{"id":146511,"date":"2004-08-12T00:00:00","date_gmt":"2004-08-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/m-baladandapani-vs-the-secretary-on-12-august-2004"},"modified":"2018-09-12T01:57:20","modified_gmt":"2018-09-11T20:27:20","slug":"m-baladandapani-vs-the-secretary-on-12-august-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/m-baladandapani-vs-the-secretary-on-12-august-2004","title":{"rendered":"M. Baladandapani vs The Secretary on 12 August, 2004"},"content":{"rendered":"
Madras High Court<\/div>\n
M. Baladandapani vs The Secretary on 12 August, 2004<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 12\/08\/2004\n\nCORAM\n\nTHE HONOURABLE MR. JUSTICE P.K. MISRA\nAND\nTHE HONOURABLE MRS. JUSTICE R. BANUMATHI\n\n\nWRIT PETITION NO.10165 OF 2003\n\nM. Baladandapani,\nS\/o. late Thiru K.S. Marimuthu  ..  Petitioner\n\n-Vs-\n\n1. The Secretary,\n   Ministry of Urban Affairs and\n   Poverty Alleviation, 'C' Wing,\n   Nirman Bhavan,\n   New Delhi 110 011.\n\n2. The Director General (Works),\n   Government of India,\n   Directorate General of Works,\n   Central Public Works Department,\n   Nirman Bhavan, 'A' Wing,\n   New Delhi 110 011.\n\n3. The Chairman,\n   Union Public Service Commission,\n   Dholpur House, Shahjahan Road,\n   New Delhi.\n\n4. Shri N. Veerabadhu,\n   Chief Engineer (Retd) CPWD\n\n5. Shri D. Laxamana Rao,\n   Superintending Engineer (P & A)\n\n6. Shri Trilok Chandra,\n   Director of Works (NR)\n\n7. Shri K.V.L.N. Rao,\n   Superintending Engineer (P), NDZ II\n\n8. Shri R.D. Aggarwal\n   Superintending Engineer (Vig), CPWD\n\n9. Shri C.S. Prasad\n   Superintending Engineer (P&A)\n\n10. Shri O.N. Mathur\n    Superintending Engineer\n\n11. Shri A.K. Sinha - I\n    Superintending Engineer\n\n12. Shri V.K. Sharma - I,\n    Superintending Engineer\n\n13. Shri. R.M. Matai\n    Superintending Engineer\n\n14. Dr.N. Ravi\n    Superintending Engineer (CDO)\n\n15. Shri G.C. Khatter\n    Superintending Engineer\n\n16. Shri K.T. Sambandam\n    Superintending Engineer\n\n17. Shri Bhartendu Bhushan\n    Superintending Engineer\n\n18. Shri Lalit Mohan\n    Superintending Engineer (P&A)(NZ)-III\n\n19. Shri D. Hore,\n    Superintending Engineer(Coord) ER\n\n20. Shri M.K. Goel\n    Superintending Engineer-I (Vig)\n\n21. Shri Suresh Kumare\n    Superintending Engineer\n\n22. Shri J.P. Gupta,\n    Superintending Engineer (C&M)\n\n23. Shri P.C. Arora,\n    Superintending Engineer\n\n24. Shri K. Balakrishnan\n    Superintending Engineer(P) SZ-I\n\n25. Shri Virendra Sharma\n    Superintending Engineer(C)\n\n26. Shri Pritosh Choudhuri\n     Superintending Engineer(P)\n\n27. Shri A.L. Garg\n    Project Manager (DS & CM)\n\n28. Shri Ram singh\n    Superintending Engineer\n\n29. Shri S. Chinnaswamy\n    Director of Works (SR)\n\n30. Shri K.L. Bhulania\n    Director (Personnel)\n\n31. Shri S.K. Mittal\n    Superintending Engineer\n\n32. Shri Abraham Jospeh\n    Superintending Engineer\n\n33. Shri A.K. Trivedi\n    Chief Engineer (NSG)\n\n34. Shri Pradip K. Gupta\n    Superintending Engineer(Coord)(Civil)\n\n35. Shri V. Subramaniam\n    Superintending Engineer(P)\n\n36. Shri J.C. Wasan\n    Superintending Engineer\n\n\n37. Shri Rakesh Mishra\n    Superintending Engineer(P&AS)(BFZ)\n\n38. Shri V.K. Gupta\n    Superintending