K. SIVANANDAN v. Centre for Materials for Electronics Technology (C-MET) & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HON'BLE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **FRIDAY, THE 22ND DAY OF JUNE 2012/1ST ASHADHA 1934** **OP (CAT).No. 1747 of 2012 (Z)** ## **-----------------------------** ## **TA.1/2011 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** **PETITIONER(S):** ## **-------------** **K.SIVANANDAN, AGED 40 YEARS SUPPORT TECHNICAL-IV (PREVIOUSLY ST III) CENTRE FOR MATERIALS FOR ELECTRONICS TECHNOLOGY (C-MET) ATHANI, THRISSUR-680581.** **BY ADVS.SRI.DINESH R.SHENOY** **SRI.G.HARIKRISHNAN (TRIPUNITHURA) SRI.R.V.RAHUL SRI.LIJIN THAMBAN** **RESPONDENT(S):** **--------------** **1. CENTRE FOR MATERIALS FOR ELECRONICS TECHNOLOGY (C-MET) PANCHAWATI, OFF PASHAN ROAD, PUNE-411008 REPRESENTED BY ITS EXECUTIVE DIRECTOR.** **2. THE HEAD OF DIVISION, ELECTRONICS COMPONENTS AND MATERIALS DEVELOPMENT DIVISION DEPARTMENT OF INFORMATION TECHNOLOGY MINISTRY OF COMMUNICATION AND INFORMATION TECHNOLOGY ELECTRONICS NIKETAN, 6 CGO COMPLEX, LODHI ROAD NEW DELHI-110 003.** ## **3. THE REGISTRAR** **CENTRE FOR MATERIALS FOR ELECTRONICS TECHNOLOGY (C-MET) PANCHAWAT, OFF PASHAN ROAD,PUNE-411 008.** ## **4. THE DIRECTOR** **CENTRAL FOR MATERIALS FOR ELECTRONICS TECHNOLOGY (C-MET) ATHANI, THRISSUR-680771.** **THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 22-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP (CAT).No. 1747 of 2012 (Z)** APPENDIX PETITIONER(S) EXHIBITS EXHIBIT P1: TRUE COPY OF THE PETITIONER'S REPRESENTATION 30-4-2008 SUBMITTED TO THE EXECUTIVE DIRECTOR OF C-MET, THROUGH PROPER CHANNEL. EXHIBIT P2: TRUE COPY OF THE PETITIONER'S REPRESENTATION DATED 5-5-2008 SUBMITTED TO THE EXECUTIVE DIRECTOR OF C.MET THROUGH PROPER CHANNEL, CONTAINING THE ENDORSEMENT MADE BY R4. EXHIBIT P3: TRUE COPY OF THE JUDGMENT DATED 7-8-2007 OF THIS HONBLE COURT IN WPC 23955/2003. EXHIBIT P4: TRUE COPY OF THE FRONT PAGE OF MANUSCRIPT DRAFT OF THE RESEARCH PAPER IN FABRICATION AND TRANSVERSE PIEZOELECTRIC CHARACTERISTICS OF PZT THICK-FILM ACTUATORS ON ALUMINA SUBSTRATES, DATED NIL, WITH MANUSCRIPT NO.SNA-D-08-0-219R1. EXHIBIT P5: TRUE COPY OF THE FRONT PAGE OF RESEARCH PAPER IN CHEMICAL SOLUTION DEPOSITION OF BA1-XSRX TIO3 THIN FILMS AND CHARACTERIZATION, DATED NIL. EXHIBIT P6: TRUE COPY OF THE FRONT PAGE OF RESEARCH PAPER IN SOL-GEL SYNTHESIS OF PZT-GLASS NANOCOMPOSITES USING A SIMPLE SYSTEM AND CHARACTERIZATION, DATED NIL. EXHIBIT P7: TRUE COPY OF THE STATEMENT DATED 10-5-2008 SUBMITTED BY THE PETITIONER IN CONNECTION WITH THE INTERVIEW FOR PROMOTION, REGARDING THE VARIOUS PROJECTS HANDLED BY HIM DURING JULY 2001 TO JUNE 2006. EXHIBIT P8: TRUE COPY OF THE COMMUNICATION DATED 14-5-2008 OF R3. EXHIBIT P9: TRUE COPY OF THE ARTICLE STATUS WITH REFERENCE NO.SNA6339, AVAILABLE IN THE WEBSITE ELSEVIER.COM, AS ON 14-8-2008. EXHIBIT P10: TRUE COPY OF THE E-MAIL DATED 17-10-2008 FROM “AUTHOR SERVICES” -SUPPORT@ELSEVIER.COM, ADDRESSED TO THE PETITIONER'S E-MAIL ADDRESS SIVANANDANK@YAHOO.COM. EXHIBIT P11: TRUE COPY OF PDF FILE OF THE ARTICLE “FABRICATION AND TRANSVERSE PIEZOELECTRIC CHARACTERISTICS OF PZT THICK-FILM ACTUATORS ON ALUMINA SUBSTRATES” PUBLISHED IN VOLUME A148-1, 4-NOVEMBER 2008 OF THE JOURNAL SENSORS AND ACTURATORS A PHYSICAL. EXHIBIT P12: TRUE COPY OF WEBPAGE TITLED “ELSEVIER AT A GLANCE” DATED NIL. EXHIBIT P13: TRUE COPY OF WEBPAGE CONTAINING THE PARTICULARS OF THE EDITORIAL BOARD OF SENSORS AND ACTIATPRS A