Central Administrative Tribunal - Allahabad
B C Mandal vs Union Of India on 26 July, 2025
Reserved on 22.07.2025
Central Administrative Tribunal,
Allahabad Bench,
Allahabad
This the 26th day of July, 2025
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Mr. Mohan Pyare, Member (A)
Original Application No. 1120 of 2008
B.C. Mandal son of Ram Bachan Mandal, aged about 35 years,
presently posted as Senior Section Engineer (STG), East Central
Railway Chopan, District Sonebhadra.
........... APPLICANT
By Advocate: Shri Satish Dwivedi
Versus
1. Union of India through the General Manager, East Central
Railway, Hajipur Bihar.
2. The General Manager, East Central Railway, Hajipur.
3. The Selection Committee, constituted for departmental
promotion on the post of Assistant Signal & Telecommunication
Engineer, East Central Railway, Dhanbad through its Chairman.
..........RESPONDENTS
By Advocate: Shri Krishna Kumar Ojha
ORDER
(Delivered by Hon'ble Mr. Justice Om Prakash VII, Member (J) The instant original application has been filed seeking following relief:
"(i) That the order dated NIL received on 14.8.2008 passed by General Manager, East Central Railway, Hajipur (Annexure A-1) may be declared illegal and the same may be quashed.
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(ii) That the respondents be directed to include the name of the applicant in the panel dated 29.1l2007 of the post of Assistant Signal & Telecommunication Engineer, Group 'B' (Annexure A-10 to the Compilation No. II) against the vacancy reserved for scheduled tribe candidate and to amend/modify the said panel accordingly and further they be directed to promote/post him on the post of Assistant Signal & Telecommunication Engineer Group 'B' in the said vacancy and provide him all the benefits of the said post including salary with effect from the date the same have been allowed to other candidates of the same panel dated 20.01.2007.
(iii) Any other and further relief which this Hon'ble Tribunal may deem fit and proper be also awarded to the applicant".
2. The applicant, a permanent employee of the respondents' department, is aggrieved by the denial of promotion to the post of Assistant Signal & Telecommunication Engineer (Group 'B'). Despite being eligible, the applicant was denied promotion on the ground that he did not score at least 15 marks in the category of 'Record of Service', which is one of the criteria considered during the promotion process. The applicant contends that the denial of promotion is contrary to the statutory rules and provisions governing the selection procedure. It is further alleged that the Confidential Reports (CRs) or Annual Performance Appraisal Reports (APARs), which were taken into account for assessing his 'Record of Service', were never communicated to him. According to the applicant, it amounts to a procedural irregularity and is arbitrary and illegal on the part of the respondents. By way of the present Original Application (OA), the applicant seeks a direction to the respondents to rectify the procedural lapses and consider his case afresh for promotion to the said post.
3. The respondents, in their counter affidavit, have stated that the applicant failed to secure the minimum qualifying 15 marks in the 'Record of Service', and therefore, was rightly not found suitable for promotion. They further submitted that promotions were granted to other candidates only after they were duly found suitable, and that the selection process was conducted fairly and without any irregularity or arbitrariness.
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4. The applicant has filed Rejoinder Affidavit to the Counter Affidavit as filed by the respondents refuting the contentions made by the respondents in their Counter Affidavit while reiterating the averments made in the O.A. and nothing new has been added.
5. We have heard Shri Satish Dwivedi, learned counsel for the applicant and Shri Krishna Kumar Ojha, learned counsel for the respondents and perused the record.
6. Learned counsel for the applicant submits that in the year 2006 the applicant applied against the notification for promotion to the post of Assistant Signal Telecom Engineer (Group 'B'). He appeared in the written test and was also successful in it. Result was announced in which name of applicant stood at serial No. 2 as Scheduled Tribes Candidate in Dhanbad Division. Applicant was also directed to appear before Chief Medical Superintendent, East Central Railway, Dhanbad for medical examination vide letter dated 4.01.2007 and applicant was found medically fit, thereafter viva voce test was held on 24.01.2007 in which applicant appeared. In the final result, name of the applicant was found missing. Being aggrieved, applicant submitted a representation dated 8.2.2007 to the competent authority. When the representation of the applicant was not decided, he filed an original application No. 597/2008 before this Tribunal. After hearing both the counsel for the parties, on 2.6.2008, this Tribunal disposed of the aforesaid OA with direction to the General Manager, North Central Railway, Hajipur to consider the representation dated 8.2.2007 of the applicant. Thereafter on 14.08.2008, applicant received an order passed by General Manager in compliance of above mentioned Tribunal's order.
