ORDER
Dharma Rao Elipe, J.
1. This writ petition is filed against the order dated 20-3-2002 passed by the Central Administrative Tribunal, Chennai Bench (in short ‘the Tribunal’) in O.A. No. 1266 of 2000.
2. The said original application was filed by the first respondent herein challenging the order dated 9-8-2000 issued by the Telecom Department. The grievance of the first respondent was that while his juniors were given the regular promotion in the grade of Executive Engineer, he was denied.
3. The first respondent joined the Group B services of the Telecom Department in the year 1982 and he was promoted to the post of Executive Engineer on ad hoc basis with effect from 17-12-1992. The first respondent belongs to Scheduled Caste community. The first respondent claims that as per the Posts and Telegraphs Civil Engineering (Electrical) (Gazetted Officers) Recruitment Rules, 1975, he became eligible to be promoted as Executive Engineer on completion of eight years of service as Assistant Engineer. In the seniority list published by the Department on 9-1-1998, the first respondent’s name was placed at Sr. No. 54. On 9-8-2000, the Department issued an order for regular promotion to the grade of Executive Engineers from the Assistant Engineers. The first respondent was not considered for regular promotion to the post of Executive Engineer. The first repsondent complained that his seniority was overlooked and the officers who were junior to him were given promotion. Aggrieved, the first respondent has filed the above said original application before the Tribunal challenging the order dated 9-8-2000 passed by the Department.
4. Before the Tribunal, the first respondent contended that when the officers who were junior to him were given the regular promotion to the grade of Executive Engineer, the Department ought to have given him the regular promotion. In the matter of promotion, his seniority was overlooked by the Department. There were lot of backlog as well as current vacancies for SC/ST officers, but the Department failed to consider the case of the first respondent. The impugned order passed by the Department was in violation of Articles 14 and 16 of the Constitution of India.
5. On the other hand, before the Tribunal it was submitted by the Department that the first repondent was given promotion to the post of Executive Engineer (E) with effect from 17-12-1992 on ad hoc basis and his name was considered for regular promotion in the DPC held in the years 1989, 1992, 1995, 1997 and 2000, but could not be selected as his name was not found in the Select Panel. Officers juniors to him belonging to SC category were given regular promotion as they were having higher assessment above the benchmark meant for the post by selection method.
6. The Tribunal on finding that the first respondent was given assessment in his ACRs below the bench mark and that the same was not communicated to him, directed the Department to communicate the first respondent the ACRs for the years in which he was given assessment below the bench mark to enable him to make a representation, to consider such representation and pass orders and thereafter hold a review DPC for the purpose of suitable evaluation of the ACRs of the first respondent. Aggrieved by these directions, the Department has filed the present writ petition.
7. Learned Counsel for the petitioner submitted that the promotion from Group B Assistant Engineer (E) to Group A Executive Engineer (E) was made on selection basis by the DPC convened by the Union Public Service Commission (UPSC). The selection was made on the basis of assessment of overall performance of the officers as reflected in their Annual Confidential Reports (ACRs). The officers who were assessed as ‘Outstanding’ were ranked seniors to whose who were graded as ‘Very Good’. The benchmark prescribed for the post of Executive Engineer is ‘Good’. The first respondent was not selected in the earlier selection process as he did not reach the required bench mark. The seniority list of the Group B Assistant Engineers (E) was revised on 9-1-1998 in compliance with the direction of the Supreme Court in the judgment dated 8-7-1997 in C.A. No. 3207-3210/95. On account of this revision, necessity arose for review of the regular appointment of Group B officers made in the grade of Executive Engineer (E) based on earlier seniority by DPCs held in 1998, 1989 revised in 1995 and 1997. Based on the recommendations of the review DPC, the order dated 9-8-2000 was issued giving regular promotions to the eligible officers. The first respondent could not be selected in the review DPC held in June-July 2000. The rules of reservation are applicable in the matter of promotion from Assistant Engineer (E) to the Executive Egnineer (E) and the Department has strictly followed the reservation rules. The first respondent was also considered against the reserved vacancies, but SC/ST officers with better grading were selected against the vacancies reserved for SC/ST category. The first respondent was promoted as Executive Engineer (E) on ad hoc basis in November, 1992 and it was only a stop gap arrangement. The first respondent has so far not been regularly appointed to the higher grade due to his non-selection in the regular DPC held by the UPSC and the Department has no say in the selection list prepared by the DPC. A lenient veiw was taken against the first respondent by allowing him to continue on officiating basis in the post of Executive Engineer (E) even though he was not selected in the regular DPC. The respondents 4 to 14 though juniors to the first respondent were given regular promotion as they were having higher evaluation of ACRs as compared to the first respondent. The promotion order dated 9-8-2000 appointing 53 Assistant Engineers (E) to the higher grade of Executive Engineers (E) on regular basis was issued based on the recommendations of a statutory DPC and by following all relevant rules and instructions. The first respondent cannot claim promotion as a matter of right. The first respondent was duly considered for regular promotion on several occasions, but could not be selected as his evaluation in the ACRs was below than the other selected persons. The first respondent is allowed to continue in the higher grade on ad hoc basis against the ad hoc vacancies available at present and such ad hoc appointment cannot substantiate any claim for regular appointment to the higher grade. The juniors having higher evaluation in their ACRs are to be ranked above the first respondent on selection to the higher post of Executive Engineer (E). There are no backlog vacancies in the SC category as contended by the first respondent and that there are already five Executive Engineers belonging to the category of Scheduled Caste in excess who are to be adjusted against the future vacancies in the grade. The first respondent had earlier filed O.A. No. 368 of 1997 before the very same Bench of the Tribunal, which was rejected by the Tribunal. The first respondent is not entitled to any relief. The Tribunal has erred in holding that when the ACRs reflect the assessment below the Bench Mark, such assessment has to be necessarily communicated to the officer concerned for representation and if as a result of the representation, the assessment/grading in the ACRs get modified, then a review DPC meeting has to be held.
