R.Ponnusamy Vs The Director General of

PRAYER: Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of Writ of Certiorari, calling for the records, letter dated 26.06.2006 of 5^th respondent conveying adverse remarks in Confidential Reports for the year ending 31.03.2006 in proceedings No. A.XII.2/06.GC.PA and his consequential order dated 22.12.2006 in proceedings No.C.IV.1/2006.GC-PA and order dated 27.12.2006 of 4^th respondent in proceeding No.A.XII.3/2006.ST (Rep) and order dated 05.11.2012 of 3^rd respondent in proceedings No.R.XIII.1/2012.PA (P&A) and order dated 07.04.2014 of 2^nd respondent in proceedings No.R.XIII.01/2014.SZ-PA and quash the same.

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For Petitioner : Mr.A.M.Bakkiavathy For Respondents : Mr.S.Makesh

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ORDER

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This writ petition has been filed by the petitioner, who was working as Subedar Major (Minsterial), challenging the impugned proceedings dated 22.12.206 and 27.12.2006, as confirmed by the orders dated 05.11.2012 and 07.04.2014, communicating the adverse remarks entered in the Annual Confidential Report (in short 'ACR') of the petitioner for the year 2005-2006.

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The petitioner has already retired from service on attaining the age of superannuation during the pendency of the present writ petition. A perusal of the affidavit filed in support of the writ petition, and the submissions made by the learned counsel for the petitioner, the actual grievance of the petitioner is that, because of the adverse remarks entered in his ACR for the year 2005-2006, he was deprived of his promotion to the post of Subedar Major (Ministerial) in the year 2009, and in case, if the adverse remarks entered through impugned proceedings are set aside, the petitioner would be entitled for promotion from the year 2008/2009. In the present writ petition, except seeking to quash the proceedings whereby the adverse remarks were communicated to the petitioner as entered in the ACR for the year 2005-2006, there is no other consequential relief sought by the petitioner. If the contention of the petitioner is that he would be entitled for promotion to the post of Subedar Major (Ministerial) with effect from 2008 or 2009 on setting aside or quashing of the impugned proceedings, the petitioner has to establish as to how he would get promotion as is being claimed from the year 2008/2009.

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From perusal of the oder passed in W.P.Nos.6684 and 21924 of 2009 dated 08.06.2010, it is evident that the orders of promotion issued in favour of the petitioner on 02.04.2009 was challenged before this Court in W.P.No.6684 of 2009 and obtained interim injunction. Further it is evident that during the pendency of W.P.No.6684 of 2009, the proceedings dated 02.04.2009 issued in favour of the petitioner promoting him to the post of Subedar Major (Minsterial) was cancelled by issuing another proceedings dated 25.08.2009 on the ground that the earlier proceedings dated 02.04.2009 came to be issued without noticing the adverse entries made in the ACR of the petitioner for the year 2005-2006. Challenging the said proceedings dated 25.08.2009, the petitioner has filed W.P.No.21924 of 2009, and coordinate bench of this Court, after having considered the contentions raised by the petitioner, refused to interfere with the proceedings dated 25.08.2009 whereby the promotion of petitioner to the post of Subedar Major (Minsterial) was cancelled. The said common order passed in the above said two writ petitions dated 08.06.2010 had attained finality.

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It was thereafter, the case of the petitioner was once again considered by the respondents, and he was promoted to the post of Subedar Major (Minsterial) in the month of May 2012. In the light of the fact that the order passed by coordinate bench of this Court as early as on 08.06.2010 has attained finality, it is not open for the petitioner to reopen the said issue at this length of time. Further, as already noted above, in the present writ petition except seeking to quash the adverse entries made in the ACR for the year 2005-2006, there is no other consequential relief sought by the petitioner. Therefore, even if the impugned proceedings are cancelled or quashed by this Court, the same would not enure to the benefit of the petitioner in any manner, as the petitioner was already retired from service during the pendency of the present writ petition.

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Be that as it may, adverse remarks that was entered in the ACR for the year 2005-2006 were admittedly communicated to the petitioner through proceedings dated 22.12.2006 for the year ending 31.03.2006, and the same was also confirmed by the appellate authority on 27.12.2006. But for the reasons best known, the petitioner has not chosen to take any further

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steps against the said adverse entries till the year 2012. It was only when this Court refused to interfere with the order cancelling the promotion awarded in favour of the petitioner, the petitioner, has chosen to question the adverse entries made in the ACR for the year 2005-2006, that to after availing the benefit of promotion to the post of Subedar Major (Ministerial) in the month of May 2012. Thus, it is evident that the petitioner, having been fully aware of the adverse remarks entered in the ACR for the year 2005-2006, kept quiet for more than six years, and it is only when the said entries were sought to given effect to after the year 08.06.2010, the petitioner started submitting representations against the said adverse entries. though unsuccessfully. Thus, the petitioner has acceded to the said adverse remarks entered in the ACR for the year 2005-2006. In the light of the above, the question of interfering with the impugned proceedings at this length of time does not arise and the petitioner cannot create a new cause of action by submitting representations from time to time having allowed the said adverse entries to attain finality as early as on 27.12.2006.

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