7. Learned counsel for the applicant further submits that entries which were taken into consideration were not communicated to the applicant at any time and on the basis of non-communicated entries, marks were awarded to the applicant which caused irreparable loss to the applicant. He was awarded lower marks and due to this reason, he could not be
3|Page MANISH KUMAR SRIVASTAVA placed in the merit list and he was not promoted on the post of Assistant Signal & Telecommunication Engineer, Group 'B'. Referring to the RBE No. 56/2009, learned counsel for the applicant further argued that instructions contained in the aforesaid circular have not been taken into consideration nor the RBE No. 92/1993 has been followed whereas in the aforesaid RBE, it is clearly provided that in case committee finds that the adverse remarks in the CR have not been communicated but the adverse remarks are of sufficient gravity to affect and alter the assessment of the railway servant concerned, in that situation, the committee shall defer consideration of the case of the railway servant. To substantiate this argument, learned counsel for the applicant referred to the para no. 2 (I) of the RBE 92/1993 and further argued that action of the respondents is also against the settled law and ratio held by the Hon'ble Supreme Court of India in various cases. Accordingly, learned counsel for the applicant has placed reliance upon the following case laws:
i. Dev Dutt Vs Union of India & Ors reported in 2008(2) SCC (L&S) 771 ii. Abhijit Ghosh Dastidar Vs UOI & Ors reported in LAWS (SC) 2008-10-146 iii. Sukhdev Singh Vs UOI & Ors [2013 All. C.J. 1154] Para 7 iv. Rukhsana Shaheen Khan Vs UOI & Ors reported in [LAWS (SC) 2018-8- 85] v. R.K. Jibanlata Devi Vs High Court of Manipur through its Registrar General reported in LAWS(SC) 2023 2 59 vi. I. Raju Vs CMD / BSNL New Delhi [1997-2001 AT Full Bench Judgment Page 411].
vii. Judgment dated 13.03.2013 passed by the Allahabad Bench of Central Administrative Tribunal in OA No. 253 of 1998 titled Abhijit Ghosh Dastidar Vs UOI Thus, referring to the aforesaid case laws, learned counsel for the applicant prayed that the instant OA be allowed and respondents be directed to ignore the non-communicated entries and promote the applicant on the post of Assistant Signal & Telecommunication Engineer, Group 'B'.
8. Learned counsel for the respondents vehemently opposed the averments of the applicant's counsel and argued that promotion is made
4|Page MANISH KUMAR SRIVASTAVA after following the due process. The applicant had not scored the marks to be placed in the merit list and due to this reason he was not promoted. The employees who scored higher marks than the applicant were placed in the merit list and were promoted. It is also argued that it is not mandatory to communicate the adverse remarks. No irreparable loss has been caused to the applicant. Learned counsel for the respondents further referred to the contents of the counter affidavit and further argued that nominated selection committee awarded the marks as per the extant provision and on the basis of record of service and there is no such provision for communication of ACR which have not been communicated earlier regarding the grading of ACR etc. prior to the finalization of the selection process. Learned counsel for the respondents further referred to the RBE No. 272/1999 and argued that instruction contained in the aforesaid circular have been literally followed. There is no irregularity or illegality in the promotion order and thus argued that the OA is liable to be dismissed.
9. We have considered the rival contentions and gone through the documents on record and also carefully perused the case laws supplied and relied upon by them.
10. It is not disputed that the applicant was initially appointed in the respondents' department on the post of Section Engineer (SIG) at Baroda Western Railway, Gujarat and thereafter he was transferred to Dhanbad. He was given promotion to the post of Sr. Section Engineer (Sig) w.e.f. 1.1.2006 vide order dated 14.2.2006. Notification was issued for promotion/ selection of Assistant Signal & Telecommunication Engineer, Group 'B' against 75% quota vacancies for 11 unreserved, 4 SC and 3 ST candidates. The applicant being eligible Scheduled Tribe category for the promotion, applied for the same and appeared in the written examination. As per the applicant, he was successful in the written examination and when his name had not shown in the final result, he had moved representation but the representation of the applicant has not been decided. Applicant approached before this Tribunal by way of OA No
5|Page MANISH KUMAR SRIVASTAVA 597/2008 and after hearing both the counsel the Tribunal disposed of the OA with the direction to the respondents to decide the representation of the applicant. In compliance with the aforesaid order of the Tribunal, respondents passed impugned order dated 14.08.2018.
