IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 24..3..2008 Coram: The Honourable Mr.Justice P.K. MISRA and The Honourable Mr.Justice K.CHANDRU W. P. No. 12834 of 2002 P. Murugan ... Petitioner -vs- 1. Government of India Rep. by the Assistant Director General Department of Telecommunication Ministry of Communication New Delhi 2. The Chief General Manager B S N L (Telecommunications) Anna Salai Tamil Nadu Circle Chennai 3. The Principal Regional Telecom Training Centre Kaimanam Trivandrum Kerala 4. The Registrar Central Administrative Tribunal Chennai 104 ... Respondents Petition under Article 226 of the Constitution of India praying to issue a writ of Certiorarified Mandamus to quash the impugned order passed by the Tribunal in O.A. No. 275 of 2001 dated 04.01.2002 and Order No. 15/78/99/STG-II dated 01.02.2001 by the first respondent and direct the first respondent to include the petitioner's name in the list of selected candidates in TES Group B LDCE held in 1988 with all consequential benefits. For Petitioner : M/s P.V.S. Giridhar Associates For Respondents : Mr. K. Kannan, SCGSC ORDER
K. CHANDRU, J.
Heard the arguments of Mr. P.V.S. Giridhar, learned counsel appearing for the petitioner and Mr. K.Kannan, learned Senior Central Government Standing Counsel representing the respondents and have perused the records.
2. The petitioner, being aggrieved by the order of the Central Administrative Tribunal [for short, ‘CAT’] made in O.A. No. 275 of 2001 dated 04.01.2002, has filed the present writ petition.
3. The petitioner was working as Sub-Divisional Engineer, Telecom at Nagercoil. While he was working as a Junior Telecom Officer, he appeared in the examination for being promoted in the Telecom Engineering Services [for short, ‘TES’] Group B Post held during November 1988 under the 1/3rd quota. He became successful in the written examination. It was his claim that the notings in his Annual Confidential Rolls (ACR] was satisfactory. But, however, when the results for the year 1988 was published, he found to his dismay, that he was not selected whereas 118 candidates were promoted to the TES Group B Post.
4. The petitioner found that some of the unsuccessful candidates moved the Bangalore Bench of the CAT and successfully got their Original Application allowed. On coming to know of the same, he sent a representation dated 09.8.2000 requesting the respondents also to declare him successful. He also stated that while he obtained 154 marks out of 250 in the written examination, he found that candidates with lesser marks have been selected. He also alleged that he was not selected because of mala fide reasons as he had filed an O.A. before the Ernakulam Bench of CAT against the then superior regarding allotment quarters and he was also successful in his original examination.
5. Aggrieved by the select list dated 01.02.2001, he approached the CAT with the Original Application being O.A. No. 275 of 2001 seeking for a direction to issue a fresh order listing the petitioner’s name in the relevant position according to the marks obtained by the successful candidates in the TES Examination ‘B’ Group held during the year 1988.
6. A reply affidavit was filed by the respondents and it was contended that the petitioner had not obtained 50% in Paper- IV of the Examination and, therefore, his name was not included. With regard to the three names referred to as having secured lesser marks than the petitioner, it was stated that those candidates had secured more marks than the petitioner in the consolidated marking and, therefore, they were selected. It was also stated that the Department of Telecom had issued instructions that the candidates must secure minimum marks in the three written papers as well as in the evaluation marks of the ACR, which was considered as the IVth paper.
7. Before the Tribunal, the petitioner contended that the procedure adopted by the respondents was erroneous and so long as he had got more than 50% marks in the written examination and there being no adverse remarks against the him in the ACR, he should have been selected. However, it was pointed out before the Tribunal that in the revised circular dated 02.5.1986, it was made clear that the minimum pass mark in the examination was 50% in each paper for general candidates. It is stated that in respect of the fourth paper, the petitioner had obtained only 31 marks out of 75. Therefore, since he did not secure the minimum mark required in the paper IV, he was not selected.
8. With reference to allegation of mala fide, the same was denied and it was indicated that his filing O.A. before the Ernakulam Bench had never weighed with the respondents and selection was based upon the marks obtained in the written examination as well as evaluation by the DPC. On the dismissal of the O.A. by an order dated 04.01.2002, the present writ petition has been filed by the petitioner.
9. Mr. P.V.S. Giridhar, learned counsel once again advanced the very same arguments before this Court and stated that the petitioner’s ACR was clean and when he had not been communicated with any adverse remarks, it was to be stated that the authorities will have to take note of only the marks obtained in the written examination. If there was anything adverse, the same should have been communicated to him earlier and it was not open to the respondents to rely upon any un-communicated adverse remark.
10. In this context, the learned counsel relied upon the judgment of the Supreme Court in Brig Nath Pandey v. State of U.P. and others [2001 (9) SCC 398]. We do not know as to how this order of the Supreme Court is of any assistance to the petitioner. In that case, the Supreme Court held on the facts of that case that the adverse entries noted in the ACR before the check period could not have been taken note of and with reference to the adverse entry for the year 1993-94, the same was subsequently deleted. Therefore, in that view of the matter, the petitioner before the Supreme Court got a direction for a fresh consideration of his promotion.
11. The original file was also circulated and we have perused them. We do not find the allegation made by the petitioner regarding mala fide or not substantiated.
12. In the present case, it is not the stand of the respondents that there were any adverse remarks in the ACR of the petitioner. What has been done is an overall evaluation of the ACR by the DPC which had assigned marks in respect of each candidate which exercise was called as Paper IV. There is no attack on this methodology adopted by the respondents. Further, it has also been repeatedly held that the DPC can evaluate the overall assessment of each candidate on the basis of the ACR notings which ipso facto does not mean that the DPC had taken note of any uncommunicated adverse entries.
13. In the light of the same, we do not think that this is a fit case where this Court can exercise power under Article 226 of the Constitution of India to interfere with the factual findings rendered by the CAT and to arrive at a different conclusion so as to replace the evaluation done by the DPC. In the absence of any mala fide attributed to the DPC with concrete proof or against the procedure adopted by the respondents, we do not feel it proper to interdict the judgment of the CAT. The writ petition is devoid of merits and accordingly, stands dismissed. However, there will be no order as to costs.
gri
To
1. The Assistant Director General
Government of India
Department of Telecommunication
Ministry of Communication
New Delhi
2. The Chief General Manager
B S N L (Telecommunications)
Anna Salai
Tamil Nadu Circle
Chennai
3. The Principal
Regional Telecom Training Centre
Kaimanam
Trivandrum
Kerala
4. The Registrar
Central Administrative Tribunal
Chennai 104