IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 13TH NOVEMBER 2008 / 22ND KARTHIKA 1930 WP(C).No. 36025 of 2007(S) -------------------------- OA.524/2006 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER): --------------- DR.M.SHANAVAS, TECHNICAL OFFICER (T5) CENTRAL PLANTATION AND CROPS RESEARCH INSTITUTE REGIONAL STATION, KAYAMKULAM, KRISHNAPURAM P.O ALAPPUZHA DISTRICT. BY ADV. SRI.R.RAJASEKHARAN PILLAI SMT.SABINA JAYAN RESPONDENT(S): --------------- 1. THE INDIAN COUNCIL OF AGRICULTURE RESEARCH KRISHI ANUSANDHAN BHAVAN, PUSA, NEW DELHI - 110 012. REPRESENTED BY THE SECRETARY. 2. THE DIRECTOR, CENTRAL PLANTATION CROPS RESEARCH INSTITUTE, KASARAGOD. 3. THE ASSESSMENT COMMITTEE FOR TECHNICAL PERSONNEL (CATEGORY III), REPRESENTED BY ITS CHAIRMAN, 2ND RESPONDENT. ADV. SRI.T.P.SAJAN, SC FOR ICAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No.36025/2007 APPENDIX PETITIONER'S EXTS: EXT.P1: COPY OF THE OFFICE ORDER NO.4(158)/2005 ESTT.I DT.24.9.2005 OF THE 2ND RESPONDENT. EXT.P2: COPY OF THE MEMO NO.F.NO.4 (158)/2003-ESTT.I DT.29.11.2005 OF THE 2ND RESPONDENT. EXT.P3: COPY OF THE NOTE NO.P.F.NO.459/ADN.DT.13.6.2006 OF THE 2ND RESPONDENT. EXT.P4: COPY OF THE O.ANO.524/2006. EXT.P5: COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS 1 TO 4 IN O.A.NO.524/2006. EXT.P6: COPY OF THE CERTIFICATE DT.23.3.2002 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER. EXT.P7: COPY OF THE ORDER DT.22.3.2007 IN O.A.NO.524/2006 OF THE CAT, ERNAKULAM BENCH. EXT.P8: COPY OF THE ORDER DT.3.2.2000 ISSUED BY THE 1ST RESPONDENT. EXT.P9: COPY OF THE ORDER DT.6.11.2007 IN R.A.NO.21/2007 IN O.A.NO.524/2006 OF THE HON'BLE CAT. EXT.P10: COPY OF THE OFFICE MEMORANDUM DT.8.2.2002. //TRUE COPY// PA TO JUDGE K. BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. ---------------------------------------- W.P.(C) No. 36025 OF 2007 ---------------------------------------- Dated this the 13th day of November, 2008 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The petitioner is a Technical Officer (T5) working under the respondents. He claimed promotion to T6 grade with effect from July 2004. The Departmental Promotion Committee did not find him suitable for promotion to T6 on the ground that he does not have 'Very Good' grading for three years. The grading in the A.C.R. for the immediately preceding five years was taken into account for determining the suitability of the petitioner. He had one 'Very Good', one 'Exemplary' and three 'Good' gradings. In the light of Annexure R2 guidelines issued in 1998, produced along with Ext.P5 reply statement, the D.P.C. took the view that the petitioner should have atleast three 'Very Good' gradings. So, he was held ineligible for promotion. Challenging the said proceedings and consequential orders of the appointing authority, Ext.P4 Original Application was filed. The respondents resisted the prayers in the O.A. by filing Ext.P5 reply statement. The Tribunal, after hearing both sides, passed W.P.(C) No.36025/2007 2 Ext.P7 order dismissing the O.A. The petitioner attempted a Review Petition before the C.A.T. That was considered and rejected by Ext.P9. Hence this writ petition, challenging Ext.P7 and P9 and seeking consequential reliefs. 2. The learned counsel for the petitioner raised two points before us. The 1st point is that the benchmark grading for promotion being 'Very Good', the grading of 'Good' for three years, which fell below the benchmark, was not communicated to the petitioner. Therefore, the D.P.C. should not have relied on them to deny promotion. In support of this submission reliance is placed on the decision of Dev Dutt v. Union of India [2008 (8) SCC 725]. Secondly, it is submitted that the Technical Service Rules applicable to ACR itself provide that, regarding the benchmark grading the D.P.C. should follow the guidelines issued by the Ministry of Personnel , Public Grievances and Pensions from time to time. The latest guidelines issued by the said Ministry on the above point is Ext.P10. Ext.P10 provides that for promotion even to group 'A' post, grading of 'Good' is sufficient. If that be so, for promotion to T6 also the D.P.C. W.P.(C) No.36025/2007 3 should have found that the grading of 'Good' was sufficient. Therefore, the petitioner prays for allowing the writ petition. 3. We heard the learned counsel for the respondents. Since the first point raised by the petitioner is covered by the decision of the Apex Court, the learned counsel for the respondents made his submission mainly on the second point raised before us. According to him, the D.P.C. is bound to follow Ext.R2 guidelines produced along with Ext.P5 reply statement. It is mandatory to follow the same, in view of the statutory rules. Therefore, Ext.P10 executive order cannot be followed by the D.P.C., it is submitted. 4. In view of the decision of the Apex Court in Dev Dutt V. Union of India [2008(8) SCC 725], the 1st point raised by the writ petitioner regarding the non communication of the grading 'Good' has to be accepted. We are also inclined to accept the 2nd contention of the petitioner for the reason that the statutory rules itself provide for following the guidelines issued by the Ministry of Personnel and Training from time to time. The W.P.(C) No.36025/2007 4 relevant portion of the statutory rule reads as follows: “Rule 2(v) of Appendix-X at page 64 of the ICAR Hand book of Technical services provides as under:- 2(v) The existing assessment system based upon the CCR gradings and records of performance of personnel as reflected in the assessment reports/proforma as well as the prescribed benchmark for assessment promotions of 'Good' for Categories I and II and 'Very Good' for Category III respectively would continue as such, but for the sake of uniformity, it has been decided that the assessment committees should determine the benchmark for the relevant period only in accordance with the instructions of the Department of Personnel and Training for determination of bench mark as under selection method, issued from time to time.” 5. A close reading of the said provision would show that regarding the benchmark, the Assessment Committee have to follow the instructions issued by the Department of Personnel and Training from time to time. So, by virtue of the said statutory provision, the D.P.C. should have followed Ext.P10. 6. In view of the above position, we quash Exts.P7 and P9. Ext.P1 to the extent it denies promotion to the petitioner is quashed. Exts.P2 and P3 orders rejecting his representations against Ext.P1 are also quashed. The case of the petitioner for promotion is remitted to the D.P.C. It shall hold a review meeting W.P.(C) No.36025/2007 5 and consider the claim of the petitioner for promotion, in the light of the observations made in this judgment, in accordance with law, within three months from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. (K.BALAKRISHNAN NAIR, JUDGE) (M.C.HARI RANI, JUDGE) ps