High Court of KeralaDivision Bench2019-11-07Disposed of with directions; denial of up-grada...

P.K. Salim Babu v. The Chief General Manager, BSNL, Kerala Circle; Haridasan M.; Chinnamma Thomas; Union of India represented by the Secretary to Government, Ministry of Communications

Case / Petition Number:OP(CAT).No.2181 OF 2013(Z)

Neutral Citation:/ null

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
V. G. Arun
Judgment Date: 2019-11-07
Court Decision / Holding: The original petition is disposed of with the above directions and observations. The court held that the adverse entry, in addition to the four ACR averages, stands against the petitioner’s up-gradation under Annexure A13; Ext.P9 indicates the adverse entry has not been effaced, and no ground was found to interfere with the denial of up-gradation. However, noting retirement, the appeals against the average grading can still be considered to maintain a clean service record post-retirement. Costs: parties to bear their own costs.
Final Disposition: Disposed of with directions; denial of up-gradation upheld; appeals against averages to be considered; costs borne by parties.

Parties to the Case

Appellants / Petitioners

P.K. Salim Babu

Respondents

The Chief General Manager, BSNL, Kerala Circle, Thiruvananthapuram; Haridasan M. General Manager, BSNL, Alappuzha; Chinnamma Thomas, Assistant General Manager (Operations), BSNL, Alappuzha; Union of India represented by the Secretary to Government, Ministry of Communications, Dept of Telecommunications, New Delhi

Legal Representation & Advocates

Counsels for Petitioners

• Sri P.V. Mohanan

Counsels for Respondents

• Sri Rajith (for R1-R3)
• Shri P. Vijayakumar, ASG (for R4)

Case Synopsis & Summary

The petitioner, P.K. Salim Babu, a Junior Telecom Officer (Operations) of BSNL at Alappuzha, challenged the denial of up-gradation from Sub Divisional Engineer (SDE) to Senior Sub Divisional Engineer (Sr.SDE) under the BSNL time-bound/post-based promotional policy for Group 'B' officers. His career timeline shows appointment as JTO in 1991, promotion to SDE in 2002, and exclusion from up-gradation despite eligibility under Annexure A13, due to an adverse entry and four ACRs containing average ratings. The petitioner contended that Ext.P7 warning was toned down to an “advise” by Ext.P9, arguing that the adverse entry did not exist in its rigorous form and four averages included two not communicated to him. The Tribunal had directed communication of adverse entries and consideration of appeals, but the High Court found that, beyond the four ACRs, there was an adverse entry standing against promotion as per Annexure A13; Ext.P9 shows the adverse entry not being effaced, leaving the prohibition intact. While upholding the denial of up-gradation, the Court clarified that the appeals against the average ratings, though triggered by retirement, could be considered to maintain a clean service record for the petitioner. The petition is disposed of with these observations and costs, and the matter ends with directions for processing the pending appeals.

Provisions of Law Cited

Office Memorandum for time-bound/post-based executive promotional policy for Group 'B' level Officers (Annexure-A13), particularly para 3.2.cACR-based promotion criteria (last five years, no adverse entry, not more than two averages)BSNL promotion policy referenced by Annexure-A13

Submissions & Arguments

Contentions of Appellants / Petitioners

Counsel for the petitioner contended that there was no current punishment and the so-called adverse entry was replaced by a toned-down note (advertise) following Ext.P9; four ACRs included two uncommunicated and the reliance on Dev Dutt (2008) 8 SCC 725 should be considered to grant up-gradation; the adverse entry should be treated differently where it is not a punitive entry warranting denial of promotion. The petitioner sought interference with the Tribunal’s order to direct positive up-gradation.

