Central Administrative Tribunal - Delhi
C. Kandasamy vs Ministry Of Road Transport And Highways on 1 March, 2011
Central Administrative Tribunal Principal Bench OA No.1065/2010 with MA No.3003/2010 and OA No.3295/2009 with MA No.726/2010 New Delhi, this the 1st day of March, 2011 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) C. Kandasamy Chief Engineer, Ministry of Road Transport & Highways, Transport Bhavan, 1, Parliament Street, New Delhi 110 001. Applicant (By Advocate : Shri Nidhesh Gupta, Senior Advocate with Mr. Tarun Gupta) Versus 1. Ministry of Road Transport and Highways Through its Secretary Transport Bhavan, New Delhi 110 001. 2. Shri Brahm Dutt Secretary, Ministry of Road Transport and Highways Transport Bhavan, New Delhi 110 001. 3. Honble Minister Ministry of Road Transport and Highways Transport Bhavan, New Delhi 110 001. 4. Union Public Service Commission Through its Secretary Shahjahan Road, New Delhi 110 003. 5. Shri A. V. Sinha Additional Director General Ministry of Road Transport and Highways Transport Bhavan, New Delhi 110 001. 6. Shri S. K. Puri Additional Director General Ministry of Road Transport and Highways Transport Bhavan, New Delhi 110 001. 7. Department of Personnel & Training Through its Secretary North Block, New Delhi 110 001. Respondents (By Advocates : Mr. Vivek K. Tankha, ASG with Mrs. Jyoti Singh, Shri Sumeer Sodhi and Mr. Amandeep Joshi for official respondents.Mrs. Alka Sharma, counsel for UPSC.) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
With the consent of the parties, we are proposing to consider both OAs in this order, as the controversies in 2 OAs are interlinked. In OA No.3295/2009, we are considering the relief(s) sought by the Applicant (i) to set aside the downgraded rating of Average assigned by Reviewing Authority from the Outstanding grading given by the Reporting Officer, and (ii) to direct to hold a review Departmental Promotion Committee (DPC for short). In this OA, we issued an order dated 23.12.2009 directing the Applicant to make a representation before the Minister and liberty was granted to the Applicant to challenge the Order of Minister if the representation is rejected. As his representation was rejected vide order dated 21-2-2010 by the Minister, he is assailing the said order in the OA No.1065/2010.
2. We heard the case of the Applicant earlier in OA No.3295/2009 and passed an interim direction to the Respondents after considering the issues raised by the Counsel for the Applicant. Those issues were mainly discriminatory treatment in downgrading of the Applicants ACR for the period 2007-08 with malafide intention by the Reviewing officer. We analysed the Applicants ACRs placed before us for the period from 1.04.2000 to 31.03.2008 which indicated that except the ACR for the period 2007-2008, in rest of the ACRs the Applicant had been graded either Outstanding or Very Good by both Reporting Officer and Reviewing Officer. It is apt to record here that the Reporting Officer has assigned Outstanding grading in 4 ACRs and Very Good for 5 ACRs whereas the Reviewing Officer has accorded the grading Outstanding for 3 ACRs and Very Good in 5 ACRs and Average in one ACR. The Average grading was given by the Reviewing Officer for the year 2007-08 by downgrading from the Outstanding rating assigned by the Reporting Officer. We heard Additional Solicitor General on the said occasion and took into account the suggestion made by him that the system should get fair opportunity to consider Applicants representation. Accordingly, we considered the facts of the case and passed an ad interim direction. In the said OA, we also dealt with the consequential issue of Applicants promotion. The Applicant had the required years of experience to be considered for promotion to the post of Additional Director General (ADG). There were three vacant posts of Additional Director General. The Applicant being at number 3 in the seniority list, and was fulfilling all eligibility requirements for promotion to the ADG post. The DPC for filling up these three posts considered his case in its meeting held on 11.11.2009. It is the case of the Applicant that during the course of the said meeting, the 2nd Respondent as a Member of the DPC objected to the promotion of the Applicant as Additional Director General on the ground that his ACR for the year 2007-08 was Average. Thus, the case of the Applicant was kept pending / deferred. As the DPC recommended other persons including juniors of the Applicant for appointment on the said ADG post, alleging serious mala fides against the 2nd Respondent, he moved the OA No.3295/2009 seeking a declaration from this Tribunal that the ACR of the applicant for the year 2007-08 as reviewed by the 2nd respondent and consequential downgrading to Average is liable to be struck down and consequently to quash the selection made by the DPC dated 11.11.2009 and to issue directions to the Respondents to convene a review DPC for re-consideration of his case along with others whose names had been forwarded for consideration to the three vacant posts of Additional Director General. It is appropriate to reproduce the interim direction issued in our order dated 23.12.2009, which reads as follows:-
