R. Kasi v. The Registrar Central Administrative Tribunal High Court Buildings Chennai & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 15.7.2009CORAMTHE HONOURABLE MR. JUSTICE ELIPE DHARMA RAO andTHE HONOURABLE MR. JUSTICE T.S. SIVAGNANAMWrit Petition No.21073 of 2006R. Kasi ..Petitionervs.1.The RegistrarCentral Administrative TribunalHigh Court BuildingsChennai2.Union of IndiaRep. by Commanding OfficerNo. 8 Base Repair DepotChennai - 553.I. Velu ..RespondentsPetition filed under Article 226 of the Constitution of India prayingfor the issuance of the writ of Certiorarified Mandamus calling forthe records relating to the order of the Tribunal dated 05.5.2006 inO.A. No. 920 of 2005 and quash the same and consequently direct thesecond respondent to consider the petitioner for promotion from thepost of Senior Chargeman / Chargeman Grade I to the post of AssistantForeman.For Petitioner: Mr. Balan HaridasFor R 2: Ms. R. Maheswari, SCGSCO R D E R(was made by ELIPE DHARMA RAO, J.) The unsuccessful applicant before the Central AdministrativeTribunal (in short "Tribunal) in O.A.No.920 of 2005 has filed thepresent writ petition against its order dated 05.5.2006.2.The facts that lead to the filing of the present writpetition are that the petitioner, who was appointed as M.T.M. (A) on https://hcservices.ecourts.gov.in/hcservices/

03.4.1982, after getting promotions in different grades in theDepartment, is working as Chargeman Grade – I with effect from20.4.2000; that in the year 2003, when two posts of Assistant Foremanwere created by the second respondent, the third respondent, who isjunior to the petitioner, was promoted as Assistant Foreman and thatwhen the petitioner made a representation to the second respondentrequesting to promote him to the post of Assistant Foreman, thesecond respondent by way of reply dated 11.11.2005 rejected the sameon the ground of 'unfit'. Aggrieved at the same, the petitionerapproached the Tribunal with the Original Application.3.The stand of the second respondent, by way of reply, beforethe Tribunal was that promotion up to the post of Chargeman – I wasgiven on the basis of seniority and ACRs and that during the courseof selection for the post of Assistant Foreman by the DPC, ACRs ofprevious two years of the petitioner were found adverse in nature.It is further stated that the petitioner got only 'average' grade inthe ACRs since 2003 and for promotion, the candidate is to have atleast 'above average' grade, which is the 'bench mark' and severalwarnings were also issued to him with regard to his lack ofcommitment in duties.4.The Tribunal, after hearing the learned counsel for theparties and on consideration of the materials placed on record, heldthat the Department has correctly followed the provisions requiredfor the conduct of the DPC and accordingly, dismissed the O.A.Hence, the the writ petition.5.The main ground taken by the learned counsel for thepetitioner is that the entries in the ACRs for the years 1999 – 2000,2000 – 2001 and 2001 – 2002 were good and above average and he wasalso found suitable for promotion to the next higher grade and thatthe alleged adverse entries made in the ACR for the years 2002 – 2003and 2003 – 2004 were not communicated to the petitioner. Accordingto him, the petitioner was the senior most person and was legallyentitled for promotion as Assistant Foreman and sought forinterference of this Court.6.Learned Senior Central Government Standing Counselrepresenting the second respondent Department submitted that eventhough the petitioner was senior in Chargeman Grade – I post, keepingin view the adverse remarks in ACRs for the previous two years andthe warnings issued to him for his lack of commitment, the DPC foundhim 'unfit' for promotion to the next higher grade of AssistantForeman. She further submitted that the DPC for the year 2003 wasfinalised only during 2005 due to administrative reasons and therecords of the petitioner since 2001 highlight adverse remarks basedon which the petitioner was found 'unfit' for promotion and the samewas communicated to him orally. According to her, the vacancy aroseonly in July 2003 and in the ACR for the year 2002 – 2003, he was https://hcservices.ecourts.gov.in/hcservices/ given the grading 'Average' which is below the 'bench mark' of 'aboveaverage'. She further submitted that one cannot claim promotion asof right and in this case, the petitioner was considered forpromotion but was not recommended because of the adverse remarks inthe ACR for the year 2002 – 2003, and therefore, his claiming rightfor promotion cannot be sustained.7.It is not in dispute that the petitioner's seniority No. is31402 and the third respondent's seniority No. is 31403 and bothbelong to Scheduled Caste community. The post of Chargeman isfeeder cadre to Assistant Foreman and it is filled up on the basis ofseniority. A perusal of the records would show that the entries inthe ACRs of the petitioner in respect of the years 1999 – 2000, 2000– 2001 and 2001 – 2002 are shown as 'good'. Admittedly, the post ofAssistant Foreman fell vacant on 24.7.2003 and the authorities aresupposed to consider the ACRs for the three years before 2003.Therefore, if the entire service record of the petitioner in thegrade of Chargeman Grade I and the ACRs of the previous three years,ie., from 1999 except for the uncommunicated adverse remarks allegedto be made during 2002 – 2003 and 2003 – 2004, are taken intoconsideration, the petitioner should have been considered forpromotion to the post of Assistant Foreman that too, when two postswere created during that year, ie., 2003, and failure to do so wouldgo to show that the second respondent without filling up the post,delayed the same in order to get eligibility for the third respondentto get promotion and such action of the second respondent is illegal.8.That apart, a plain reading of the reply filed by theDepartment before the Tribunal would show that the authorities,instead of taking into consideration the three years prior to thedate of selection of post, have considered the ACRs for the currentyear, viz., 2002 – 2003. Unfortunately, for 2002 – 2003, the ACR inrespect of the petitioner is not considered to be 'good' forrecommendation for promotion. 