Adverse Entry Must Be Communicated To Employee Within Reasonable Period: Jharkhand HC

The Jharkhand High Court reiterated that adverse entry has to be communicated to employee within a reasonable period.

The Court dismissed a writ petition challenging the order of the Central Administrative Tribunal (Tribunal) that granted the retired employee’s request for 3rd pay-scale upgradation.

The Court noted a significant delay in communicating adverse entries, remaining silent for seven years until the said retired employee raised the issue.

“It is not the case where there is lack of recurring cause of action rather it is a case where the applicant since is suffering from month to month basis due to less fixation of pension in consequence of nongrant of 3rd up-gradation under MACP Scheme, hence, according to our considered view it is a case of recurring cause of action”, the Bench comprising Justice Sujit Narayan Prasad and Justice Navneet Kumar observed.

Advocate Prabhat Kumar Sinha appeared for the Petitioner and Advocate Sanjay Kumar Thakur appeared for the Respondent.

The Writ Petition was filed before the High Court challenging the order of the Tribunal. The Tribunal granted the Respondent’s request for pay-scale upgradation under the Modified Assured Career Progression (MACP) Scheme. The Respondent contended that, although eligible for the 3rd MACP Scheme, the benefit was denied. The Union argued that the application was time-barred and raised concerns about adverse entries affecting the Respondent’s eligibility for regular promotion and pay-scale progression.

The Court framed the following issues:

“I. Whether the direction which has been given by the learned tribunal allowing the claim of the Respondent by holding him entitle for 3rd MACP can be said to suffer an error on the ground of adverse entry said to be there?

II. Whether accepting the original application after lapse of 9 years as a ground is being taken can be said to be proper on the part of learned tribunal?”

The Court noted the alignment between the criteria for pay-scale upgradation and regular promotion, emphasizing the necessity to communicate adverse entries promptly, allowing objection and subsequent decision by the competent authority. Failure to reverse such entries by a court of law can be a valid ground for withholding promotion or pay-scale upgradation under the Assured Career Progression or Modified Assured Career Progression schemes.

In this context, the Court emphasized that the case does not involve punitive action against the Respondent. Instead, it revolves around the assertion that an adverse entry in 2007-08, communicated to the Respondent in 2015, should not deny the right established in favour of the Respondent, considering his eligibility from September 1, 2008. The Court noted the delay in communicating the adverse entry as a serious lapse on two grounds.

The Court observed two significant lapses: firstly, the authority's failure to promptly communicate adverse entries, showing gross negligence by remaining silent for seven years until the Respondent raised the issue while claiming the 3rd MACP; secondly, the authority, having committed a wrong, cannot benefit from it, aligning with the legal principle that a wrongdoer should not gain advantage from their own wrongdoing.

Based on this, the Court held that the subsequent decision or communication, post the communication of the adverse entry, cannot be considered adverse. Thus, the Tribunal's decision to allow the Original Application, directing benefits under the 3rd MACP, was deemed error-free.

Regarding the issue of approaching the Tribunal after the stipulated period, the Bench observed the general one-year timeframe but recognized the tribunal's authority to condone the delay upon showing sufficient cause. While salary does not fall under a recurring cause of action, unlike a pension, the Court noted that the term "recurring" implies ongoing suffering for the litigant. Recurring or successive wrongs occur periodically, constituting a recurring cause of action.

The Bench noted the 3rd up-gradation's impact on pensionary benefits, establishing a recurring cause of action. The objection raised regarding the limitation issue is considered unsustainable due to the recurring cause of action. The Court referenced the judgment in the case of the Administrator of Union Territory of Daman and Diu & Ors. v R.D. Valand [1995 Supp (4) SCC 593], emphasizing the case's dependency on specific facts.

Distinguishing the case from the case R.D. Valand (supra), the Bench observed that the latter involved a promotion issue raised after a lapse of 15 years. However, the Court noted that the case pertains to pay scale up-gradation under MACP, not promotion, and doesn't pose a risk of unsettling seniority or jeopardizing the interests of other public servants.

Accordingly, the Court dismissed the Petition and affirmed the impugned order.

Cause Title: Union of India v Neelu Kumari

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