Inasmuch as, the case of the applicant has also been deferred for the time being and not rejected and he has been asked to make representation, it would be more appropriate to await the decision on the representation that he may make. If the applicant may thus make representation now, the same, we order, shall be disposed of by the concerned Minister as expeditiously as possible and definitely within fifteen days from receipt of the representation. We are sanguine that the points raised by the applicant in his representation which may be akin to the one raised in the present Application, would be looked into and if the same may not find favour, a reasoned order shall be passed. In case, the applicant may succeed and the downgrading done by the 2nd respondent as reviewing officer is ignored or set aside, the matter shall be proceeded from the said stage. However, if the representation of the applicant may be rejected, the applicant may place the same on records with a simple application challenging the same on the grounds that may become available to him. We are of the view that those who have been legitimately, through proper procedure gone into by the DPC, have been approved for appointment on the post of Additional Director General, need not await the decision of this case. As mentioned above, if the applicant may succeed, the relief can be moulded so that the applicant may not suffer in any manner whatsoever.
3. During the pendency of the said OA, the Applicant was communicated the Annual Confidential Report for the period 2007-08 where the Reporting Officer has stated that the Applicant is a capable, conscientious and well disciplined officer and has assessed him as an Outstanding Officer. However, the Reviewing Officer did not agree with the grading and recorded the following observations / remarks:-
During the period, his main responsibility was implementation of NHDP Phase III projects and the most important activity for their successful implementation was award of concessions in individual projects. As against the targets of 2066.35 Km for award of concessions for the year 2007-08, he was able to achieve only 277.89 K.M. Therefore, his performance could at best be grade Average.
4. The above remarks were communicated to him with the advice to take the remarks in the right spirit and to improve him self in the above area. In case he wants to make any representation against the above adverse remarks, he may do so. Pursuant to our interim directions, the Applicant submitted his detailed representation to the Minister of Road, Transport and Highways (Respondent No.3). In consultation with the Respondent No.2, Minister considered and disposed off the representation submitted by the Applicant with the following orders:-
I have gone through Mr. Kandasamys representation. He has two grievances-one adverse remarks in his ACR by Secretary and two deferment of his promotion. Regarding the first grievance, he has raised four basic issues in his representation:-
1. His previous performance has been good but suddenly downgraded to average in the year evaluation.
2. His performance was better than other two members in NHAI namely Mr. Nirmaljit Singh & Mr. A. V. Sinha but still his evaluation has been downgraded.
Measurement of physical progress in incorrect.
There was mala fide intent with the punitive motive in downgrading the performance.
As regard first issue ACR is written for a specific period and cannot be based on any earlier evaluation. It must necessarily be on the basis of performance of the officer in the period under review.
As regard comparison with other Members of NHAI, no evaluation of officer is done on comparative basis with other. The content of work challenges associated and scope of work can be very different for two officers of even same rank.
Regarding measurement of physical progress achieved, Mr. Kandasamy has nowhere in his representation denied the fact that he has not been able to achieve the targets assigned to him. He has neither denied the non-achievement of targets nor alleged that the targets assigned to him were non-achievable.