Engineer(E&F)&(P&A)\n\n39. Shri A.K. Bajaj\n    Chief Engineer (G)\n\n40. Shri R. Sircar\n    Superintending Engineer\n\n41. R.B. Singh\n    Superintending Engineer\n\n42. Shri S. Baliga\n    Chief Engineer (ESIC)\n\n43. Shri Pipin Chand,\n    Superintending Engineer\n\n44. Shri N.K. Sinha\n    Superintending Engineer(Admn)\n\n45. Shri S.C. Padhi,\n    Superintending Engineer\n\n46. Shri Rajendra Prasad\n    Superintending Engineer(P)\n\n47. Shri A.K. Sinha\n    Superintending Engineer\n\n48. Shri Lekhraj Singh,\n    Superintending Engineer (TLC)\n\n49. The Central Administrative Tribunal,\n    Madras Bench,\n    High Court Complex,\n    Chennai 600 014.\n    Rep. by its Registrar               ..  Respondents\n\n        Petition filed under Article 226 of the Constitution of India for  the\nissuance of Writ of Certiorarified Mandamus as stated therein.\n\nFor Petitioner :  Mr.R.  Thyagarajan\n                Senior Counsel for\n                Mr.  Isaac Mohanlal\n\nFor Respondents 1 &2:  Mr.N.  Sathyaseelan, SCGSC\n\nRespondent-3    :  Mr.M.T.  Arunan, ACGSC\n\n\n:J U D G M E N T\n<\/pre>\n
P.K.  MISRA, J<\/p>\n
        The  present  writ  petition  has  been filed against the order of the
\nCentral  Administrative  Tribunal,  Chennai   dated   11.11.2002,   dismissing
\nO.A.No.638 of 2002 filed by the petitioner.\n<\/p>\n
      2.   The facts giving rise to the present writ petition are as follows :-\n<\/p>\n
        The petitioner is presently working as Superintending  Engineer  under
\nthe Central  Public  Works  Department.  He had joined service as an Assistant
\nExecutive Engineer (Civil) in the year 1972 and  was  appointed  as  Executive
\nEngineer in  December,  1978.   Subsequently he was promoted as Superintending
\nEngineer on ad-hoc basis in August, 1989.  In October, 1994, the  Departmental
\nPromotion  Committee (DPC) considered the question of regularisation of ad-hoc
\npromotion  of  various  Superintending  Engineers  including  the  petitioner.
\nAccording to the petitioner, he should have been regularised as Superintending
\nEngineer  with  effect from 31.12.1987 and placed at Sl.No.71 of the seniority
\nlist, but was regularised with effect from 31.3.1991 and placed at Sl.No.116 .\n<\/p>\n
        At that stage, the petitioner had filed O.A.No.869 of 1995 before  the
\nCentral Administrative Tribunal, Hyderabad against the illegal supersession of
\njuniors  of  1973  and  1974  batches  and nonregularisation of his service as
\nSuperintending Engineer with effect from 31.12.19 87.   The  said  application
\nwas rejected  by  the Tribunal by judgment dated 5.3.1997.  From the aforesaid
\njudgment, the petitioner came to know that for the year  1982-83,  an  adverse
\nentry to  the  effect  “below  average”  had  been  made.    Subsequently, the
\npetitioner filed S.L.P.(C) No.19192 of 1997, wherein the Supreme  Court  while
\ncondoning  the delay in filing of the Special Leave Petition, rejected the SLP
\nin limine.  The subsequent Review Application filed by the petitioner was also
\nrejected.  Thereafter, the seniority list of the Superintending Engineers  was
\nissued  in  September,  1998  and  the  petitioner’s  seniority  was  shown at
\nSl.No.91, whereas he should have been shown at  Sl.No.46,  according  to  him.
