Union of India & Engineer-in-Chief, Military Engineer Services v. K.M. Nambiar, A.K. Saxena & Deepak Agarwal

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 5TH DAY OF SEPTEMBER 2016/14TH BHADRA, 1938** ## **WP(C).No. 28047 of 2010 (S)** **-------------------------------------------AGAINST THE ORDER/JUDGMENT IN OA 900/2009 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONER(S):(RESPONDENTS 1 & 2 IN THE ORIGINAL APPLICATION)** - **------------------------------------------------------------------------------------------------------** **1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY TO THE GOVERNMENT OFO INDIA, MINISTRY OF DEFENCE,SOUTH BLOCK, NEW DELHI 110 001.** **2. THE ENGINEER IN CHIEF, MILITARY ENGINEER SERVICES, ARMY HEAD QUARTERS, ENGINEER IN CHIEF'S BRANCH, ARMY HEAD QUARTERS, KASHMIR HOUSE, NEW DELHI 110 001.** **BY ADVS.SRI.T.P.M.IBRAHIM KHAN, SRI.P.PARAMESWARAN NAIR, SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL OF INDIA** **RESPONDENT(S):(APPLICANT & RESPONDENTS 3 & 4 IN THE ORIGINAL APPLICATION)** - **---------------------------------------------------------------------------------------------------------** **1. K.M.NAMBIAR, S/O.LATE MUDUVADATH KUNHAMBU NAMBIAR, ADDITIONAL CHIEF ENGINEER, PRINCIPAL DIRECTOR, (RETD) OFFICE OF THE CHIEF ENGINEER (NAVAC) EZHIMALA, ETTIKULAM,P.O. RAMANTHALI, PAYYANNUR, KANNUR DISTRICT, NOW RESIDING AT KRISHNA VIHAR, KEECHERI JUNCTION, PAPPINISSERI POST, KANNUR (DIST), KERALA STATE, PIN - 670 561.** **2. A.K.SAXENA, ADDITIONAL CHIEF ENGINEER, E IN C'S BRANCH, NOW UNDER ORDERS OF PROMOTION AS CHIEF ENGINEER AT C.E. (AF) ALLAHABAD 211 001.** **3. DEEPAK AGARWAL, ADDITIONAL CHIEF ENGINEER, CE.E. (NAVY) MUMBAI, NOW UNDER ORDERS OF PROMOTION AS JOINT DIRECTOR GENERAL (PERSONAL) AT C.E NORTHERN COMMAND 400 001.** **R1 BY ADV. SRI.R.SREERAJ** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-09-2016, ALONG WITH OPCAT. 597/2010, OPCAT. 598/2010, OPCAT. 599/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DG** ## **WP(C).No. 28047 of 2010 (S)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE ORIGINAL APPLICATION NO.900 OF 2009 FILED BY THE RESPONDENT ALONG WITH ITS ANNEXURE BEFORE THE HONOURABLE C.A.T.ERNAKULAM BENCH.** **EXT.P2: COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS IN ORIGINAL APPLICATION NO.900 OF 2009 ALONG WITH ITS ANNEXURE BEFORE THE HONOURABLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.** **EXT.P3: COPY OF THE REJOINDER FILED BY THE FIRST RESPONDENT/APPLICANT IN ORIGINAL APPLICATION NO.900 OF 2009 BEFORE THE C.A.T. ERNAKULAM BENCH.** **EXT.P4: COPY OF THE ADDITIONAL REPLY STATEMENT FILED BY THE PETITIONERS IN ORIGINAL APPLICATION NO.900 OF 2009 ALONG WITH ITS ANNEXURE BEFORE THE HONOURABLE C.A.T.ERNAKULAM BENCH.** **EXT.P5: COPY OF THE ORDER DATED 10.06.2010 OF THE C.A.T.ERNAKULAM BENCH IN ORIGINAL APPLICATION NO.900 OF 2009.** ## **RESPONDENT'S EXHIBITS: NIL** ## **/TRUE COPY/** ## **P.A.TO JUDGE** ## **P.R. RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ.** ----------------------------------------------------------- W.P.C.No.28047 of 2010 & O.P.(CAT) Nos.597, 598 & 599 of 2010 ---------------------------------------------------------Dated this the 5[th] day of September, 2016 ## J U D G M E N T ## **P.R.Ramachandra Menon, J.** The issues in all these cases are connected by a common thread, in so far as it relates to the consequences in not communicating the 'merit rating' of the employees concerned. W.P.(C).No.28047 of 2010 is treated as the main case and heard the learned counsel appearing for the parties on both sides. The prayers sought for by the applicant in O.A.No.900 of 2009 is the subject matter of W.P.(C).No.28047 of 2010, which are in the following terms: “i) To declare that the non empanelment of applicant's name for promotion to the post of Chief Engineer, in the scale of pay of 18400-22400 (pre₹ revised), in the Military Engineer Services under the Ministry of Defence is highly illegal, arbitrary, unjust, unreasonable, irrational and it violates of Art 14 and 16 of the Constitution of India. (ii) To call for the records relating to Engineer in Chief's Branch, Integrated Head Quarters of _W.P.C.No.28047/2010 & conn._ **2** Ministry of Defence, Army, DHQ P.O, New Delhi 110 011 Letter No.B/41021/DPC/CE/2009-10/E1 (DPC-I) dated 11.12.2009 as approved by the Appointments Committee of the Cabinet (No.12/66/2009-EO (SM.II) dated 08.12.2009 of the Government of India, Secretariat of the Appointments Committee of the Cabinet, Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Trg) and to qash the same as well as Annexure A1 to the extent the same does not include the name of the applicant. (iii) To direct the respondents to hold a review DPC in respect of the applicant which would consider the case of the applicant, without taking into account the uncommunicated grading below the benchmark, if any, and making its own assessment on the basis of the entries in the CRs and if otherwise found fit for promotion, the applicant shall be accordingly promoted to the post of Chief Engineer with effect from the date of promotion of his juniors with all consequential benefits.” 