V.K. Bali, J. (Chairman) - (1.) RAVINDER Singh, Chief Engineer in Central Water Commission, the applicant herein, has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking a direction to be issued to the respondents to review his ACRs which have been downgraded from 'very good' to 'good' by the concerned authorities, and to consider him for promotion to the next higher grade, i.e., Member, CWC, after review from the respective dates when his juniors were promoted.
(2.) While giving the facts of the case, it has inter alia been pleaded in the Application that the applicant joined as Assistant Director/Assistant Executive Engineer on the basis of combined engineering service examination on 15.11.1972, and got promoted to the higher level of Chief Engineer. He was due for promotion as Member, but after 32 years of service he was given adverse remarks on medical grounds and earlier his ACRs were downgraded as 'good' though the benchmark for promotion was 'very good', without giving him any opportunity. The applicant pleads that he has been superseded by his juniors, namely, A.K. Bajaj, D.V. Thareja, besides others. The applicant has given his service particulars in Annexure-VII. These are the only facts stated in the Application. Inasmuch as, the facts of the case have been stated in just half a page contained in paragraph 4 (i) to 4 (iv), we may reproduce the same: i) The applicant joined as Assistant Director/Assistant Executive Engineer on the basis of the combined Engineering Service Examination on 15.11.1972 and got promotion to the high level of Chief Engineer. He was due for promotion of Member but after 32 years of service he was given adverse remarks on medical grounds and earlier his CRs were downgraded as 'Good' though the bench mark for the promotion to the next higher grade was 'very Good' without giving him an opportunity. Copy of the adverse remarks for just three months 4 days. Relevant OM is at Ann.IV. ii) Relevant S/L is at Ann. V. The applicant has been superseded by his juniors viz., A.K. Bajaj, D.V. Thareja and besides others. Orders of promotion of Shri Bajaj and Thareja are at Ann. VI. iii) Service particulars of the applicant is at Ann.VII where he has handled all important duties/works. iv) Even he was asked that official work of Member (WP&P) should be routed through him as the member concerned was holding the charge of the Chairman, CWC. Keeping in view the above facts, the present O.A. is filed to review his ACRs wherein his grading has been downgraded from 'Very Good' to 'Good' without giving him opportunity to represent. While giving the grounds for relief as has been sought for, all that is stated is that the applicant was given liberty by this Tribunal in its judgment dated 3.8.2008 to agitate the matter with regard to downgrading of his ACRs from 'very good' to 'good'. Reference is then made to judgment of the Hon'ble Supreme Court in Civil Appeal No. 7621 of 2002 decided on 12.5.2008. The grounds of relief as pleaded in the Application may also be reproduced: I. The liberty given by the Hon'ble Tribunal in their judgment dated 3.8.2008 for downgrading the applicant's ACRs from 'Very Good' to 'Good'. II. Hon'ble Supreme Court judgment in Civil Appeal No.7621 of 2002 delivered only by 12.05.2008 by Hon'ble Justices H.K. Seema and Markanday Katju JJ. III. Even applicant was denied holding of charge though the work of Member (WP&P) was routed through him. In para 6 under caption 'Details of remedies exhausted', it has been mentioned as follows: It is submitted that the applicant has availed of remedies available to him under the service rules. He made representation dated 29.10.2008 which remains un-replied. In the representation Annexure-II, mentioned in paragraph 6 of the Application, the applicant has stated that this Tribunal had observed that if the applicant may have any grievance with regard to downgrading, he would be at liberty to agitate it separately, and that in view of the same he may be conveyed the reasons for downgrading of his ACRs, as he had never been reprimanded in his long service career of almost 36 years and never asked to improve his work, and further that he had never taken medical leave after his head injury due to its complications. It would be seen from the pleadings and the accompanying documents that earlier in point of time the applicant had filed OA No.2321/2007 in this Tribunal which was disposed of on 13.8.2008. In the OA aforesaid, the applicant had sought the following reliefs: i) To expunge adverse remarks for three months & four days. ii) To consider the applicant for promotion to next grade in seniority. iii) To pay the cost of the proceedings. The adverse remarks were given to the applicant vide OM dated 28.8.2006 for the period 13.7.2005 to 17.10.2005 for three months and four days only. The same read as follows: Details of the Column(s) Remarks of the Reviewing Officer Do you agree with the assessment of the officer by the Reporting Officer? Is there anything you wish to modify or add. Agree with the assessment of the Officer with the following remarks: Mental alertness is weak on account of an earlier accident and head injury, imposing limitations on his handling of official responsibilities. Can handle only routine type of duties. Devotion to work and ability to motivate and achieve the targets are just adequate. Overall performance of the officer was 'Good'. Will have difficulties in handling higher responsibilities. In the reply filed on behalf of the respondents it was inter alia pleaded that the adverse remarks were given to the applicant on the basis of observations made by superior officers regarding his work and conduct. His reply had already been considered twice. Two persons junior to the applicant had been given additional charge of higher post but that was done after taking into consideration the ACRs for the last five years, and inasmuch as, the applicant could not make the grade on the basis of his last five years ACRs, his juniors were given officiating charge to the next higher post. The learned Member (J) before whom the matter came up for adjudication had directed the respondents to produce the ACRs of the applicant from 2001-02 to 2006-07. The learned Member after perusal of the records so produced, observed as follows: Perusal of CRs show that it is not for the first time that reviewing officer had downgraded the officer or had noted abruptly about limitations due to applicant's health problems but from 2002 onwards it was being consented upon. In fact in the CR for the period from 27.11.2002 to 31.3.2003 also it was observed his health is just adequate as he is recovering from a recent episode of an accident and hospitalization. For the period from 01.4.2003 to 10.7.2003 also against the column state of health it was noted 'Average'. For the period from 01.4.2004 to 31.3.2005 the reviewing officer had observed as follows: The officer has certain limitations for holding higher responsibility and his health condition is just adequate to carry out routine responsibilities. 