\nRepresentations made by the petitioner were rejected.\n<\/p>\n
        The  petitioner thereafter filed O.A.No.638 of 2002 before the Central
\nAdministrative Tribunal, Chennai  with  a  prayer  to  set  aside  the  Annual
\nConfidential  Reports  for the year 1982-83 and also to set aside the order of
\nthe Director General (Works) dated 14.10.1987 and direct him  to  upgrade  the
\nAnnual Confidential Report from 1.4.1984 to 31.3.1 985.\n<\/p>\n
                3.   Before  the  Tribunal  it was contended by the petitioner
\nthat during the DPC held in October, 1994, the authority  had  considered  the
\nconfidential  entries for seven years, namely from 1980-81 to 1986-87 and they
\nhad relied upon the uncommunicated entries for the year 1982-8 3 and also  the
\nentry  relating  to 1984-85, which had been subsequently expunged, but overall
\ngrading had not been altered.  It was the further contended that for  the  two
\nyears prior to 1982-83, the reports were very good; but for the uncommunicated
\nadverse  entries for the year 1982-83 and incomplete for the year 1984-85, the
\npetitioner would have been found suitable for the promotion with  effect  from
\n31.12.1987.\n<\/p>\n
                4.   A  counter affidavit was filed before the Tribunal by the
\nDepartment, wherein it was indicated that DPC had considered  the  records  of
\nall the candidates in the year 1994 and had effected promotion and such orders
\nhaving  been  challenged  in  earlier  O.A.No.869  of  1995 before the Central
\nAdministrative Tribunal unsuccessfully by the petitioner, he  cannot  seek  to
\nre-open the matter, particularly, when the Special Leave Petition filed by the
\npetitioner had  been  rejected.    Apart  from  raising  the  question  of res
\njudicata, the respondents had also raised the question of laches by contending
\nthat the  petitioner  was  seeking  to  rectify  the  entries  in  the  Annual
\nConfidential  Reports  for the year 1982-83 and 1984-85, after a long lapse of
\ntime.  The aforesaid contentions of  the  respondents  were  accepted  by  the
\nTribunal,  which  has rejected the Original Application mainly by applying the
\nprinciple of res judicata and laches.\n<\/p>\n
                5.  The contention raised in the  subsequent  petition  before
\nthe Tribunal and reiterated in the present writ petition is to the effect that
\nthe  adverse  entry  for  the year 1982-83, which had been made with mala fide
\nintention by the respondent NO.4, had not  been  communicated  to  him.    The
\nadverse  entry for the period from 1.4.1984 to 31.3.1985, even though expunged
\nsubsequently, the authorities had not given any report for the said period  on
\nwrong assumption.\n<\/p>\n
                6.   Learned  senior  counsel appearing for the petitioner has
\ncontended that the questions relating to defect in the adverse entries for the
\nyears 1982-83 and 1984-85  had  not  been  directly  raised  in  the  previous
\nOriginal  Application  No.869  of 1995 filed before the Central Administrative
\nTribunal, Hyderabad and it cannot be said that the said issue had  been  heard
\nand finally  decided  so  as  to attract the principle of res judicata.  It is
\nfurther contended that since the petitioner had came to know about the adverse
\nentries after the judgment of the Central Administrative  Tribunal  pronounced
\nin  the  year  1997,  and  the adverse entry for the year 1982-83 had not been
\ncommunicated, the question of laches did not arise.\n<\/p>\n
                7.  We have heard  the  learned  counsels  appearing  for  the
\nparties  at  length  and  carefully  perused  the various materials on record.
\nAfter giving our anxious consideration to the questions raised, we are  unable
\nto accept the submission made on behalf of the petitioner.\n<\/p>\n
                8.   The  Central  Administrative  Tribunal,  Hyderabad, while
\nrejecting O.A.No.869 of  1995,  was  primarily  concerned  with  the  question
\nregarding the  promotion  of  the  petitioner with effect from 31.3.1991.  The
\nmain contention of the petitioner was that he should have been  promoted  with
\neffect from 31.12.1987.  While considering the aforesaid aspect, it is obvious
\nthat  the  respondents  in  the  said  Original Application had brought to the
\nnotice of the Tribunal regarding various entries in  the  Annual  Confidential
\nReports.   There  is copious reference to various Annual Confidential Reports,
\nincluding for the year 1982-83 and 1984-85.  It is evident that the  propriety
\nof  the  adverse  entry  was  the  matter under consideration by the Tribunal.
