Court held that petitioner is disqualified from up-gradation due to adverse entry and average grading, deemed ineligible despite Tribunal direction and retired status, though appeals on average grading were considered.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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.
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.
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.
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).
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..
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.
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
SB/07/11/2019
Sd/V.G.ARUN JUDGE
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 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 | P8TRUE SUBMI |
COPY OF THE REPRESENTATION DT.12-7-2006 TTED BY THE PETITIONER BEFORE R2. |
|---|---|---|
| EXHIBIT | P9TRUE 2006. |
COPY OF THE APPELLATE ORDER DT.22-12- |
| EXHIBIT P10 |
TRUE SUBMI |
COPY OF THE REPRESENTATION DT.22-12-2006 TTED BY THE PETITIONER BEFORE R1. |
| EXHIBIT P11 |
TRUE RECEI |
COPY OF THE COMMUNICATION DT.2-1-2007 VED BY THE PETITIONER. |
| EXHIBIT P12 |
TRUE III/T |
COPY OF THE PROCEEDINGS NO.ST- BP/2007 DT.23-6-2007. |
| ANNEXURE A9 |
TRUE 69/20 |
COPY OF THE COUNTER AFFIDAVIT IN TA 08. |
| EXHIBIT R1(A) |
TRUE REMAR DURIN |
COPY OF THE INTIMATION REGARDING THE KS TO THE PETITIONER FOR THE PERFORMANCE G 1993-94. |
| EXHIBIT R1(B) |
TRUE ADDRE |
COPY OF THE INTIMATION DATED 18.06.96 SSED TO THE PETITIONER. |
| EXHIBIT R1(C) |
TRUE BY ALAPP |
COPY OF THE LETTER DATED 01.07.05 ISSUED THE DEPUTY GENERAL MANAGER, BSNL, UZHA TO THE PETITIONER. |
| EXHIBIT R1(D) |
TRUE THE P |
COPY OF THE LETTER DATED 07.07.2006 TO ETITIONER. |
| EXHIBIT R1(E) ANNEXURE 10 |
TRUE 22.12 TRUE FILED |
COPY OF THE APPELLATE ORDER DATED .2006 PASSED BY THE GENERAL MANGER BSNL. COPY OF THE ADDITIONAL COUNTER AFFIDAVIT BY THE RESPONDENT IN TA 69/2008 |
| ANNEXURE 11 ANNEXURE A13 |
TRUE THE C TRUE THE B |
COPY OF THE VERIFIED PETITION FILED BY OUNSEL FOR THE PETITIONER. COPY OF THE PROMOTION POLICY ISSUED BY SNL |
RESPONDENTS EXTS: NIL
// TRUE COPY // P.A TO JUDGE
OP(CAT).No.2181 OF 2013 ..10..
2 issues framed by the court
Whether the petitioner is eligible for up-gradation from Sub Divisional Engineer to Senior Sub Divisional Engineer considering adverse entries and average performance ratings.
Whether the conversion of a warning to an advice negates the status of an adverse entry for promotion purposes.
Colour shows how this judgement treated each authority
Dev Dutt v. Union of IndiaDistinguished¶52
Dev Dutt v. Union of India & Others [(2008) 8 SCC 725] · Who else cites this
P.K.SALIM BABU
RESPONDENTS
K.VINOD CHANDRAN
V.G.ARUN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