9.At this juncture, it is contended by the learned counselfor the petitioner that even if any adverse remark is made for theyear 2002 – 2003, the same should have been communicated to thepetitioner so as to enable him to have an opportunity of representinghis case whereas no notice was served to the petitioner about the ACRreport that he was not recommended for promotion and therefore, thesame amounts to violation of principles of natural justice. 10.In this context, it is necessary to refer to the decisionof the Supreme Court in Dev Dutt v. Union of India and others[2008 (3) L.LN. 621] wherein in paragraph 9, it was held that everyentry must be communicated to the employee concerned, so that he mayhave an opportunity of making a representation against it if he isaggrieved. Further, in paragraph 24, it has been held as follows:- https://hcservices.ecourts.gov.in/hcservices/ "It may be mentioned that communication of entries andgiving opportunity to represent against them isparticularly important on higher posts which are in apyramidical structure where often the principle ofelimination is followed in selection for promotion, andeven a single entry can destroy the career of anofficer which has otherwise been outstandingthroughout. This often results in grave injusticeand heart-burning, and may shatter the morale of manygood officers who are superseded due to thisarbitrariness, while officers of inferior merit may bepromoted."11.Similarly, in the case of the petitioner, the entries inthe ACRs for the first three years, viz., 1999 – 2000, 2000 – 2001and 2001 – 2002, are in his favour and for the succeeding years,viz., 2002 – 2003 and 2003 – 2004, his case was not recommended forpromotion on the basis of the adverse entries in the ACRs. It isan admitted case of the learned counsel representing the Departmentthat the adverse entries in the ACRs for the years 2002 – 2003 and2003 – 2004 were not communicated to the petitioner in writing.This would show that only in order to eliminate the petitioner fromthe zone of consideration for promotion to the higher post, theauthorities have adopted the illegal method which is contrary to therulings of the Supreme Court in Dev Dutt's case (cited supra).When such is the position, we are unable to agree with the finding ofthe Tribunal in paragraph 10 of its order, which reads as follows:- "The DPC is well within its rights to come to itsconclusion on the aspects of fitness of a candidate forpromotion and the Tribunal has limited role to pay toexamine whether the DPC has been rightly convened, theright records have been placed before the DPC and theprocedure adopted is as prescribed ...."12.Further more, the Tribunal has held that the ACRs of theyear 2002 – 2003 and prior to that, are not at all supporting theclaim of the petitioner to justify his promotion. It is not indispute that the entries in the ACRs up to the year 2001 – 2002 are'good' and, therefore, in our considered view, the Tribunal, beforearriving at such a conclusion, had not gone into the materials in itsproper perspective. 13.In view of the foregoing reasons, prima facie, we aresatisfied that injustice has been caused to the petitioner in notcommunicating the alleged adverse remarks enabling him to make arepresentation to satisfy the principles of natural justice and onlywith a view to eliminate the petitioner from the zone ofconsideration for promotion to the higher post, viz., AssistantForeman, such illegal methodology was adopted by the authorities. https://hcservices.ecourts.gov.in/hcservices/ More over, when two posts were created and two candidates wereeligible for promotion, not promoting the petitioner even for thesecond vacancy amounts to violation of principles of natural justice.Therefore, we have no hesitation to hold the entire exercise by theauthorities of the second respondent in considering theuncommunicated adverse remarks and depriving promotion to the post ofAssistant Foreman, as illegal and unconstitutional contrary to therulings of the Supreme Court and the Tribunal was not right indismissing the Original Application filed by the petitioner and thesame needs to be interfered with. In view of the above discussion, the writ petition is allowedsetting aside both the orders of the Tribunal as well as the secondrespondent. No costs. The second respondent is directed to promotethe petitioner to the post of Assistant Foreman on the date when hisjunior was promoted and the petitioner is entitled for allconsequential benefits. sd/-Asst.Registrar/true copy/Sub Asst.RegistrargriTo1. The Registrar, Central Administrative Tribunal, High Court Buildings, Chennai.2. The Commanding Officer, No.8, Base Repair Depot, Chennai - 55.+ 1 c.c. to Mr. Balan Haridas, Advocate. S.R.No.31492.+ 1 c.c. to Ms. R. Maheswari, S.C.G.S.C. S.R.No.31994.W.P.No.21073 of 2006RSM (CO)GSK 28.07.2009.