Central Administrative Tribunal - Hyderabad
Karittla Apparao vs M/O Defence on 25 February, 2019
400% Dr... g 8 Ove = ye IN THE CENTRAL ADMINISTRATIVE TRIBUNAL HYDERABAD BENCH HYDERABAD 0.A/20/01438/2013 Date of order: 35.02.2019 Between: KARITTLA APPARAO, S/o Late K.Neelaifah, Aged about 49 years, Occupation: Fire Engine Driver, SAP No.1288, O/o Ship Building Centre, Godavari Gate, Varuna Block, Naval Base, Naval Dockyard, Visakhapatnam 530014, APPLICANT AND 1. Union of india represented by Its Secretary, Ministry of Defence, Government of India, South Block, New Delhi, 2. The Chief of Naval (Staff. integrated Head Quarter (for COP), Ministry of Defence, (Navy), Room No.104, D-11 Wing, Sena Bhavan, New Delhi 110074, 3. The Programme Director, Naval Dockyard, Head Quarters, ATVP (for PM (PERS)), B-3/4 Wing, 3" Floor, Paryavaran Bhavan, CGO Camplex, Lodhi Road, New Delhi, 4. The Project Director, Ship Building Centre, Naval Base Post, Visakhapainam -- 14, S. The Commander Manager (HRD). Ship Building Centre, Naval Base Post, Visakhapatnam ~ 14, 6. S.Srinivasa Rao, S/o not known, Aged about 44 years, Occupation: Fire Engine Driver, ERC, SAP No. 1282, Ship Bullding Centre, Naval Base Past, Visakhapatnam ~ 14, < beg K. Bangaru Raju, Sfo K.Sanyasi Reddy, . Aged about 83 years, . vs Occupation: Fire Engine Driver, ERC, sc" SAP No. 1283, Ship Building Centre, Naval Base Post, Visakhapatnam -- 14, io 8. B.Lakshmana Ran, S/o Late Nukaraju, Aged about 49 years, Occupation: Fire Engine Driver, ERC, SAP No.1291, Ship Building Centre, Naval Base Post, Visakhapatnam ~ 14, Respondents Counsel for the applicant Dr. ARRAGHU KUMAR Counsel for the respondents; Mr. M.BRAHMA REDDY, or. PC for CG. CORAM: THE HON'BLE MR. JUSTICE R KANTHA RAO MEMBER (J) THE HON'BLE MR. BV SUDHAKAR, MEMBER (A) ORAL ORDER
(PER HON'BLE MR. JUSTICE R KANTHA RAO, MEMBER (J) Heard Mr. Pavan Kumar, proxy counsel for Dr. A.Raghu Kumar, learned counsel appearing fer the applicant and Mr. M.Brahma Reddy, learned Standing Counsel appearing for the respondents.
2. The applicant filed QA to set aside and quash Order dated 23.03.2013 passed by Respondent No.4 ta the extent of not considering his case and considering and promoting his juniors to the post of Fire Engine Driver Grade-ll and conseguently direct Respondents to promote the applicant on par with his juniors with all consequential benefits.
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3. The applicant is a Fire Engine Driver (for short FED) ordinary grade. The next grade for consideration for promotion is FED Grit (Group-C}. The applicant' wrote departmental qualifying examination and appeared before DPC. Respondent No.4 issued order dated 23.03.2013 promoting juniors to the applicant whe are Respondents No.6 to 8 herein, without considering the case of the applicant for promotion. As no reasons were assigned, the applicant obtained Information under Right to Information Act and Respondents informed that his case was not considered for promotion as he did not fall within the bench mark of Annual Performance Appraisal Reports (for short APARs} for the years 2007-08 and 2008-09. Challenging Order dated 23.03.2013 which denied promotion to the applicant, he fled the present OA.
4. in the reply affidavit, it has been contended by the respondents that communication of entries in APAR came into existence with effect from 2010. Further, there was no promotional channel for Fire Engine Drivers ti] 2010 and, therefore, Respondents did not communicate the below bench mark grading to the applicant and hence the applicant cannot take the same as his defence in the OA. Obviously, Respondents admitted in their reply statement itself that they have communicated adverse entries In APARs for the subsequent years from 2010 when rule for communicating the entries of APARs came into existence. Their only contention seems to be that judgment of the Hon'ble Supreme Court in Dev Dutt v. Union of india, (2008) & SCC 725 which was rendered after 2004 was prospective in operation and it cannot be made applicable retrospectively. The issue raised by Respondents is no longer res integra.
5. Principal Bench of Central Administrative Tribunal in OA 4452/2013 clarified the pasition as follows:
"9, In short, the respondents contend that the law. :
declared by the Han'ble Apex Court in Dev Dutt's case {supra} is only prospective.
10. This issue, ie., whether the decision in Dev Dutt's case (supra) is having prospective application, is also no more res-integra, as the same was decided by the Hon'ble High Court of Delhi in B.S.Mishra v. Union of india, WPIC) No.7869/2007, decided on 06.08.2014. in the said case, it was held as under:
'Although the decision in Dev Dutt and Abhijit Ghosh Dastidar were rendered after 2004, we cannot accept KVS submissions that the law declared applies prospectively. That fs neither the purport nor the intent of «hose two judgments and nothing in the declaration of Supreme Court leads us to that conclusion."
6. Therefore, the contention of the respondents that the law declared by Hon'ble Supreme Court in the above two referred judgments Is only prospective, has no legal force. The judgments can be applied retrospectively as well. The ground that there was no promotional channel for FEDs by 2010 cannot also be a valid defence of the respondents. They ought to have communicated adverse entries to the applicant. Therefore, the applicant is entitled for promotion by ignoring the below average bench mark which was not communicated to the applicant for the years 2007- O08 and 2008-09.
7. The OA therefore succeeds. Respondents are directed to promote the applicant by ignoring the below average bench mark of APARs for the years 2007-08 and 2008-09 from the date on axe eet bel eah & .
x = « ae te Rs es Ri Aes Be & which juniors of the applicant were promoted L.e., with effect from 10.03.2012 with all consequential benefits.
&. The OA is accordingly allowed.
tO costs.
There shall be no order as