Central Administrative Tribunal - Mumbai
Akash Srivastava vs M/O Information And Broadcasting on 19 April, 2024
1. OA No. 515/2017 CENTRAL ADMINISTRATIVE TRIBUNAL, MUMBAI BENCH, MUMBAI ORIGINAL APPLICATION No. 515/2017 Dated this Friday, the 19" day of April, 2024 CORAM : JUSTICE SHRI M.G.SEWLIKAR, MEMBER (J) SHRI RAJINDER KASHYAP, MEMBER (A) Shri Akash Srivastava, Age 30 Years, Working as Ex-MTS E-1, 947-E, Ashok Nagar, Humayunpur North, Gorakhpur-273015 (UP) -Applicant (By Advocate Mr. V A Nagrani ) Versus 1. Union of India Through The Secretary, Ministry of Communication and Information Technology, Sanchar Bhawan, New Delhi 110001. 2. The Director General, Software Technology Park of India (STPD, 9th Floor, NDCC-II Building, Jai Singh Road (Opp. Jantarmantar), New Delhi 110 001. - 3. The Chief Administrative Officer, Software Technology Park of India (STPI) 9th Floor, NDCC-II Building, Jai Singh Road (Opp. Jantarmantar), New Delhi 110 001. 4. The Director, Software Technology Park of India (STPI) Plot No. Pl, MIDC, Rajiv Gandhi Infotech Park, Hinjewadi, Pune 411 057. 5. Sonal Bhatwadekar, MTS E-IV, Software Technology Park of India (STPD, Plot No. P1, MIDC, Rajiv Gandhi Infotech Park, Hinjewadi, Pune 411 057, 6. Sanjay Gupta, MTS E- V, Software Technology Park of India (STPI) Plot No. P1, MIDC, Rajiv Gandhi Infotech Park, Hinjewadi, Pune 411 057. -Respondents (By Advocate Mr. R R Shetty ) Order Reserved on: 11" January, 2024 Order Pronounced on: 19" April, 2024 Ly} 2 OANo. 5315/2017 ORDER Per : Justice M.G.Sewlikar, Member (J)
The applicant by this Application under Section 19 of the Administrative Tribunals Act has called in question the order dated 31% March, 2015 by which his services came to be terminated.
2. Facts in brief are that a notification was issued for various posts to be filled up by direct recruitment on contract basis for a period of three years which is likely to be regularized/ extended/ terminated depending upon the performance of the candidate during the contract service. The applicant made the application. Accordingly, he was selected and appointed as Assistant Director (MTS) E-1. The applicant joined the duties on 28" March, 2012 and was kept under probation for a period of one year from the date of joining. He was posted at STPI, Navi Mumbai as Assistant Director (MTS) E-1.
3. The applicant further contends that he was assigned the work of certification of softex forms. Before joining of the applicant all the work there was done manually on excel 3 OA No. 3515/2017 sheets. To reduce time, efforts and errors in certification of his Softex, the applicant developed a web based application. In March 2013, the office was shifted from Mumbai to Pune. Considering his excellent work, Director, Shri Ajay Sharma assigned the applicant the work of issuance of approvals for Capital Goods (C.G.) related daily applications, as there was huge pendency. The applicant developed another web application for this work. Considering his excellent performance, his probation period was declared to have been satisfactorily completed with effect from 35% March, 2013.
4. The applicant further contends that due to retirement of Shri Ajay Sharma, in November 2013 New Director Shri Sanjay Kumar Gupta joined in the end of 2013. APAR of the year 2013 (from 01" January, 2013 to 30" November, 2013) ~ was written by Shri Ajay Sharma and 7.94 points (rounded-off to 7 points) were awarded to him by Shri Ajay Sharma. This score was reduced to 5.8 by Director General, Shri Omkar Rai on 31% March, 2015. This was done after a gap of one year three months. The Rule provides that the assessed APARs 4 OANo. 515/2017 must be disclosed within a year. The APAR of the year 2013 was not disclosed to the applicant in the year 2014, but it was disclosed to him only on 01° April, 2015. The applicant further contends that he had cleared the pendency of Capital Goods related daily applications and brought the system to proper SLA and considering his development skills, he was assigned another task of creating a new web application for Softex related activities. Having regard to his sincerity and delegation towards his work, the applicant was assigned the Additional charge of Assistant Vigilance Officer (AVO) of entire STPI-Maharashtra on 31" December, 2014.