\nKeeping in view of the contentions raised before the  Tribunal,  it  is  clear
\nthat the petitioner was very much aware about the adverse entries made for the
\nyear 1982-83 and 1984-85.\n<\/p>\n
                9.   As  a  matter  of fact, in his Original Application filed
\nbefore the Central Administrative Tribunal, Hyderabad, the petitioner has made
\nspecific averment to the effect :-\n<\/p>\n
        “.  .  .  However, his ACRs  relating  to  4  years  from  1981-82  to
\n1984-85  were  deliberately  spoilt  by  a  castiest  and  arbitrarily  acting
\nreporting officer, Sri N.  Veerabhadhu, due to which his  promotional  chances
\nwere jeopardized.    Yet  he  was  given  adhoc promotion in the normal course
\nwithout any way disturbing his seniority during August, 1989 as Superintending
\nEngineer (Civil).  However, when it came to regularisation of  the  promotion,
\nthe  DPC  disturbed  his  seniority  as a result of which he got superceded by
\njuniors of 1973 and 197 4 batches and his regularisation was done with  effect
\nfrom  31-3-91  whereas it should have been done with effect from 31-12-1987 in
\nthe right course of things.  In doing so, the DPC only mechanically relied  on
\nthe  motivated and unjust ACRs of the above-mentioned 4 years also but did not
\nlook into  the  self-appraisal  reports  of  the  applicant  and  the  various
\nrecommendations he received for his good service record.”\n<\/p>\n
It was further stated :\n<\/p>\n
        ” .  .    .  He believes that he received ‘Very Good’ grading from the
\nReporting Officer, for the period  of  1980-81  and  likewise  was  given  the
\nbenchmarks  ‘Good’  and  ‘Very Good’ for the years 1985-86 and 1986-8 7 by the
\nconcerned reporting officers of the period.  However,  great  and  irreperable
\ndamage  was  done  to his career by the caste-biased and arbitrary attitude of
\nthe reporting officer, Sri N.  Veerabadhu, S.E., who wrote the A.C.Rs  of  the
\napplicant for the four years from 198 1-82 to 1984-85.”\n<\/p>\n
                10.  From the aforesaid averments, it is apparent that even at
\nthe  time  of  filing  of the earlier Original Application No.869 of 1995, the
\npetitioner was very much aware of the fact that adverse entries had been made.
\nTherefore, while contending that he should be given promotion from an  earlier
\ndate, it was very much open to the petitioner to raise the question now raised
\nbefore  the present Tribunal to the effect that non-communicated adverse entry
\nhad been relied upon by the DPC while considering the question  of  promotion.
\nIn  other words, it must be taken that the petitioner ought to have raised the
\nquestion now raised even at that  stage  when  the  validity  of  the  adverse
\nentries had been questioned by him albeit on slightly different grounds.\n<\/p>\n
                11.   Moreover,  in  the  Special  Leave Petition filed by the
\npetitioner, a specific ground had been raised to the effect :-\n<\/p>\n
        ” Whether the uncommunicated adverse remarks ought not  to  have  been
\nrelied by  the  DPC  to  disentitle  the  petitioner  from  promotion?   It is
\nsubmitted that even though the Hon’ble Tribunal considered the said  issue  of
\nthe  non-communicated  adverse remarks the Hon’ble Tribunal did not follow the
\nlogical conclusion of the settled law by this Hon’ ble Court in  the  case  of
\nU.P.Jal Nigam & Ors.  v.  P.C.  Jain,<\/a> 1996(2) SCC 363″.\n<\/p>\n
                12.   Indeed, the averments and specific grounds now raised in
\nthe proceedings before the Tribunal  and  before  this  Court  are  very  much
\nsimilar grounds  and  were  raised before the Supreme Court in the S.L.P.  The
\nSupreme Court had dismissed the S.L.P at the admission stage.\n<\/p>\n
                13.  Having regard to all these aspects, the conclusion of the
\nTribunal under the impugned judgment to the effect that the contentions raised
\nby the petitioner are hit by the principles of res judicata, cannot be said to
\nbe suffering from any error or law apparent on the face of record,  warranting
\ninterference.\n<\/p>\n
                14.   A  perusal  of  the  judgment  passed by the Tribunal on
\nearlier occasion, makes it very clear that the main questions  raised  in  the
\nsaid  proceedings  are  similar to the questions now raised and the matter had
\nbeen decided against the petitioner and  ultimately,  the  SLP  filed  by  the
\npetitioner was  dismissed  at  the  stage  of admission.  Therefore, it is not
