PUSPAK RANJAN NAYAK Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner, in this writ petition, questions the validity and propriety of the empanelled promotion list which has unjustifiably excluded him. The petitioner is working as a Senior Section Engineer (Estimate), in the Office of the XEN/T and A/C, Bhubaneswar, under the Deputy Chief Engineer (Con.), East Coast Railway, Bhubaneswar. He appeared in the selection test conducted for the formation of Group-B Panel (AENs) against 70% for departmental promotion quota vacancies. According to the petitioner, in 2004, in the same East Coast Railway, some of the candidates, juniors to him, were empanelled for promotion, but the petitioner was illegally excluded from the list even though he had no adverse remark.

(2.) It is submitted by learned counsel for the opposite parties that out of 61 candidates appeared in the written examination, 23 candidates qualified in the written test, including the petitioner, and were called for the viva-voce test on 01.10.2004. It is further submitted that the entire selection process was transparent and full proof. There was no scope left for anybody to make any objection on the selection process. The said selection was conducted by a committee comprising 3 SAG/PHODs, i.e., Principal Chief Engineer (PCE), Chief Personnel Officer (CPO) and Chief Mechanical Engineer (CME) who had been nominated by the General Manager, East Coast Railway. The committee includes PHOD (Principal Head of Department), i.e., in the present case, Principal Chief Engineer (PCE) who set the question papers for the written test. The answer sheets of the written test were evaluated by one of the SAG Officer of Engineering Department, i.e., CGE, who was also nominated by the General Manager. Since it is the case of 70% departmental promotion quota, one Professional Paper of 150 marks was prescribed for the written test in addition to other tests. Finally, the Selection Committee submitted selection proceedings before the General Manager, who is the approving authority.

(3.) Being aggrieved by the said Empanelment order dated 09.03.2006, the petitioner approached the Central Administrative Tribunal (CAT), Cuttack Bench, Cuttack vide O.A. No.623 of 2006. His contention before the Tribunal was that he is senior to candidates especially opposite party Nos. 5 to 12. It was also contended by the petitioner that his service career was clean and unblemish. He has also not been subjected to any adverse remarks during his past service, hence, he is entitled to get full marks against the "Record of Service". The petitioner also agitated the issue of non-communication of the entry made in the ACR by the authority. During course of argument, learned counsel for the petitioner invited our attention to an apex Court judgment in Deva Dutta Vrs. Union of India, 2008 (8) SCC 725 wherein the apex Court held that every entry in the ACR of a public servant must be communicated. This issue has further been reinforced in Abhijit Ghose vs. Union of India, 2009 (16) SCC 146. The petitioner didn't get a chance to make representation and ask for upgradation. Hence, non-communication of the entry made in the ACR by the authority of the employee is arbitrary which violates Article 14 of the Constitution as held in Menaka Gandhi vs. Union of India (1978 SCR(2) 621.