Regarding mala fide intent, this can be the simplest of all charges to make and is not relevant and hence rejected.
I have read the comments of Secretary on the representation of Mr. Kandasamy which explains the facts very clearly regarding the processes adopted by NHAI and the Ministry in the period under review. Hence I am satisfied that the remarks made by Secretary in Mr. Kandasamys ACR are based on actual facts and hence there is no need to interfere.
As regards Mr. Kandasamys second grievance regarding deferment of his promotion to ADG, the DPC is the appropriate forum to consider it. Mr. Kandasamys representation and Secretarys comments may be looked at by the DPC at the time of consideration of his promotion. Feeling aggrieved by the above order, instead of moving a new application to challenge the said order, the Applicant impugning the said order is visiting again the Tribunal in OA No.1065 of 2010.
5. We heard Shri Nidhesh Gupta, learned Senior Counsel for the Applicant assisted by Shri Tarun Gupta, learned Counsel. Shri Gupta took us through the pleadings to highlight the Applicants better performance compared to his compatriots in various parameters. His contention was that while similarly placed officers were rated as Outstanding / Very Good by the same Reviewing Officer (Respondent No.2) but Applicant was downgraded to Average from Outstanding.
6. Shri Nidhesh Gupta urges that the Applicant has alleged serious malafides against Respondent No. 2 - Shri Brahm Dutt, the former Secretary (RT&H) who has downgraded his ACR from Outstanding to Average. Import of the mala fides is as follows: (i) The ACR was intentionally downgraded for the period 2007-08 from Outstanding to Average during the Applicants tenure as Member (Tech.) in NHAI without taking into considerations the constraints cited by him and whereas, he had graded the other two similarly placed officers namely, Shri Nirmaljit Singh and Shri A. V. Sinha as outstanding and Very Good respectively despite the fact that they also could not achieve their targets. (ii) The Applicant has also cited the grading of his earlier ACRs in support of his allegation that he has been consistently rated as Outstanding / Very Good. (iii) The Respondent No.2 the former Secretary (RT&H) pressurized the Applicant for changing the alignment of Delhi Meerut Expressway due to his stakes. (iv). The Applicant was prematurely repatriated to the Ministry as Chief Engineer from the post of Member (Tech.) NHAI. (v) Respondent No.2 openly stated his intent to downgrade the ACRs of officers not towing his line, with the result that most of the officers did not submit their ACR in time. (vi). He misled the DPC by stating that his downgrading of the ACR was only a factual matter and not an adverse remarks, whereas, legally the below benchmark ACR grading has all the ingredients of adverse remark.
7. It was further contended by Shri Nidhesh Gupta that the order passed by the Minister clearly indicated non application of mind and arbitrariness. He also highlighted that Minister consulted Respondent No.2, the Reviewing Officer, who has down graded the ACR but did not consult the Reporting Officer to get his views. Referring to the Wednesbury principle of unreasonableness, he submits that Respondents did not consider the relevant factors, policy changes and the period in question to arrive at the reasonableness in properly grading the Applicants performance. His submission is that the decision making process has been flawed by not consulting the Reporting Officer who has graded the Applicant as Outstanding but consultation took place with the Reviewing Officer (Respondent No.2) who has downgraded his grading to Average and against whom the Applicant alleged malafides. Thus, the decision making process has been flawed, the whole decision namely the order passed by the Minister becomes automatically invalid.
8. He further submitted that the same authority, who had passed the order and rejected the representation of the Applicant, on reconsideration would not decide in a different manner and, therefore, this Tribunal may decide the case instead of remitting it again to the said authority.