5. In the beginning of the year 2015, respondent no. 5, Sonal Bhatwadekar (Additional Director), the Reporting -- Officer of the Applicant, started sending him irrelevant emails trying to show that he was not doing the work properly. The applicant realized that this was being done to spoil his APAR. Therefore, he replied to most of her e-mails. The replies turned out to be very sour for her to digest. She brainwashed the Director, Shri Sanjay Kumar Gupta (Respondent no. 6) 5 OANo. 3515/2017 against the applicant. There was no memo, warning or advisory issued to the applicant but APAR of the year 2014 of the applicant was spoiled by respondent no. 5 & 6. The good work of the applicant was totally ignored by respondent no. 5 & 6. Respondent no. 6 convinced Shri Omkar Rai to spoil 2013 APAR of the applicant after one year. APAR of 2014 was signed by reviewing officer on 16" February, 2015 while the APAR of 2013 was signed by reviewing officer on 31* March, 2015, i.e. APAR of 2013 was reviewed after APAR of 2014. The APARs of officers were rarely disclosed on time. The APARs of 2013 and 2014 were disclosed to the applicant first time on 01* April, 2015. The applicant made representation dated 01" April, 2015 against these APARs. The term of service of the applicant came to an end on 25" March, 2015. . Even at that time, representation made by the applicant was pending. Therefore, he was granted two months extension mentioning therein that his services shall come to an end after two months are over or till further orders whichever is earlier.
Respondent no. 2 vide order dated 8" May, 2015 rejected the 6 OA No. 515/2017 representation of the applicant against adverse entries in APAR by passing a cryptic and non speaking order. Immediately after rejection of representation of applicant, the applicant was served with the order dated 29" May, 2015 whereby his contract services with effect from 26% March, 2012 came to be concluded with effect from 31* May, 2015. However, the applicant was illegally relieved on 29" May, 2015 instead of 31 May, 2015 from his services.
6. Agegrieved by his illegal termination, the applicant preferred representation on 22" June, 2015 to the Hon'ble Union Minister pointing out the illegality while passing the order of termination of services, This representation came to be rejected stating that the Performance Evaluation Committe was constituted by the competent authority to evaluate the performance of the applicant during the contract period. Performance Evaluation Committee (PEC) after evaluation of performance of the applicant did not recommend the applicant for extension/ regularization of his contractual services. The recommendations of the PEC were accepted by the competent 7 OANo., 515/2017 authority and services of the applicant came to be terminated with effect from 31 May, 2015. Though he was relieved on 29% May, 2015. This order is impugned in this OA.
7. Respondents filed their reply. They contended that the applicant joined service on 26" March, 2012 on account of which his period of contract was due to expire on 25" March, 2015. The period of contract of the applicant was extended by a period of two months whereupon he was handed over the ACRs for the period from the year 2013 & 2014. The applicant was graded 7.94 points which was rounded off to 7 points by the Reporting Officer. The grading was reduced to 5.8 points by the Reviewing Officer on 31% March, 2015 admittedly after a period of one year and three months. For the year 2014, the Reporting Officer of the Applicant had given him 5.5 grading which was accepted by the Reviewing Officer. The Reviewing Officer had made a proper analysis at the time of downgrading the ACRs. The delay in communication of the downgraded ACRs to the applicant had not caused any prejudice to the applicant since the applicant --
8 OA No. 515/2017was allowed to make a proper representation which in turn was also duly considered and a speaking order was passed there on. Therefore, the question of revisiting the gradings given to the applicant for the years 2013 and 2014 does not arise. These gradings cannot be ignored unless it is shown that prejudice is caused to the applicant for not communicating the gradings in question to the applicant. The services of the applicant were hired on contract basis for a period of three years. His services were to be terminated even after completion of probation by giving three months notice. The applicant carried out routine work but was not having leadership qualities. Keeping the same in view, the Reviewing Officer has reduced the score. The applicant was self-centric and introvert person who used to be always busy in his own application development work for his own learning and never implemented the said applications. The Reporting Officer was not aware of his application development for Admin and Central Sales Tax etc as the applicant never discussed this with the Reporting Officer. No prejudice has been caused to 9 OA No. 3515/2017 the applicant since he was allowed to make representation. They have, therefore, prayed for the dismissal of the application.
