IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.7.2009 CORAM THE HONOURABLE MR. JUSTICE ELIPE DHARMA RAO and THE HONOURABLE MR. JUSTICE T.S. SIVAGNANAM Writ Petition No.21073 of 2006 R. Kasi ..Petitioner vs. 1. The Registrar Central Administrative Tribunal High Court Buildings Chennai 2. Union of India Rep. by Commanding Officer No. 8 Base Repair Depot Chennai - 55 3. I. Velu ..Respondents Petition filed under Article 226 of the Constitution of India praying for the issuance of the writ of Certiorarified Mandamus calling for the records relating to the order of the Tribunal dated 05.5.2006 in O.A. No. 920 of 2005 and quash the same and consequently direct the second respondent to consider the petitioner for promotion from the post of Senior Chargeman / Chargeman Grade I to the post of Assistant Foreman. For Petitioner : Mr. Balan Haridas For R 2 : Ms. R. Maheswari, SCGSC O R D E R (was made by ELIPE DHARMA RAO, J.) The unsuccessful applicant before the Central Administrative Tribunal (in short "Tribunal) in O.A.No.920 of 2005 has filed the present writ petition against its order dated 05.5.2006. 2. The facts that lead to the filing of the present writ petition are that the petitioner, who was appointed as M.T.M. (A) on https://hcservices.ecourts.gov.in/hcservices/ 03.4.1982, after getting promotions in different grades in the Department, is working as Chargeman Grade – I with effect from 20.4.2000; that in the year 2003, when two posts of Assistant Foreman were created by the second respondent, the third respondent, who is junior to the petitioner, was promoted as Assistant Foreman and that when the petitioner made a representation to the second respondent requesting to promote him to the post of Assistant Foreman, the second respondent by way of reply dated 11.11.2005 rejected the same on the ground of 'unfit'. Aggrieved at the same, the petitioner approached the Tribunal with the Original Application. 3. The stand of the second respondent, by way of reply, before the Tribunal was that promotion up to the post of Chargeman – I was given on the basis of seniority and ACRs and that during the course of selection for the post of Assistant Foreman by the DPC, ACRs of previous two years of the petitioner were found adverse in nature. It is further stated that the petitioner got only 'average' grade in the ACRs since 2003 and for promotion, the candidate is to have at least 'above average' grade, which is the 'bench mark' and several warnings were also issued to him with regard to his lack of commitment in duties. 4. The Tribunal, after hearing the learned counsel for the parties and on consideration of the materials placed on record, held that the Department has correctly followed the provisions required for the conduct of the DPC and accordingly, dismissed the O.A. Hence, the the writ petition. 5. The main ground taken by the learned counsel for the petitioner is that the entries in the ACRs for the years 1999 – 2000, 2000 – 2001 and 2001 – 2002 were good and above average and he was also found suitable for promotion to the next higher grade and that the alleged adverse entries made in the ACR for the years 2002 – 2003 and 2003 – 2004 were not communicated to the petitioner. According to him, the petitioner was the senior most person and was legally entitled for promotion as Assistant Foreman and sought for interference of this Court. 6. Learned Senior Central Government Standing Counsel representing the second respondent Department submitted that even though the petitioner was senior in Chargeman Grade – I post, keeping in view the adverse remarks in ACRs for the previous two years and the warnings issued to him for his lack of commitment, the DPC found him 'unfit' for promotion to the next higher grade of Assistant Foreman. She further submitted that the DPC for the year 2003 was finalised only during 2005 due to administrative reasons and the records of the petitioner since 2001 highlight adverse remarks based on which the petitioner was found 'unfit' for promotion and the same was communicated to him orally. According to her, the vacancy arose only in July 2003 and in the ACR for the year 2002 – 2003, he was https://hcservices.ecourts.gov.in/hcservices/ given the grading 'Average' which is below the 'bench mark' of 'above average'. She further submitted that one cannot claim promotion as of right and in this case, the petitioner was considered for promotion but was not recommended because of the adverse remarks in the ACR for the year 2002 – 2003, and therefore, his claiming right for promotion cannot be sustained. 7. It is not in dispute that the petitioner's seniority No. is 31402 and the third respondent's seniority No. is 31403 and both belong to Scheduled Caste community. The post of Chargeman is feeder cadre to Assistant Foreman and it is filled up on the basis of seniority. A perusal of the records would show that the entries in the ACRs of the petitioner in respect of the years 1999 – 2000, 2000 – 2001 and 2001 – 2002 are shown as 'good'. Admittedly, the post of Assistant Foreman fell vacant on 24.7.2003 and the authorities are supposed to consider the ACRs for the three years before 2003. Therefore, if the entire service record of the petitioner in the grade of Chargeman Grade I and the ACRs of the previous three years, ie., from 1999 except for the uncommunicated adverse remarks alleged to be made during 2002 – 2003 and 2003 – 2004, are taken into consideration, the petitioner should have been considered for promotion to the post of Assistant Foreman that too, when two posts were created during that year, ie., 2003, and failure to do so would go to show that the second respondent without filling up the post, delayed the same in order to get eligibility for the third respondent to get promotion and such action of the second respondent is illegal. 