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Judgment
P.K. Misra, J.—The present writ petition has been filed against the order of the Central Administrative Tribunal, Chennai dated 11.11.2002,
dismissing O.A.No.638 of 2002 filed by the petitioner.
The facts giving rise to the present writ petition are as follows :-
The petitioner is presently working as Superintending Engineer under the Central Public Works Department. He had joined service as an Assistant
Executive Engineer (Civil) in the year 1972 and was appointed as Executive Engineer in December, 1978. Subsequently he was promoted as
Superintending Engineer on ad-hoc basis in August, 1989. In October, 1994, the Departmental Promotion Committee (DPC) considered the
question of regularisation of ad-hoc promotion of various Superintending Engineers including the petitioner. According to the petitioner, he should
have been regularised as Superintending Engineer with effect from 31.12.1987 and placed at Sl.No.71 of the seniority list, but was regularised with
effect from 31.3.1991 and placed at Sl.No.116.
At that stage, the petitioner had filed O.A.No.869 of 1995 before the Central Administrative Tribunal, Hyderabad against the illegal supersession
of juniors of 1973 and 1974 batches and non-regularisation of his service as Superintending Engineer with effect from 31.12.1987. The said
application was rejected by the Tribunal by judgment dated 5.3.1997. From the aforesaid judgment, the petitioner came to know that for the year
1982-83, an adverse entry to the effect ""below average"" had been made. Subsequently, the petitioner filed S.L.P.(C) No.19192 of 1997, wherein
the Supreme Court while condoning the delay in filing of the Special Leave Petition, rejected the SLP in limine. The subsequent Review
Application filed by the petitioner was also rejected. Thereafter, the seniority list of the Superintending Engineers was issued in September, 1998
and the petitioner''s seniority was shown at Sl.No.91, whereas he should have been shown at Sl.No.46, according to him. Representations made
by the petitioner were rejected.
The petitioner thereafter filed O.A.No.638 of 2002 before the Central Administrative Tribunal, Chennai with a prayer to set aside the Annual
Confidential Reports for the year 1982-83 and also to set aside the order of the Director General (Works) dated 14.10.1987 and direct him to
upgrade the Annual Confidential Report from 1.4.1984 to 31.3.1985.
Before the Tribunal it was contended by the petitioner that during the DPC held in October, 1994, the authority had considered the confidential
entries for seven years, namely from 1980-81 to 1986-87 and they had relied upon the uncommunicated entries for the year 1982-83 and also the
entry relating to 1984-85, which had been subsequently expunged, but overall grading had not been altered. It was the further contended that for
the two years prior to 1982-83, the reports were very good; but for the uncommunicated adverse entries for the year 1982-83 and incomplete for
the year 1984-85, the petitioner would have been found suitable for the promotion with effect from 31.12.1987.
A counter affidavit was filed before the Tribunal by the Department, wherein it was indicated that DPC had considered the records of all the
candidates in the year 1994 and had effected promotion and such orders having been challenged in earlier O.A.No.869 of 1995 before the
Central Administrative Tribunal unsuccessfully by the petitioner, he cannot seek to re-open the matter, particularly, when the SLP filed by the
petitioner had been rejected. Apart from raising the question of res judicata, the respondents had also raised the question of laches by contending
that the petitioner was seeking to rectify the entries in the Annual Confidential Reports for the year 1982-83 and 1984-85, after a long lapse of
time. The aforesaid contentions of the respondents were accepted by the Tribunal, which has rejected the Original Application mainly by applying
the principle of res judicata and laches.
The contention raised in the subsequent petition before the Tribunal and reiterated in the present writ petition is to the effect that the adverse
entry for the year 1982-83, which had been made with mala fide intention by the respondent NO.4, had not been communicated to him. The
adverse entry for the period from 1.4.1984 to 31.3.1985, even though expunged subsequently, the authorities had not given any report for the said
period on wrong assumption.
Learned senior counsel appearing for the petitioner has contended that the questions relating to defect in the adverse entries for the years 1982-
83 and 1984-85 had not been directly raised in the previous Original Application No.869 of 1995 filed before the Central Administrative Tribunal,
Hyderabad and it cannot be said that the said issue had been heard and finally decided so as to attract the principle of res judicata. It is further
contended that since the petitioner had came to know about the adverse entries after the judgment of the Central Administrative Tribunal
pronounced in the year 1997, and the adverse entry for the year 1982-83 had not been communicated, the question of laches did not arise.
We have heard the learned counsels appearing for the parties at length and carefully perused the various materials on record. After giving our
anxious consideration to the questions raised, we are unable to accept the submission made on behalf of the petitioner.
The Central Administrative Tribunal, Hyderabad, while rejecting O.A.No.869 of 1995, was primarily concerned with the question regarding the
promotion of the petitioner with effect from 31.3.1991. The main contention of the petitioner was that he should have been promoted with effect
from 31.12.1987. While considering the aforesaid aspect, it is obvious that the respondents in the said Original Application had brought to the
notice of the Tribunal regarding various entries in the Annual Confidential Reports. There is copious reference to various Annual Confidential
Reports, including for the year 1982-83 and 1984-85. It is evident that the propriety of the adverse entry was the matter under consideration by
the Tribunal. Keeping in view of the contentions raised before the Tribunal, it is clear that the petitioner was very much aware about the adverse
entries made for the year 1982-83 and 1984-85.