9. In support of his above contentions, he placed reliance on the judgment of Honble Supreme Court in the following 5 cases:-Consumer Action Group and Another versus State of T.N. and Others [(2000) 7 SCC 425], State of U.P. and Others versus Renusagar Power Co. and Others [(1998) 4 SCC 59]; Abhijit Ghosh Dastidar versus Union of India and Others [(2009) 16 SCC 146]; Kumaon Mandal Vikas Nigam Limited versus Girja Shankar Pant and Others [(2001) 1 SCC 182]; and Union of India and Others versus Dinesh Engineering Corporation and Another [(2001) 8 SCC 491].
10. Pursuant to notice issued by this Tribunal in OA No. 1065/2010, the Respondents have entered appearance and filed their counter reply. Shri Vivek K. Tankha, learned Additional Solicitor General of India along with Mrs. Jyoti Singh, Shri Sumeer Sodhi, Shri Amandeep Joshi and Mrs. Alka Sharma, learned Counsel for the Respondents controverted the contentions raised by Shri Nidhesh Gupta.
11. Shri Tankha contended that the then Secretary (RT&H) as the Reviewing Officer had given his specific reasons in quantifiable terms on the basis of which the Applicants performance was graded as Average. The Applicant neither denied the non achievement of targets nor alleged that the targets assigned to him were non-achievable thereby upholding the observation of the Reviewing Officer for not achieving the target of 2066.35 Kms. when his main responsibility was award of concessions under NHDP Phase III projects. It was contended that there was no dispute about the past grading of the Applicant as Outstanding / Very Good in his previous ACRs but the earlier performance would have no relevance while writing ACR for a particular year. The ACR for a specific period with assessment limited to the relevant period under report / review as ACRs of the earlier period would not be available to the Reporting / Reviewing Officers. Referring to the Applicants Counsel comparing the Applicants performance with that of other Members (Tech.) viz. Shri A. V. Sinha and Shri Nirmaljit Singh, Shri Tankha submitted that Shri A. V. Sinha was having a target of awarding concession to the extent of 2861Kms under NHDP-V but he awarded 882km. which is 30.79% about 2.22 times the achievement of the Applicant. Shri Sinha achieved this in addition to his heavy workload under Phase - I which was largely implemented under EPC mode. For him, award of concessions under Phase V was hardly 25% of his workload, as he was also responsible for NHDP-I and VI. In so far as Shri Nirmaljit Singh was concerned, he was primarily responsible for NHDP-II which was largely being implemented on EPC mode. Most of the contracts for projects under this phase had already been awarded and his main responsibility during the said period was supervision and construction of roads under those packages. Almost all the projects under NHDP-II were in full swing during the relevant period. In view of the above, it was urged that performance of the Applicant in 2007-08 was far below that of the other two members.
12. Adverting to the points raised under mala fides, it was argued that in respect of the alignment of Delhi-Meerut Expressway, the NHDP Phase VI included the same and not of the alignment of the 6-laning of existing NH-58 between Delhi and Meerut under NHDP Phase-III and as Member (Tech.) in NHAI, the Applicant did not deal with NHDP VI. It was clarified by the learned ASG that appointments to and repatriation from NHAI used to be made from time to time with the approval of the competent authority in accordance with the relevant procedure/practice. The Applicant was prematurely repatriated to the Ministry due to his continuing poor performance in the implementation of NHDP III. Highlighting the procedure adopted for the ACR, he submits that there is a 3- tier system of writing ACRs of the officer of the level of JS and above and as per the existing DOPTs guidelines every ACR containing any adverse entry has to be reviewed by a superior authority. It was contended that the ACR of an officer cannot be downgraded by an officer without giving justification for the same and also without review/acceptance by the superior authorities. In the present case the prescribed procedure has been adopted. Further, he submitted that the DPC is chaired by Member, UPSC and former Secretary (RT&H) was a Member of the DPC. The decision to defer the case of the Applicant for promotion to the post of ADG was taken by the DPC. In this regard, as per recommendations of the DPC, the representation from the Applicant has been obtained and considered by the Competent Authority i.e. Honble Minister (RT & H) before reaching final decision in the matter.
