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Union Of India & Others v. Central Administrative Tribunal & Others - WRIT - A No. 6216 of 2003  RD-AH 5286 (23 March 2007)
Civil Misc. Writ Petition No. 6216 of 2003
Union of India and others-----------------------------------------------------Petitioner
Central Administrative Tribunal
Allahabad Bench, Allahabad
Hon'ble V.M. Sahai, J.
Hon'ble Sudhir Agarwal, J.
Union of India, through the General Manager, North Eastern Railway, Gorakhpur and others have filed this writ petition against the order dated 10.10.2002, Annexure-7 to the writ petition, passed by Central Administrative Tribunal, Allahabad Bench, Allahabad disposing of the original application of Sri Rajeev Seth respondent no.2 and directing the authorities to hold a review DPC for considering the case of the respondent no.2 to the post of Assistant Commercial Manager.
Sri Tarun Verma, learned counsel appearing for the petitioners contended that for promotion to the post of Assistant Commercial Manager (Group B) against 30% quota has been prescribed to be made as per Limited Departmental Competitive Examination (hereinafter referred to as LDCE). A notification was issued on 25.11.1996. The selection is based on merit. The list of eligible candidates initially did not include the name of respondent no.2 and thereafter another notification was issued on 26.11.1997 including the name of the respondent no.2. The written test was held on 21.12.1997 wherein the respondent no.2 was declared successful. After medical examination, wherein also he was found fit, the respondent no.2 was required to appear in viva-voce test. He found that the selection board in respect to his service record considered four years annual confidential reports while as per the notification it ought to have considered five years annual confidential reports. The matter was referred to the Railway Board which directed by letter dated 20.4.1998 that the practice prevalent should be followed. He has submitted that in view of the aforesaid matter the selection was rightly held and the learned tribunal erred in law in holding that the respondent no.2 was not correctly considered.
Sri S.K. Om, learned counsel appearing for the contesting respondent no.2 submitted that notification for selection was published on 26.11.1996 and therefore the annual confidential reports prior to that period ought to have been considered but the selection was held considering the ACR of 1996-97 which was deliberately recorded adverse to malign the service career of respondent no.2 against which his representation was pending the same could not have been considered. He therefore contended that the tribunal has rightly held that the case of respondent no.2 was not considered in accordance with law since ACR of 1996-97 could not have been considered and therefore has rightly directed the authorities to re-consider his case by excluding his ACR of 1996-97.
We have heard Sri Tarun Verma, learned counsel for the petitioners and Sri S.K. Om, learned counsel appearing for the respondents.
It is not disputed by learned counsel for the parties that notification for making promotion to the post of Assistant Commercial Manager was published on 26.11.1996. The respondent no.2 was appointed as Commercial Apprentice on 14th March 1991 and after completion of two years training he was posted as Senior Commercial Inspector on 19.6.1993 in the pay scale of Rs.1600-2660.Thereafter he was further promoted as Senior Commercial Inspector on 14.2.1996 in the pay scale of Rs.2000-3200. The Limited Departmental Competitive Examination for selection/ promotion comprised of written test and viva-voce test. The written test was held on 21.12.1997 result whereof was declared on 17.3.1998 wherein the respondent no.2 was declared successful. He was also found fit in medical examination and was required to appear for viva-voce test on 15.4.1998. Since the notification for selection was issued in November 1996 itself, we do not find any justification for the petitioners to consider the ACR of 1996-97 which was recorded subsequent to the said notification. Moreover, the ACR of 1996-97 was adverse which was communicated to the petitioner on 27.11.1997 and the respondent no.2 in accordance with rules made a representation to the competent authority against the adverse entry on 26.12.1997 which was pending before Chief Commercial Manager, North Eastern Railway, Gorakhpur and had not been disposed of till the time when the viva-voce examination was conducted on 15.4.1998. The adverse entry against which representation is pending before the competent authority could not have been considered by the selection committee even otherwise, since the said adverse entry has not attained finality. In the case of Brij Mohan Singh Chopra vs. State of Punjab, (1987)2 SCC 188 the apex court has held that in the matter of promotion an adverse entry where against a representation is pending should not have been considered. It is not disputed that as per the practice prevalent in the department five years ACRs should have been considered and if available ACRs are of lesser period then for the period there is no ACR average grading would be taken. Admittedly, the ACRs of the respondent no.2 which were to be considered are of the year 1993-94, 1994-95, and 1995-96. The authorities, therefore, erred in law by considering the ACR of 1996-97 for the reasons, firstly, the same was recorded after the process of selection had commenced and secondly, against the said adverse entry the representation of the petitioner was pending before the competent authority and has not been disposed of till that date. In this view of the matter, we do not find any error committed by the tribunal in directing the petitioners to convene a review DPC for re-considering the case of respondent no.2 by ignoring the ACR of 1996-97 and award him marks on the basis of other available ACRs since he was not considered correctly and in accordance with law.
For the aforesaid reasons, we do not find any error in the order passed by the tribunal. Writ petition, therefore, lacks merit and is accordingly dismissed.
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