IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 12TH NOVEMBER 2008 / 21ST KARTHIKA 1930 WP(C).No. 22718 of 2007(S) -------------------------- OA.69/2005 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER(S): --------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF EXPENDITURE, NEW DELHI. 2. THE CONTROLLER GENERAL OF ACCOUNTS, MINISTRY OF FINANCE, DEPARTMENT OF EXPENDITURE, NEW DELHI. 3. THE EXECUTIVE ENGINEER, KOTTAYAM CENTRAL DIVISION, CENTRAL PUBLIC WORKS, DEPARTMENT, PUBLIC LIBRARY BUILDING, SHASTRI ROAD, KOTTAYAM. BY ADV. SRI.TPM.IBRAHIM KHAN,SENIOR PANEL COUNSEL RESPONDENT(S): --------------- 1. P.P. LONAPPAN, ASSISTANT ACCOUNTS OFFICER, KOTTAYAM CENTRAL DIVISION, CENTRAL PUBLIC WORKS DEPARTMENT, PUBLIC LIBRARY BUILDING, SHASTRI BHAVAN,KOTTAYAM. 2. Ms.LILLY GEORGE, PAY & ACCOUNTS OFFICER, CENTRE FOR MARINE LIVING RESOURCES & ECOLOGY, DEPARTMENT OF OCEAN DEVELOPMENT, CHURCH LANDING ROAD, ERNAKULAM, KOCHI-682 016. ADV. SRI.BABU PAUL FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 22718/2007 APPENDIX PETITIONERS' EXTS. EXT.P1 - A PHOTOSTAT COPY OF THE ORDER DATED 7.11.2006 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH IN O.A.NO.69/2005. EXT.P2 - A PHOTOSTAT COPY OF O.A.NO.69/2005 ALONG WITH ITS ANNEXURES FILED BY THE 1ST RESPONDENT/APPLICANT BEFORE THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXT.P3 A PHOTOSTAT COPY OF THE COUNSEL STATEMENT FILED ON BEHALF OF THE PETITIONERS/RESPONDENTS BEFORE THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH IN O.A.NO.69/2005. EXT.P4 - A PHOTOSTAT COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS/RESPONDENTS IN O.A.NO.69/2005 ALONG WITH ITS ANNEXURES BEFORE THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXT.P5 - A PHOTOSTAT COPY OF THE REJOINDER FILED BY THE 1ST RESPONDENT/APPLICANT IN O.A.NO.69/2005 BEFORE THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXT.P6 - A PHOTOSTAT COPY OF THE AMENDED O.A.NO.69/2005 ALONG WITH ITS ANNEXURES FILED BY THE 1ST RESPONDENT/APPLICANT BEFORE THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXT.P7 - A PHOTOSTAT COPY OF THE ADDITIONAL REPLY STATEMENT FILED BY THE PETITIONERS/RESPONDENTS IN O.A.NO.69/2005 ALONG WITH ITS ANNEXURES BEFORE THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXT.P8 - A PHOTOSTAT COPY OF THE MISCELLANEOUS APPLICATION FILED BY THE 1ST RESPONDEN/APPLICANT IN O.A.NO.69/2005 BEFORE THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXT.P9 - A PHOTOSTAT COPY OF THE MEMO SUBMITTED BY THE COUNSEL FOR THE PETITIONERS/RESPONDENTS ALONG WITH ITS DOCUMENTS. EXT.P10 (COLLECTIVELY) – A PHOTOSTAT COPY OF THE RECRUITMENT RULES FOR THE POST OF PAY & ACCOUNTS OFFICER NOTIFIED VIDE NOTIFICATION NO.GSR 750(E) DATED 25.9.2000 INDICATING THE BASIS ISSUED BY THE DEPARTMENT OF EXPENDITURE (CONTROLLER GENERAL OF ACCOUNTS), NEW DELHI AND THE EXTRACT OF PARA 6.3.1 INDICATING THE BENCH MARK TAKEN FROM THE SWAMY'S COMPLETE MANUAL ON ESTABLISHMENT AND ADMINISTRATION (ENGLISH EDITION -2000) EXT.P11 - A PHOTOSTAT COPY OF THE JUDGMENT DATED 22.11.2005 PASSED IN THE CIVIL APPEAL NO.4482 OF 2003 BY THE HON'BLE SUPREME COURT OF INDIA. EXT.P12 - A PHOTOSTAT COPY OF THE JUDGMENT DATED 12.2.2007 PASSED IN THE CIVIL APPEAL NO.689/2007 BY THE HON'BLE SUPREME COURT OF INDIA. /TRUE COPY/ K.BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. ----------------------------------------- W.P.(C) NO. 22718 OF 2007-S ----------------------------------------- Dated 12th November, 2008. JUDGMENT Balakrishnan Nair, J. The petitioners are the respondents in O.A.No.69/2005 before the Central Administrative Tribunal, Ernakulam Bench. Copy of the O.A is produced as Ext.P2 in this writ petition. The 1st respondent was the applicant and the 2nd respondent was the 4th respondent in that O.A. The applicant filed the O.A., aggrieved by his non-promotion to the post of Pay and Accounts Officer. The reason for not promoting him to the said post was that the rating in his Annual Confidential Reports was not “very good”. “Very good” is treated as the bench mark grading, as per the relevant orders by the D.P.C. For some years, his grading was “good”. The same was not communicated to him for the reason that it was not adverse. Though the grading “good” cannot, normally, be described as adverse, since the bench mark grading for promotion is “very good”, that grading should have been treated as adverse and communicated to the incumbent, it was held by the C.A.T. It was also WPC 22718/07 2 held that since the said grading “good” was not communicated, the same cannot be relied on to deny promotion to the applicant. So, the O.A was allowed by Ext.P1 order. The D.P.C was directed to reconsider the claim of the applicant/1st respondent for promotion. Challenging the said order, this Writ Petition is filed. 2. But, the point raised by the petitioners is covered against them by the recent decision of the Apex Court in Dev Dutt v. Union of India [(2008)8 SCC 725]. The Apex Court after elaborately discussing the matter, held that any rating in the ACR, which is below the bench mark, should be treated as adverse and the same should be communicated to the incumbent. Otherwise, the said grading cannot be relied on. In view of the above position, the Writ Petition fails and it is accordingly, dismissed. K.BALAKRISHNAN NAIR, JUDGE. M.C.HARI RANI, JUDGE. Nm/