IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY THE NINETEENTH DAY OF APRIL TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE B. PRAKASH RAO AND HON’BLE SRI JUSTICE G. BHAVANI PRASAD W.P.No.22960 of 2000 Between: P. Raja Sekhar .. Petitioner AND The Chairman, Railway Board, Rail Nilayam (Bhavan), New Delhi and 4 others .. Respondents ORDER: (per G. Bhavani Prasad, J) The writ petition is seeking a direction to the respondents to prepare the confidential reports afresh for all the years, which were placed before the earlier Departmental Promotion Committee (DPC) as per the rules and to constitute a review Departmental Promotion Committee to consider the case of the writ petitioner for promotion to the post of Assistant Signal and Telecommunication Engineer and consequently, promote the petitioner to the said post either in the general quota or against the reservation for Scheduled Castes. The petitioner further sought for a direction to the respondents to produce the confidential reports based on which the marks for record of service were awarded by the Departmental Promotion Committee, peruse the same and pass such further orders as deemed fit and proper. The writ petitioner contended that he joined as an Apprentice Telecom Inspector in the services of the South Central Railway on 07-04-1983 and he later worked in various higher grades and was working as Senior Section Engineer in Microwave Maintenance Organization at Secunderabad since 1999. The Chief Personnel Officer, South Central Railway, issued a notification on 16-04-1998 for selection for formation of panel against 70% quota for promotion to Group ‘B’ in S & T Engineering Department. The writ petitioner claimed to have been called for the selection at Serial No.60. He was eligible for consideration against the unreserved quota and also the Scheduled Caste quota. The results of the written test held on 19-09-1998 were published in which the writ petitioner was shown at Serial No.34 and he was found fit in the medical examination. The writ petitioner appeared for viva voce selection on 30-12-1998 and in the results of selection declared by a letter dated 30-12-1998, the writ petitioner’s name was not found. The representation made by the writ petitioner was rejected by a letter dated 13-04-1999. The writ petitioner filed O.A.No.747 of 2000 before the Central Administrative Tribunal, Hyderabad Bench, against the non-selection and the writ petitioner contended that one Scheduled Caste post was left vacant and in the absence of communication of any adverse remarks at any time, his confidential reports must have been very good. The writ petitioner ought to have been empanelled and the Tribunal, on perusal of the proceedings of the Departmental Promotion Committee, found that the writ petitioner was allotted 13.6 marks whereas the minimum was 15 marks for the record of service. The Tribunal did not verify whether awarding 13.6 marks was in order and if the confidential reports were not prepared in accordance with the rules, the decision of the Departmental Promotion Committee might have gone wrong. The basic records have to be, hence, checked and they have to be redrawn afresh as per rules and placed before a review Departmental Promotion Committee. The Tribunal failed to appreciate in spite of a Review Petition No.83 of 2000 and the writ petitioner had in fact received cash awards and commendation certificates for his services. Though mere grading down is not an adverse entry in respect of positive gradings, the change, if any, ought to have been informed to the writ petitioner and the Tribunal ought to have verified any such down grading and whether any opportunity was given to the writ petitioner in that regard. Therefore, the writ petition and the request for an interim direction to keep the unfilled Scheduled Caste post vacant during the pendency of the writ petition. On behalf of official respondents 1 to 4, a counter affidavit was filed contending that the dismissal of O.A.No.747 of 2000 and Review Application No.83 of 2000 called for no interference and the writ petitioner was not included in the panel as he could not make the grade. The selection was based on a qualifying standard of 90 marks out of 150 marks in the written test and 30 marks for viva voce and record of service put together with a minimum of 15 marks for record of service. The selection committee, after careful assessment of the performance as well as the Annual Confidential Reports, gave 13.6 marks to the writ petitioner as per the Railway Board’s Circular dated 20-08-1991. The service record was assessed in entirety and not on the basis of any adverse entries. Hence, the writ petition was requested to be negatived. The Confidential Reports for the years ending with 31-03- 1994 to 31-03-1998 were placed before the Court by the respondents, while the writ petitioner filed copies of awards, certificates of merit, office orders and proceedings relating to commendation of his performance. The relevant circulars of the Railway Board dated 19-09-1988, 20-08-1991 and 16-01-2001 were also placed before the Court. During the course of hearing the learned counsel for both parties, the decision reported in Tridip Kumar Dingal and others v. State of West Bengal and others[1] was also referred to. The point for consideration is whether the writ petitioner is entitled to the directions sought for? In Tridip Kumar Dingal and others v. State of West Bengal and others (stated supra), the Apex Court opined that even in the absence of statutory provision, an action to screen candidates by holding written