Adverse entries must be communicated promptly, and a continuing wrong constitutes a recurring cause of action.

JUDGMENT :

Sujit Narayan Prasad, J:

1. The instant writ petition, under Article 226 of the Constitution of India, is directed against order dated 19.09.2019 passed in OA/51/00245/2018 with MA/051/00/2018 by Central Administrative Tribunal, Patna Bench, Patna (Circuit Bench at Ranchi) whereby and whereunder while allowing the Original Application, the prayer made on behalf of applicant regarding up-gradation in pay-scale under Modified Assured Career Progress (MACP) Scheme has been allowed.

2. Brief facts of the case, as per the pleading made in the writ petition based upon the pleading made before the Tribunal, reads as under:

3. It is the case of the applicant (respondent herein) that even though he was eligible to get the benefit of up-gradation under 3rd MACP Scheme but he has not been given such benefit, hence he approached learned Tribunal seeking direction upon the respondents (writ petitioner herein) to consider the case of the applicant for grant of 3rd financial up-gradation under MACP Scheme. The respondents were called upon, who filed their written statement raising objection to the prayer made by the applicant by taking two-fold grounds – (I).the application filed before the tribunal is barred by limitation since it was filed beyond the period of one years; and (II).there was adverse entry against the respondent-applicant and as such she cannot be said to be eligible for getting regular promotion hence he became ineligible to get progression in pay-scale.

4. Learned tribunal has answered both the issues. The learned tribunal has given the finding on the issue of limitation by taking into consideration the fact that the progression in pay-scale will have consequential repercussion in pensionary benefit hence the same will be recurring cause of action. Due to the reason of non-consideration of the aforesaid fact, the respondent-applicant had been found to be sufferer and hence said ground of limitation was discarded.

5. Second ground has been taken of adverse entry against the respondent-applicant for which he was not granted the 3rd financial up-gradation under MACP Scheme.

6. In this regard, submission has been made on behalf of applicant that he was not knowing about the fact that there was adverse entry in the service record recorded in the year 2007-08 as it was not communicated at the relevant period of time.

7. Learned Tribunal discarded the said ground based upon the reason that the said adverse entry was communicated sometimes in the year 2015, therefore once the adverse entry has not been communicated at the time when the respondent-applicant became eligible to get the benefit of up-gradation then on the date of eligibility i.e., the date when the respondent-applicant has completed 30 years of service he became eligible and entitle for up-gradation in the pay-scale and the subsequent communication of adverse entry will not come in the way. The aforesaid order along with finding so recorded by the learned tribunal has been assailed by filing the instant writ petition.

8. Mr. Prabhat Kumar Sinha, learned counsel for the writ petitioner has assailed the impugned order reiterating the ground as agitated before the learned Tribunal. It has been submitted that while accepting the original application by condoning the delay cannot be said to be proper order since the applicant admittedly has approached the learned Tribunal after lapse of 9 years from the date when it was communicated.

9. In support of his submission, he has referred to the judgment rendered by Hon’ble Apex Court in the case of Administrator of Union Territory of Daman and Diu & Ors. Vs. R.D. Valand [1995 Supp (4) SCC 593].

10. Second ground has been taken that even though adverse entry was communicated subsequent to the date of eligibility the same cannot be given go by since the conduct of the public servant is to be seen before granting up-gradation in pay-scale as per scheme of MACP but the said aspect of the matter has not been considered by the tribunal