PHYSICAL, DATED NIL. EXHIBIT P14: TRUE COPY OF LETTER DATED 25-6-2001 OF R1, FORWARDING THE PROMOTION POLICY ADOPTED AT THE 12TH MEETING OF THE GOVERNING COUNCIL WHICH WAS IN VOGUE UP TO 2005. ## **OP (CAT).No. 1747 of 2012 (Z)** EXHIBIT R1(A): TRUE COPY OF THE RELEVANT PAGES OF THE POLICY MANUAL OF C-MET. EXHIBIT R1 (B):TRUE COPY OF THE TABLE SHOWING THE DETAILS OF THE 3 EMPLOYEES. EXHIBIT R1(C):TRUE COPY OF THE LETTER DATED 14-3-2008 ISSUED BY R3 TO THE PETITIONER. EXHIBIT R1(D): TRUE COPY OF THE ABSTRACT OF THE RESEARCH PAPER REFERRED TO IN THE WPC. EXHIBIT R1(E): TRUE COPY OF THE LETTER DATED 27-9-2002 SENT BY THE DIRECTOR ARMAMENTS AND SECRETARY ARMREB ADDRESSED TO R4 WITH THE COPY MARKED TO DR.V.KUMAR. EXHIBIT R1(F): TRUE COPY OF THE LETTER DATED 15-4-2008 SENT TO R4 CONVEYING THE APPROVAL OF THE COMPETENT AUTHORITY ACCOMPANIED BY THE MINUTES OF THE 65TH LPC MEETING HELD ON 2-4-2008. EXHIBIT R1(G): TRUE COPY OF THE EMAIL DATED 19-3-2008 SENT BY ELSEVIER EDITORIAL SYSTEM TO DR.KUMAR CONFIRMING THE RECEIPT OF THE RESEARCH PAPER FORWARDED BY DR.KUMAR. EXHIBIT R1(H): TRUE COPY OF THE PROCEEDINGS DATED 12-2-2007 OF THE SCREENING COMMITTEE RELATING TO THE CANDIDATES ASPIRING FOR PROMOTION. ## **RESPONDENTS' EXHIBITS: NIL** ## **/TRUE COPY/** **PS TO JUDGE** ## **MANJULA CHELLUR, Ag.C.J & A.M.SHAFFIQUE, J.** ## **----------------------------------------------** ## **O.P(CAT).No. 1747 of 2012** ## **----------------------------------------------** ## **Dated this the 22[nd] day of June, 2012 JUDGMENT** ## **Manjula Chellur, Ag.C.J.** Heard learned counsel for the petitioner. 2. Originally, a Writ Petition came to be filed by the present petitioner and subsequently, the matter was assigned to the Central Administrative Tribunal as the jurisdiction of C-MET was brought under the Central Administrative Tribunal. The prayers sought in the Writ Petition are as under: - _“(i) Issue a writ of mandamus or any other appropriate writ, order or direction, commanding the respondents to consider the petitioner's claim for in-situ promotion from the grade of ST-III to ST-IV under the Person Oriented Promotion Policy, forthwith;_ - _(ii) Issue a writ of mandamus or any other appropriate writ, order or direction, commanding the respondents to call the petitioner for the interview scheduled to be held on 14[th] May 2008 at C-MET, Pune, in connection with in-situ promotion from the grade of ST-III to ST-IV, under the Person Oriented Promotion Policy;_ - _(iii) Issue a writ of mandamus or any other appropriate writ, order or direction, commanding the 2[nd]_ 2 _**OP(CAT).1747/12**_ _respondent to consider Exhibit P1 and P2 representation submitted by the petitioner, forthwith;_ - _(iv) Issue such other appropriate writ, order or direction as this Honourable Court may deem fit and proper in the facts and circumstances of the case.”_ 3. The main grievance of the petitioner was, the so-called deficits in the Annual Confidential Report (for short, 'ACR') was never communicated to him in eight years prior to considering his case for promotion, therefore, there was no justification for the Screening Committee not to clear the case of the petitioner as the petitioner has not reached the bench mark as per the new policy of promotion. Apparently, the Tribunal was convinced by looking into the materials placed before it that ACRs for a period of eight years were never communicated to the petitioner, which was nothing, but violation of principles of natural justice