11. The applicant's stand is also that entries awarded in the relevant years which were to be considered were never communicated to the applicant and due to this reason he was deprived from moving the representation seeking upgradation of his ratings. From the perusal of the counter affidavit, it is also evident that the date of communication of the entries which were taken into consideration has not been disclosed in the counter affidavit. Since the date of communication of the entries have not been made clear thus it shall be presumed that entries which were taken into consideration for awarding marks against the service records were never communicated to the applicant.
12. Before discussing the rival submissions, it will be useful to quote the case laws relied upon by the learned counsel for the applicant. In Dev Dutt (supra) case, Hon'ble Supreme Court in para 36, 41, 42, 43 and 44 has held as under:-
"36. In the present case, we are developing the principles of natural justice by holding that fairness and transparency in public administration requires that all entries (whether poor, fair, average, good or very good) in the Annual Confidential Report of a public servant, whether in civil, judicial, police or any other State service (except the military), must be communicated to him within a reasonable period so that he can make a representation for its upgradation. This in our opinion is the correct legal position even though there may be no Rule/G.O. requiring communication of the entry, or even if there is a Rule/G.O. prohibiting it, because the principle of non-arbitrariness in State action as envisaged by Article 14 of the Constitution in our opinion requires such communication. Article 14 will override all rules or government orders.
41. In our opinion, non-communication of entries in the Annual Confidential Report of a public servant, whether he is in civil, judicial, police or any other service (other than the military), certainly has civil consequences because it may affect his chances for promotion or get other benefits (as already discussed above). Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution.
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42. In view of the above, we are of the opinion that both the learned Single Judge as well as the learned Division Bench erred in law. Hence, we set asidethe judgment of the Learned Single Judge as well as the impugned judgment of the learned Division Bench.
43. We are informed that the appellant has already retired from service. However, if his representation for upgradation of the `good' entry is allowed, he may benefit in his pension and get some arrears. Hence we direct that the 'good' entry of 1993-94 be communicated to the appellant forthwith and he should be permitted to make a representation against the same praying for its upgradation. If the upgradation is allowed, the appellant should be considered forthwith for promotion as Superintending Engineer retrospectively and if he is promoted he will get the benefit of higher pension and the balance of arrears of pay along with 8% per annum interest.
44. We, therefore, direct that the 'good' entry be communicated to the appellant within a period of two months from the date of receipt of the copy of this judgment. On being communicated, the appellant may make the representation, if he so chooses, against the said entry within two months thereafter and the said representation will be decided within two months thereafter. If his entry is upgraded the appellant shall be considered for promotion retrospectively by the Departmental Promotion Committee (DPC) within three months thereafter and if the appellant gets selected for promotion retrospectively, he should be given higher pension with arrears of pay and interest @ 8% per annum till the date of payment".
13. Similar issue again came up for consideration before the Full Bench of the Hon'ble Supreme Court in Abhijit Ghosh Dastidar (supra) case and in paras 4 and 5, the Court has held as under:-
"4. It is not in dispute that the CAT, Patna Bench passed an order recommending the authority not to rely on the order of caution dated 22.09.1997 and the order of adverse remarks dated 09.06.1998. In view of the said order, one obstacle relating to his promotion goes. Coming to the second aspect, that though the benchmark "very good" is required for being considered for promotion admittedly the entry of "good"
was not communicated to the appellant. The entry of 'good' should have been communicated to him as he was having "very good" in the previous year. In those circumstances, in our opinion, non-communication of entries in the ACR of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances for promotion or get other benefits. Hence, such noncommunication would be arbitrary and as such violative of Article14 of the Constitution. The same view has been reiterated in the above referred decision relied on by the appellant. Therefore, the entries "good" if at all granted to the appellant, the same should not have been
7|Page MANISH KUMAR SRIVASTAVA taken into consideration for being considered for promotion to the higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him.
5. Learned counsel appearing for the appellant has pointed out that the officer who was immediately junior in service to the appellant was given promotion on 28.08.2000. Therefore, the appellant also be deemed to have been given promotion from 28.08.2000. Since the appellant had retired from service, we make it clear that he is not entitled to any pay or allowances for the period for which he had not worked in the Higher Administrative Grade Group-A, but his retrospective promotion from 28.08.2000 shall be considered for the benefit of re-fixation of his pension and other retrial benefits as per rules".
14. Again on the reference, Full Bench of Hon'ble Supreme Court in Sukhdeo Singh (supra) case considered the issue and in paras 8 and 10 has held as under:-
"8. In our opinion, the view taken in Dev Dutt that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR - poor, fair, average, good or very good - must be communicated to him/her within a reasonable period.