13. Indicating that the Tribunal has limited scope of judicial review in the matters of promotion, Shri Tankha placed his reliance on the orders of Honble Delhi High Court in the matters of Mohan Chandra Bhatt versus Union of India [2006 IV (DELHI) 308]. Referring to the Honble Supreme Court judgment in Amrik Singh versus Union of India and Others [(2001) 10 SCC 424] he urges that the Courts and Tribunal cannot compare the past or future performance of the Applicant. The correctness or otherwise of the grading cannot be looked into by the Tribunal. Reliance was also placed on the judgment of Honble Supreme Court in the matters of Bharat Ram Meena versus Rajasthan High Court at Jodhpur and Others [(1997) 3 SCC 233] to state that the Applicant was judged by the Reviewing Officer properly and his representation on consideration has been rejected and nothing is on record to justify intervention of the Tribunal. Referring to the judgment in the matters of Lt. Col. M. P. S. Gill versus Union of India and Others [2006 (2) SLJ 84 (Delhi)] it was urged that the performance assessment of relevant variables of personal qualities and demonstrated performance should be with reference to the nature of performance of the reported officer during the subject period. The assessments in these respects in previous ACRs should bear no effect if objectivity in assessment is to be maintained. Similarly, a creditable performance reflected in the ACR of immediately following year may not necessarily lead to conclude that the performance would have been equally good during the period of impugned ACR as well. As the Applicant has alleged mala fides against Shri Brahm Datt it was submitted that mala fides should not be generic, those should be specific as held by Honble Supreme Court in the matters of Parushottam Kumar Jha versus State of Jharkhand [(2006) 9 SCC 458] and in the case of M. V. Thimmaiah versus UPSC [(2008) 2 SCC 119]. Shri Tankha submits that the mala fide allegations leveled by the Applicant against the Respondent No.2 have been looked into by the Minister while taking the decision.
14. Having heard the contentions of the parties, we very closely went through the voluminous pleadings and large number of judgments relied upon by the Counsel representing the parties. We would like to confine our consideration only to one issue arising in OA No. 1065/2010 viz. Is the order dated 21.2.2010 legally sustainable? The relief prayed for in the earlier being dependent on the above controversy we would issue legally maintainable directions.
15. We may now refer to the principal controversy ie whether the order dated 21-2-2010 is just and reasonable in the eyes of law or not. The Respondent No. 3 was directed in our order dated 23.12.2009 We are sanguine that the points raised by the applicant in his representation which may be akin to the one raised in the present Application, would be looked into and if the same may not find favour, a reasoned order shall be passed. Admittedly 4 types of issues were raised by the Applicant against the downgrading of his ACR in his representation which the Respondent No.3 has noted in the order passed by him but the response on each of issues in the order passed by him suffers from unreasonableness. We would analyse the same in the following paragraphs.
16. While issuing the interim directions in our order dated 23.12.2009, we have very extensively extracted the contentions and mala fides alleged against the Respondent No.2 by the Applicant. During the hearing, the learned Counsel for the Applicant took us through the pleadings to bring home that those mala fides against the Respondent No.2 could be substantiated but the same was rejected without examining the same. It is found that the Respondent No. 3 has observed on the mala fides in the following way: Regarding mala fide intent, this can be the simplest of all charges to make and is not relevant and hence rejected. We did not decide the issue of mala fides in our interim direction leaving the concerned Respondent to decide but the above view in the impugned order is summary rejection without coming to any specific conclusion. We are of the firm opinion that the representation has not been considered by the Minister in a reasonable manner on the issue of the mala fides leveled against Respondent No.2 by the Applicant. On the other hand, in a cut and abrupt manner, the allegations of mala fides have been rejected by the Minister by stating this can be the simplest of all charges and is not relevant. This does not manifest in what manner the Respondent No.2s approach towards the Applicant has been found to be not convincing to the Minister. The Applicant has made certain allegations against the Respondent No.2, he has furnished specific instances and none of those instances have been analysed to reject such claim of the Applicant. This observation by the Respondent No.3 does not convince us and it would be termed as an summary rejection. We are conscious that orders on representations may not contain elaborate reasons, such as in judicial proceedings, but at the same time such orders, even though administrative in nature, have to take into consideration the points raised in the representation, and some reasons to accept or reject the same.
