Sri Govind Ram Hindonia vs Union Of India & Ors.

PER: SANJIV KUMAR, MEMBER (A):

This O.A. has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:

The applicant is a Batch-2002 Indian Railway Service of Signal Engineers (IRSSE). In 2017, the Railway Authorities were preparing a tender for 5 years' comprehensive maintenance of an integrated security system (IP-based video surveillance and personal & baggage screening) at eight stations. The tender process was formulated and prepared by the then Dy. CSTE/Tele/Works, with approval of higher authorities, who decided to float the tender conventionally rather than by e-tender. The applicant was not involved in preparing the NIT or deciding the tender modalities, being then posted as Dy. CSTE/Planning-in-charge. The NIT was published on 07.11.2017 and the tender opened on 14.12.2017. The applicant was transferred to Dy. CSTE/Tele/Works on 21.11.2017, after the NIT was published but before the tender was opened, and was accordingly made Convenor of the Tender Committee by office note dated 05.01.2018 (Annexure-A/4), along with the Dy. CAO/Finance as Finance Member and Dy. CSC/RPF/LMG as Technical Member. During evaluation, the Finance Member raised certain observations, which the applicant, as Convenor, addressed and recommended negotiation with the L-1 bidder. The Tender Accepting Authority - who was also the Reporting Authority - declined this recommendation and discarded the tender vide office note dated 14.05.2018 (Annexure-A/8).

The applicant submitted his self-appraisal for the period 01.04.2018 to 31.03.2019, expecting a "Very Good" grading. The Reporting Authority instead awarded "Good" in all attributes and recorded an adverse remark in Part-III under headings A.1 and A.2. The Reviewing Authority restored the grading to "Very Good", but the Accepting Authority again scored it down to "Good" (overall 5.29). The applicant represented against this on 30.05.2023 to the Member (Infrastructure), Railway Board (Annexure-A/11), who rejected the representation on 07.08.2023 by an order the applicant describes as cryptic and non-speaking (Annexure-A/1). The applicant contends that the below-benchmark grading caused him to be superseded his 2002-batch IRSSE colleagues were promoted to SA Grade in 2022, while he was not recommended, solely on account of this single below-benchmark APAR.

The applicant contends that the scoring by the Reporting and Accepting Authorities is perverse and subjective, entered without giving him any opportunity to improve upon the shortcomings attributed to him.

The respondents' primary objection is limitation: that the challenge is to an APAR more than three years old, that a stale or dead claim cannot be revived through a belated representation, and that limitation/delay-and-laches must be reckoned from the original cause of action, not from the date of an order passed on a subsequent representation. Reliance is placed on Union of India v. C. Girija, Civil Appeal No. 1577 of 2019 (decided on 13.02.2019).

The respondents further state that a provision exists for representation against APAR grading, that the Reporting, Reviewing and Accepting Authorities have since retired, that the applicant did not represent within the stipulated time, and that his belated representation was rightly rejected on merits.

The respondents also contend that the Accepting Authority of a tender is not bound by the Tender Committee's recommendation and that its decision is final; the officer who was Accepting Authority for this tender, Sri A.K. Sanghi, has since retired. It is further noted that in his representation dated 30.05.2023 (Annexure-A/11), the applicant himself stated (at para (x)) that he had not earlier represented against the 2018-19 APAR in order to avoid dispute with the administration.

Sri H.K. Das, Sr. Advocate assisted by Sri N.K. Sharma, for the applicant, and Sri S.K. Ghosh, Addl. CGSC, for the respondents, were heard, and the record was examined.

Learned Senior Advocate for the applicant relied on the following:

The main plank of the applicant's argument is that his representation dated 30.05.2023 (Annexure-A/11) against the 2018-19 APAR entries was rejected by a cryptic and non-speaking order dated 07.08.2023 (Annexure-A/1).

It is noted that the impugned order dated 07.08.2023 (Annexure-A/1) records that the applicant's APAR was written by the Reporting, Reviewing and Accepting Authorities on 30.04.2019, 30.04.2019 and 19.07.2019 respectively, and that the SPARROW system for the year 2018-19 closed on 31.03.2020. The Reporting Authority's remark at Part III reads that the applicant's "attitude had been negative" and that HQ was compelled to transfer the tender to the MLG unit for finalisation, on a tender described as sensitive. On this basis the applicant was graded 5.29 (Good). The Appellate Authority held the appeal of 30.05.2023 (Annexure-A/11) to be belated by almost three years, contrary to para 2(iv) of DoPT OM dated 14.05.2009 (Annexure-R/1) and para 5 of Swamy's Compilation, both of which provide a fifteen-day window from receipt of the APAR entries for the officer to represent.

As regards the question whether the delay on the part of the applicant in submitting his representation to the department is barred by limitation or attracts delay and laches, it is seen that the applicant approached the department, and thereafter this Tribunal, after a delay of more than three years. The DoPT Office Memorandum dated 14.05.2009 (Annexure-R/1 makes it is clear that a representation against the entries and grading in an APAR has to be made within fifteen days of receipt of the same. The applicant did not make any representation within this window. On the contrary, the applicant himself, in his representation dated 30.05.2023 (Annexure-A/11) at paragraph (x), stated that he did not submit any representation earlier in order to avoid any dispute with the administration. In view of this admitted position, the impugned order dated 07.08.2023 (Annexure-A/1) rejecting the applicant's belated representation on the ground of delay cannot be said to be unreasoned or non-speaking; it correctly records and applies the delay on the part of the applicant. This contention of the applicant, that the rejection order suffers from being cryptic or non-speaking, accordingly does not survive.

Since the O.A. is being disposed of on the ground that the applicant's representation, and consequently this O.A., are barred by delay and laches, it is not necessary to examine the case law relied upon by the learned Senior Advocate for the applicant at paragraph 9 above, which bears on the sufficiency or otherwise of the remarks recorded in the APAR and not on the threshold question of delay.

In view of the above, the instant O.A. does not merit interference and is accordingly dismissed. Pending M.A., if any, stands disposed of.

There shall be no order as to costs.