9. The decisions of this Court in Satya Narain Shukla vs. Union of India and others10 and K.M. Mishra vs. Central Bank of India and others11 and the other decisions of this Court taking a contrary view are declared to be not laying down a good law.
10. Insofar as the present case is concerned, we are informed that the appellant has already been promoted. In view thereof, nothing more is required to be done. Civil Appeal is disposed of with no order as to costs. However, it will be open to the appellant to make a representation to the concerned authorities for retrospective promotion in view of the legal position stated by us. If such a representation is made
8|Page MANISH KUMAR SRIVASTAVA by the appellant, the same shall be considered by the concerned authorities appropriately in accordance with law.
15. Again issue came up for consideration before the Hon'ble Supreme Court in Rukhsana Shaheen Khan (supra) case and the Hon'ble Court in paragraph Nos. 2 and 3 has held as under:-
"2. In view of the decision of this Court in Sukhdev Singh Vs. Union of India & Ors. reported in (2013) 9 SCC 566, there cannot be any dispute on this aspect. This Court has settled the law that uncommunicated and adverse ACRs cannot be relied upon in the process.
3. This appeal is, accordingly, allowed and the impugned Judgment is set aside with the following directions :-
(a) The competent authority is directed to ignore the uncommunicated adverse ACRs and take a fresh decision in accordance with law. (b) The appellant shall be afforded an opportunity of hearing in the process".
16. Again similar issue was considered by the Hon'ble Supreme Court in R.K. Jibanlata Devi (supra) case and in para 7 and 8 has held as under:
"7. In view of the above and for the reasons stated above, the case of the petitioner for promotion to the post of Assistant Registrar as on 09.04.2021 is required to be considered afresh ignoring the uncommunicated ACRs for the years 2016-17 and 2019-20 and her case is required to be considered afresh taking into consideration the ACRs for the years 2017-18 & 2018-19 for which the petitioner was having "Very Good" gradings.
8. In view of the above and for the reasons stated above, present petition is allowed. The DPC proceedings dated 09.04.2021 denying the promotion to the petitioner for the post of Assistant Registrar are hereby quashed and set aside. The case of the petitioner for promotion to the post of AssistantRegistrar as on 09.04.2021 i.e., the date on which the juniors came to be promoted is directed to be considered afresh ignoring the uncommunicated ACRs for the years 2016-17 and 2019-20 and thereafter the DPC/competent authority to take a fresh decision in accordance with law and taking into consideration the ACRs of remaining years, i.e., 2017-18 and 2018-19. Such an exercise be completed within a period of six weeks from today"
17. In the case of I. Raju (supra), the Central Administrative Tribunal (Full Bench), Ernakulum answered the referred questions with the observation that "when promotion is based on seniority cum-fitness, the incumbent is entitled to be reconsidered for promotion when adverse
9|Page MANISH KUMAR SRIVASTAVA entries in the ACRs have not been communicated to him for the relevant period ignoring the finding of the DPC that the incumbent is 'Not yet fit' on the basis of ACRs". Similar view has been taken by the Principal Bench of this Tribunal in Smt. T.K Aryavir (supra) case. Allowing the OA, direction was given to consider the claim for promotion of the applicant ignoring the ACR for the period which were adverse (i.e. below the benchmark of 'Very Good') which was not communicated to the applicant.
18. This Tribunal in OA No. 253 of 1998 decided on 13.3.2013 relying on the ratio laid down in Abhijit Ghosh Dastidar (supra) allowed the OA directing the respondents to reconsider the claim of the applicant for promotion to the post of Assistant Engineer Grade 'B' in accordance with procedure/methodology approved by the Hon'ble Supreme Court in Abhijit Ghosh Dastidar (supra) case. Applicant challenged the order passed in the aforesaid OA in the Hon'ble High Court through writ 'A' No. 70607 of 2013 which was dismissed on dated 7.1.2014 affirming the order passed by the Tribunal.
