Uncommunicated entries cannot be used to deny an employee's entitlement to ACP benefits, and the employer has an obligation to communicate adverse entries to the employee.

JUDGMENT :

The brief facts of the case are that the petitioner was enrolled after being appointed on the post of the Driver with the respondent department, with his initial posting which was made on 2nd November 1977, when he was posted at SSB, Teju, Arunachal Pradesh, and after completing his satisfactory training, and during the tenor of his services, he was thereafter posted at different SSB centres, where he performed his duties. As per the scheme of extension of benefit of ACP, a regular member of the service, who has rendered 10 years, 20 years or 30 years of satisfactory services respectively, on completion of the aforesaid breakup of the services, would be entitled for the grant of the benefits of first ACP, second ACP and third ACP.

2. The grievance of the petitioner is, that as per his year of induction into the services and after rendering of his services with the respondent, which he contends, that it was satisfactory, he would be entitled for the grant of benefit of 3rd ACP, after 30 years of his satisfactory services, which he contends to have completed on 1st September 2008, but he was deprived of being granted with the grade pay of Rs.4200, which according to the petitioner, he was otherwise entitled to receive the same as per the MACP scheme, of extension of ACP benefit. Hence, the petitioner contends that he has raised his claim before the higher authorities, before, attainment of age of superannuation, for the purposes of extension of benefit of third ACP. When the same was not extended, the petitioner reiterated his claim vide his representation by way of the reminder before the Commandant 42nd Battalion SSB, but no action proceeded yet on it. Hence, he submitted a reminder prior to his attainment of age of superannuation on 30th July 2013, which was addressed to the Commandant of the SSB, but no action was still taken ultimately till the petitioner retired from the services after rendering 35 years of continuous satisfactory services i.e. on 31st August 2013 having retired from the post of Head Constable (Driver) from SSB centre at Nanpara, Bahraich-I, Uttar Pradesh.

3. Based on the aforesaid contention, the petitioner submitted that he would be entitled for the grant of the benefit of third ACP, from the date of his entitlement i.e. the date when he became eligible to be extended with the benefit of the 3rd ACP with effect from 1st September 2008, when he had completed 30 years of service, when the petitioner was deprived of the same, he has preferred this writ petition on 6th September 2018 for the following relief :-

“i) Issue a writ, order or direction in the nature of mandamus commanding and directing the respondents to grant benefit of 3rd MACP and Grade pay of Rs. 4200 to the petitioner w.e.f. 2008.

ii) Issue a writ, order or direction in the nature of mandamus commanding and directing the respondents to pay the arrears of Grade pay of Rs. 4200 alongwith 18% interest to the petitioner which is fallen due after completion of 30 years of service and has not been paid to the petitioner till date but are being provided to the other similarly situated employees.

iii) Issue a writ, order or direction in the nature of mandamus commanding and directing the respondents to revised the pension of the petitioner by re-fixing the same give the petitioner all the other retiral benefit alongwith prevailing interest.

iv) Issue any other writ, order or direction, which this Hon'ble Court may deem fit and proper under the facts and circumstance of the case.

v) Award the cost of the petition to the petitioner.”

4. The respondents were noticed, and the respondents in response to it have filed their counter affidavit on 31st May 2019, making an effort to deny the claim which was raised by the petitioner for the extension of the third ACP benefit of grade pay of Rs.4200, as claimed by him to be made payable with effect from 1st September 2008, on the ground that, the petitioner service records carry an “average entry” pertaining