T.M.Sampath vs Uoi & Ors.
2013 Latest Caselaw 1174 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of Decision : March 08, 2013

+                        WP(C) 5124/2012

       T.M.SAMPATH                                   .....Petitioner
                Represented by:       Petitioner in person

                                 versus

       UOI & ORS.                                 .....Respondents
                 Represented by:      Mr.R.V.Sinha and Mr.A.S.Singh,
                                      Advocates

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MS. JUSTICE PRATIBHA RANI

PRADEEP NANDRAJOG, J.

1. The petitioner appears to be spending his time in the corridors of the Central Administrative Tribunal as also the Delhi High Court evidenced by the fact he has embroiled his department, 'National Water Development Agency' in as many as 16 writ petitions and 9 litigations before the Central Administrative Tribunal. The writ petitions filed by him are: W.P.(C) No.7662/2002, W.P.(C) No.4385/2003, W.P.(C) No.6972/2003, W.P.(C) No.488/2004, W.P.(C) No.2220/2005, W.P.(C) No.3629/2005, W.P.(C) No.14074/2006, W.P.(C) No.2644/2007, W.P.(C) No.5981/2007, W.P.(C) No.7509/2008, W.P.(C) No.7745/2008, W.P.(C) No.186/2009, W.P.(C) No.8052/2009, W.P.(C) No.8645/2009, W.P.(C) No.9083/2009 and W.P.(C) No.9099/2009. The Original

Applications filed by him before the Tribunal are: O.A.No.639/2008, O.A.No.2037/2008, O.A.No.2141/2008, O.A.No.2504/2008, O.A.No.58/2009, O.A.No.85/2009, O.A.No.251/2009, O.A.No.405/2009 and O.A.No.599/2009. Instant writ petition is the 17th in number.

2. The issue with which we are concerned in the writ petition is petitioner's ACR for the period April 01, 2003 till September 29, 2003, where he has been graded 'average'.

3. Pertaining to the ACR for the period April 01, 2002 till March 31, 2003, when adverse remarks were communicated to the petitioner vide office memorandum dated July 16, 2003, the petitioner made a representation which was rejected on November 11, 2003. Memorial filed to the President of India against the order rejecting the representation filed on May 07, 2004 was rejected on December 16, 2004. He filed a writ petition challenging the rejection order dated November 12, 2003 as also the order dated December 16, 2004 rejecting the memorial. Simultaneously he also challenged the ACR grading average for the period April 01, 2003 till September 29, 2003. The writ petition filed in the Delhi High Court was transferred to the Central Administrative Tribunal where it was registered as T.A.No.22/2003. It was dismissed vide order dated November 24, 2009, which order dealt with the adverse remarks communicated to the petitioner pertaining to the assessment year April 01, 2002 till March 31, 2003. Though prayer was made to expunge the average ACR grading for the year April 01, 2003 till September 29, 2003, the Tribunal did not deal, with the said issue.

4. The petitioner filed R.A.No.239/2009 in T.A.No.22/2008 drawing attention of the Tribunal that the issue pertaining to the average ACR grading for the period April 01, 2003 till September 29, 2003 had escaped the attention of the Tribunal.

5. Dismissing R.A.No.239/2009 vide order dated December 21, 2009 the Tribunal noted that the said below benchmark ACR grading had yet to be communicated to the petitioner. He had yet to make a representation against the same and thus the Tribunal was justified in not considering the matter pertaining to the ACR for the period April 01, 2003 till September 29, 2003.

6. In other words the two afore-noted decisions of the Tribunal cannot operate as res judicata.

7. For the period in question, when the average ACR grading was conveyed to the petitioner he submitted representation on January 25, 2010 followed by another representation on May 30, 2011 both of which were rejected vide order dated June 27, 2011. The rejection order dated June 27, 2011 was challenged by the petitioner vide O.A.No.2701/2011 before the Central Administrative Tribunal which has been dismissed vide impugned order dated May 22, 2012.

