (2009) 16 SCC 146 and Dev Dutt (2008) 8 SCC 725, as well as Ext. P8 (Rajasthan High Court judgment), contending that denial based on non-communicated grading would be unjust since some peers were promoted with only a 'good' grade. They emphasized retirement dates (2010–2012) and sought 3rd MACP with pensionary benefits recalculated.

Contentions of Respondents

The respondents argued that MACP eligibility hinges on the benchmark as prescribed (up to ‘very good’ for higher grade pay). They contended that Dev Dutt requires communication of remarks before a decision and relied on Ext. P8 to illustrate a contrary reliance on communicated or promotive criteria. They urged caution and stated it would be inequitable to grant MACP retroactively without proper process and communications.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Dev Dutt v. Union of India & Ors.	2008 (8) SCC 725	Distinguished	The court distinguishes Dev Dutt and favors the Abhijit Ghosh Dastidar approach that uncommunicated grades should not block MACP eligibility.
Abhijit Ghosh Dastidar v. Union of India & Others	2009 (16) SCC 146	Positive	Court follows the three-judge Supreme Court view directing consideration of MACP without counting uncommunicated ‘good’ grades.
Rajasthan High Court decision in W.P. No.10556/2013	9.12.2013	Mentioned Only	Ext. P8 cited to illustrate a related outcome; not adopted as controlling precedent in this case.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **MONDAY, THE 09TH DAY OF MARCH 2020 / 19TH PHALGUNA, 1941** ## **WP(C).No.26358 OF 2015(T)** ## **PETITIONERS:** - **1 K.V.G ACHARI AGED 63 YEARS DEPUTY DIRECTOR- EIC (RETD), SREEDARSH HOUSE, PULLEPPADI ROAD, KATHRIKKADAVU, ERNAKULAM DISTRICT, KERALA-682 017.** - **2 JACOB CHANDA PILLAI DEPUTY DIRECTOR- EIC(RETD), PLOT NO.109, GCDA COLONY, THOTTAKKATTUKARA.P.O., ALUVA, ERNAKULAM DISTRICT, KERALA-683 108.** - **3 J.SUDHIRANJAN DEPUTY DIRECTOR- EIC(RETD), ANJANAM HOUSE, KARUMOM, THIRUVANANTHAPURAM DISTRICT, KERALA-691 002.** **4 C.C.CHANDRAMOHAN DEPUTY DIRECTOR- EIC(RETD), DARPAN HOUSE, VADAKKUMTHALA.P.O., KARUNAGAPPALLY, KOLLAM DISTRICT, KERALA-690 536.** **BY ADV. SRI.JOHN T.PAUL** ## **RESPONDENTS:** - **1 UNION OF INDIA REPRESENTED BY THE SECRETARY, MINISTRY OF COMMERCE & INDUSTRY, UDYOG BHAVAN, NEW DELHI-110 007.** **2 THE CHAIRMAN EXPORT INSPECTION COUNCIL OF INDIA, 3RD FLOOR, NDYMCA CULTURAL CENTRE BUILDING, 1 JAI SINGH ROAD, NEW DELHI-110 001.** ## **3 THE DIRECTOR** **EXPORT INSPECTION COUNCIL OF INDIA, 3RD FLOOR, NDYMCA CULTURAL CENTRE BUILDING, 1 JAI SINGH ROAD, NEW DELHI-110 001.** **BY SRI.T.V.VINU, CGC BY ADV. SRI.T.V.VINU CGC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.03.2020, ALONG WITH WP(C).35360/2016(T), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **MONDAY, THE 09TH DAY OF MARCH 2020 / 19TH PHALGUNA, 1941** ## **WP(C).No.35360 OF 2016** ## **PETITIONER:** **JACOB THOMAS** **AGED 66 YEARS, S/O.LATE V.C.THOMAS,VALYATHU HOUSE, KAYAMKULAM P.O.,ALAPPUZHA DIST, KERALA-690 205, NOW RESIDING AT WING-4, 005 L, ARATT FELICITA APPARTMENTS, MYLASANDRA ROAD, BEGUR, BANGALORE, KARNATAKA-560 068.