8. Along with the application, the applicant has filed the application for condonation of delay contending that the applicant aggrieved by the impugned order had filed OA No. 236/2016 before the Allahabad Bench of this Tribunal. The said OA was dismissed as withdrawn by the order dated 19"
February, 2016 on the ground of lack of jurisdiction since the whole cause of action had occurred within the jurisdiction of this Tribunal. Since this application was dismissed for want of jurisdiction, the applicant went under depression and could not approach this Tribunal within time. He did not have enough wherewithal to file the application. The applicant took advice and financial aid from his relatives and then filed the Original Application.
9. Respondents filed their reply on the application for the condonation of delay. They contended that despite the dismissal of the application on 19" February, 2016, the 10 OA No, 5315/2017 applicant took one year and fifteen months to file the OA in this Bench. On this ground alone, the application deserves to be dismissed. They, therefore, contend that the applicant was not diligent and, therefore, OA deserves to be dismissed.
10. Applicant filed rejoinder. No new point is raised in the rejoinder.
11. We have heard Mr. V. A. Nagrani, learned counsel for the applicant and Mr. R R Shetty, learned counsel for the respondenis.
12. Learned counsel for the applicant submitted that the APAR of the year 2013 was assessed in the year 2015. This factual position is not in dispute. The respondents have not assigned any reason for assessing the APAR of 2013 in 2015. _ He contended that the Reporting Officer had found the _ leadership qualities of the applicant to be outstanding in the APAR of 2013, then what material the Reviewing Officer had before him for downgrading the APAR of 2013 in the year 2015. The respondents did not make it clear in their reply which clearly goes to show that the Reviewing Officer had no 11 OA No. 515/2017 material for downgrading the APAR of 2013 in the year 2015. He further submitted that the applicant was not given any advisory memorandum or show cause notice to improve upon his performance if according to the Reviewing Officer, his performance was below par. He contended that in terms of OM dated 16" February, 2009, a Reporting Officer forfeits his right to enter any remark in the ACR of the Officer to be reported upon if the ACR is not initiated by the Reporting Officer for any reason beyond 30" June of the year in which the financial year ended. Similarly, the Reviewing Officer shall also forfeit his right to enter any remark in the APAR beyond 31° August of the year in which the financial year ended. He contended that the Reviewing Officer after 31° August, 2014 had forfeited his right to review the APAR of the applicant. He contended that the malafide intention of the respondents is clear from the fact that the APAR of the year 2013 was signed on 31* March, 2015 that too after signing of APAR of the year 2014. The APAR of 2013 was not intentionally communicated to the applicant. Since it was not 12 OANo. 515/2017 communicated to the applicant, applicant had no chance of improving his performance.
13. Learned counsel for the respondents submitted that the applicant has not shown how prejudice was caused to him because of delay in writing the APAR. He contended that the applicant's performance was not up to the mark and, therefore, the APAR of the applicant was correctly assessed by the Reviewing Officer. The respondent nos. 5 & 6 assessed his performance and gave him 5.8 points. This assessment of the Reporting Officer was accepted by the Reviewing Officer and, therefore, the applicant was correctly assessed by the respondents. There is nothing on record to show that the respondent nos. 5 & 6 had any axe to grind against the applicant. He has made only allegations without substantiating the same. Therefore, there is nothing on record to show that the respondents had any animus against the applicant.
14. He further contended that the OMs cannot have the force of law. They are simply guidelines. He further contended that these OMs are declaratory and not mandatory in nature.
13 OANo. 515/2017Therefore, simply because there is delay in writing the APAR, that cannot enure to the benefit of the applicant. The applicant was allowed to make representation and, therefore, the applicant cannot be said to have been prejudiced for delay in writing the APAR. He further submitted that the applicant had filed OA in the Allahabad Bench of this Tribunal. It was simply withdrawn. There is nothing on record to show that it was withdrawn for want of jurisdiction. Therefore, this OA is not maintainable.
