Madras High Court
Bharat Sanchar Nigam Limited vs The Registrar on 16 December, 2013
Bench: N.Paul Vasanthakumar, T.S.Sivagnanam
In the High Court of Judicature at Madras
Dated: 16.12.2013
Coram
The Honourable Mr.JUSTICE N.PAUL VASANTHAKUMAR
and
The Honourable Mr.JUSTICE T.S.SIVAGNANAM
Writ Petition Nos.33792 & 33829 of 2013
and M.P.Nos.1 & 1 of 2013
1. Bharat Sanchar Nigam Limited,
Rep. By its Chairman & Managing Director,
Harish Chandar Mathur Lane,
Janpath, New Delhi 110 001
2. The Assistant General Manager (SEA),
Bharat Sanchar Nigam Limited,
Corporate Office, 7th Floor,
Bharat Sanchar Bhavan,
Harish Chandar Mathur Lane,
Janpath, New Delhi 110 001 ... Petitioners 1 & 2
both W.Ps.
3. The Principal General Manager,
Bharat Sanchar Nigam Limited,
Coimbatore - 18 ... 3rd petitioner in W.P.No.33792 / 2013
4. The Chief General Manager,
Bharat Sanchar Nigam Limited,
Tamilnadu Circle, Chennai 2 ... 3rd petitioner in W.P.No.33829 / 2013
Vs.
1. The Registrar,
Central Administrative Tribunal,
Madras Bench ... R-1 in both W.Ps.
2. R.Pandian ... R-2 in W.P.No.33792 / 2013
3. N.Viswanathan ... R-2 in W.P.No.33829 / 2013
Prayer:- Writ Petitions filed under Article 226 of the Constitution of India, praying for the issuance of writ of certiorari to call for the records of the first respondent in O.A.Nos.1202 and 1208 of 2010, respectively, dated 28.02.2013, and to quash the same as illegal.
For Petitioner in both WPs. : Mr. M.Govindarraj
For Respondents in both WPs.: Mr. Karthik Mukundan, for R-2
- - -
C O M M O N O R D E R
(Order of the Court was made by T.S.Sivagnanam, J.,) Since the issue involved in both the petitions is one and the same and the relief sought for is also same, both the writ petitions were heard together and are being disposed of by this common order.
2. W.P.No.33792 of 2013, filed by the Bharat Sanchar Nigam Limited (BSNL), is directed against the order, dated 28.02.2013, passed by the Central Administrative Tribunal, Madras Bench, Madras, in O.A.No.1202 of 2010, dated 28.02.2013. The second respondent herein (R.Pandian) was the applicant before the Tribunal and the said Original Application was filed, challenging the order, dated 28.04.2010, passed by the second petitioner herein, by virtue of which, the claim for promotion was denied to the second respondent, on the basis certain adverse gradings. The second respondent was working as the Chief Accounts Officer and eligible for being considered for promotion to the post of Deputy General Manager. The second respondent's name was considered by the Corporate Promotion Committee (CPC) of the BSNL, on 30.03.2010. However, in the promotion order, issued on 28.04.2010, the name of the second respondent did not find place. When the second respondent sought for reasons for his name having been omitted by the order of promotion, by filing an application under the Right to Information Act, the second respondent was intimated that he was declared unfit on the ground that he scored certain gradings of 'good' in the period of consideration, whereas, as per the Rules, not more than one 'good' would render an officer unfit for selection.
3. W.P.No.33829 of 2013, filed by the Bharat Sanchar Nigam Limited (BSNL), is directed against the order, dated 28.02.2013 , passed by the Central Administrative Tribunal, Madras Bench, Madras, in O.A.No.1208 of 2010. The second respondent herein (N.Viswanathan) was the applicant before the Tribunal and the said Original Application was filed, challenging the order, dated 28.04.2010, passed by the second petitioner herein, by virtue of which, the claim for promotion was denied to the second respondent, on the basis certain adverse gradings. The second respondent was working as the Chief Accounts Officer and eligible for being considered for promotion to the post of Deputy General Manager. The second respondent's name was considered, by the Corporate Promotion Committee (CPC) of the BSNL, on 30.03.2010. However, in the promotion order, issued on 28.04.2010, the name of the second respondent did not find place. When the second respondent sought for reasons for his name having been omitted by the order of promotion, by filing an application under the Right to Information Act, the second respondent was intimated that he was declared unfit on the ground that he scored certain gradings of 'good' in the period of consideration, whereas, as per the Rules, not more than one 'good' would render an officer unfit for selection.
4. The grievance of the second respondent, in each of the above petitions, was that the gradings pertaining to the earlier years were not communicated to them. Therefore, by placing reliance on the decision of the Central Administrative Tribunal, Ernakulam Bench, dated 17.08.2010, in O.A.Nos.359, 360 and 410 of 2010, the second respondent has approached the first respondent herein.
5. The petitioners / BSNL resisted the Applications, by stating that the second respondent in W.P.No.33792 of 2013, namely, R.Pandian, had been graded as 'good' for all the five years and hence, he was not considered, as the Bench Mark required is 'very good' for five years. In so far as the second respondent in W.P.No.33829 of 2013 is concerned, it was stated that since he had scored below the benchmark gradings, his name was not considered. So far as the contention raised by the second respondent that even if the adverse remarks were 'good', they ought to have been communicated, in terms of the decision of the Hon'ble Supreme Court in the case of Dev Dutt v. Union of India, reported in (2008) 2 SCC 725 : (2008) 2 SCC (L&S) 771, the petitioners contended that the same issue has been referred to a Larger Bench of the Supreme Court in the case of Union of India v. A.K.Goel & Ors, in Civil Appeal No.2872 of 2010.