** **BY ADV. SRI.JOHN T.PAUL** ## **RESPONDENTS:** |**1**|**UNION OF INDIA**| |---|---| ||**REPRESENTED BY THE SECRETARY, MINISTRY OF COMMERCE**| ||**AND INDUSTRY, UDYOG BHAVAN, NEW DELHI-110 007.**| |**2**|**THE CHAIRMAN**| ||**EXPORT INSPECTION COUNCIL OF INDIA, 3RD FLOOR,**| ||**NDYMCA CULTURAL CENTRE BUILDING, 1 JAISINGH ROAD,**| ||**NEW DELHI-110 001.**| |**3**|**THE DIRECTOR**| ||**EXPORT INSPECTION COUNCIL OF INDIA, 3RD FLOOR,**| ||**NDYMCA CULTURAL CENTRE BUILDING,1 JAISINGH ROAD,**| ||**NEW DELHI-110 001.**| |**4**|**THE JOINT DIRECTOR**| ||**EXPORT INSPECTION AGENCY-KOCHI,**| ||**27/1767 A, SHIPYARD QUARTERS ROAD,**| ||**PANAMPILLY NAGAR SOUTH, ERNAKULAM, KERALA -682 035.**| ||**BY SRI.KRISHNADAS P.NAIR, CGC**| ||**BY ADV. SRI.KRISHNADAS P.NAIR CGC**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.03.2020, ALONG WITH WP(C).26358/2015(T), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) Nos.26358/2015&35360/2016 ## **JUDGMENT** Petitioners in both these cases are aggrieved by the denial of the benefit of Modified Assured Career Progression (MACP) Scheme. The petitioners were employed in Export Inspection Council of India. All of them retired from service in 2010 and thereafter. MACP Scheme was introduced by the Government as per Ext.P1 order issued on 19.05.2009. By this Scheme the petitioners became eligible to be considered for MACP on completion of 30 years. Respondents had not considered the petitioners for financial upgradation under the scheme. In answer to their representation for the same, the Assistant Director as per Ext.P4 order in WP(C) No.26358/2014 informed the 3[rd] petitioner that grant of MACP was not recommended by the Committee in his case due to non fulfillment of requisite bench mark ie. “very good” prescribed for consideration for MACP to the grade pay of Rs.7600/- in PB-3 which is equivalent to the post of Joint Director. The case of the petitioners is that they were not informed of the remarks “good” in their Annual Performance Assessment Report. Petitioners pointed out that for regular promotion as Joint ## W.P.(C) Nos.26358/2015&35360/2016 :4: Director the bench mark required was only “good”. The petitioners pointed out that some of the persons who were denied the 3[rd] MACP financial upgradation had already got promotion as Joint Director which required only the bench mark “good”. The petitioners relied on the judgment of the Rajasthan High Court produced as Ext.P8 in WP(C) No.26358/2015 in which the order of the Central Administration Tribunal Jodhpur Bench, directing grant of financial upgradation was upheld. In that case the petitioners therein were denied MACP benefit on the ground that grading in the ACR was only “good” and not “very good”. Seeing that such remarks were not communicated to the petitioners therein CAT allowed their case and directed grant of MACP benefit. Petitioners are also relying on the judgment of the apex court in _**Dev Dutt vs. Union of India & Ors. : (2008) 8 SCC 725**_ and three Judge Bench judgment of the apex court in _**Abhijit Ghosh Dastidar vs. Union of India and others : (2009)16 SCC 146**_ . It is argued that petitioners are entitled to be considered for the benefit of MACP without referring to the uncommunicated grading “good” in their ACR. 2. Respondents have filed counter affidavits in these cases stating that the petitioners who did not have the ## W.P.