examination for the purpose of elimination and shortlisting of huge number of candidates can always be taken on the basis of administrative instructions provided the action is otherwise bona fide and reasonable. On the facts of that case, the preparation of merit list on the basis of composite marks obtained by candidate at the written examination and oral interview both was held to be required. It is also opined that in the absence of selected and appointed candidates and without affording opportunity of hearing to them, their selection could not be set aside. The Apex Court was also of the considered view that it would be inequitable if appointments of candidates selected, appointed and working since 10 years were to be set aside. Noting that the power to issue a writ is discretionary, it was opined that the relief can be refused in cases of delay and laches to avoid stale claims or where matters have been already disposed of for settled or rights of third parties intervened. The question being one of discretion has to be decided on the basis of facts before the Court depending on and varying from case to case. Keeping these principles in view, it is seen from the letter of the Railway Board dated 19-09-1988 that in assessing and awarding marks for record of service, the assessment should be based on Confidential Reports for the last five years and the marks for a maximum of 25 marks should be given covering the five Confidential Reports between ‘1’ mark for below average and ‘5’ marks for outstanding. The procedure was said to be applicable to selections against 75% of the vacancies. It is also stated that in order to be classified as ‘Fit for Promotion’, an employee must get a minimum of 15 marks from the last five Confidential Reports and should have been rated as ‘Fit for Promotion’ in the last Confidential Report. The whole Confidential Report should be read by the Committee for arriving at the gradings. In the letter of the Railway Board dated 20-08-1991, the procedure for selection was sought to be rationalized by prescribing the maximum marks and qualifying marks for the written test and for the record of service, 25 marks were allotted, while for viva voce, 25 marks were allotted out of which 30 marks were qualifying marks including at least 15 marks in the record of service. The evaluation of the record of service was stated to be in terms of the instructions contained in the earlier letter dated 19-09-1988 and another letter dated 29-09-1988. In a further letter dated 16-01-2001, the Railway Board further laid down the procedure for allotment of marks for record of service and the requirement of minimum 15 marks out of 25 marks in Record of Service was left unchanged. It is true that the writ petitioner appeared to have received the Railway Week Awards in 2004, 2007 and 2008 and Certificates of Merit dated 5-5-1987, 24-09-2007, 24-09-2008, and 13-11-2009. The office orders dated 02-02-2006, 30-01-2006 and 01-10-2009 show his being considered for promotion. Even the Confidential Reports from 1993-1994 to 1997-1998 show nothing adverse against the writ petitioner at any time and it was consistently good except for 1997- 1998 where he was rated average on four aspects. The awards, certificates of merit and the promotions, which the writ petitioner had received, cannot be considered to have been ignored by the superior officers making such assessment and it has to be noted that he did not receive the rating “outstanding or very good” in any of the five years. The procedure for awarding marks on the basis of grading having been fixed by the letters referred to above, there is thus no positive material to conclude that awarding of 13.6 marks towards the record of service for the relevant five years by the selection board was incorrect or in violation of the instructions of the Railway Board referred to above. In the impugned order dated 26-06-2000 in O.A.No.747 of 2000, the Tribunal, on a careful consideration of the material on record, found that it was represented on behalf of the applicant that the applicant would be satisfied if the record containing the selection in question was produced before the Tribunal for its satisfaction about the justification. The Tribunal found no reason to doubt the veracity of the particulars of 13.6 marks allotted to the writ petitioner as against the minimum marks of 15. The dismissal of O.A. was attempted to be reviewed through Review Application No.83 of 2000 and the Tribunal found no reason to review the decision. The non-selection of the writ petitioner was thus due to his not securing the prescribed qualifying marks for empanelment more particularly in the matter of marks awarded for record of service and the award of such marks is not probablised to be not bona fide or not justified or to be in deviation from the prescribed procedure. The receipt of awards and certificates of merit by themselves may not compel the authorities concerned to grade an employee as “outstanding or very good” in assessing his over all performance and all other relevant aspects and when the grading was always good except in the last year, the absence of communication to the writ petitioner cannot be considered to have adversely effected any legal rights or service rights of his. The decision of the Central Administrative Tribunal cannot, therefore, be interfered with and the writ petition has to fail. Accordingly, the writ petition is dismissed without costs. _________________ B. PRAKASHRAO, J ____________________ G. BHAVANI PRASAD, J Date: 19-04-2011 Ksn [1] (2009) 2 Supreme Court Cases (L&S) 119