Contentions of Respondents

The respondents argued that the adverse entry, coupled with the four ACRs, disqualifies the petitioner from up-gradation under Annexure A13; Ext.P9 confirms that the adverse entry remains; thus the denial of up-gradation was proper. They submitted that the Tribunal’s order, if sustained, should not override the adverse entry and the lack of effacement of that entry, keeping the promotion barred.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Dev Dutt v. Union of India & Others	[(2008) 8 SCC 725]	Positive	The judgment notes that Dev Dutt holds that any entry beneath the bench mark disentitling an employee for promotion would have to be treated as an adverse entry and communicated at the appropriate time; it is cited to support the adverse-entry principle for promotion in the present case.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against P.K. Salim Babu v. The Chief General Manager, BSNL, Kerala Circle; Haridasan M.; Chinnamma Thomas; Union of India represented by the Secretary to Government, Ministry of Communications and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 07TH DAY OF NOVEMBER 2019 / 16TH KARTHIKA, 1941** **OP (CAT).No.2181 OF 2013(Z)** **AGAINST THE ORDER IN TA 69/2008 DATED 20.09.2012 AND ORDER IN RA NO.58/2012 IN TA NO.69/2008 DATED 18.1.2013 OF THE CENTRAL ADMINISTRATIVE ERNAKULAM BENCH** ## **PETITIONER/S:** **P.K.SALIM BABU JUNIOR TELECOM OFFICER (OPERATIONS), OFFICE OF THE GENERAL MANAGER TELECOM DISTRICT, BHARAT SANCHAR NIGAM LIMITED, ALAPPUZHA, RESIDING AT KANJIRATHIL, CHERAVALLY, KAYAMKULAM. BY ADV. SRI.P.V.MOHANAN** ## **RESPONDENT/S:** - **1 THE CHIEF GENERAL MANAGER, BSNL, KERALA CIRCLE, THIRUVANANTHAPURAM-695035.** - **2 SRI.HARIDASAN M. GENERAL MANAGER, BHARAT SANCHAR NIGAM LIMITED, ALAPPUZHA-680011.** - **3 SMT.CHINNAMMA THOMAS ASSISTANT GENERAL MANAGER (OPERATIONS), BHARAT SANCHAR NIGAM LIMITED, TELECOM DISTRICT, ALAPPUZHA-680011.** - **4 UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF COMMUNICATIONS, DEPARTMENT OF TELECOMMUNICATIONS, NEW DELHI-11001.** **R1-R3 BY ADV. SRI.RAJIT R4 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 07.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(CAT).No.2181 OF 2013** ..2.. ## **JUDGMENT** ## **K.VINOD CHANDRAN,J.** The petitioner is concerned with his up-gradation to the post of Senior Sub Divisional Engineer (Sr.SDE) from 01.10.2006. The petitioner joined the respondent Organisation as a Junior Telecom Officer (JTO) on 11.03.1991 and was promoted to the post of Sub Divisional Engineer (SDE) on 07.02.2002. He was considered for up-gradation from SDE to Sr.SDE but failed to get selected. 2. The petitioner approached the Tribunal, which directed the adverse entries to be communicated and also the appeals to be filed within a stipulated time, which had to be considered before his case was again **OP(CAT).No.2181 OF 2013** ..3.. taken up by the DPC. We heard Sri.P.V.Mohanan for the petitioner and Sri.R.Rajith for the respondent-BSNL. 3. The learned Counsel for the petitioner takes us through the Office Memorandum stipulating the criteria for time Bound/ post based executive promotional policy for Group 'B' level Officers of respondent (Annexure-A13). Up-gradation criteria is found in paragraph 3.2.c. 3.2.c speaks of fitness for pay scale up-gradation to be judged by the prescribed Screening Committee on the basis of performance rating of ACRs, subject to necessary disciplinary/ vigilance clearance and no punishment being current. Admittedly, there was no requirement for a vigilance/ disciplinary clearance and the petitioner was not under any current punishment. The performance **OP(CAT).No.2181 OF 2013** ..4.. rating again is seen in Annexure-A13, where from SDE to Sr.SDE, the ACRs of the previous five years have to be taken into account, which should not have any adverse entry and not more than two 'averages', the petitioner being an Open Candidate (OC). 