IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 21ST JANUARY 2008 / 1ST MAGHA 1929 WP(C).No. 5153 of 2007(S) ----------------------------------- OA.695/2006 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH ............................................. PETITIONER/RESPONDENT NO. 2 IN O.A ------------------------------------------------------- B. RAMAKRISHNA, JUNIOR STENOGRAPHER, INTEGRATED FISHERIES PROJECT, MINISTRY OF AGRICULTURE, COCHIN-16. BY ADV. SRI.KRB.KAIMAL (SR.) SRI.B.UNNIKRISHNA KAIMAL SRI.V.MADHUSUDHANAN RESPONDENTS/APPLICANT AND RESPONDENT 1 AND 2 IN O.A ------------------------------------------------------------------------------------------- 1. C. MURALIDHARAN, S/O.RAMANKUTTY NAIR, HEAD CLERK, INTEGRATED FISHERIES PROJECT,COCHIN-16 RESIDING AT SARANYA, SOYUS LANE, KADAVANTHARA, COCHIN-20. 2. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF AGRICULTURE, DEPARTMENT OF ANIMAL HUSBANDRY AND DAIRYING KRISHI BHAVAN, NEW DELHI-110 001. 3. DIRECTOR, INTEGRATED FISHERIES PROJECT, MINISTRY OF AGRICULTURE, COCHIN-16. BY ADV. SRI.P.PARAMESWARAN NAIR, ASST.S.G. ADV. SRI.T.C.GOVINDA SWAMY --R1 SMT.D.HEERA SMT.R.R.REJITHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO: 5153/2007 APPENDIX PETITIONER'S EXHIBITS EXT.P1. COPY OF THE O.A NO. 695/2006 FILED BY THE R1 BEFORE THE CAT BENCH, DT. 12/10/2006. EXT.P2. COPY OF THE REPLY AFFIDAVIT OF FILED BY THE PETTIONER (R3 IN OA) IN OA NO. 695/2006 DT. 20/10/2006. EXT.P3. COPY OF THE REPLY AFFIDAVIT FILED BY THE R2 AND R3 (R1 AND R2 IN OA ) IN OA NO. 695/2006 DT. 15/11/2006. EXT.P4. COPY OF THE REJOINDER FILED BY THE R1 IN OA NO. 695/2006 DT. 10/12/2006. EXT.P5. COPY OF THE ADDL. REPLY AFFIDAVIT FILED BY THE R2 AND R3 (R1AND R2 IN OA) IN IA NO. 695/2006 DT. 18/12/2006. EXT.P6. COPY OF THE LETTER NO. IFP/V/A/1/97 DT. 20/6/06 OF THE OFFICER IN CHARGE OF INTEGRATED FISHERIES PROJECT, VISAKHAPATTANAM TO THE R3. EXT.P7. COPY OF THE ORDER OF C.A.T ERNAKULAM IN OA NO. 695/2006 DT. 17/1/2007. RESPONDENT'S EXHIBITS NIL. True copy tga K.BALAKRISHNAN NAIR & P.N.RAVINDRAN,JJ. ========================= WRIT PETITION NO. 5153 OF 2007 ========================= Dated this the 21st day of January 2008 JUDGMENT Balakrishnan Nair, J. The writ petitioner is the third respondent in O.A.695/2006. First respondent herein was the applicant in the said O.A. The brief facts of the case are the following:- The petitioner and the first respondent were working in the cadre of Junior Stenographer and Upper Division Clerk respectively under the Integrated Fisheries Project, Kochi. Their next promotion post was Head Clerk. When a vacancy arose in the cadre of Head Clerk, the claims of the petitioner and the first respondent for promotion were considered by the Departmental Promotion Committee which met on 25.3.2006. The first respondent was promoted as Head Clerk by Order dated 6.5.2006. The Departmental Promotion Committee selected the first respondent, having regard to the rating in his confidential reports. For two years, 2003-2004 and 2004-2005, the rating of W.P.(C)5153/2007 2 the writ petitioner was only `average'. The minimum bench mark rating was `good' for being considered suitable for promotion to the higher post. The Departmental Promotion Committee assessed the first respondent as eligible for the bench mark grading of `good,' even though for one year his rating was `average'. The petitioner represented against the supersession in the matter of promotion as well as against the entries in his confidential records, which paved the way for his supersession. The competent authority considered the same favourably and directed to convene a review Departmental Promotion Committee. The said DPC met on 10.10.2006 and decided to promote the writ petitioner. 2. In the above background, the first respondent filed the above O.A. on 12.10.2006 seeking the following reliefs:- a) declare that the third respondent is not entitled to be considered for promotion as a Head Clerk in the light of Annexure A1 Recruitment Rules. b) declare that the action of the respondents in holding a review Departmental Promotion Committee on W.P.