15: Learned counsel for the respondents has placed reliance on the following decisions:-
i) Pankaj Prakash Versus United India Insurance Company Limited And Another, (2020) 17 SCC 590.
il) Mayur Gajanan Kamble Versus Union of India & Anr. in Writ Petition No. 2979 of 2021 (Bombay High Court).
iti) Anil Kumar Versus Union of India and Others, (2019) 4 SCC 276.
iv) G. Mohanasundaram Versus R. Nanthagopal and Others, (2014) 13 SCC 172.14 OA No. 3515/2017
v) B Sivanandi Versus Rajeev Kumar and Others, (2017) 4 SCC 579,
16. Learned counsel for the applicant in reply submitted that the decisions relied upon by the applicant have no application as of all of them pertained to the promotions. If there is delay in writing the APAR and the same cannot be placed before DPC, the employee cannot be put to the disadvantage. On this backdrop, it has been held that the delay in writing the APAR cannot be considered to be fatal. He further contended that though there is no mention in the order passed by the Allahabad Bench of this Tribunal, the fact themselves indicate that the cause of action arose within the jurisdiction of this Tribunal and, therefore, the same was withdrawn. These facts themselves indicate that it was withdrawn for want of jurisdiction. Learned counsel for the respondents submitted that the applicant is shown to have been residing at Gorakhpur in the order of Allahabad Bench of this Tribunal. As per Rule 6 of the Central Administrative Tribunal (Procedure) Rules 1987 (CAT Procedure Rules), OA can be filed before the 15 OA No. 5315/2017 Tribunal within the territorial jurisdiction of which the employee resides.
17. We have given thoughtful consideration to the.
submissions made by the learned counsels for the respective parties.
18. -The applicant had filed the OA at Allahabad Bench. After withdrawal of that OA, he has filed this OA. He has properly explained the delay in filing this OA. We, therefore, deem it appropriate to condone the delay. Accordingly, delay is condoned.
19. The appointment of the applicant was on contractual basis. Applicant has produced Annexure-5, the Employment Notice which states that the posts are being filled by Direct Recruitment on contract basis for a period of three years which is likely to be regularized / extended / terminated depending upon the performance of the candidate during contract service. This stipulation shows that though the posts were going to be filled on contract basis, the candidates were likely to be regularized / extended / terminated depending 16 OA No, 515/2017 upon their performance during contract service. Accordingly, the applicant was appointed as Assistant Director vide order dated 28" March, 2012 with effect from 26" March, 2012. He was kept under probation for a period of one year from the date of appointment. He was posted at STPI, Navi Mumbai. He completed his probation satisfactorily after a period of one year. According to him, his performance was excellent. He was allotted 7.94 points rounded-off to 7 points which means he was very good as per the assessment of the Reporting. Officer, Shri Ajay Sharma. This report was submitted by"the Reporting Officer on 20" December, 2013. The Reviewing Officer did not review it within a reasonable time. He reviewed it on 31* March, 2015. The question is whether the Reviewing Officer was competent to review the grading given by the Reporting Officer. Learned counsel for the applicant invited our attention to the OM dated 16" February, 2009. In terms of this OM, the Reporting Officer has to assess the performance of the employee before 30" June of the year in which the financial year ended. If he fails to do so, his right to 17 OANo. 515/2017 enter any remark in the ACR of the officer to be reported upon shall stand forfeited. The Reviewing Officer also has to enter the remarks in the ACR before 31% August of the year in which the financial year ended. If he fails to do so, his right to enter any remark in the ACR of the officer to be reported upon shall also stand forfeited. The relevant portion of the OM dated 16" February, 2009 is extracted hereunder for facility of reference:-
" As cases continue to occur where confirmation, regular Promotion, appointment to sensitive posts, etc., could not be considered in time because of non-availability of ACRs for the relevant period, the matter of timely completion of ACRs was further reviewed in this Department and it has been found necessary to prescribe a time limit after which the Reporting/Reviewing Officer shall forfeit his right to record the ACR. It has been decided that while the time-limits prescribed in the aforesaid O.M. Dated 23.9.1985 should be adhered to as far as possible, in case the ACR is not initiated by the Reporting Officer for any reason beyond 30" June of the year in which the financial year ended, he shall forfeit his right to enter any remarks in the ACR of the officer to be reported upon and he shall submit all ACRs held by him for reporting to the Reviewing Officer on the next working day, Similarly, the Reviewing Officer shall also forfeit his right to enter any remarks in the ACR beyond 31°" August of the year in which the financial year ended."
