Bombay High Court
Subhash Kisan Choudhari vs Union Of India, Thr. General Manager, ... on 7 August, 2025
Author: M.S. Jawalkar
Bench: M.S. Jawalkar
2025:BHC-NAG:7792-DB
Judgment 1 16wp4685.24.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 4685/2024
Subhash Kisan Choudhari,
Aged about 65 yrs. Occ. Retd.
Employee, R/o. At Kordha, P.Ο.
Navegaon, Pandava, Taluka
Nagbhir, District - Chandrapur
441205.
PETITIONER(S)
// VERSUS //
(1) Union of India,
through General Manager,
South East Central Railway,
C.S.T.M., Mumbai-440001.
(2) Sr. Divisional Personnel Officer,
S.E.C. Railway, Kingsway,
Nagpur-440 001.
(3) Addl. Divisional Railway
Manager,
S.E.C. Railway, Kingsway,
Nagpur-440 001.
RESPONDENT(S)
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●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●
Shri B. Lahiri, Advocate for Petitioner
Shri N.S. Deshpande, DSGI for Respondents
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CORAM : M.S. JAWALKAR & PRAVIN S. PATIL, JJ.
CLOSED FOR JUDGMENT ON :- JULY 28, 2025
JUDGMENT PRONOUNCED ON :- AUGUST 07, 2025
JUDGMENT :
- (PER:- M.S. JAWALKAR, J.)
. RULE. Rule made returnable forthwith. Heard finally
by consent of learned Counsel for the respective parties.
(2) The facts giving rise for filing of the present Writ
Petition are as under:-
(3) The Petitioner came to be appointed in South East
Central Railway as a Junior Porter on 04/05/1989 and was posted
in Keljar, Maharashtra. In the year 1996, he was promoted as
Porter 'A' Grade and was posted firstly at Gondia and then at
Mulmorara. The Respondent No. 2 issued a notification for
filling up the post of Goods Guards against 60% DPQ in Pay
Band-1 in the scale of 5200-20200 + 2800 Grade Pay in
Operating Department which postulates that selection will be
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made on the basis of performance in the written test.
Accordingly, the written test was conducted and the Petitioner
appeared in the written test held on 30/06/2012. By an office
order dated 27/07/2012, the Respondent No. 2 published result
of the written examination for selection for promotion to the
post of Goods Guard. As per the result declared by the
Respondent No. 2, total 16 candidates have passed the written
test including the Petitioner.
(4) Subsequently, the Respondent No. 2, by an office
order dated 09/08/2012, exhibited a list of 15 candidates, who
have been approved for promotion to the post of Goods Guard
on the basis of the written tests held on 30/06/2012 &
07/07/2012 & scrutiny of SRS & APARs, punishment and awards
etc. conducted on 03/08/2012, in which the name of the
Petitioner was not included amongst the selected candidates.
(5) Thereafter, the Petitioner, by taking recourse to the
provisions of the Right to Information Act, 2005, sought for the
details about the marks obtained by the candidates who had
appeared in the written examinations, in response to which, the
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Respondent No. 2 has supplied a copy of Note Sheet No. 4 dated
27/07/2012 to the Petitioner. The said note sheet shows that the
Petitioner, whose name appears at Serial No. 6, has obtained 64
marks out of 100, and accordingly, he is declared as 'passed' in
the written examination.
(6) Aggrieved by his non-selection, the Petitioner made
a representation to the Respondent No. 2. In response to the
same, the Respondent No. 2, by a letter dated 29/12/2015,
intimated the Petitioner that for being considered for
empanelment, a candidate has to secure 60% marks in the
written test as well as 60% marks in the aggregate. But as the
Petitioner has failed to obtain 60% marks in the aggregate, he
was declared unsuitable, and hence, not eligible for
empanelment for the post of Goods Guard against 60% DPQ
quota. Being aggrieved and dissatisfied by the said
communication, the Petitioner carried the matter to his Higher
Authority i.e. the Respondent No. 3 by filing Representation
dated 21/01/2016, which said request of the Petitioner was not
entertained by the Respondent No. 3.
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(7) Aggrieved by the non-consideration of his fervent
plea, the Petitioner filed an Application before the Central
Administrative Tribunal, Bench at Mumbai bearing O.A. No.