As a matter of fact, in his Original Application filed before the Central Administrative Tribunal, Hyderabad, the petitioner has made specific
averment to the effect :-
. . . However, his ACRs relating to 4 years from 1981-82 to 1984-85 were deliberately spoilt by a castiest and arbitrarily acting reporting officer,
Sri N. Veerabhadhu, due to which his promotional chances were jeopardized. Yet he was given adhoc promotion in the normal course without any
way disturbing his seniority during August, 1989 as Superintending Engineer (Civil). However, when it came to regularisation of the promotion, the
DPC disturbed his seniority as a result of which he got superceded by juniors of 1973 and 1974 batches and his regularisation was done with
effect from 31-3-91 whereas it should have been done with effect from 31-12-1987 in the right course of things. In doing so, the DPC only
mechanically relied on the motivated and unjust ACRs of the above-mentioned 4 years also but did not look into the self-appraisal reports of the
applicant and the various recommendations he received for his good service record.
It was further stated :
. . . He believes that he received ''Very Good'' grading from the Reporting Officer, for the period of 1980-81 and likewise was given the
benchmarks ''Good'' and ''Very Good'' for the years 1985-86 and 1986-87 by the concerned reporting officers of the period. However, great and
irreperable damage was done to his career by the caste-biased and arbitrary attitude of the reporting officer, Sri N. Veerabadhu, S.E., who wrote
the A.C.Rs of the applicant for the four years from 1981-82 to 1984-85.
From the aforesaid averments, it is apparent that even at the time of filing of the earlier Original Application No.869 of 1995, the petitioner was
very much aware of the fact that adverse entries had been made. Therefore, while contending that he should be given promotion from an earlier
date, it was very much open to the petitioner to raise the question now raised before the present Tribunal to the effect that non-communicated
adverse entry had been relied upon by the DPC while considering the question of promotion. In other words, it must be taken that the petitioner
ought to have raised the question now raised even at that stage when the validity of the adverse entries had been questioned by him albeit on
slightly different grounds.
Moreover, in the SLP filed by the petitioner, a specific ground had been raised to the effect :-
Whether the uncommunicated adverse remarks ought not to have been relied by the DPC to disentitle the petitioner from promotion? It is
submitted that even though the Hon''ble Tribunal considered the said issue of the non-communicated adverse remarks the Hon''ble Tribunal did not
follow the logical conclusion of the settled law by this Hon''ble Court in the case of U.P. Jal Nigam and others Vs. Prabhat Chandra Jain and
others, "".
Indeed, the averments and specific grounds now raised in the proceedings before the Tribunal and before this Court are very much similar
grounds and were raised before the Supreme Court in the SLP The Supreme Court had dismissed the S.L.P at the admission stage.
Having regard to all these aspects, the conclusion of the Tribunal under the impugned judgment to the effect that the contentions raised by the
petitioner are hit by the principles of res judicata, cannot be said to be suffering from any error or law apparent on the face of record, warranting
interference.
A perusal of the judgment passed by the Tribunal on earlier occasion, makes it very clear that the main questions raised in the said proceedings
are similar to the questions now raised and the matter had been decided against the petitioner and ultimately, the SLP filed by the petitioner was
dismissed at the stage of admission. Therefore, it is not possible to re-open the questions which had attained finality at that stage and come to a
different conclusion.
The matter can be viewed from another angle. The question of non-promotion of the petitioner on regular basis from 31.12.1987, was
challenged in the earlier case. The petitioner now contends that since non-consideration was vitiated by the fact that uncommunicated adverse
entries in the Annual Confidential Reports had been considered, and therefore, the matter requires reconsideration. To countenance such a plea
would be like permitting the petitioner to raise the question which did not find favour with the Tribunal and the Supreme Court at that stage.
Undertaking such a course at this stage, would amount to sitting in appeal not only over the order passed by the Tribunal at that stage but also over
the order passed by the Supreme Court, when the SLP filed by the petitioner was rejected and even the subsequent Review Application was also
rejected. What could not be achieved directly by the petitioner at that stage is sought to be achieved indirectly by the petitioner at the present
stage.
So far as the adverse entry relating to 1984-85 is concerned, it is very much apparent that specific questions had been raised before the
Tribunal on earlier occasion and had been answered against the petitioner. Moreover, the representations made by the petitioner had been rejected
long back. Such questions finalised long back at that stage, cannot be agitated at this stage.
Learned Senior Counsel appearing for the petitioner has relied upon the decision of the Supreme Court reported in Kunhayammed and Others
Vs. State of Kerala and Another, and Sri Ramnik Vallabhdas Madhvani and Others Vs. Taraben Pravinlal Madhvani, in support of the contention
that dismissal of SLP in limine at the admission stage, does not operate as res judicata.
These decisions had been cited in support of his contention that even though a question of uncommunicated adverse entry had been raised in
the S.L.P., the order of the Supreme Court dismissing the S.L.P in limine, would not amount to res judicata on this aspect and the Tribunal on the
subsequent occasion, was free to decide the subsequent question.
On a careful consideration of the decisions of the Supreme Court in the aforesaid cases, we are of the view that the said decisions do not have
any applicability to the questions now raised. Even assuming that dismissal of the SLP would not operate as res judicata, the fact remains that the
question of adverse entry for the year 1982-83 and 1984-85, had been raised before the Tribunal and the Original Application filed by the
petitioner had been rejected and such order has assumed finality and those questions are not available to be raised in an indirect manner at a
subsequent stage.
For the aforesaid reasons, we do not find any merit in the present writ petition, which is dismissed. There would be no order as to costs.