20. Same view has been propounded in the case of MA. Upadhyay & CO. versus State of UP and Others (1999) 1 SCC 81.
18 OA No. 515/201721. This extracted portion of the OM clearly indicates that once the Reporting Officer fails to initiate the APAR before 30" June, he shall forfeit his right to enter any remarks in the ACR of the officer to be reported upon. Reviewing Officer shall also forfeit his right to enter any remarks in the ACR beyond 31° August of the year in which the financial year ended. In the case at hand, the APAR of the applicant was reviewed by the Reviewing Officer one and a half years later which is impermissible in terms of this OA.
22. Learned counsel for the respondents submitted that tt OMs are declaratory and not mandatory. He argued that the OM has no statutory force and does not have the force of law. For this purpose, he placed reliance on the case of Mayur Gajanan Kamble Versus Union of India & Anr. in Writ Petition No. 2979 of 2021 dated 11" August, 2021 (Bombay High Court) in which it is held that-
" 13. Even otherwise, this Court is of the considered opinion that the subject office memorandum has no statutory force and does not have the force of law. Having been issued for the guidance of the departmental officers, its breach, if any, cannot form the basis of a claim for enforcement in a Court of law by the petitioner. If any authority is required, this 19 OA No. 515/2017 Court may usefully refer to the decision of the Supreme Court in South Central Railway Vs G. Ratnam, reported in (2007) 8 SCC 212."
23. He placed reliance on the case of P Sivanandi Versus Rajeev Kumar and Others, 2017) 4 SCC 579 in which it is held that-
" 19. That apart, the fact that the ACR of Sivanandi was written and reviewed by his superior authorities after a considerable delay obviously cannot put him to any disadvantage. The writing and review of his ACR was beyond his control and we do not see any rational basis on which Sivanandi could be disadvantaged merely because his superior officers were lax in the discharge of their responsibilities. "
24. Reliance was also placed by him on the case of Anil Kumar Versus Union of India and Others, (2019) 4 SCC 276 in which it is held that-
" 15. The appellant did not have the benefit of submitting his representation when the Screening Committee took up the case for financial upgradation. CSIR by reason of its autonomy may have certain administrative privileges. No authority can, however, claim a privilege not to comply with a judgment of this Court. Once the law was enunciated in Dev Dutt case, all instrumentalities of the State were bound to follow the principles laid down by this Court. CSIR was no exception. "
25. In the case of Pankaj Prakash Versus United India Insurance Company Limited And Another, (2020) 17 SCC 590, it has been held that-
ve
12. Admittedly, for one of the years under 20 OA No. 515/2017 consideration (2011-12) for the promotional exercise for | 2014-15, the appellant was graded a "B", while for the subsequent two years, he was graded an "A"
Consequently, the fact that the appellant was given a lower grading for 2011-12 would materially affect whether or not he should be promoted from Scale II to Scale IV for ihe year in question. The non-
communication of the entries is, therefore, a matter in respect of which a legitimate grievance can be made by the appellant, particularly having regard to the position in law laid down in Dev Dutt and Sukhdev Singh."
26. He also placed reliance on the case of G Mohanasundaram Versus R. Nanthagopal and Others, (2014) 13 SCC 172 in which it is held that-
"23. "Whenever the Reporting Officers are to relinguish charge on transfer or for other reasons, they should write the confidential reports in respect of all his subordinate officers and.the handling over charge report should accompany a certificate to his higher officer that he had completely written the confidential reports on all his subordinate officers. However, if it is not possible to adhere to the above procedure, due to administrative reasons, he may take a reasonable time to write confidential reports but this time-limit should not ordinarily exceed 90 days from the date of his demitting office."
27. None of these cases is applicable to the facts of the case at hand because in all these cases, the question involved was of promotion of the concerned employee. ACR of the employees which was written and reviewed by the superior authorities after a considerable delay cannot put the employee to any disadvantage. In the case at hand, this is not the fact 21 OANo. 515/2017 situation. The applicant was graded very good. It was reviewed after a period of one and a half years when his right to enter remarks was forfeited. The question involved in all these judgements cited by the learned counsel for the applicant was whether the Annual Confidential Report (ACR) of an officer for being a part of the service record could be ignored for the purpose of his promotion merely on the ground that it was written after some delay. The Supreme Court in all these judgements held that ACR of an officer forms a part of his service record and he cannot bé prejudiced merely because the superior officer delayed to write it. In this context, it was held that they are declaratory and not mandatory. In the case at hand, the Reviewing Officer is not permitted to write the ACR _ because of his failure to enter his remarks before 31" August -
of the concerned financial year.
