IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY THIRD DAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 21134 of 1999 Between: M.Satyam sonof M.Tataiah H.No.58-16-14, Market Street, Jagannickpur, Kakinada ..... PETITIONER AND 1 The Director General Telecommunications Sanchar Bhavan, New Delhi 2 The Chief General Mangaer Telecommunications AP Circle, Abids, Hyderabad 3 The Superintendent ( Telegraph Traffic) Telecommunications, Rajahmundry 4 Registrar The Central Administrative Tribunal Hyderabad Bench, Hyderabad .....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 to issue a writ , direction or order more specifically one in the nature of Writ calling for the records pertaining to the order dated. 15/06/1999 in O.A.No.874/98 of the Central Administrative Tribunal ,Hyderabad Bench and the letter No.TA/TFC/O.A.No.957/94/5 dated. 17/04/1998 issued by the 2nd respondent and set aside the same by declaring them as illegal, arbitrary and unconstitutional by holding that the Petitioner is entitled for promotion to the post of Telegraph Master (O) with effect from 6/05/1982 on adhoc basis and 14/07/1983 on regualar basis, the dated on which his Juniors were promoted withall consequential benefits such as arrears of pay and allowances etc, and pass Counsel for the Petitioner:MR.VEMURIVENKATESWARA RAO Counsel for the Respondent No.: SMT.C.VANI REDDY The Court made the following : THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WPMP NO.1845 of 2009 and WPMP SR No.7353 of 2009 In WP No.21134 of 1999 Heard. Petitions not opposed and hence ordered. W.P. No.21134 of 1999 Oral Order : ( Per Sri GM, J ) The petitioner herein was appointed as Peon in the year 1953 and was later promoted as Telegraphist in the year 1962. The petitioner got promoted to the post of Telegraphic Master on 31-12- 1989 and retired as Telegraph Master on 28-2-1991. It appears, while the petitioner was in service a charge memo dated 23-11-1981 was issued under Rule 16 of CCS (CCA) Rule 1965 and was awarded punishment of censure. The said the punishment was however reviewed and again on the same irregularities covered with other irregularities he was charged with major charge memo by proceedings dated 16-7-1982. In the second enquiry the petitioner was awarded with punishment of stoppage of 5 increments by order dated 21-11-1986. The appeal against the said punishment was also dismissed. Thereafter, the applicant approached the Tribunal by filing O.A.No.143 of 1991. The Tribunal by its order dated 29-7-1993 quashed the punishment order with all consequential benefits and directed the implementation of the same within a period of three months. The case of the petitioner is that he is entitled for promotion to the post of Telegraph Master with effect from 6-5-1992 on adhoc basis and 14-7-1983 on regular basis. As his claim was not considered, the petitioner approached the Tribunal in O.A.No.957 of 1994 for promotion to the post of Telegraph Master with effect from the date on which his junior was promoted and the said O.A. was allowed by the Tribunal by its order dated 25-6-1997 directing the respondents to consider the case of the petitioner for promotion and if the petitioner is eligible for promotion, the consequential benefits be paid to him without delay. Thereafter, the respondent no.2 by his letter dated 17-4-198 intimated the petitioner that the DPC has not considered him fit for promotion to the post of 20% Telegraph Master (O) 2/3rd quota from July, 1983. The petitioner has filed the instant O.A. to call for the records pertaining to DPC held in the year 1983 and to quash the letter dated 17-4-1998 issued by the respondent no.2. The Tribunal came to the conclusion that the case of the petitioner was decided on the basis of the entries of the CRS and not on the basis of the pending charge sheet and accordingly dismissed the O.A. Hence, this Writ Petition. Learned counsel for the petitioner contends that the petitioner was not communicated with any adverse entries in the service record and that the remarks will not come in the way so as to deny the promotions. Learned counsel relied on the decision reported in DEV DUTT v. UNION OF INDIA ((1) 2008 (4) SCJ 489 ) and contends that the impugned orders are unsuatanble. On the other hand, learned counsel for the respondents relying on the judgment of the Apex Court in Civil Appeal No.5683 of 2008 dated 16-9-2008 contends that the Tribunal on appraisal of the material on record rightly dismissed the O.A., and therefore no interference is warranted in this writ petition. There is no dispute with regard to the proposition laid down in the judgment in Civil Appeal No.5683 of 2008 dated 16-9- 2006. It is seen from the record that the Tribunal opined that the petitioner’s case was passed over in the matter of promotion by the DPC due to adverse entries in the confidential reports 1980-81, 1981- 82 and 1982-83. The case of the petitioner, however, is that he was not promoted as a charge sheet was pending against him during the said period. It is further seen from the record that for the first time the respondents stated that the petitioner was passed over in the matter of promotion due to said un-communicated adverse remarks in the confidential reports. In DEV DUTT v. UNION OF INDIA ( (1) 2008 (4) SCJ 489 ) candidates who had ‘very good’ entries in their ACRs were considered for promotion and that the appellant therein was not considered since he did not have ‘very good’ entry but only ‘good’ entry for the year 1993-94. The appellant therein contended that he was not communicated ‘good’ entry for the year 1993-94. The plea of the other side, i.e. respondents therein is that ‘good’ entry is not an adverse entry and it is only an adverse entry that has to be communicated to an employee. Considering those situations, the Apex Court held that every entry must be communicated to the employee concerned, so that he may have an opportunity of making representation against it if he is aggrieved and that ‘good’ entry, in fact, is an adverse entry because it eliminates candidates from being considered for promotion. It was also held by the Apex Court that ‘good’ entry should have been communicated to the employee so as to enable him to make representation that the said entry should be upgraded from ‘good’ to ‘very good’ and non-communication of ‘good’ entry was arbitrary. The relevant portion of the judgment reads as under : “ In the present case the bench mark (i.e. the essential requirement) laid down by the authorities for promotion to the post of Superintending Engineer was that the candidate should have ‘very good’ entry for the last five years. Thus in this situation the ‘good’ entry in fact is an adverse entry because it eliminates the candidates from being considered for promotion. Thus, nomenclature is not relevant, it is the effect which the entry is having which determines whether it is an adverse entry or not. It is thus the rigours of the entry which is important, not the phraseology. The grant of a ‘good’ entry is of no satisfaction to the incumbent if it in fact makes him ineligible for promotion or has an adverse effect on his chances. ” In the present case, it is merely stated that his case was not considered because of the adverse entries only. The fact remains is that no adverse entries of whatsoever nature were communicated to the petitioner in this regard. In the circumstances, following the judgment of the Supreme Court in DEV DUTT’s case ( 1 supra), we direct the authorities to communicate the said adverse entries to the petitioner within a period of four weeks from the date of receipt of a copy of this order and the petitioner may make representation if he so chooses, against the said entries within two weeks thereafter. On receipt of such representation the respondent-authorities are directed to decide the issue as to entitlement of the petitioner for the appropriate benefits including arrears of pay and pensionary benefits since he retired, as per law. Subject to the above directions, the impugned orders are set aside and the writ petition stands partly allowed. No costs. _______ GM, J ________ BSSR, J Date: 23-3-2009 Kk THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 21134 of 1999 23-3-2009