6. The Central Administrative Tribunal, Madras Bench, Madras, after considering the case of both parties, held that the second respondent, in both the writ petitions, who were applicants, before the Tribunal, were similarly placed as that of the applicants before the Ernakulam Bench, in O.A.Nos.359, 360 and 410 of 2010, and by following the said decision, disposed of the Original Applications, by common order, dated 28.02.2013, subject to the Special Leave Petition, in the case of Union of India v. A.K.Goel & Ors, in Civil Appeal No.2872 of 2010. Challenging the said common order, the petitioners / BSNL has filed these writ petitions.
7. Heard Mr.M.Govindarraj, learned counsel appearing for the petitioners and Mr.Karthik Mukundan, learned counsel appearing for the second respondent, in both the writ petitions.
8. It is to be noted that the issue as to whether every entry, whether be it adverse entry or any other entry, in the Annual Confidential Reports (ACR), should be communicated to the concerned individual / employee, if it is to be relied upon, had been settled by a Larger Bench of the Hon'ble Supreme Court, in the case of Sukhdev Singh v. Union of India and others, reported in (2013) 9 Supreme Court Cases 566 and the judgment was delivered by the Apex Court on 23.04.2013. The Hon'ble Supreme Court, in the said decision, has held that the view taken in Dev Dutt's case, 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 three fold 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; secondly, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same and communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR; thirdly, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system functions more in conformity with the principles of natural justice. Accordingly the Hon'ble Supreme Court held that every entry in the ACR, namely, poor, fair, average, good or very good, must be communicated to the employee concerned, within a reasonable time. At this juncture, it would be beneficial to refer to the relevant paragraphs of the said judgments, which reads as follows:-
8. In our opinion, the view taken in Dev Dutt v. Union of India, (2008) 8 SCC 725 : (2008) 2 SCC (L&S) 771 that every entry in the 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 v. Union of India, (2006) 9 SCC 69 : 2006 SCC (L&S) 1599, and the other decisions of this Court taking a contrary view are declared to be not laying down good law.
9. In the case of Union of India v. A.K.Goel & Ors, in Civil Appeal No.2872 of 2010, which was referred to the larger Bench, came up before the Hon'ble Supreme Court and the same was disposed of, by order dated 20.11.2013, wherein the Hon'ble Supreme Court observed that, the reference has been correctly and squarely answered by the larger Bench decision in Sukhdev Singh' case (cited supra) and therefore, held that, since the question has already been answered, there is no necessity for further consideration by the Larger Bench.
10. Before the Larger Bench of the Hon'ble Supreme Court, in Union of India v. A.K.Goel & Ors, in Civil Appeal No.2872 of 2010, on behalf of the Union of India, it was pointed out that there was no cut-off date intimated, as regards the applicability of the decision in Dev Dutt's case (cited supra), and this aspect needs to be decided by the Larger Bench. Rejecting the submission of the Union of India, it was pointed out that the only point, on which reference is made stands answered in Sukhdev Singh's case (cited supra) and there is no necessity for any further consideration by the Larger Bench.
11. Before us, the learned counsel appearing for the petitioner would contend that as soon as the decision of Dev Dutt's case (cited supra), came to be pronounced, adverse entries were communicated to the second respondent, on 17.06.2010 and 29.06.2010, respectively, and as against which, representations have been made by the second respondent and in the meantime, they had approached the Central Administrative Tribunal, Madras Bench, Madras, by filing Original Applications.
12. Learned counsel for the second respondent submitted that during the pendency of the proceedings, the second respondent, in both the petitions, had attained the age of super-annuation, and if, at this stage, the matter has to be relegated onceagain, for consideration of the representations, it would cause irreparable hardship to the petitioners.
13. As regards the submission made regarding cut-off date, the Corporate Promotion Committee itself was held in the year 2010, long after the pronouncement of judgment of the Supreme Court in Dev Dutt's case (cited supra). Therefore, this question does not arise for consideration in these petitions.
14. Thus, taking note of the above submissions and taking into consideration of fact that, the second respondent in both the petitions, had attained the age of super-annuation and retired from service in the year 2011, we deem it appropriate that the following order would meet the ends of justice.
15. Accordingly, while dismissing the writ petitions, filed by the petitioners / BSNL, there will be a direction to the petitioners, to convene a review Corporate Promotion Committee and consider the case of the second respondent, in each of the above petitions, (R.Pandian and N.Viswanathan), ignoring the non-communicated entries in the ACR, which have been referred to by the petitioners, in their counter affidavit, filed before the Central Administrative Tribunal, and on consideration of the entries in the ACR for the anterior periods, if the second respondent, in each of the above petitions, are found suitable, they shall deemed to have been promoted, from the date of their immediate juniors having been promoted, based on the recommendations of the CPC held on 30.03.2010, for notional promotion. It is made clear that, if any of the ACR entries are found qualified for promotion, that may be taken into consideration. It is needless to say that, if the second respondent, in each of the above petitions, are found to be eligible for promotion, they are entitled for revision of pension.
16. The abovesaid exercise shall be completed within a period of four months from the date of receipt of a copy of this order. No costs. Consequently, the connected MPs are closed.
(N.P.V.J.,) (T.S.S.J.,)
16.12.2013
Index : Yes / No
Web : Yes / No
srk
N.PAUL VASANTHAKUMAR, J.,
AND
T.S.SIVAGNANAM, J.,
srk
To
1. The Registrar,
Central Administrative Tribunal,
Madras Bench
W.P.Nos.33792 & 33829 of 2013
and M.P.Nos.1 & 1 of 2013
16.12.2013