19. Similarly, learned counsel for the respondents has placed reliance upon the judgment dated 09.02.2024 passed by the Hon'ble High Court of Patna in Letters Patent Appeal No. 318 of 2021 filed in Civil Writ Jurisdiction Case No. 20694 of 2018 titled Dr. Kumar Chandan Vs Indira Gandhi Institute of Medical Science Shiekhpura, Patna -14 through its Director and others wherein following has been held:
"31. Keeping in view the aforesaid decisions rendered by the Hon'ble Supreme Court, if the facts of the present case as discussed hereinabove and the reasoning recorded by the learned Single Judge are carefully examined, it would reveal that the learned Single Judge has observed that none of the points with regard to the process of appointment, opinion of the expert committee and criteria to be fixed during the process appointment are in dispute in the present case and thereafter observed that, therefore, the law laid down by the Apex Court in the cases citedbefore the learned Single Judge are not helpful to the original respondents. Thus, learned Single Judge has, on one hand, made the aforesaid observation that process of appointment is not in dispute, opinion of expert committee is also not in dispute and criteria fixed during the process of appointment is also not in dispute, 10 | P a g e MANISH KUMAR SRIVASTAVA however, on the other hand, the learned Single Judge has discussed in detail why more marks were required to be given to the petitioner and how the selection committee has awarded more marks to the private respondents. Learned Single Judge scrutinized each and every head of the evaluation sheet and more particularly the head No. (V) to (X) and thereafter observed that the selection committee has wrongly awarded more marks to the private respondents and less marks to the petitioner and thereby, passed the impugned order."
20. In the instant case, as is evident from the records, the applicant is still serving in the respondents' department. He was not promoted on the post of Assistant Signal & Telecommunication Engineer, Group 'B' against the vacancy notified vide notification dated 06.10.2006. As has been discussed hereinabove, non-communicated entries of the relevant years have been taken into consideration for awarding marks. The applicant is of the contention that the aforesaid action of the respondents is illegal and has caused serious irreparable loss in career prospects. Respondents, on the other hand, have contended that the entries are not required to be communicated to the employee concerned.
21. Earlier there was no any policy or rule regarding communication of ACR grading to the Government employee. This issue was considered by the Hon'ble Supreme Court in Dev Dutt (supra) case and developing a principles of natural justice to maintain the fairness and transparency in public administration, Hon'ble Court held that all entries whether 'Poor', 'Fair', 'Average', 'Good' or 'Very Good' in the annual confidential report of a public servant whether in civil, judicial, police or any other State service (except the Military) must be communicated to the Government servant within a reasonable period so that he can make representation for its upgradation. Hon'ble Supreme Court in Dev Dutt (supra) case which has been decided on 12.5.2008 also directed the authority concerned to communicate the entries of year 1993-1994 to the appellant forthwith and the employee concerned were directed to make representation on the basis of said communication. Hon'ble Supreme Court made aforesaid direction despite this fact that concerned employee had retired from service. The issue was again considered by the Hon'ble Supreme Court in Sukhdev 11 | P a g e MANISH KUMAR SRIVASTAVA Singh (supra) on the basis of reference made in regard to the inconsistency in the decision in some of the judgments and ultimately Hon'ble Supreme Court opined that the view taken in Dev Dutt (supra) case is legally sound. In a three Judge Bench decision in Abhijit Ghosh Dastidar (supra) case, the Hon'ble Supreme Court has observed that entries 'Good' if at all granted to the employee concerned, the same should not have been taken into consideration for being considered for promotion to the higher grade as the same has not been communicated to the employee concerned.
22. Since in the instant case, it is undisputed fact that non- communicated entries were taken into consideration for awarding the marks for promotion against the notification dated 06.10.2006. The applicant had made representation but he was not given time to prefer representation for upgrdation of the rating and thus in light of the direction given in the case of Dev Dutt (supra) and Sukhdev Singh (supra) by the Apex Court, we are of the view that denial of promotion to the applicant on the basis of non-communicated entries cannot be justified. In that situation, in the fitness of things, it would be just and proper to partly allow this OA as prayed by the applicant.
23. Accordingly, the instant OA is allowed partly with the direction to the respondents/competent authority amongst the respondents to serve the non-communicated entries to the applicant within a period of two weeks from the date of receipt of certified copy of this order. Once the said entries are received by the applicant, he would be at liberty to represent against those entries for upgradation before the respondents. In case the applicant makes representation, it shall be considered within a period of two weeks from the date of its receipt by the respondents and the competent authority shall pass the suitable orders on it within the same time frame. Subsequently, if entries which have been taken into consideration and were not communicated to the applicant earlier are now upgraded against the service records, marks shall be allotted to the applicant in light of the upgraded ACRs. If on the basis of written 12 | P a g e MANISH KUMAR SRIVASTAVA examination as well as service records, the applicant finds place in the merit list, he shall be forthwith notionally promoted as has also been directed by the Hon'ble Supreme Court of India in the case of Dev Dutt (supra) also. All other consequential benefits shall also accrue. All associated MAs stand disposed of accordingly. No costs.
(Mohan Pyare) (Justice Om Prakash VII)
Member (Administrative) Member (Judicial)
Manish/-
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