2043/2017. The Respondents filed their reply to the said O.A. on
09/09/2018. In their reply, the Respondents have stated that the
written test is only one part of the selection. The final
assessment is to be based on written test (50 marks) and Record
of Service (30 marks) and for being empanelled, a candidate has
to secure 60% in the written test (30 marks out of 50) and
overall 60% in the aggregate (48/80) in the safety category. The
said procedure was adopted in the selection in question. It is
admitted that the Petitioner has secured 64 marks out of 100 in
the written test, which means 32 marks out of 50. The Petitioner
has secured 32 marks out of 50 in the written test and 15.5
marks out of 30 in the Record of Service. As such, he has secured
47 marks out of 80 taken together. In terms of Estt. Serial No.
51/2006, in order to be empanelled, the candidate has to secure
60% i.e. 48 out of 80 marks taken together and the Petitioner fell
short by 0.5 marks, and hence, he was not empanelled.
(8) Learned Counsel for the Petitioner submits that the
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entries in the APARs of the Petitioner for the years 2009-10,
2010-11 and 2011-12 have not been communicated to the
Petitioner in terms of the Railway Board's Guidelines rendered
in the letter dated 18/08/2009. Had that been done, the
Petitioner would have got an opportunity of representation for
improvement of his grading and thereby increase his total marks
in the Record of Service and get empanelled. The Petitioner has
placed these facts squarely before the learned Tribunal in his
Rejoinder dated 20/02/2023. The Respondents have filed a Sur-
Rejoinder dated 20/06/2023. In their Sur-Rejoinder, the
Respondents, while admitting that as per Guidelines issued by
the Railway Board, vide their letter dated 18/08/2009, the
entries in the APARs of the Petitioner ought to have been
communicated to him, which they have failed to do; they have
attempted to side-track the issue by raising an after-thought and
untenable issue of delay in preferring the representation by the
Petitioner. The Respondents have thereby sought for condoning
the illegality committed by them of depriving the Petitioner of
promotion to the post of Goods Guard by relying on his APARs
grading without communicating the entries therein for affording
an opportunity of representation for improvement of his
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grading.
(9) Learned Counsel for the Petitioner, in support of his
contentions, relied on following citations:-
(a) Union of India and others Vs. Shantiranjan Sarkar,
(2009) 3 SCC 90;
(b) Dev Dutt Vs. Union of India and others, (2008) 2
SCC (L&S) 771;
(c) Abhijit Ghosh Dastidar Vs. Union of India and
others, (2009) 16 SCC 146; and
(d) Sukhdev Singh Vs. Union of India and others,
(2013) 9 SCC 566.
(10) On the contrary, the contention of Respondents is
that the Respondents have filed a detailed reply before the
Tribunal with Annexure to the Sur-Rejoinder and O.A. It is
admitted that the APAR for the relevant years were not
communicated to the Petitioner. Further, it is submitted that, as
per the provisions contained in Para-220(a) of Indian Railways
Establishment Manual, Vol-I, "The Panels drawn by the
Selection Board and approved by the competent authority shall
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be current for two years from the date of approval by the
competent authority or till these are exhausted whichever is
earlier". In the instant case, the panel was approved by the
Competent Authority on 08/08/2012 and the Petitioner had
preferred the representation on 18/08/2015 which is more than
one year exhausted of the panel. According to the Respondents,
the Tribunal, after careful consideration to the submission made
by both the sides, has dismissed the O.A. vide its order dated
18/07/2023 being devoid of merits duly observing that it is not
possible to accept the contentions of Petitioner. The said order
dated 18/07/2023 passed by the learned Member, Central
Administrative Tribunal is the subject matter of challenge in the
present Writ Petition.
(11) We have heard learned Counsel for the respective
parties at length, perused the communications issued by the
Respondents, the impugned order passed by the Central
Administrative Tribunal dated 18/07/2023 in O.A. No. 243/2017
and considered the citations relied on by the Petitioner.
(12) Our attention is drawn to the written submissions of
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the Respondents filed before the CAT wherein the Respondent
have not denied that the Petitioner Subhash Choudhari,
Pointsman 'A'/MME is one of the candidates out of 16
candidates to have been declared 'passed' in the examination
conducted on 30/06/2012. The Respondents have conducted the
written test for the promotion to the post of Goods Guard
against 60% DPQ in PB-1 5200-20200 GP-2800 in the operating
Department. It is also an admitted fact that the Petitioner had
secured 64 marks out of 100 in the written test, whereas 60
marks are required for selection.
(13) It is the contention of the Respondents that though
the Petitioner has secured the required marks in the written
examinations, he has not scored 60 marks in the aggregate, and
therefore, not eligible for empanelment for the post of Goods
Guard. There are Rules to that effect in the Indian Railways
Establishment Manual. There are maximum 50 marks of
professional ability, 30 marks for qualifying and maximum 30
marks for Record of Service. There is a detailed procedure to be
adopted while allotting the marks on Record of Service as per
the last three years' APARs. In addition to the APARs, the
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service registers also to be scrutinized for adding or deducting
marks for awards and punishments respectively to be decided by
the Selection Committee. The main grievance of the Petitioner
is that on the basis of three years' APARs, the marks which were
allotted was never communicated to him. Therefore, he lost his
opportunity to upgrade the same.
