O R D E R (ORAL)

The applicant joined as a Jr. Radiographer in ESIC. The Government of India’s Assured Career Progression (ACP) scheme was notified on 09.08.1999 and was adopted by the respondents as well. In terms of the scheme, on completion of 12 years of regular service, the applicant was entitled to the grant of the first financial up gradation under the ACP scheme. However, the same was deferred by the respondents for a period of two years, and accordingly, the subsequent up gradation was also deferred by the respondents. It is worthwhile to note that during this period, the ACP scheme was replaced by the Modified Career Progression (MACP) scheme, under which the applicant is entitled to a financial up gradation on completion of 20 years, to be calculated from 16.11.1993, with the 2nd and 3rd MACP due in the year 16.11.2023. The applicant was subsequently promoted to the post of Radiographer in October 2014. With respect to his grievance, the applicant served the respondents with a legal notice on 14.10.2016, followed by a reminder on 16.10.2014. The same was rejected by the respondents by way of an order dated 15/17.9.2014, which is being impugned in the present OA. Aggrieved by the same, the applicant has preferred this OA seeking the following relief:

“i. O.O. No. 196/2001-E-1 (No.) dated 03.9.2009 with regard to the sanction of ACP illegally stating that the Screening Committee did not find the applicant fit for grant of ACP (Ann. A/1) illegally implying that it was due to Below Bench Mark ACR(s)" without any formal communication.

ii. O.O. No. 197 of 2016 issued vide No. A-33/16/ ACP/PM/2005/E-1(M) dated 11.5.2010 to the extent that it illegally deferred the grant of benefit by two years (Annexure A-2), even without intimating the period upto which it will last, which renders the order bad in the eyes of laws, and therefore, liable to be struck down.

iii. Set aside the decision of respondents and awarding the applicant "Below Bench Mark" rating in his ACR(s) (No specific years) for which the "Below Bench Mark Entry(ies)

"pertained were ever intimated to heirs)".

iv. To direct the respondents to constitute Review Committee for consideration and grant of timely benefits to the applicant, w.e.f. 16.11.2005 when legally due on completion of 12 years regular service.

V. To declare the respondent's order(s) awarding Below Bench Mark entry(ies) in the applicant's ACR and the same being against the law laid down by Hon'ble Supreme Court of India.

(b) Award exemplary cost against the respondents for having seriously violating the relevant Scheme and for acting in a highly arbitrary manner disregarding the law laid down by the Hon'ble Supreme Court.

(c) To grant arrears arising out non-grant of ACP/MACP in time (2005) and MACP in 2013 till the period he was regularly provided in Oct., 2014 (d) To grant interest @18% on arrears (e) Award cost in favour of the applicant for making hostile discrimination against the applicant by granting him MACP late and ignoring similar case of deferment of MACP by one year to another employee (Sh. Surinder Kumar, Radiographer) without any reason.

(f) Pass any such order/ orders which deems fit and proper in view of this Hon'ble Tribunal”

2. In support of his claim, the learned counsel for the applicant draws attention to the screening committee report findings annexed at page 50 of the counter-reply. He submits that the sole ground for which the applicant’s grant of the first ACP was deferred is ‘adverse ACRs’. During submission, he contended that these ACRs were never communicated to the applicant, nor was any warning issued to the applicant regarding his performance, if there was any downfall in his work conduct and performance. He submits that in light of the decision of the Hon’ble Apex Court in Dev Dutt vs. Union of India, Civil Appeal No. 7631/2002, reiterated in Rukshana Shaheen Khan v. Union of India and Ors, Civil Appeal No. 32/2013, decided on 22.08.2017, the un -communicated ACRs not be consi