8. On the other hand, learned Counsel for the first respondent submitted that the denial of regular promotion in the grade of Executive Engineer to the first respondent, more particularly when he is working as Executive Engineer on ad hoc basis with effect from 17-12-1992 and promoting his juniors overlooking his seniority, is contrary to rules and is in violation of the principles of natural justice and violative of Articles 14 and 16 of the Constitution of India. The recruitment rules, which govern the promotion to the post of Executive Engineer, do not provide for grading the officers as ‘Good’, ‘Average’, etc. and it was not made known to the first respondent on what basis his performance was evaluated as ‘Average’. Further, when the first respondent’s performance was assessed and evaluated as ‘Average’ in his ACRs, such evaluation being below the benchmark, it should have been communicated to the first respondent for making a representation and if as a result of the representation, the assessment/grading in the ACRs get modified, then a review DPC meeting has to be held for considering him for regular promotion. The performance of the first respondent in the post of Executive Engineer was compared with the performance of those in the lower post of Assistant Engineer (E) in the DPC meetings and, therefore that that extent it was improper. His work as Executive Engineer has been appreciated by the higher authorities which is evident from the letters dated 16-5-2001 and 30-3-2001.
9. Heard the learned Counsel for the petitioner and the learned Counsel for the respondents. Perused the impugned order passed by the Tribunal and also the records placed before us. Before proceeding further, we may point out that by our order dated 21-6-2006 we directed the UPSC to convene a review DPC to evaluate the ACRs of the first respondent based on the explanation submitted by him in the light of the judgment of the Supreme Court in Shiv Kumar Sharma v. Union of India and pass appropriate orders within a period of four weeks. Pursuant to the said order, a memo has been filed by the petitioners wherein it is stated that in the review DPC held in UPSc on 29-9-2006 it was noted that there was no change in the overall assessment for the vacancies in the years 1994-95 and 1995-96 in respect of the first respondent and the UPSC did not recommend any change in the proceeding of the earlier DPC held in June 2000.
10. Even at the cost of repetition, we may mention that the first respondent was directly selected by the UPSC for Group A services of the Telecom Department in the year 1980. He joined the services on 31-7-1982. He was promoted to the post of Executive Engineer on ad hoc basis with effect from 17-12-1992. As per the Recruitment Rules, the first respondent became eligible to be promoted as Executive Engineer on completion of eight years of service as Assistant Engineer. Though the first respondent has become eligible for consideration to be promoted as Executive Engineer by July, 1990 itself, i.e. after completing eight years of service as Assistant Engineer in the Department, but his case was not considered for promotion though there were a number of backlog vacancies meant for SC/ST candidates available. Ultimately he was promoted as Executive Engineer on ad hoc basis with effect from 17-12-1992. A seniority list of the Assistant Engineers was published on 9-1-1998 wherein the first respondent was shown at Srl. No. 54. There was no regular reviewing of the promotion list every year and that during the first respondent’s service, the Department had reviewed the seniority list only on four occasions, i.e. in the years 1988, 1989, 1997 and July 2000. Ultimately by order dated 9-8-2000, the Department issued orders for regular promotion to the grade of Executive Engineer (Electrical) in the P&T Building Works Services in Group A service in the pay scale of Rs. 10000-325-15200 on regular basis from Assistant Engineers, based on the recommendation of the Review DPC. The respondents 4 to 14 who are juniors to the first respondent were given regular promotion to the grade of Executive Engineer (Electrical), but the case of the first respondent was not considered. As per the revised seniority list published by the Department dated 9-1-1998, the respondents 4 to 14 were shown to be juniors to the first respondent. Therefore, the regular promotion given to them as per the impugned order is illegal. The reason given for not considering the first respondent for regular promotion to the post of Executive Engineer was that in his annual confidential records his performance was assessed to be “average” and, therefore, the DPC did not consider his case. That is the only reason given by the Department for not promoting the first respondent. On the other hand, as seen from the records placed before the Tribunal as well as before this Court, the annual confidential records of the first respondent for the years from 1991-92, 1997-98 and 1998-99 were not available. In the communication dated 26-4-2002, it is stated as follows:
In the ACR dossier of the applicant maintained by the Confidential Secretary to Adviser (HRD) of this Department, the ACRs for the years from 1983-84 to 2000-01 are available as on date except for the years 1991-92, 1997-98 and 1998-99.