(C) Nos.26358/2015&35360/2016 **==> picture [19 x 8] intentionally omitted <==** bench mark of “very good” are not eligible for 3[rd] financial upgradation under the MACP. 3. Paragraph 17 of Ext.P1 provides that the financial upgradation would be on non-functional basis subject to fitness, in the hierarchy of grade pay within the PB-1. Thereafter for upgradation under the MACPs the benchmark of 'good' would be applicable till the grade pay of Rs.6600/in PB-3. The benchmark will be 'very good' for financial upgradation to the grade pay of Rs.7600/- and above. 4. In the present case petitioners submit that the grading “good” when it affects their eligibility for MACP has to be considered as an adverse remark and unless and until it is communicated, the same cannot be considered for the purpose of granting MACP. 5. The learned Standing Counsel vehemently argued that Ext.P8 judgment in WP(C) No.26358/2015 cannot be relied on and in _**Dev Dutt's**_ case (supra) the apex court has only directed the respondents to take a decision after communicating the remarks to the incumbents. However as contended by the learned counsel for the petitioners three Judge Bench of the apex court in its judgment dated 22.10.2008 in _**Abhijit Gosh's**_ case(supra) while considering a similar case directed the respondents to consider the ## W.P.(C) Nos.26358/2015&35360/2016 :6: case of the incumbents therein without taking into consideration the grading “good” when it was not communicated for the purpose of promotion. Petitioners herein have already retired from service some time between 2010 and 2012. At this stage it would not be equitable to direct them to submit representations. 6. However in the light of the judgment of the Apex Court in _**Abhijith Ghosh Dastidar's**_ case (supra) I am of the view that respondents have to consider the case of the petitioners for 3[rd] financial upgradation under MACP without considering the grading “good”. Since there is considerable delay in the matter, respondents need only re-fix their pay after granting MACP for the purpose of pensionary benefits. The benefit of financial upgradation shall be reflected in their pensionary benefits. In other words petitioners need not be given any arrears of pay based on the grant of MACP. 7. The respondents shall therefore take appropriate action to place the case of the petitioners before the screening committee for the 3[rd] financial upgradation under MACP and to pass orders thereon within a period of three months. Thereafter pay of the petitioners shall be refixed; their pension and pensionary benefits shall be recomputed and sanctioned thereafter and the arrears of pension and W.P.