28. The basic purpose of APAR is to bring to the notice of the officer concerned about the shortcoming, about his achievements and about his overall performance. If some shortcomings are brought to the notice of the concerned 22 OA No. 515/2017 officer, he would get an opportunity to improve upon his performance. In the case of Sukhdev Singh Versus Union of India and Others in Civil Appeal No. 5892 of 2006, Supreme Court has held that:-
"8. In our opinion, the view taken in Dev Dutt that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR. Third, communication of every eniry in the ACR brings iransparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR -- poor, fair, average, good or very good -- must be communicated to him/her within a reasonable period."
29. From this Supreme Court decision, it is clear that the ACR helps the public servant to work harder and give proper results. If he is not satisfied with the APAR, he can make representation against the same for regularization.
30, Having regard to this and more particularly from the fact that performance of the applicant during contract service would be considered for his regularization or for extension of his service or for termination of his service, it was incumbent 23 OA No. 3515/2017 upon the respondents to timely review the performance of the applicant and communicate him the remarks. If he had been communicated with the remarks weli within time, it would have served two purposes, i) he would have had the opportunity to make representation against the same and he would have had the opportunity to improve upon his performance, ii) if he had not improved upon his performance, the respondents would have had the opportunity to contend that because of lack of performance, his services were terminated. In this view of the matter, the respondents ought to have reviewed the remarks in terms of the OM dated 16"
February, 2009.
31. So far as the APAR for the year 2014-15 is concerned, the applicant has been graded 5.5 by both the Reporting ..:-. -
Officer and by the Reviewing Officer. It won't be out of place to mention at this stage that the APAR of 2012-13 was communicated to the applicant one and a half years later ice. APAR of 2013-14 and 2014-15 were communicated to the applicant together. Therefore, the applicant did not have the "24 OA No. 3515/2017 opportunity to know his shortcomings and did not have the opportunity to improve upon his performance. There is nothing on record to show that the applicant was informed by the respondents in writing that his performance was not up to the mark. For all these reasons, it has to be said that the applicant was not informed about his performance and, therefore, the APAR cannot be considered against him. Learned counsel for the applicant invited our attention to the order of the Allahabad Bench of this Tribunal. He contended that the applicant had filed OA before Allahabad Bench of this Tribunal bearing OA No. 236/2016 which was withdrawn. He contended that permission to file OA on the same cause of action was not obtained while withdrawing the petition.
32. Learned counsel for the applicant submitted that this OA was withdrawn as Allahabad Bench of this Tribunal did not have the jurisdiction as the entire cause of action had arisen in Bombay Bench of this Tribunal. He submitted that the applicant was posted in Mumbai and was terminated in Mumbai. Therefore, this Tribunal has cause of action but it 25 OA No. 515/2017 was wrongly filed before the Allahabad Bench of this Tribunal. He contended that in terms of Rule 22 of the Administrative Tribunals Act, the Tribunal is not bound by the procedure laid down in the Civil Procedure Code shall be guided by the principles of natural justice. We do not find any force in the submissions of learned counsel for the applicant. The order passed by Allahabad Bench of this Tribunal is quoted here for facility of reference:-
" Shri Sunil, learned counsel for the applicant and Shri Vivek Rao, learned counsel for the respondents are present.
2. Learned counsel for the applicant wants to withdraw this petition. He is permitted to do so. _
3. Accordingly, this O.A is dismissed as withdrawn."
33. This order does not show that the application is withdrawn on account of want of jurisdiction of the Allahabad Bench of this Tribunal. It shows that it was a simple withdrawal without there being any permission from Allahabad Bench to institute the OA, on the same cause of action. This order of Allahabad Bench shows that the applicant is shown to be a resident of Gorakhpur, Uttar Pradesh. Rule 6 of CAT (Procedure) Rules is reproduced for facility of reference:-
26 OANo. 515/2017"6. Place of filing applications- (1) An application shall ordinarily be filed by an applicant with the Registrar of the Bench within whose jurisdiction:
(i) the applicant is posed for the time being, or
(ii) the cause of action, wholly or in part, has arisen:
Provided that with the leave of the Chairman the application may be filed with the Registrar of the Principal Bench and subject to the orders under section 25, such application shall be heard and disposed of by the Bench which has jurisdiction over the matter. .