17. It is noted that the order passed by Respondent No.3 on the representation of the Applicant is an outcome of non-application of mind. Applicant has brought in comparative analysis of his performance vis a vis performance of Mr. Nirmaljeet Singh and Sh. A. V. Sinha in his representation on the downgraded ACR and has argued that if they could get Outstanding grading in their ACRs by the same Reviewing Officer, the Applicant deserves to get similar rating as his performance in many parameters have been more than others. It was also argued that grading of an officer is done after taking into account all the entries in the ACR of the Officer reported upon as more than one functions are discharged and over all performance gets reflected in the grading that is assigned by the Reporting and Reviewing Officers. It was stated during the hearing that only one aspect has been picked up by the Reviewing Officer to downgrade the grading from Outstanding to Average. The only aspect that was taken up is that as against the target of 2066.35 km for award of concessions for the year, the Applicant achieved only 227.98 kms. During the hearing, we got the impression that award of concession is an initial stage in the construction of the National Highways under the NHDP, whereas the other components of the functions like construction and completion of the Highways, besides maintenance of those Highways which have been completed. The grading assigned by the Reviewing Officer, namely, Average is based only on one of the many functions which the Applicant was discharging at that point of time. This aspect has not been considered by the Respondent No.3 while passing the order.
18. Counsel for the Applicant has very extensively narrated that the Applicant had an unblemished record of more than 33 years of service and his credentials were very impressive during which period he has received either Outstanding or Very Good. All of a sudden rating him as Average down by three steps by the Reviewing Officer should be looked into with suspicion. It was, therefore, argued that the said Average grading was assigned by the Respondent No.2 when the Applicants case was coming up for consideration of the DPC for promotion to the post of ADG. Therefore, it was termed as intentional by down grading the Outstanding assigned by the Chairman of NHAI to that of Average for the year 2007-2008 which would be impediment against the Applicant for promotion to the said post. The timing of downgrading to Average is an important factor which cannot be ignored while considering the representation of the Applicant by the Respondent No.3.
19. The order dated 21.2.2010 suffers from procedural infirmity. We remanded the case to be considered by the Respondent No. 3 and as per the normal procedure he should have got the comments of both Reporting and Reviewing Officer on the representation. The views of the Reviewing Officer alone were sought who has given his comprehensive comment defending the downgrated rating given by him. We could not be informed why the views of Reporting Officer were not sought. When views of both come before the competent authority, he would have the views defending outstanding and average rating and would be in a better position to take a balanced decision. In the present case absence of the views of Reporting Officer has put the Respondent in a lopsided position and the decision has supported the downgrading. By getting the views of only the Reviewing Officer, the procedural infirmity has crept in. On this ground alone, the order passed by Respondent No.3 on the representation of the Applicant being illegal is to be quashed and set aside.
20. Besides the above procedural infirmity, during the hearing, we wanted to know whether both Reporting Officer and Reviewing Officers are available to offer their considered comments on the representation of the Applicant. It was stated that the Reporting Officer (Shri Gokul Ram, the then Chairman, NHAI) is no more and the Reviewing Officer (Respondent No.2) has retired. It would, therefore, be not possible to get the views of both Reporting and Reviewing Officers on the representation of the Applicant. Another contention was about the processing of the papers undertaken by the Respondent No.2 and his subordinates for the decision of Respondent No.3 and such processing has influenced the decision making process which should be considered as improper and irregular. It is not for us to comment on the processing of the Applicants representation by the Respondent No.2 but suffice us to note that Respondent No.2 is not available for the process at the present juncture.
