T.M. SAMPATH Vs. UNION OF INDIA THROUGH THE SECRETARY, MINISTRY OF WATER RESOURCES, SHRAM SHAKTI BHAWAN, RAFI MARG, NEW DELHI

JUDGEMENT

(1.) Shri T.M. Sampath working as Administrative Officer in National Water Development Agency (NWDA), the applicant herein, has instituted the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 and has prayed for the following reliefs: - (i) Direct the respondents to disregard the ACR of the applicant for the period from 01.04.2003 to 29.09.2003 completely as if it had not been written for the reason that the Reporting Officer was prohibited from writing ACR of the applicant after 30.11.2004 OR direct the respondents to upgrade the grading to that of bench -mark level of Good and consequently direct the respondents to re -review the review made on 22.01.2010 reviewing the original selection made on 19.02.2008 for selection to the post of Deputy Director (Admn.) in which the impugned ACR was considered; Allow the OA with exemplary cost. Pass any further orders as this Honble Tribunal may deem fit and proper in the facts and circumstances of the case.

(2.) Earlier the applicant has come before the Tribunal in OA No. 2784/2010, which was decided on 23.05.2011. In the said OA, applicants prayer was to direct the respondents to disregard his ACR for the period from 01.04.2003 to 29.09.2003 and consequently to direct the respondents to undertake the review of the original selection made on 19.02.2008 and 05.11.2008 for appointment to the post of Deputy Director (Admn.). At that time, the issue of constructive res judicata was raised as one of the grounds by the respondents as the applicant in his TA No.22/2008 claimed similar relief requesting to direct the respondents for expunction of the adverse entries/grading for the period from 01.04.2002 to 31.03.2003 and 01.04.2003 to 29.09.2003. In OA No.2784/2010, the applicants relief was similar i.e. deletion of entries and below benchmark grading in the ACR for the period from 01.04.2003 to 29.09.2003. After considering the order passed in RA No.239/2009 in TA No.22/2008, the Tribunal came to the conclusion that ACR entries/grading for the period from 01.04.2003 to 29.09.2003 were not taken into consideration in the order passed by the Tribunal in TA No. 22/2008 decided on 24.11.2009. Therefore, the plea of constructive res judicata was not accepted by the Tribunal. In the order dated 23.05.2011, the Tribunal directed in the following terms: - 6. As regards non -communication of below bench -mark level entries in the ACR for the period from 01.04.2003 to 29.09.2004, learned counsel for the respondents submits that these entries have already been communicated to the applicant. In this connection, out attention was drawn to letter dated 23.10.2008 of the Director (Administration) annexed at Annexure R -9 (page -1400. He further submits that the applicant has not given any representation so far in respect of the entries for the period from 01.04.2003 to 29.09.2003. The applicant states that he had submitted a detailed representation, but the respondents refused to receive it. It was his contention that although the ACRs pertained to the year 2003 -2004, the entries were made by the reporting officer only on 09.10.2006 and by the reviewing officer on 31.01.2006 after considerable delay although the applicant himself had supplied his self appraisal report as early as 19.05.2004. 7. In view of the law laid down by the Honble Supreme Court in the case Dev Dutt Vs. U.O.I., 2008 (3) SCT 429, it is necessary for the respondent authorities to communicate the entries in the ACR of an officer which were likely to be utilized against him. Admittedly, the ACR entries were communicated in the year 2008. The applicant makes a statement that his representation against the entries were not accepted by the respondent authorities on the ground of pendency of this O.A. He has also mentioned that no decision has been taken on his representation dated 25.01.2010 in which he urged that the entries in his ACR for the period from 01.04.2003 to 29.09.2003 should not be utilized against him. 8. We direct the applicant to make a fresh representation against he entries for the period from 01.04.2003 to 29.09.2003 within two weeks from the date of supply of a copy of this order; the competent respondent authority should consider his representation and dispose it of on merits within four weeks from the date of receipt of the representation. In case it is decided to upgrade below bench -mark ratings to bench -mark level then they may consider his prayer for holding a review D.P.C. again. We are not making any observations about the merit of holding a review D.P.C. because it is for the competent authority to decide the prayer keeping in view the over all record of the applicant and results of his representation whether such a review DPC is called for or not. In any case, the competent authority is directed to pass a speaking order on the pending representation dated 25.01.2010 also while dealing with the merits of the case for holding a review DPC. The O.A. is disposed of in aforesaid terms. No costs.

(3.) Pursuant to the above orders of the Tribunal in OA No. 2784/2010, the applicant submitted his representation dated 30.05.2011. The Competent Authority considered applicants earlier representation dated 25.01.2010 along with the above representation and passed the impugned order dated 27.06.2011 (Annexure A -1) in disposing of the same and inter alia ordered that the ACR of the applicant for the period from 01.04.2003 to 29.09.2003 would not be disregarded. Feeling aggrieved by the above order, the applicant has approached this Tribunal in the instant OA.