2. The claim was resisted from the part of the Department on various grounds. After hearing both the sides, the Tribunal finalized the issue as per Ext.P5 judgment; the _W.P.C.No.28047/2010 & conn._ **3** operative portion of which reads as follows: “In our considered opinion, the Apex Court judgments in Dev Dutt (supra) and Abhijit Ghosh Dastidar (supra) squarely apply in this case also. The respondents shall, therefore, convene a review DPC ignoring the ACRs of the applicant having gradings below the benchmark and if he is found otherwise suitable, he shall deemed to have been promoted from the date his immediate junior has been promoted on the recommendations of the DPC held on 8.9.2009. The respondents shall carry out the aforesaid directions within a period of two months from the date of receipt of a copy of this order. Accordingly, this O.A is allowed. There shall be no order as to costs.” 3. The Government/Department is aggrieved by the direction and hence the challenge in W.P.(C).No.28047 of 2010. With regard to the other cases namely, O.P(CAT) Nos.597, 598 and 599 of 2010, the verdict passed by the Tribunal in O.A.No.900 of 2009 was followed in the concerned O.As and verdicts were passed accordingly. This made the Government/BSNL to have the same challenged by way of separate original petitions. _W.P.C.No.28047/2010 & conn._ **4** 4. The settled law is that 'adverse entries' in the confidential reports are to be communicated to the employees, to sustain any action on the basis of such entries. But there are also situations where such entries, though not adverse as such, may have a say, when the comparative rating such as 'satisfactory', 'good', 'very good', is considered by the Department/Government. The Apex Court observed in **Dev Dutt** **v. Union of India [2008(7) SCALE 403]** that communication of such entries in relation to the service is very significant; particularly that the selection may depend upon the number of entries such as 'very good','good', 'satisfactory' etc. which carry different levels of rating/marks to be evaluated and to identify the best available candidates. The law declared by the Apex Court in the said decision was followed in the subsequent verdict as well in **Abhijit Ghosh Dastidar v. Union of India & Ors [(2009) 60 SCC 146].** It was accordingly, that relief was granted as per Ext.P5 order, which however is subjected to challenge, pointing out that the verdict passed by the Honourable Supreme Court in Dev Dutt's case has already doubted by another Bench and the same has been referred to _W.P.C.No.28047/2010 & conn._ **5** larger Bench. At the same time there is a contention that the reference itself was not necessary, in so far as the verdict passed by the Supreme Court in a subsequent decision (in Abhijit's case) was rendered by a Bench consisting of 'three judges' and the said circumstance, the reference order cannot yield any consequence. It is however, brought to the notice of this Court that, in the course of further development, the reference was answered by the larger Bench of the Apex Court consisting of three Judges, as per verdict passed on 23.04.2013 in **Sukhdev Singh v. Union of India and others [(2013) 9 SCC 566]** , whereby the dictum laid down in Dev Dutt's case has upheld, which is in conformity with the law laid by the three number Bench in Abhijit's case (supra). In the above circumstances, this Court finds that the challenge raised by the Government/BSNL in these original petitions does not survive any more, having the question answered in the negative in relation to the contentions raised by the petitioners. Accordingly, interference is declined and the writ petition and the original petitions are dismissed, sustaining the orders passed by the Tribunal. The further steps ordered to _W.P.C.No.28047/2010 & conn._ **6** be pursued, based on the verdict passed by the Tribunal, shall be considered and appropriate orders shall be passed by the Department in accordance with law, without further delay. Sd/- ## **(P.R. RAMACHANDRA MENON, JUDGE)** Sd/- **(ANIL K.NARENDRAN, JUDGE)** /TRUE COPY/ P.A.TO JUDGE DG