21. On a question put to the Counsel for the Applicant on the issue as to why the matter should not be again referred to the present Minister and why should he not take a fresh view in the changed scenario that the Reporting and Reviewing Officers are not available for consultation (the Reporting Officer is no more and the Reviewing Officer has retired); Shri Nidhesh Gupta specifically submitted that the proposal for DPC was sent on 2.09.2009 but the Respondent No.2 as Reviewing Officer specifically downgraded the Applicants ACR for 2007-2008 to Average on 29.09.2009 and when the DPC met he influenced the DPC to the extent that the Applicants case was deferred. He further draws our attention to the fact that when the OA was pending adjudication in the Tribunal, the Respondents sent the downgraded ACR for 2007-08 to the Applicant seeking his representation on the same. He drew our attention to the comments on the representation given by the Applicant against the remarks of the Reviewing Authority which is available at Annexure R-7A. We went through the entire Annexure where Shri Nidhesh Gupta submitted that the entire reply given by the Respondent No.2 shows the reflections of the mala fide mind of the Respondent No.2. He also took us through the comparative analysis of the targets and achievements for the year 2007-2008, 2008-09 and 2009-2010 to indicate that the Applicants performance was far better than his other colleagues. Referring to the counter reply filed by the Respondents, more specifically, Paragraph D&E at Page 9 of the counter, he submits that the Respondents have held that on the basis of the directions of this Tribunal a reasoned order has been passed by the Minister RT&H after going through the submissions made in the representation of the Applicant and after due application of mind and after taking into consideration the facts of the case, the allegation of mala fides leveled against the Respondent No.2 by the Applicant the Respondents have denied the said mala fides. His submission is that Respondents may not take different view from the one expressed in the impugned order. We have given our careful consideration to the above contentions but would differ from the said stand on the ground that as we write this judgment, the Reporting and Reviewing Officers are not available to influence the decision. Moreover there is change of Respondent No.3. The learned ASG also confirms the same and feels a fresh look to the entire issue would render justice to the Applicant. We would like to grant one more opportunity to the Respondent No.3 to examine and consider the Applicants representation afresh.
22. Considering the above facts and circumstances of the present case, we come to the considered conclusion that there has been no application of mind on the part of the Respondent No.3 in passing the order on the representation of the Applicant. Besides, the order passed by the Respondent No.3 does not cover adequately the points raised by the Applicant in his representation. The decision making process suffers from procedural infirmity. Therefore, we have no hesitation to declare the said impugned order dated 21.2.2010 passed by the Respondent No.3 as arbitrary. In these circumstances, we quash and set aside the order dated 21.2.2010 passed by the Respondent No.3.
23. In the result, in terms of the above discussion and conclusion the OA No.1065/2010 having merits is allowed. However, in respect of the 0A No. 3295 / 2009, taking into account the subsisting representation of the Applicant we remit the case to the Respondent No.3 who would reconsider and re-examine the representation submitted by the Applicant afresh and if need be the Applicant should be granted an opportunity of personal hearing to explain his views before the Respondent No.3 in order to facilitate Respondent No.3 to take an appropriate and judicious decision within a period of 4 weeks from the date of receipt of a copy of this order. It is made clear that there should be no need to consult either the Reporting Officer or the Reviewing Officer as they are not available to provide their comments in the matter. While examining the representation afresh, the Respondent No.3 would not take into account the comments given by the Respondent No.2. Thus, not being influenced by the said comments, the Respondent No.3 would pass his order on the representation of the Applicant. In case the Applicants representation is considered in the favour of the Applicant and the downgraded rating of Average is expunged or grading is upgraded, the matter of his promotion shall be considered according to law. However, if the representation of the Applicant on fresh reconsideration is rejected, the Applicant would have the liberty to approach this Tribunal by placing a copy of the said order.
24. In terms of the above directions, the OA No. 1065/2010 stands allowed. The OA No. 3295/2009 would be listed for hearing on 21.4.2011. No costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali) Member (A) Chairman /pj/