4. The petitioner's case was taken up, but however, was rejected for reason of there being an adverse entry and more than two averages. The learned Counsel for the petitioner submits that as far as the adverse entry is concerned, he was warned for certain alleged misdemeanors by Ext.P7, which however was toned down by Ext.P9. When Ext.P7 issued a warning to him, by Ext.P9, it was changed to an advice. In such circumstances, it does not have the rigor of an adverse entry and hence the ground of adverse entry to deny him promotion has to **OP(CAT).No.2181 OF 2013** ..5.. be interfered with. The further contention is that admittedly he has four averages, two of which were never communicated to him. The Tribunal also relied on _**Dev Dutt**_ v. _**Union of India & Others [(2008) 8 SCC 725]**_ , which declared that any entry beneath the bench mark disentitling an employee for promotion would have to be treated as an adverse entry and communicated at the appropriate time. The learned Counsel sought for interference to the Tribunal's order modifying the consideration directed to a positive direction for up-gradation as such. The learned Standing Counsel appearing for the respondent submitted that the Tribunal's order even if sustained, since Ext.P9 specifically speaks of the adverse entry not having been effaced there can be no up-gradation. **OP(CAT).No.2181 OF 2013** ..6.. 5. The Tribunal had directed the consideration of petitioner's case, after the communication of the adverse entries and the consideration of the appeals to be filed by the petitioner. We however, find that the adverse entry in addition to the 'average' grading stands against the petitioner being selected for up-gradation., as per Anexure-A13. When we look at Ext.P9, it is specific that the adverse entry is not being interfered with but only the 'warning' being toned down to an 'advise'. We do not find any reason to interfere with the denial of up-gradation. 6. The petitioner is said to have retired from service. However the appeals against the average grading communicated, are said to have been filed. If that be so, though we held the applicant to be dis- **OP(CAT).No.2181 OF 2013** ..7.. entitled for up-gradation, the appeals will be considered, since we respect the applicants desire to have a clean service record even after his retirement. The original petition is disposed of with the above directions and observations. Parties to suffer their respective costs. **Sd/K.VINOD CHANDRAN JUDGE** **Sd/V.G.ARUN JUDGE** SB/07/11/2019 **OP(CAT).No.2181 OF 2013** ..8.. ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE 1TRUE COPY OF THE ORDER IN TA NO.69/2008 DATED 15.07.2009.** - **ANNEXURE 2TRUE COPY OF THE JUDGMENT IN WPC NO.24894/2009 DATED 05.01.2012.** - **ANNEXURE 3TRUE COPY OF THE ORDER IN TA NO.69/08 DATED 20.09.2012.** - **ANNEXURE 4TRUE COPY OF THE REVIEW APPLICATION FILED BY THE PETITIONER.** **ANNEXURE TRUE COPY OF THE ORDER IN TA NO.69/2008 DATED RA 1 15.07.2009. ANNEXURE TRUE COPY OF THE ORDER IN OA NO.496/2010 RA(2) DATED 08.08.2011.** - **ANNEXURE 5TRUE COPY OF THE ORDER IN RA NO.58/2012 DATED 18.01.2013.** - **ANNEXURE 6TRUE COPY OF THE ACRS FROM 2001-2002 TO 20052006.** - **ANNEXURE 7TRUE COPY OF THE LETTER NO.DGM/CON/10-11 DATED 09.10.2012.** **ANNEXURE 8TRUE COPY OF THE TA NO.69/2008.** **EXHIBIT P1TRUE COPY OF THE SHOW CAUSE NOTICE 20-7-2004 ISSUED TO THE PETITIONER.** **EXHIBIT P2TRUE COPY OF THE REPLY DT.23-7-2004 SUBMITTED BY THE PETITIONER.** - **EXHIBIT P3TRUE COPY OF THE COMMUNICATION DT.26-5-2005 RECEIVED BY THE PETITIONER.** **EXHIBIT TRUE COPY OF THE PRINTOUT FROM THE PGRMS. P3A** **EXHIBIT P4TRUE COPY OF THE LETTER DT.27-5-2005 ADDRESSED TO R3 BY THE PETITIONER.** **EXHIBIT P5TRUE COPY OF THE COMMUNICATION REED BY THE PETITIONER FROM R2.** **OP(CAT).No.2181 OF 2013** ..9.. **EXHIBIT P6TRUE COPY OF THE REPLY DT.22-7-2005 SUBMITTED BY THE PETITIONER.** **EXHIBIT P7TRUE COPY OF THE COMMUNICATION DT.7-7-2006 RECEIVED BY THE PETITIONER.** **EXHIBIT P8TRUE COPY OF THE REPRESENTATION DT.12-7-2006 SUBMITTED BY THE PETITIONER BEFORE R2.** **EXHIBIT P9TRUE COPY OF THE APPELLATE ORDER DT.22-122006.** **EXHIBIT TRUE COPY OF THE REPRESENTATION DT.22-12-2006 P10 SUBMITTED BY THE PETITIONER BEFORE R1. EXHIBIT TRUE COPY OF THE COMMUNICATION DT.2-1-2007 P11 RECEIVED BY THE PETITIONER. EXHIBIT TRUE COPY OF THE PROCEEDINGS NO.STP12 III/TBP/2007 DT.23-6-2007. ANNEXURE TRUE COPY OF THE COUNTER AFFIDAVIT IN TA A9 69/2008. EXHIBIT TRUE COPY OF THE INTIMATION REGARDING THE R1(A) REMARKS TO THE PETITIONER FOR THE PERFORMANCE DURING 1993-94. EXHIBIT TRUE COPY OF THE INTIMATION DATED 18.06.96 R1(B) ADDRESSED TO THE PETITIONER. EXHIBIT TRUE COPY OF THE LETTER DATED 01.07.05 ISSUED R1(C) BY THE DEPUTY GENERAL MANAGER, BSNL, ALAPPUZHA TO THE PETITIONER. EXHIBIT TRUE COPY OF THE LETTER DATED 07.07.2006 TO R1(D) THE PETITIONER. EXHIBIT TRUE COPY OF THE APPELLATE ORDER DATED R1(E) 22.12.2006 PASSED BY THE GENERAL MANGER BSNL. ANNEXURE TRUE COPY OF THE ADDITIONAL COUNTER AFFIDAVIT 10 FILED BY THE RESPONDENT IN TA 69/2008 ANNEXURE TRUE COPY OF THE VERIFIED PETITION FILED BY 11 THE COUNSEL FOR THE PETITIONER. ANNEXURE TRUE COPY OF THE PROMOTION POLICY ISSUED BY A13 THE BSNL RESPONDENTS EXTS: NIL // TRUE COPY // P.A TO JUDGE** **OP(CAT).No.2181 OF 2013** ..10..