IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY EIGHTH DAY OF JANUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT PETITION NO : 760 of 2009 Between: K. Yadaiah, S/o. Nagaiah, O/o. Chief Ticket Inspector, Secunderabad R.S. R/o. H.No. 9-2-394, Pensionpur, Lunger House, Hyderabad 500 008. ..... PETITIONER AND 1 Union of India, Rep. by the General Manager, South Central Railway, SECUNDERABAD. 2 The Divisional Railway Manager, South Central Railway, Secunderabad Division, SECUNDERABAD. 3 The Senior Divisional Personnel Officer, South Central Railway, Secunderabad Division, SECUNDERABAD. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue Writ, order, directions more particularly one of Writ of Mandamus declaring the action of the Respondents in not promoting the Petitioner to the post of Chief Ticket Inspector on par with his Juniors under restructuring orders vide Meorandum No. CP/608/Tkt.Chg/Restructuring/05 dated 12-1-2005 which confirmed in O.A.No. 555/2006 dated 2-7-2008 fo the Central Administrtive Tribunal, Hyderabad Bench, Hyderabad as illegal, arbitrary and violation of Articles 14 & 16 of the Constitution of India and consequently direct the Respondents to promote the Petitioner to the post of Chief Ticket Inspector with effect from 1-11-2003 with all monitory benefits including promotion, seniority etc., and pass Counsel for the Petitioner:MR.J.M.NAIDU Counsel for the Respondent No.: MR.R.S.MURTHY THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WP.No.760 of 2009 O R D E R:- (per Hon’ble Sri Justice Ghulam Mohammed) This writ petition is filed declaring the action of the respondents in not promoting the petitioner to the post of Chief Ticket Inspector on par with his juniors under restructuring orders vide Memorandum No.CP/608/Tkt.Chg/Restructuring/05 dated 12.1.2005, which is confirmed in O.A.No.555 of 2006 dated 2.7.2008 of the Central Administrative Tribunal, is illegal and arbitrary and consequently direct the respondents to promote the petitioner to the post of Chief Ticket Inspector with effect from 1.11.2003 with all monitory benefits including promotion, seniority etc., 2. The brief facts of the case are as follows: The petitioner approached the Tribunal assailing the inaction of the respondents in considering the representation of the applicant for promoting him to the post of Chief Ticket Inspector with effect from 1.11.2003 under modified selection procedure on par with his juniors but calling him to appear for selection vide notification No.CP/608/Tkt/Chg/Restructuring/05 dated 12.1.2005. The petitioner is working as Travelling Ticket Examiner since 1992 and he belongs to SC community. As per the avenue of promotion of Ticket Checking staff, the applicant is entitled for promotion as Chief Ticket Inspector and they have to implement the orders of restructuring of cadres in terms of Railway Board letter No.PC.III/2003.CRC/6 dated 6.1.2004 and accordingly empanelled a total 41 TTIs for the post of CTI in the scale of Rs.6500-10500 (RPS) under modified selection procedure and have been given posting orders as CTI. The modified selection does not contemplate regular selection for the post of CTI which is a selection post. His name should have been figured at Sl.No.13, but his name was not found in the list. The applicant has also surprised to find that the impugned panel contained a note that ‘two restructured posts as on 1.11.2003 which belong to ST community could not be filled as no ST candidates are available in the field of eligibility’. The applicant claimed that either on the basis of seniority or on the basis of communal roster point for STs, the applicant is entitled for the post of CTI with effect from 1.11.2003. Accordingly, he submitted a representation but during the pendency of the representation, respondent No.3 issued a notification on 12.9.2006 calling a selection for preparing a panel for promotion to the post of Chief Ticket Inspector. The applicant was also called for the written test to be held on 7.10.2006 showing his name at Sl.No.1 in the list of eligible employees. The applicant claims that the inaction on the part of the respondents in not disposing of his representation before the regular selection is arbitrary and illegal and resulting in miscarriage of justice. 3. The respondent filed a counter-affidavit stating that all the vacancies arising out of restructuring were filled up by way of modified selection procedure ie., the section was based only on scrutiny of service records and CRs without holding any written or viva-voce test. A committee consisting of three officers was constituted to adjudge the suitability for the post of CTI. The respondents have stated that the Committee after perusing the requisite documents have adjudged the applicant as unsuitable as his CRs for the years 2002 and 2003 are ‘average’ and ‘below average’ respectively. The mention of non-availability of 2 ST candidates in the field of eligibility means non-availability of two ST candidates who are found suitable under the cadre restructuring scheme and not any two STs. One more name of ST candidate was later included in the pael and he was promoted vide order No.50 dated 16.5.2006. The respondents have also stated that a notification dated 12.9.2006 was issued for selection comprising the written test only for promotion to the post of CTI. Though the applicant was called to appear for the written test, he did not appear. 4. According to the Tribunal, the issue that arises for consideration is whether the respondents have acted correctly in superseding the applicant for promotion to the post as CTI under the modified selection procedure. The Tribunal found that as per the Railway Board’s letter dated 6.1.2004 ie., restructuring the group C & D cadres the modified selection involves only scrutiny of service records and CRs without holding any written or viva-voce test. The Tribunal on a scrutiny of the record placed before it, found that the duly constituted committee has perused the Service Registers and the records of the eligible Officers for a period of three years as per the rules and came to the conclusion that the applicant is unsuitable. The Tribunal observed that it is seen from the proceedings of the selection Committee that the Committee has taken into account the punishments/awards during the preceding three years and the grading of CRs for the years 2001, 2002 & 2003 and the present status of DAR/SPE/vigilance cases, while assessing the suitability of officers for promotion. In the last column they have only observed whether the candidate is ‘suitable’ or ‘unsuitable’. The record revealed that the grading of the petitioner in the ACR for the year 2003 was ‘below average’ and the committee accordingly has assessed that he is unsuitable. The Tribunal further observed that it is seen from the proceedings of the selection committee that the applicant’s grading for the years 2001 and 2002 have been good (although the respondents in their reply statement have stated that the applicant’s CRs for the years 2002 & 2003 are ‘average’ and ‘below average’). The Tribunal has considered this aspect keeping in view the judgment rendered by the Apex Court in BADRINATH v GOVERNMENT OF TAMIL NADU & OTHERS 2000(8) SCC 395 in the matter of communication of adverse entries and consideration of promotion, wherein the the Apex Court has held as follows: “Unless there is a strong case for applying the Wednesbury doctrine or there are mala fides, Courts and Tribunal cannot interfere with assessments made by Departmental Promotion Committees in regard to merit or fitness for promotion. But in rare cases, if the assessment is either proved to be mala fide or is found based on inadmissible or irrelevant or insignificant and trivial material – and if an attitude of ignoring or not giving weight to the positive aspects of one’s career is strongly displayed, or if the inferences drawn are such that no reasonable person can reach such conclusions, or if there is illegality attached to the decision, then the powers of Judicial review under Article 226 of the Constitution are not foreclosed”. While the Courts are exercising the power of judicial review in dealing with assessment made by Departmental Promotion Committees, the executive is also to bear in mind that, in exceptional cases, the assessment of merit made by them is liable to the scrutinized by Courts, within the narrow Wednesbury principles or on the ground of mala fides and limited scope that is from principles are on the ground of mala fides. 5. The Tribunal after taking into consideration the material on record dismissed the O.A. holding that the selection committee was duly constituted to assess the suitability of the candidates and the applicant and found that the conclusion arrived at by the committee that the applicant is not suitable for promotion cannot be interfered with. 6. We have heard the learned counsel for the parties and perused the material made available on record. 7. The learned counsel for the petitioner contended that the adverse entries made in the ACRs have not been communicated to the petitioner and his signatures have not been obtained. The learned counsel further contended that since, it is a common selection post merely on the basis of ACRs, the authorities ought not to have considered the cases of persons for promotion and as such the order of the Tribunal cannot be sustained. 8. The learned counsel for the respondents on the other hand vehemently contended that the Tribunal has considered the matter objectively and has gone into the aspect in depth by calling for the record and after perusing the entire record recorded a finding that the adverse entries in the confidential report for the year ending 31.3.2008 were communicated and he was also intimated that if he desired to appeal against the adverse entries he may do so within 30 days, but the petitioner has not availed such an opportunity. He further contended that the acknowledgment of the petitioner regarding communication of adverse entries clearly shows that he has signed it. The learned Standing Counsel has further drawn our attention that the writ petition is not maintainable and in as much as the petitioner has not impleaded the candidates who have been selected for promotion after assessment of their ACRs and as such the writ petition is liable to be dismissed. 9. The learned Standing Counsel relied on the judgment rendered by the Apex Court in SURINDER SHUKLA v UNION OF INDIA AND OTHERS[1] as hereunder: “Although service records of the applicant appear to be better than those of Col.A.P.S.Panwar and Col.V.K.Sinha, the question which arises for consideration is as to whether the High Court could have exercised its discretionary jurisdiction under Article 226 of the Constitution of India for granting the reliefs prayed for by him. We may notice that before the High Court another contention by the applicant was raised viz., that adverse remarks, if any, were not communicated to him. The High Court opined that merely because he was not selected to the post, the same did not mean that he had been downgraded. We have, however, noticed herein before that the notice was issued by this Court on limited ground”. 10. Having regard to the facts and circumstances of the case, since the Tribunal has called for the record and recorded a finding after perusing the same that the petitioner is not suitable for promotion, we find no merit in the contentions urged by the learned counsel for the petitioner. The record reveals that the entries of adverse remarks recorded against the petitioner were communicated to him and his signatures were duly obtained. While communicating the adverse remarks, he was asked to make a representation if he so desires by making an appeal to the higher authority within a prescribed limit, but he has not availed of the same. The committee constituted to assess or adjudge the ACRs of the candidates for the relevant years for the purpose of promotion, has looked into the ACRs of the petitioner and on a consideration of the same, it found that the petitioner is not suitable for the higher post. The learned counsel for the petitioner has not been able to substantiate how the finding recorded by the Tribunal is erroneous and cannot be sustained in law. Unless it is shown that the conclusion arrived at by the Committee is ex facie illegal and without substance, the same cannot be interfered with in exercise of power of judicial review. The Tribunal after thoroughly examining the material placed before it and the proceedings of the Selection Committee constituted for the purpose of making recommendations for promotion has come to the conclusion that no injustice has been caused to the petitioner in the matter of promotion. Under these circumstances, we are of the view that no interference is warranted with the order of the Tribunal. 11. Hence, the writ petition fails and is accordingly dismissed. No costs. ___________________ GHULAM MOHAMMED,J ________________ SANJAY KUMAR, J 28th January, 2009. PNV THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE SANJAY KUMAR W.P.No.760 of 2009 Dt.28-01-2009 [1] (2008) 2 SCC 649