On scrutiny of the available ACRs it is seen that the applicant Shri Arulmani was given “Average” grading for the years 1986-87, 1987-88 and 1988-89 when he was working as A.E. (Electrical).
The grading given to the first respondent was communicated to him pursuant to the orders passed by the Tribunal. Therefore, it is evident that till the order passed by the Tribunal the grading given in the annual confidential record was not communicated to the first respondent to enable him to make a representation to reconsider the grading given to him and to include his name in the panel of candidates to be considered for promotion to the post of Executive Engineer. Therefore, the non-communication of the “average” bench-mark recorded in the annual confidential record amounts to violation of principle of natural justice as contemplated under Articles 14 , 16 and 21 of the Constitution of India.
11. Even otherwise, it is pertinent to note that the annual confidential records of the first respondent was not properly maintained by the department. As already stated, the department itself has stated that the annual confidential records of the first respondent for the years 1991-92, 1997-98 and 1988-89 were not available. In such circumstances, in the absence of the complete annual confidential records, we are unable to understand as to how the DPC has proceeded to assess the eligibility of the first respondent for promotion to the post of Executive Engineer. Further, when this Court by order dated 21-6-2006 directed the department to convene a DPC meeting to evaluate the ACRs of the first respondent based on the explanation submitted by him and pass appropriate orders in the light of the judgment of the Supreme Court in Shiv Kumar Sharma v. Union of India , a Review DPC was convened to consider the claim of the first respondent and in the minutes of the meeting of the Review DPC dated 29-9-2006, it is concluded as follows:
The review Committee accordingly reassessed Shri M. Arulmani (SC) by upgrading his ACR entries for the period from 17-12-1992 onwards. The Review Committee noted that on this basis there is no change in the overall assessments for the vacancy years 1994-95 and 1995-96 in respect of Shri M. Arulmani (SC) and, therefore, do not recommend any change in the proceedings of the Review DPC held in June 2000
When we perused the minutes of the Review DPC dated 29-9-2006, we find that the Review Committee were apprised that the first respondent, who is a Scheduled Caste officer, was considered for promotion for the year 1988, 1994-95 and 1995-96 and was assessed as “average” for all the three years by the respective DPCs and that on the basis of this assessment, he was not recommended for promotion. It was further recorded in the minutes that the Review Committee were informed that aggrieved by his non-promotion, the first respondent moved the Tribunal and the order passed by the Tribunal and the interim order passed by this Court directing the convening of a review DPC to consider the claim of the first respondent. Except recording these factual aspects, no attempt has been made by the Review DPC for reconsideration of the assessment of the first respondent as “average” in his annual confidential records. The first respondent was promoted to the post of Executive Engineer on ad hoc basis with effect from 17-12-1992 and was shouldering higher responsibility in the said post. When the first respondent was promoted on ad hoc basis to the post of Executive Engineer and was discharging the duties as such, his gradation in that post should be treated as one level higher than the grading awarded in respect of the lower post for the purpose of promotion. This aspect was not considered by the Review DPC. In the facts and circumstances of the case, we are of the view that the Review DPC has not properly considered the claim of the first respondent. The whole exercise of the Review DPC, in our opinion, appears to be a farcical and perfunctory and just to comply with the direction issued by this Court.
12. Therefore, we are of the view that the department has not properly considered the case of the first respondent from the date on which date he became eligible for promotion to the post of Executive Engineer. Further for the fault of the department in not maintaining the annual confidential records and other service records of the first respondent for certain years and in not communicating the assessment of the first respondent as “average” to enable him to make a representation for review of the above said assessment, he could not be denied the regular promotion to the post of Executive Engineer. We can say a lot about the way in which the first respondent’s case was considered by the department as well as the UPSC. Even when a direction was given by the Tribunal and by this Court to reconsider the case of the first respondent, the Review DPC was not diligent enough to consider the case of the first respondent in proper perspective. Therefore, we are of the view that the so-called reconsideration by the review DPC was a farce and perfunctory. Even according to the department, the first respondent became eligible for regular promotion in the year 1988 itself, but he was not given promotion as, according to the Department, the benchmark given to him in his annual confidential records was “average”, but the fact remains that the service records pertaining to the first respondent was not properly maintained by the department and made available before the DPC, that the lower level benchmark of “average” was not communicated to the first respondent to enable him to make a representation for reconsideration of the assessment and finally the Review DPC did not reconsider the claim of the first respondent in proper perspective. For all these reasons the impugned order dated 9-8-2000 in so far as it denied the first respondent the regular promotion to the post of Executive Engineer is to be interfered with.
13. For the reasons stated above, we direct the appellants to promote the first respondent on regular basis to the post of Executive Engineer with effect from the date on which his immediate junior was given the regular promotion to the post of Executive Engineer and grant him all the attendant service benefits, including seniority, etc., pursuant to such regular promotion.
14. The writ petition is dismissed. No costs. Connected W.P.M.P. No. 18536 of 2006 is closed.