Cat appeal
PPBiswas
(Querist) 15 July 2013
This query is : Resolved
I was ignored for promotion due to a single "average" grade in my ACR which was uncommunicated. My appeal to CAT, Kolkata got defeated as the judge decided that since upgrading the grading from :average" to "good" would not suffice(benchmark was "very good"), so no upgrading would be done and rejected my appeal. However I've got documentary evidence of my excellent performance which was acknowledged indirectly by my organisation. Unfortunately these documents as well as supreme court judgements which would clinch my case, were not submitted by my lawyer in CAT inspite of my requests, probably due to overconfidence. I've consulted several highly reputed lawyers of Kolkata High Court but all of them are saying that no fresh document can be produced in High Court and my case does not have sufficient merit. Now my questions are:
1. Can I file a review petition in CAT submitting these documents which were not submitted earlier?
2. Will it be a rejoinder or a fresh case?
3. What is the possibility of such a review petition being considered by the judges without any prejudice( since they have already passed a judgement in my case once)?
4. Can I submit important judgements of Supreme Court and CAT as separate documents or simply refer and quote them in my application?
5. In case my second appeal to CAT also gets rejected, can I appeal to High Court with all the documents submitted in both the CAT cases ?
Sudhir Kumar, Advocate
(Expert) 16 July 2013
facts are nit clear.
whether CAT case was against non-promotion due to uncommunicative below bench mark grading
or
the case was against grading itself.
PPBiswas
(Querist) 16 July 2013
CAT case was against denial of promotion due to uncommunicated below benchmark ACR. However, following appeal to CIC, ACRs were sent to me and I submitted two representations. My representations were turned down without giving any explanation or reason. Both my representations as well as final rejection were submitted to CAT.
Dr J C Vashista
(Expert) 17 July 2013
Q 1.Can I file a review petition in CAT submitting these documents which were not submitted earlier?
A 1. Yes, that is the only way out.Please move a miscellenous application (MA)in the OA.
2. Will it be a rejoinder or a fresh case?
A. Neither rejoinder nor fresh, it will be forming part of same OA.
3. What is the possibility of such a review petition being considered by the judges without any prejudice( since they have already passed a judgement in my case once)?
A. Depends upon number of factors such as receptivity and mood of Court, way of presentation of your counsel,face value of your counsel, etc etc.
4. Can I submit important judgements of Supreme Court and CAT as separate documents or simply refer and quote them in my application?
A. Both
5. In case my second appeal to CAT also gets rejected, can I appeal to High Court with all the documents submitted in both the CAT cases ?
A. It is not an appeal but original application. CAT is not on appeal. Order passed by CAT are challengable in High court in writ petition Under Article 226/227 of Constitutioon and non-appealable.
PPBiswas
(Querist) 17 July 2013
What is the time limit for filing a miscellaneous application in the OA? Date of signing of certified copy of CAT order was 19.6.2013.
PPBiswas
(Querist) 17 July 2013
Is it possible to file an original application in High Court against CAT order now, submitting all the additional documents which were not available at the time of filing the OA in CAT?
Sudhir Kumar, Advocate
(Expert) 17 July 2013
It appears that you have misused the provisions of RTI against you and worked very hard to spoil your case.
when department did not communicated the below bench mark reports then it was best for you to challenge non-promotion.
In you case you have got these communicated to you so that you submit a representation and such representation ion 95% cases are rejected.
Your advocate perhaps did right action of not submitting superfluous material to court. If you have proof to refute ACR then remedy lies before the dep’t and court comes in picture only when you file case against ACR. In your case the case was filed not against the ACR rather against denial of promotion due non-communication of below bench mark ACRs.
you have file case in CAT with right hand and with left hand (most likely without consulting your lawyer) destroyed the cause of action with left hand. You got these report communicated to you by CIC intervention and deprived yourself of the change of winning CAT case.
After rejection of representation you have no case to challenge denial of promotion.
you can only file case for irregular rejection, if any. YOU HAVE PROVIDED NO MATERIAL FOR DISCUSSION OF THE SAME.
Sudhir Kumar, Advocate
(Expert) 17 July 2013
you specific questions are replied below
Q 1.Can I file a review petition in CAT submitting these documents which were not submitted earlier?
A 1. Yes, you can file review. But based on the acts given by you, these documents do not appear to be relevant to the cause of action. In CAT you are aggrieved against denial of promotion due to non-communication of ACR but now ACRs are communicated and you have file no case against rejection of representation. It will be waste of time and money. Rather your cause of action against rejection of representation may get time barred.
2. Will it be a rejoinder or a fresh case?
A. Neither rejoinder nor fresh. You have to file fresh OA on fresh cause of irregular rejection. The feasibility of such OA can be opined only after seeing the papers (ACR, representation, rejection order) etc.
3. What is the possibility of such a review petition being considered by the judges without any prejudice( since they have already passed a judgment in my case once)?
A. Already commented.
4. Can I submit important judgments of Supreme Court and CAT as separate documents or simply refer and quote them in my application?
A. Both (if you are keen on filing RA)
5. In case my second appeal to CAT also gets rejected, can I appeal to High Court with all the documents submitted in both the CAT cases ?
A. Please understand your case first and then move.
PPBiswas
(Querist) 17 July 2013
Adverse remark was known only after CIC order to provide ACRs. Once adverse remark was known, then representation was sent and these were rejected without giving any reason. Then CAT case was filed. Several months after filing OA in CAT, additional materials came in my hand and I told my lawyer to submit these to CAT but either he didn't care or else missed opportunity to submit these during hearing.
CAT judgement is contrary to Supreme Court judgements in Avijit Ghosh Dastidar case and Dev Dutt case.
Does the sending of ACRs after CIC order, years after DPC, amount to communication or not?
Sudhir Kumar, Advocate
(Expert) 18 July 2013
All these Devdutt judgement etc relate to the cases where the adverse/below Bench Mark cases remain uncommunicative.
You could have taken advantage of these cases provided the remarks remained uncommunicative.
You have worked very hard to correct the mistake of the department and misused RTI act to yo9u fullest disadvantage. While denying you copy of ACR the department was adamant in committing mistake which could have been beneficial to you in court.
But you went right upto CIC to ensure that the department is liberated of the weakness of their defence and get sufficient tool to nail you and they have done so.
Based on your description (without seeing the papers) it does not appears that the CAT has gone wrong. you have lost basic cause of action of being denied promotion due to excommunicated adverse/below bench mark. Now the status is that THE REMARKS STAND COMMUNICATED, REPRESENTATION GIVEN, REPRESENTATION REJECTED.
Now you can at the most challenge (afresh) mode of rejection of representation. If you loose time in that (by way of your emotional planning in wasteful manner) you loose even that cause of action and wait for another five ACR to get promoted.
Sudhir Kumar, Advocate
(Expert) 18 July 2013
why are you hiding the dates and sequence of events?
time of recording of remarks, time of denial of promotion, time of going to CAT, time of going to CIC, time of communication, ti,e of representation, time of rejection of representation, time of rejection of case by CAT, reasons given by CAT.
These dates are vital.
Dr J C Vashista
(Expert) 18 July 2013
Mr. Biswas
It is mandatarty to communicate "Below average" ACR to the individual being rated, if not intimated you had the opportunity to seek departmental redressal. However, if not intimated and you have already moved to CAT, seek advise from your counsel and proceed.
Whatsoever, High Courts do not entertain any OA rather you may move in writ petition, as I advised you earlier.
Review petitions, generally fail as these have very limited scope for a Court to modify its order.
Fresh OA for a new cause of action is maintainable in CAT.