(14) Learned Counsel for the Petitioner placed reliance on
the judgment in the case of Dev Dutt (supra) wherein the
Hon'ble Apex Court, in Paragraph No. 17, held as under:-
"17. In our opinion, every entry in the A.C.R. 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 : (1) 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 (2)
He would have an opportunity of making a representation
against the entry if he feels it is unjustified, and pray for its
upgradation. Hence non-communication of an entry is
arbitrary, and it has been held by the Constitution Bench
decision of this Court in Maneka Gandhi vs. Union of India
(supra) that arbitrariness violates Article 14 of the
Constitution."
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(15) Thus it is not only when there is a bench mark but in
all cases that an entry (whether it is poor, fair, average, good or
very good) must be communicated to a public servant, otherwise
there is violation of the principle of fairness, which is the soul of
natural justice.
(16) Learned Counsel for the Petitioner also placed
reliance on the judgment in the case of Shantiranjan Sarkar
(supra) wherein it is held that the delay in filing the original
application should not be held to be a bar in granting the
Petitioner an equitable relief. Union of India as a benevolent
litigant cannot be permitted to take advantage of its own wrong.
(17) Learned Counsel for the Petitioner also placed
reliance on the judgment of the Hon'ble Apex Court (3 Judges
Bench) in the case of Abhijit Ghosh Dastidar (supra) in which,
the Hon'ble Apex Court, relying on the judgment in the matter
of Dev Dutt (supra), held in Paragraph No. 8 as under:-
"8. Coming to the second aspect, that though the
benchmark "very good" is required for being considered
for promotion admittedly the entry of "good" was not
communicated to the appellant. The entry of 'good' should
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have been communicated to him as he was having "very
good" in the previous year. In those circumstances, in our
opinion, non-communication of entries in the ACR of a
public servant whether he is in civil, judicial, police or any
other service (other than the armed forces), it has civil
consequences because it may affect his chances for
promotion or get other benefits. Hence, such non-
communication would be arbitrary and as such violative of
Article 14 of the Constitution. The same view has been
reiterated in the above referred decision relied on by the
appellant. Therefore, the entries "good" if at all granted to
the appellant, the same should not have been taken into
consideration for being considered for promotion to the
higher grade. The respondent has no case that the
appellant had ever been informed of the nature of the
grading given to him."
(18) Similarly, in the matter of Sukhdev Singh (supra), the
view taken in the matters of Dev Dutt and Abhijit Ghosh (supra)
are endorsed. On perusal of the reply filed on behalf of the
Respondents (Page 37, Paragraph 10), it appears that the
Petitioner got 4 marks for APAR of 2009-10 and the remark was
average. In the year 2010-11, the remark was good and he had
scored 6 marks. In the year 2011-12, the remark is shown as
good and marks obtained are '6'. If there would have been any
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opportunity granted to the Petitioner by communicating these
remarks, he would have applied for upgradation of the remarks.
If the remarks would have been communicated at the proper
stage, his score towards the APAR might have increased. The
Petitioner stood retired on 31/08/2019. The learned Member,
CAT denied the relief on the ground that he stood retired and
the period of panel considering promotions expired. The
Petitioner seeks relief as granted in the matter of Dev Dutt
(supra).
(19) In our considered opinion, the impugned order does
not sustain the scrutiny of law in view of the above law position,
and hence, liable to be quashed and set aside.
(20) Hence, we proceed to pass following order:-
ORDER
(a) The Writ Petition is allowed.
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(b) The impugned order dated 18/07/2023 passed by the
learned Member, Central Administrative Tribunal in
O.A. No. 243/2017 as well as the letter dated
29/12/2015 issued by the Respondent No. 2 is hereby
quashed and set aside.
(c) The relevant entries of APAR be communicated to the
Petitioner forthwith and he should be permitted to
make a Representation against the same praying for its
upgradation.
(d) If such Representation is made for upgradation, it shall
be decided within a period of two months thereafter.
If his Application for upgradation is considered and in
view thereof, he is treated as selected for the
promotional post, by granting notional promotion, his
pension be revised as per his entitlement.
The Petition stands disposed of in the above terms.
Pending Application(s), if any, stand(s) disposed of.
(PRAVIN S. PATIL, J.) (M.S. JAWALKAR, J.)
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