8. A three-fold challenge was made to the 'Average' ACR grading awarded to the petitioner for the period in question i.e. April 01, 2003 till September 29, 2003. The first was that the ACR was written by the Reporting and the Reviewing Officer after a lapse of 3 years. The second was that while giving the below benchmark grading there was lack of objective analysis; and lastly no warnings were issued to the applicant

before recording different types of observations in the various columns of the ACR proforma.

9. Noting the 3 pronged challenge in the paragraph 4 of the impugned decision, the Tribunal has simply noted the version of the respondent and has concluded in paragraph 11 by observing that taking into account totality of facts and circumstances of the case, the Tribunal was of the considered opinion that no case was made out to interfere with the order dated June 27, 2011.

10. We only wish that the Tribunal had specifically dealt with the 3 pronged challenge made by the petitioner, which was noted by the Tribunal in paragraph 4 of its decision. This would have made our task simple.

11. With respect to the first challenge that the ACR was written by the Reporting and the Reviewing Officer after a lapse of 3 years, we find that the petitioner is to be blamed, inasmuch as he himself delayed the initiation of recording ACR for the period in question. He submitted the self-appraisal report only on May 19, 2004. He made a representation that Sh.S.G.Sood the Reporting Officer should not act as the Reporting Officer. This delayed the matter till decision was taken that no case was made out for Sh.S.G.Sood not to be acting as the Reporting Officer. Time was consumed. Sh.S.G.Sood made relevant entries in the ACR proforma on October 09, 2006 followed by the Reviewing Officer penning his opinion on October 31, 2006. Thus, the first challenge fails.

12. With respect to the second challenge that there is no objective analysis in filling up the various columns of the ACR proforma, we find that the Reporting Officer has reflected upon the self-appraisal done by

the petitioner and while so doing has objectively analyzed : (a) Nature and quality of work output generated by the petitioner; (b) Quality of work output; (c) Knowledge of sphere of work; (d) Analytical ability; (e) Communication skill initiative; (f) Attitude to work; (g) Ability to inspire and motivate; (h) Supervisory ability; (i) Interpersonal relations as a part of a team; (j) Attitude towards SC/ST and weaker sections of the society and lastly (k) Aptitude and potential. On this aspect of the matter i.e. the second line of attack, we find that the Reporting Officer has shown application of mind. The assessment is ex-facie objective.

13. The third and last line of attack that no warning was issued to the writ petitioner before recording different types of observations in the ACR proforma we find that no negative comments have been made or entered in the ACR proforma. The assessments of the various attributes ranges from being 'satisfactory'; 'just satisfactory'; 'just adequate'; 'just and fair' and 'average' performance. Thus, where would be the scope to even urge that no warnings were issued to the applicant before recording the different types of observations in the ACR proforma.

14. While dismissing LPA No.906/2011 filed by the petitioner on November 08, 2011, a Division Bench of this Court had noted that the writ petitioner had become a perpetual litigant with his department and that the petitioner was raising frivolous service related disputes and has been losing successively. The Division Bench had noted that there was evidence of the writ petitioner litigating with malice and noting the subject matter of the LPA: being a challenge to the appointment of Director (Finance) in his department, the Division Bench held that the litigation was not fought pro bono by the petitioner.

15. We are noting as aforesaid to highlight the fact that the petitioner who has been litigating with his department since the year 2002 seems to be spending his time in the corridors of Court rather than on his desk. It is but obvious that petitioner's performance would be 'Average'.

16. Be that as it may, the Reporting and the Reviewing Officer under whom the petitioner was discharging duties for the period in question have recorded observations recording working of the petitioner which would be in their personal knowledge and unless some material is placed before us wherefrom either a contradiction or a hiatus in the recordings made in the ACR proforma could be evidenced, exercising writ jurisdiction, this Court would be nobody to sit over the opinion recorded by the said officers in the ACR proforma pertaining to the petitioner.

17. Accordingly, we dismiss the writ petition but refrain from imposing any costs.

(PRADEEP NANDRAJOG) JUDGE

(PRATIBHA RANI) JUDGE MARCH 08, 2013 mm