B.K.Ram Mohan, E.G. Dist. vs Ongc N Delhi Another
2024 Latest Caselaw 1328 AP

Andhra Pradesh High Court - Amravati

B.K.Ram Mohan, E.G. Dist. vs Ongc N Delhi Another on 16 February, 2024

 APHC010372182007
                    IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
                                   (Special Original Jurisdiction)
                                                                                 [ 3457 ]
                        FRIDAY ,THE SIXTEENTH DAY OF FEBRUARY
                           TWO THOUSAND AND TWENTY FOUR

                                      PRESENT

                    THE HONOURABLE SRI JUSTICE HARINATH.N

                         WRIT PETITION NO: 23117 OF 2007

Between:
B.K.RAM MOHAN, E.G. DIST.                                             ...PETITIONER(S)
                             AND
ONGC N DELHI ANOTHER AND OTHERS                                      ...RESPONDENT(S)

Counsel for the Petitioner(s): SRI. A RAJENDRA BABU

Counsel for the Respondents: D S SIVADARSHAN

The Court made the following:

1. The petitioner is aggrieved by the inaction on the part of the respondents in

promoting him to the post of Chief Engineer at E5 Grade on par with the

juniors who were promoted and consequentially seeks a direction to the

respondents to promote him to the post of Chief Engineer at E5 Grade and to

nullify the proceedings vide Memo No.11(34)/RP-C/2008/Court case/BKR,

dated 17.10.2008.

2. The averments of the writ petition, in brief, are that the petitioner joined the

respondents' Corporation as an Assistant Executive Engineer on 22.11.1983,

he was promoted from time to time as Executive Engineer, Deputy

Superintendent Engineer and Superintendent Engineer and was expecting a

promotion to the post of Chief Engineer at the E5 Grade. The petitioner claims

that though he is eligible to be promoted as Chief Engineer at E5 Grade,

ignoring his candidature, juniors to him were considered. The petitioner also claims that the respondents' Corporation did not follow the roster system while

promoting the officers and further claims that out of 95 officers promoted in

January 2006 and 165 officers promoted in January 2007, not even 15

candidates belonging to the scheduled caste were promoted. The petitioner

also claims that the respondents' Corporation did not include his name in the

promotion list. However, juniors to the petitioner are said to have superceded

the petitioner. Hence, the writ petition.

3. The respondents Corporation filed a detailed counter denying the material

allegations made in the writ petition and further contended that non-selection

of a candidate does not mean that he has any adverse remarks or is in

shortfall of skills and the selection is not only on the performance appraisal

report of the individuals but is a combination of performance appraisal report,

qualification and potential assessment of the individual and these criteria

needs to be followed as these positions are fairly senior level posts and thus

the company can promote only the best and prayed to dismiss the writ

petition.

4. I have heard Sri A. Rajendra Babu, the learned counsel for the petitioner and

Sri D.Siva Darshan, the learned standing counsel for the respondents'

Corporation.

5. During the hearing, the learned counsel for the petitioner submitted that the

annual confidential reports were not furnished to the petitioner and the

adverse remarks against the petitioner's candidature were said to have been

taken as a criterion for not including the name of the petitioner in the proposed

list for promotion. The learned counsel further submitted that non-furnishing

of the adverse annual confidential reports, which are prepared by the officers to whom the petitioner reports, has deprived the petitioner of clarifying the

adverse remarks and if the petitioner had been furnished with a copy of the

adverse remark in the annual confidential report, the petitioner could have

submitted his explanation and there is a possibility of rectifying the adverse

remarks.

6. The learned counsel for the petitioner placed reliance on the judgment in the

matter of State Bank of India and others Vs. Kashinath Kher and others 1

wherein the Apex Court had held that furnishing of adverse annual

confidential reports to the employee would enable the employee to respond to

the same and a fair assessment can be arrived at.