8. That apart, a plain reading of the reply filed by the Department before the Tribunal would show that the authorities, instead of taking into consideration the three years prior to the date of selection of post, have considered the ACRs for the current year, viz., 2002 – 2003. Unfortunately, for 2002 – 2003, the ACR in respect of the petitioner is not considered to be 'good' for recommendation for promotion. 9. At this juncture, it is contended by the learned counsel for the petitioner that even if any adverse remark is made for the year 2002 – 2003, the same should have been communicated to the petitioner so as to enable him to have an opportunity of representing his case whereas no notice was served to the petitioner about the ACR report that he was not recommended for promotion and therefore, the same amounts to violation of principles of natural justice. 10. In this context, it is necessary to refer to the decision of the Supreme Court in Dev Dutt v. Union of India and others [2008 (3) L.LN. 621] wherein in paragraph 9, it was held that every entry must be communicated to the employee concerned, so that he may have an opportunity of making a representation against it if he is aggrieved. Further, in paragraph 24, it has been held as follows:- https://hcservices.ecourts.gov.in/hcservices/ "It may be mentioned that communication of entries and giving opportunity to represent against them is particularly important on higher posts which are in a pyramidical structure where often the principle of elimination is followed in selection for promotion, and even a single entry can destroy the career of an officer which has otherwise been outstanding throughout. This often results in grave injustice and heart-burning, and may shatter the morale of many good officers who are superseded due to this arbitrariness, while officers of inferior merit may be promoted." 11. Similarly, in the case of the petitioner, the entries in the ACRs for the first three years, viz., 1999 – 2000, 2000 – 2001 and 2001 – 2002, are in his favour and for the succeeding years, viz., 2002 – 2003 and 2003 – 2004, his case was not recommended for promotion on the basis of the adverse entries in the ACRs. It is an admitted case of the learned counsel representing the Department that the adverse entries in the ACRs for the years 2002 – 2003 and 2003 – 2004 were not communicated to the petitioner in writing. This would show that only in order to eliminate the petitioner from the zone of consideration for promotion to the higher post, the authorities have adopted the illegal method which is contrary to the rulings of the Supreme Court in Dev Dutt's case (cited supra). When such is the position, we are unable to agree with the finding of the Tribunal in paragraph 10 of its order, which reads as follows:- "The DPC is well within its rights to come to its conclusion on the aspects of fitness of a candidate for promotion and the Tribunal has limited role to pay to examine whether the DPC has been rightly convened, the right records have been placed before the DPC and the procedure adopted is as prescribed ...." 12. Further more, the Tribunal has held that the ACRs of the year 2002 – 2003 and prior to that, are not at all supporting the claim of the petitioner to justify his promotion. It is not in dispute that the entries in the ACRs up to the year 2001 – 2002 are 'good' and, therefore, in our considered view, the Tribunal, before arriving at such a conclusion, had not gone into the materials in its proper perspective. 13. In view of the foregoing reasons, prima facie, we are satisfied that injustice has been caused to the petitioner in not communicating the alleged adverse remarks enabling him to make a representation to satisfy the principles of natural justice and only with a view to eliminate the petitioner from the zone of consideration for promotion to the higher post, viz., Assistant Foreman, such illegal methodology was adopted by the authorities. https://hcservices.ecourts.gov.in/hcservices/ More over, when two posts were created and two candidates were eligible for promotion, not promoting the petitioner even for the second vacancy amounts to violation of principles of natural justice. Therefore, we have no hesitation to hold the entire exercise by the authorities of the second respondent in considering the uncommunicated adverse remarks and depriving promotion to the post of Assistant Foreman, as illegal and unconstitutional contrary to the rulings of the Supreme Court and the Tribunal was not right in dismissing the Original Application filed by the petitioner and the same needs to be interfered with. In view of the above discussion, the writ petition is allowed setting aside both the orders of the Tribunal as well as the second respondent. No costs. The second respondent is directed to promote the petitioner to the post of Assistant Foreman on the date when his junior was promoted and the petitioner is entitled for all consequential benefits. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar gri To 1. The Registrar, Central Administrative Tribunal, High Court Buildings, Chennai. 2. The Commanding Officer, No.8, Base Repair Depot, Chennai - 55. + 1 c.c. to Mr. Balan Haridas, Advocate. S.R.No.31492. + 1 c.c. to Ms. R. Maheswari, S.C.G.S.C. S.R.No.31994. W.P.No.21073 of 2006 RSM (CO) GSK 28.07.2009. https://hcservices.ecourts.gov.in/hcservices/