(2) Notwithstanding anything contained in sub-rule (1) persons who have ceased to be in service by reason of retirement, dismissal or termination of service may at his opinion file an application with the Registrar of the Bench within whose jurisdiction such person is ordinarily residing at the time of filing of the application. "
34. This rule shows that persons who have ceased to be in service by reason of retirement, dismissal or termination of his service may file an application with the Registrar of the Bench within whose jurisdiction such person is ordinarily residing. The applicant has been terminated from service. He is shown to be the resident of Gorakhpur, (UP). Therefore, Allahabad Bench had the jurisdiction to entertain this petition.
35. In terms of Order 7 Rule 10 of CPC, plaint has to be returned to the applicant / plaintiff for presentation before the proper Court. If this petition had been withdrawn for want of jurisdiction, the Allahabad Bench could have returned the OA to the applicant for presentation before the proper forum. For 27 OANo. 3515/2017 these reasons, it cannot be said that the application was withdrawn on account of want of jurisdiction.
36. This now takes us to another question as to whether subsequently instituted OA is maintainable when while withdrawing the previously instituted OA permission to file OA on the same cause of action was not obtained. This point is no longer res integra. In the case of Sarguja Transport Service Versus State Transport Appellate Tribunal, M.P, Gwalior, And Others, (1987) 1 SCC 5, it has been held thus:-
'" 8 The question for our consideration is whether it would' ~ or would not advance the cause of justice if the principle underlying Rule 1 of Order XXII of the Code is adopted in respect of writ petitions filed under Articles 226/227 of the Constitution of India also It is common knowledge that very often after a writ petition is heard for some time when the petitioner or his counsel finds that the court is net likely to pass an order admitting the petition, request is made by the petitioner or by his counsel to permit the petitioner to withdraw from the writ petition without seeking permission to institute a fresh writ petition. A Court which is unwilling to admit the petition would not ordinarily grant liberty to file a fresh petition while it may just agree to permit the withdrawal of the petition. It is plain that when once a writ petition filed in a High Court is withdrawn by the petitioner himself he is precluded from filing an appeal against the order passed in the writ petition because he cannot be considered as a party aggrieved by the order passed by the High Court. He may as stated in Daryao v. State of U.P. in a case involving the question of enforcement of fundamental rights file a petition before the Supreme Court under Article 32 of the Constitution of India because in such a case there 28 OA No. 515/2017 has been no decision on the merits by the High Court. The relevant observation of this Court in Daryao case is to be found at page 593 and it is as follows:
[f the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under Article 32, because in such a case there has been no decision on the merits by the court. We wish to make it clear that the conclusions thus reached by us are confined only to the point ofres judicata which has been argued as a preliminary issue in these writ petitions and no other.
9. The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Article 226 of the Constitution of India without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that article. On this point the decision in Daryao case is of no assistance, But we are of the view that the principle underlying Rule I of Order AAI of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the case to permit a petitioner to invoke the extraordinary Jurisdiction of the High Court under Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in a High Court without permission to file a Jresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution of India since such withdrawal does not amount to res judicata, the remedy under Article 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. In the instant case the High Court was right in holding that a fresh writ petition was not maintainable before it in respect of the same subject- matter since the earlier writ petition had been withdrawn without permission to file a fresh petition. We, however, make it clear that whatever we have stated in this order may not be considered as being applicable to a writ petition involving the personal liberty of an individual in which the petitioner prays for the issue of a writ in the nature of habeas corpus or seeks to enforce the fundamental 39 OA No. 515/2017 right guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether. We, however leave this question open.
37. From this decision of the Supreme Court, it is clear that subsequently instituted petition is not maintainable if while withdrawing the previously instituted petition permission to file it afresh is not obtained. In the case at hand also the applicant while withdrawing OA has not obtained permission to file it afresh Since the applicant has failed to obtain permission from the Allahabad Bench to file the OA afresh, _ this OA cannot be said to be maintainable. In this view of the matter, this OA cannot be allowed. Hence, OA is dismissed | with no orders as to cost. Pending MAs, if any, stand closed.
(Rajinder Kashyap) (Justi¢e M.G. Sewlikar) Member (A) 7 Member (J) nk.