7. The learned counsel also placed reliance on the judgment of the Apex Court

in the matter of Dev Dutt v. Union of India and others2 wherein the Apex

Court had held that every entry in the annual confidential report of a public

servant must be communicated to him within a reasonable period, whether it

is a poor, fair, average, good or very good entry. This is because non-

communication of such an entry may adversely affect the employee in two

ways. One, had the entry been communicated to him he would know about

the assessment of his work and conduct by his superiors, which would enable

him to improve his work in future; Two, he would have an opportunity of

making a representation against the entry if he feels it is an unjustified, and

pray for its upgradation. In the matter of Maneka Gandhi v. Union of India3

the Apex Court had also held that non-communication of entry is an arbitrary

act and is a violation of Article 14 of the Constitution.

(1996) 8 SCC 762

(2008) 8 SCC 725

(1978) 1 SCC 248

8. In reply, the learned standing counsel appearing for the respondents'

Corporation fairly conceded that after the judgment of the Apex Court in

Devdutt's case referred to supra, annual confidential reports are being shared

with the employees and that prior to the judgment, there was no system in the

respondents' Corporation to share the annual confidential reports.

9. The learned standing counsel further submits that the petitioner is not entitled

to promotion since the promotion from E4 to E5 grade is made by the

selection committee based on the merit of all eligible candidates and that

there are criteria set up for promoting the employees from E4 grade to E5

grade. The learned standing counsel further submits that non-consideration

of the petitioner for promotion to E5 grade is solely not based on annual

confidential reports. The promotion by selection is by sending the list of

eligible officers of Grade E4 at the ratio of 1:3 for performance appraisal and

potential assessment.

10. From the perusal of the material available on record, the petitioner has placed

his case on the ground that purely on account of the non-furnishing of the

annual confidential reports and the non-granting of an opportunity to the

petitioner to submit his clarification, the petitioner was denied an opportunity to

rectify the adverse remark, which resulted in denial of promotion to the

petitioner. Considering the facts and circumstances and also taking into

account the pleadings before this Court and after hearing the argument of the

learned counsel for the parties, the non-furnishing of annual confidential reports

to the petitioner ought to be held as an irrational act on the part of the

respondents. However, there is force in the contention of the learned standing

counsel for the respondents' Corporation that denial of promotion to the petitioner was not only on account of the adverse remark in the annual

confidential report, but other criteria were also considered by the selection

committee.

11. Along with the writ petition, the petitioner filed the modified recruitment and

promotion regulations, 1980. Sub-clause (4) of Regulation 7 provides that in

cases where the criterion for promotion is merit, the promotion committee,

before selecting the employees, shall consider the service records and annual

confidential reports, may hold a written examination or practical test or interview

or any combination of these and shall follow the procedure for determining the

merit as laid down by the Corporation at least two months in advance of the

said selection. In view of the procedure, as specified in the regulations of the

respondents' Corporation, this Court finds no infirmity in the procedure adopted

by the respondents' corporation in considering the promotion from E4 grade to

E5 grade.

12. It is not the case of the petitioner that the petitioner is automatically entitled for

promotion as Chief Engineer at E5 grade on account of seniority. The

respondents' Corporation had devised a methodology for promotion to the next

higher level post and that methodology cannot be found to be at fault.

13. Promotion is also not a fundamental right because it depends on various

factors that are beyond the control of employees. For example, promotion may

depend on:

                The availability of vacancies at higher levels
                The budgetary constraints of the organization
                The demand for certain skills or roles at the next level of promotion.
                The competition from other candidates within or outside the
                 organization

14. Therefore, even if an employee meets all the eligibility requirements for

promotion, he or she may still not get promoted due to these external factors.

15. It is also not the case of the petitioner that the petitioner is challenging the

procedure adopted by the respondents' Corporation for promotion to a higher

post. However, based on the facts and circumstances of the case, the petitioner

has now crossed the age of superannuation as he was 55 years old when he

filed the writ petition. Therefore, the request for promotion to the post of Chief

Engineer at E5 Grade does not arise. This Court finds no merit in the writ

petition, and thus, it is liable to be dismissed.

16. In the result, the writ petition is dismissed without costs.

17. Pending miscellaneous petitions, if any, shall stand closed.

[JUSTICE HARINATH.N] BV