\npossible to re-open the questions which had attained finality  at  that  stage
\nand come to a different conclusion.\n<\/p>\n
                15.  The  matter  can  be  viewed  from  another  angle.   The
\nquestion of non-promotion of the petitioner on regular basis from  31.12.1987,
\nwas challenged  in  the  earlier case.  The petitioner now contends that since
\nnon-consideration was vitiated by the fact that uncommunicated adverse entries
\nin the Annual Confidential Reports had been  considered,  and  therefore,  the
\nmatter requires  reconsideration.    To  countenance such a plea would be like
\npermitting the petitioner to raise the question which did not find favour with
\nthe Tribunal and the Supreme Court at that stage.  Undertaking such  a  course
\nat  this  stage,  would  amount  to  sitting in appeal not only over the order
\npassed by the Tribunal at that stage but also over the  order  passed  by  the
\nSupreme  Court, when the SLP filed by the petitioner was rejected and even the
\nsubsequent Review Application was also rejected.  What could not  be  achieved
\ndirectly  by  the petitioner at that stage is sought to be achieved indirectly
\nby the petitioner at the present stage.\n<\/p>\n
                16.  So far as  the  adverse  entry  relating  to  1984-85  is
\nconcerned,  it  is  very much apparent that specific questions had been raised
\nbefore the Tribunal on earlier occasion and  had  been  answered  against  the
\npetitioner.   Moreover,  the  representations  made by the petitioner had been
\nrejected long back.  Such questions finalised long back at that stage,  cannot
\nbe agitated at this stage.\n<\/p>\n
                17.   Learned  Senior Counsel appearing for the petitioner has
\nrelied upon the decision of the Supreme Court reported in  2000  (6)  SCC  359
\n(KUNHAYAMMED AND  OTHERS v.  STATE OF KERALA AND ANOTHER) and<\/a> 2004 (1) SCC 497
\n(U.P.  JAL NIGAM AND OTHERS v.  PRABHAT CHANDRA JAIN AND OTHERS)<\/a> in support of
\nthe contention that dismissal of Special  Leave  Petition  in  limine  at  the
\nadmission stage, does not operate as res judicata.\n<\/p>\n
                18.   These  decisions  had  been  cited  in  support  of  his
\ncontention that even though a question of  uncommunicated  adverse  entry  had
\nbeen raised in the S.L.P., the order of the Supreme Court dismissing the S.L.P
\nin limine, would not amount to res judicata on this aspect and the Tribunal on
\nthe subsequent occasion, was free to decide the subsequent question.\n<\/p>\n
                19.   On  a  careful  consideration  of  the  decisions of the
\nSupreme Court in the aforesaid cases,  we  are  of  the  view  that  the  said
\ndecisions do  not  have  any  applicability to the questions now raised.  Even
\nassuming that dismissal of the Special Leave Petition would not operate as res
\njudicata, the fact remains that the question of adverse  entry  for  the  year
\n1982-83  and  1984-85,  had  been  raised before the Tribunal and the Original
\nApplication filed by the petitioner had  been  rejected  and  such  order  has
\nassumed  finality  and  those  questions  are not available to be raised in an
\nindirect manner at a subsequent stage.\n<\/p>\n
                20.  For the aforesaid reasons, we do not find  any  merit  in
\nthe present  writ petition, which is dismissed.  There would be no order as to
\ncosts.\n<\/p>\n
Index :  Yes
\nInternet:  Yes<\/p>\n
dpk<\/p>\n
To\n<\/p>\n
1.  The Secretary,
\nMinistry of Urban Affairs and
\nPoverty Alleviation, ‘C’ Wing,
\nNirman Bhavan,
\nNew Delhi 110 011.\n<\/p>\n
2.  The Director General (Works),
\nGovernment of India,
\nDirectorate General of Works,
\nCentral Public Works Department,
\nNirman Bhavan, ‘A’ Wing,
\nNew Delhi 110 011.\n<\/p>\n
3.  The Chairman,
\nUnion Public Service Commission,
\nDholpur House, Shahjahan Road, New Delhi.\n<\/p>\n
4.  The Central Administrative Tribunal,
\nMadras Bench,
\nHigh Court Complex, Chennai 600 014.\n<\/p>\n
Rep.  by its Registrar.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court M. Baladandapani vs The Secretary on 12 August, 2004 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12\/08\/2004 CORAM THE HONOURABLE MR. JUSTICE P.K. MISRA AND THE HONOURABLE MRS. JUSTICE R. BANUMATHI WRIT PETITION NO.10165 OF 2003 M. Baladandapani, S\/o. late Thiru K.S. Marimuthu .. Petitioner -Vs- 1. The Secretary, Ministry […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-146511","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nM. 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