7. From 01.4.2005 to 12.7.2005 no CR was written, as he had not worked under any one reporting officer. Adverse remarks have been communicated to the applicant for the period from 13.7.2005 to 17.11.2005. It is noted even for the subsequent period i.e. fro, 07.11.2005 to 31.3.2006 reviewing officer has downgraded the applicant as 'average'. It is relevant to note that reviewing officer for this period was different than the earlier periods. From above narration it cannot be stated that adverse remarks are given to the applicant only for 3 months as alleged by the Counsel for the applicant. On the contrary it has been a consistent view taken by the reviewing officer that applicant has some limitations due to his accident, therefore, it cannot be stated that all other CRs have been very good. In fact, most of the CRs have been downgraded by the reviewing officer on account of applicant's state of health. These remarks are based on his assessment of overall performance of the officer. Applicant has not alleged any mala fides against any officer nor he has impleaded any officer by name. Moreover, the reporting officers are of sufficiently high rank. We do not see any reason why they would try to damage any officer's career specially when different reviewing officers have taken the same view. On the contention raised by the learned Counsel representing the applicant that through out his ACRs had been very good and it was only for three months as mentioned above that he had been given adverse remarks, that too on account of an accident which took place in 2001, and, therefore, the same were liable to be expunged, the Bench observed that 'however, perusal of the CRs shows from 2002 onwards this has been consistently observed by reviewing officer, therefore, it calls for no interference'. It is no doubt true that the Bench, insofar as, allowing the juniors to hold higher responsibility is concerned, observed that 'from 2003 to 2006 applicant has been downgraded as good by the reviewing officer whereas bench mark for the next post is very good, therefore, naturally applicant could not make the grade, therefore, if applicant has any grievance with regard to downgrading, he would be at liberty to agitate it separately'. Insofar as, expunction of adverse remarks for three months as mentioned above is concerned, the applicant met with no success. It was observed that the said remarks were general in nature and reflected the assessment of the applicant by senior officers, and, therefore, no interference was called for.
(3.) IT would appear from the order passed by this Tribunal in OA No. 2321/2007 decided on 13.8.2008 that insofar as, the adverse remarks for three months are concerned, the applicant was conveyed the same and his entreaties to get the said remarks expunged met with no success. The learned Member (J) also referred to his earlier ACRs where the adverse remarks, if any, only pertained to his state of health, and his incapacity to cope up with the work. The applicant after decision of this Tribunal in the OA aforesaid is certainly aware of the reasons for downgrading of his ACRs. We have already reproduced in verbatim the averments made in present Original application. Not a word has been mentioned with regard to the state of health of the applicant and his capacity to work to his full potential. IT is not the case of the applicant that during the period his ACRs were downgraded, he was in perfect state of health and thus able to handle all the duties that might have been entrusted to him. While making mention of his service particulars, even though it is mentioned that the applicant had handled all important duties and responsibilities, but it is no where mentioned that during the period in question he was able to handle the duties entrusted to him. There is not a word mentioned either that the remarks with regard to state of health of the applicant or his capacity to work were not communicated to him. All that is mentioned is that the OA is being filed to review his ACRs which have been downgraded from 'very good' to 'good' without giving him opportunity to represent, as if an opportunity to represent was to be given before downgrading his ACRs. Learned Counsel representing the applicant was asked to point towards any of the pleadings in the OA from where it could be clearly made out that after assessing him as 'good' or not up to the benchmark the applicant was not conveyed the remarks contained in the ACRs, which he could not. The case of the applicant, it appears, is based upon the judgment of the Hon'ble Supreme Court in Dev Dutt v. Union of India, JT 2008 (7) SC 463. His contention could be appreciated only if it would have been the positive case of the applicant that the remarks regarding his capacity to work on account of his state of health were not conveyed to him. Normally, on the pleadings as made in the Application, the same would deserve to be dismissed in limine. Even though, the learned Counsel even after being confronted with the position aforesaid, has not sought permission to withdraw the Application and file a fresh one on the same cause of action, nor even prayed for amending the same, we still in the interest of justice give an opportunity to file a fresh Application, wherein the applicant may make positive averments pertaining to all the ACRs which may be below benchmark, by specifically pleading that they were not conveyed and if conveyed, he had filed representation which was not decided.;