(C)5153/2007 3 10.10.2006 in connection with the Departmental Promotion Committee already held on 25.3.2006 for considering the third respondent for promotion as Head Clerk is arbitrary, discriminatory, contrary to law and hence unconstitutional. c) restrain respondents 1 and 2 from considering and promoting the third respondent as Head Clerk against the vacancy to which the applicant was promoted in terms of Annexure A2. d) direct the respondents to allow the applicant to continue as Head Clerk in scale Rs.5000-8000 in terms of Annexure-A2 order of promotion. e) award costs of and incidental to this application. f) pass such other orders as are deemed just, fit and proper in the facts and circumstances of the case." 3. The main contention raised in the O.A. was that the stenographer does not come under the feeder category and therefore consideration of the writ petitioner for promotion was illegal and unauthorised. It was also contended that the review Departmental Promotion Committee cannot take a decision to revert the applicant without putting him on notice. Holding of the W.P.(C)5153/2007 4 review DPC itself was illegal, it was submitted. 4. The official respondents and the party respondent who is the writ petitioner herein resisted the application on various grounds. They pleaded that in the light of DOPT OM No.22011/7/98-Estt(D) dated 6.10.2000, a rating below the bench mark for next promotion should be treated as adverse and therefore the rating of the petitioner, which was `average' for two years was treated as adverse. On receipt of his representation, those entries were deleted. Thereafter the writ petitioner's claim was considered and he was rightly promoted being senior in the feeder category. The applicant filed rejoinder contending that the aforementioned OM does not authorise the competent authority to delete a rating which is below the bench mark, treating it as adverse. Other contentions were also raised. 5. After hearing both sides and perusing the confidential reports produced before it, the Tribunal quashed the order of the second respondent Director of Integrated Fisheries, Kochi expunging the adverse gradings in the ACRs of the writ petitioner for the years 2003-2004 and 2004-2005. It also set W.P.(C)5153/2007 5 aside the proceedings of the review DPC held on 10.11.2006. The order Annexure R1(e) reverting the first respondent herein and the order on Annexure R1(f) promoting the writ petitioner were also set aside. 6. The writ petitioner attacks the above directions issued by the CAT by referring to the grounds and prayers in the O.A. With those grounds and prayers in the O.A., the above reliefs could not have been granted, it is submitted. 7. Learned counsel for the first respondent, on the other hand, pointed out that based on the materials before the CAT, it has taken a proper and legal decision and therefore this Court may not interfere with the same. 8. The operative portion of the judgment of the CAT reads as follows:- "The prayer of the applicant has merit and we allow the O.A. The note order of the second respondent expunging the adverse gradings in the ACRs of the third respondent for the years 2003-2004 and 2004-2005 in File No.A1/7-1/06 and the consequent proceedings of the review DPC held on 11.10.2006 are set aside. The orders at Ann.R1(e) and (f) are also set aside. The applicant shall be allowed to W.P.(C)5153/2007 6 continue as Head Clerk in the scale of Rs.5000-8000 in terms of Annexure-A2 order of promotion given to him." 9. The above reliefs granted could not have been granted, having regard to the grounds raised in the O.A. and also the reliefs sought therein. CAT plainly went beyond the pleadings and reliefs sought in the O.A. Therefore, we are inclined to interfere with Ext.P7. 10. But, having regard to the nature of the contentions raised by the first respondent - original applicant, we are of the view that he should be given a chance to amend the original application incorporating additional grounds and prayers as warranted, with an opportunity to the respondents to file additional pleadings. 11. In the result, Ext.P7 is set aside. O.A. is restored to file. It is also ordered that the first respondent shall be allowed to continue in the post of Head Clerk pending disposal of the O.A. The CAT shall endeavor to dispose of the original application, as expeditiously as possible, preferably within four months from the W.P.(C)5153/2007 7 date of production of a copy of this judgment. The parties appear before the CAT on 21.2.2008. The applicant shall file his additional pleadings, if any, within two weeks from the said date. The parties shall co-operate with the CAT for early disposal of the O.A. Writ Petition is disposed of as above. K.BALAKRISHNAN NAIR, JUDGE P.N.RAVINDRAN, JUDGE css/