(C) Nos.26358/2015&35360/2016 **==> picture [19 x 8] intentionally omitted <==** pensionary benefits shall be disbursed to them within a further period of two months. The Writ Petitions are disposed of accordingly. **Sd/-** rkc **P.V.ASHA JUDGE** ## **APPENDIX OF WP(C) 26358/2015** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 P1- TRUE COPY OF THE MACP SCHEME OM NO.35034/3/2008-ESTT(D) DATED 19.5.2009.** **EXHIBIT P2** **P2- TRUE COPY OF THE OFFICE ORDER NO.EIC/D(Q/C)/MACPS/OFFICERS/2014-15/7777 TO 7782 DATED 25.3.2015.** **EXHIBIT P3 P3- TRUE COPY OF THE REJECTION ORDER NO.EIC/D(Q/C)/MACPS/OFFICERS(GP-7600)/201415/7784 TO 7791 DATED 25.3.2015.** **EXHIBIT P4 P4- TRUE COPY OF THE REJECTION ORDER OF THE 3RD PETITIONER NO.EIC/D(Q/C)/131/2010/VOLV/2014-15/2234 DATED 30.7.2015.** **EXHIBIT P5 P5- TRUE COPY OF THE REJECTION ORDER OF THE 4TH PETITIONER NO.EIC/D(Q/C)/MACP/OFFICERS(GP-7600)/201415/915 DATED 5.6.2015. EXHIBIT P6 P6- TRUE COPY OF THE CLARIFICATION O.M.NO.35034/3/2008-ESTT(D) (VOL.II) DATED 4.10.2012. EXHIBIT P7 P7- TRUE COPY OF THE RECRUITMENT RULE-1980 OF THE EIC TO THE POST OF JOINT DIRECTOR AMENDED UPTO 31.12.1986. EXHIBIT P8 P8- TRUE COPY OF THE JUDGMENT OF THE HON'BLE RAJASTHAN HIGH COURT IN WRIT PETITION NO.10556/2013 DATED 9.12.2013.** **RESPONDENTS EXHIBITS:** |**EXHIBIT P8** **RESPONDENTSEXHIBITS:**|**P8- TRUE COPY OF THE JUDGMENT OF THE** **HON'BLE RAJASTHAN HIGH COURT IN WRIT** **PETITION NO.10556/2013 DATED 9.12.2013.**| |---|---| |**EXHIBIT R1(a)**|**TRUE COPY OF RELEVANT RULE, RULE-5(1)(i)** **OF** **THE** **EXPORT** **INSPECTION** **AGENCY** **(RECRUITMENT) RULES, 1980.**| |**EXHIBIT R1 (b)**|**TRUE COPY OF THE LETTER NO.2/9/2010 DATED** **20/27.01.2015 RECEIVED FROM THE DEPARTMENT** **OF COMMERCE**| ## **APPENDIX OF WP(C) 35360/2016** ## **PETITIONER'S/S EXHIBITS:** |**EXHIBIT P1**|**THE TRUE COPY OF THE IDENTITY CARD NO.459**| |---|---| ||**DATED 28.7.2007 ISSUED TO THE PETITIONER BY**| ||**THE EIA-KOCHI**| |**EXHIBIT P2**|**THE TRUE COPY OF THE RELIEVING OFFICE ORDER**| ||**BY** **THE** **EIA-KOCHI** **LETTER**| ||**NO.EIA/KOC/ADMN/II(164)/2010/1895** **DATED**| ||**30.6.2010**| |**EXHIBIT P3**|**THE TRUE COPY OF THE PENSION PAYMENT ORDER**| ||**ISSUED TO THE PETITIONER BY THE EIA-KOCHI**| ||**NO.EIC/D/QC/PEN/580/10 DATED 22.6.2010**| |**EXHIBIT P4**|**THE TRUE COPY OF THE MACP OM**| ||**NO.35034/3/2008/ESTT(D) DATED 19.5.2009**| |**EXHIBIT P5**|**THE TRUE COPY OF THE SALARY CERTIFICATE OF**| ||**THE PETITIONER ISSUED BY EIA-KOCHI DATED**| ||**7.7.2009**| |**EXHIBITP6**|**THE TRUE COPY OF THE EIC OFFICE ORDER**| ||**NO.EIC/D/(Q/C)MACPS/ OFFICERS/2014-15/7777**| ||**TO 7783 DATED 25.3.2015**| |**EXHIBIT P7**|**THE TRUE COPY OF THE EIC OFFICE UNDER**| ||**NO.EIC/D/(Q/C)MACPS/ OFFICERS/2014-15/7784**| ||**TO 7791 DATED 25.3.2015**| |**EXHIBIT P8**|**THE** **TRUE** **COPY** **OF** **THE** **LETTER**| ||**NO.EIA/KOC/ADMN/MACP/2015-2016/1142 DATED**| ||**12.6.2015**| |**EXHIBIT P9**|**THE TRUE COPY OF THE MACP OM**| ||**NO.35034/3/2008-ESTT(D)(VOL.II)** **DATED**| ||**4.10.2012**| |**EXHIBIT P10**|**THE TRUE COPY OF THE JUDGMENT OF HON'BLE**| ||**RAJASTHAN HIGH COURT DIVISION BENCH IN UOI**| ||**VS.** **HARISH** **CHANDRA** **SINGH** **C.W.P.**| ||**NO.10556/2013 DATED 9.12.2013**|