and therefore, having regard to the law laid down by the Apex Court on the subject held that the process of communicating the adverse remarks to the petitioner has to be taken up within a time frame and then consider the case of the petitioner, after giving him an opportunity to explain the deficits found in the ACRs. Aggrieved by the said order of the Central Administrative Tribunal, the petitioner is before us. 3 _**OP(CAT).1747/12**_ 4. Learned counsel representing the petitioner strenuously contends that when the new promotion policy was never implemented in its full sense, question of applying the new policy would not arise and in view of the petitioner satisfying the conditions of earlier promotion policy by having more than 60% as bench mark, that alone should be considered and there was no justification for the Central Administrative Tribunal to direct the respondents to communicate the adverse remarks found in the ACRs to the petitioner and then proceed with the matter, in view of the law laid down by the Apex Court in the decision reported in _**Abhijit Ghosh Dastidar v. Union of India and others**_ [(2009) 16 SCC 146], Their Lordship held that the appellant therein, throughout the period, was found to be given the entry of ”good”, therefore, the respondent-department's allegation that the applicant or the appellant was not considered for promotion, as he was not having the bench mark of “very good”, was not justified. 5. In the present case, the facts are not the same. In the case referred to above, the bench mark required was “very good”, but the Government servant had the entry of “good” throughout his career. In that view of the matter, Their Lordship _**OP(CAT).1747/12**_ 4 held that there was no requirement for communicating the deficits to the employees after lapse of a long period. 6. In the present case, as on the date of considering the promotion of the petitioner, there were three stages, which the petitioner had to satisfy to get the promotion. The first and foremost was clearance from the Screening Committee. Clearance from the Screening Committee includes verification of ACRs and if they are satisfied, the candidate would be allowed to attend the written test and then the interview. Admittedly, the syllabus for conducting a written test was not finalised. Therefore, the marks allocated for the written test were allotted to the marks of interview uniformly to all the persons. Therefore, even though the syllabus was not finalised, in view of the uniform application of written test marks to all the candidates in the oral interview, one cannot say that the exercise adopted by the respondentDepartment is arbitrary and illegal. Even otherwise, as on the date of considering the case of the petitioner, the new policy was adopted not only for the petitioner, but others as well. 7. In that view of the matter, in the absence of any challenge to the new policy as such in the Original Petition, there is no justification for the petitioner now to turn back and say that the 5 _**OP(CAT).1747/12**_ new policy was not yet implemented in its full sense as on the date of considering his case for promotion. In that view of the matter, we are of the opinion, the relief granted by the Central Administrative Tribunal to the petitioner would justify the circumstances and facts of the present case. Accordingly, the Original Petition is dismissed. ## **MANJULA CHELLUR, ACTING CHIEF JUSTICE** **A.M.SHAFFIQUE, JUDGE** **vgs22.06**