SALIM BABU Vs. CHIEF GENERAL MANAGER

JUDGEMENT

(1.) HEARD learned counsel for the petitioner and learned standing counsel for BSNL.

(2.) THE petitioner was the applicant before the Central Administrative Tribunal. He aspires to be recommended as eligible for movement from Sub Divisional Engineer (SDE) to senior SDE in the open category. Going by Ext. R6 OM dated 18/01/2007 of the BSNL, the grading criteria for that is "no adverse, not more than two Averages" for previous 5 (five) years in terms of ACRs. Therefore, if a remark of being 'Average' is recorded for more than two times, that becomes detrimental to the employee when he is being considered for assessment of fitness and eligibility for the purpose of such rating on the basis of ACRs. The petitioner contends that for the relevant time, he cannot be mulcted with any entry rating him as Average without that having been communicated to him. Formidable support is drawn by the learned counsel appearing for the petitioner from the law laid by the Apex Court in Dev Dutt v. Union of India and Others, 2008 KHC 4685 : 2008 (8) SCC 725 : 2008 (7) SCALE 403 : AIR 2008 SC 2513 : 2008 (2) SCC (L&S) 771 : 2008 (117) FLR 1024 : 2008 (66) AIC 18 : 2008 (3) LLN 621 : 2008 (3) CLR 731 in this regard. He also points out Abhijit Ghosh Dastidar v. Union of India and Others, 2009 KHC 6286 : 2009 (16) SCC 146 which reiterates the law laid in Dev Dutt.

(3.) WE are sure that Dev Dutt was not brought to the notice of the learned Tribunal while Ext. P1 order was issued. We find that there is an error of law and jurisdiction committed by the Tribunal in as much as the law laid in Dev Dutt, which is binding in terms of Art.141 of the Constitution, has not been considered; more particularly because, non - communicated ACR entries, admittedly, have been acted upon as against the applicant, writ petitioner. The Tribunal has made observations on the merits of the ACR entries, even on those which were not communicated by the establishment to the employee. The matter in hand being one under Art.226 and Art.227 of the Constitution, we are not to consider that aspect here, on facts. For the aforesaid reasons,