Comdt. Anand Singh v. Union Of India & ORS.

$~133 * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 21.08.2024 + COMDT. ANAND SINGH .....Petitioner Through:

Mr. Anuj Aggarwal and Mr. Vikrant Chawla, Advs.

versus UNION OF INDIA & ORS.

.....Respondents Through:

Mr. Abhishek Saket, SPC with Mr.

Mohit Josi (GP)

CORAM:

HON'BLE MS. JUSTICE REKHA PALLI HON'BLE MS. JUSTICE SHALINDER KAUR

J U D G M E N T

REKHA PALLI, J (ORAL) 1.

The petitioner, who is working as a Commandant in the Central Reserve Police Force (CRPF), has approached this Court under Article 226 of the Constitution of India, seeking quashing of adverse remarks/ grading in his Annual Performance Assessment Report (APAR) for the year 2016-17. Additionally, he seeks a direction to the respondents to upgrade of his aforesaid APAR to 'Very Good' and grant him all consequential benefits accruing to him as a result of the said upgradation. 2.

The facts relevant for adjudication of the present petition as emerging from the record are that the petitioner was appointed as an Assistant Commandant on 22.05.1997 and promoted to the rank of Commandant on 11.07.2016. While the petitioner was serving as a Commandant, the respondents, based on the OM issued by the Department of Personnel and Training (DoPT) on 16.02.2009, issued a standing order no. 04/2015, laying

guidelines for timely preparation and proper maintenance of APARs. 3.

In accordance with the timelines provided in the standing order, the petitioner submitted his self appraisal form for the year 2016-17 to the Reporting Officer. Although the standing order required the Reporting Officer to forward his report to the Reviewing Officer by 30.06.2017, he forwarded the APAR with the grading of 'Below Good', to the Reviewing Officer only on 09.08.2017. The Reviewing Officer, however, did not endorse his remarks at that stage, and the APAR appears to have been forwarded directly to the Accepting Officer, who like the Reporting Officer graded the petitioner as 'Below Good' on 25.09.2017. The APAR was then forwarded to the Reviewing Officer, who, in his remarks endorsed on 11.10.2017, graded the petitioner as 'Very Good'. 4.

Since the Accepting Officer's 'Below Good' remark was considered as the final grading for the APAR and was adverse, the petitioner on 23.02.2018 submitted a representation to the Director General, CRPF, which was rejected. The petitioner then submitted a representation on 19.02.2019 to the Ministry of Home Affairs which came to be rejected on 15.04.2019. This was followed by yet another representation by him in January 2020, which has remained undecided till date. Being aggrieved, the petitioner invoked the extra ordinary jurisdiction of this Court under Article 226 of Constitution of India.

5.

In support of the petition, learned counsel for the petitioner submits that though there are various infirmities in the recording of the impugned APAR, the same is liable to be set aside solely on the ground that the Accepting Officer had endorsed his remarks on the APAR even before the Reviewing Officer had given his grading. This procedure, he submits, was

not only contrary to the laid down procedure, which required the Accepting Officer to endorse his remarks only after both the Reporting Officer and Reviewing Officer but has even otherwise caused grave prejudice to the petitioner. This, he contends was because the Reviewing Officer's grading of 'Very Good' was not available with the Accepting Officer, who had, therefore, simply accepted the grading of 'Below Good' given by the Reporting Officer.

6.

By drawing our attention to the impugned APAR, he submits that the Reporting Officer endorsed his remarks and grading of 'Below Good' on 09.08.2017, which the Accepting Officer accepted on 25.09.2017. The Reviewing Officer then endorsed his 'Very Good' grading on 11.10.2017, which grading was never placed before the Accepting Officer. 7.

He submits that the petitioner has always been a decorated officer with several medals to his credit and has been wrongly downgraded from 'Very Good' to 'Below Good' thereby impacting his promotional avenues and future prospects. Moreover, the respondent no.2 passed a non-speaking order on the petitioner's representation without addressing any of his contentions. He, therefore, prays that the Accepting Officer's grading be quashed and the 'Very Good' grading given by the Reviewing Officer for the APAR 2016-17 be treated as final. Alternatively, he prays that the impugned APAR itself be set aside.

8.

Per contra, learned counsel for the respondents seeks dismissal of the writ petition by inter alia urging that the Accepting Officer's signatures on the APAR dated 25.09.2017 are in fact those of the Reporting Officer but have been wrongly recorded as that of the Accepting Officer. He, therefore, contends that the laid down three-tier channel was followed in the recording

of the impugned APAR, the Accepting Officer had endorsed his remarks only after both the Reporting Officer and the Reviewing Officer had given their respective gradings. He, therefore, prays that the writ petition be dismissed.

9.

Having considered the submissions of learned counsel for both the parties, we find that the sole issue requiring consideration is the date on which the Accepting Officer endorsed his grading on the impugned APAR. The petitioner contends that the Accepting Officer endorsed his grading before the Reviewing Officer's 'Very Good' grading while the respondents argue otherwise. To appreciate these conflicting claims, it is necessary to examine the relevant extract of the APAR, which reads as under: (Emphasis supplied)

(Emphasis supplied)

(Emphasis supplied)

10.

From a bare perusal of the aforementioned, it is evident that the Accepting Officer endorsed his remarks much before the Reviewing Officer had given his remarks/grading. The impugned APAR of the petitioner for the period in question was written by his Reporting Officer, Sh. Rakesh Sethi, DIG (OPS) CRPF, Jammu North who graded him as 'Below Good' with adverse remarks on 09.08.2017. His Reviewing Officer Sh. Kuldeep Dhar, IG had reviewed this APAR and graded him as 'Very Good' on 11.10.2017. However, the petitioner's Accepting Officer, Sh. S. N. Shrivastav, ADG, had already graded the petitioner as 'Below Good' on 25.09.2017, accepting the grading given by the Reporting Officer. This endorsement by the Accepting Officer was made without awaiting the comments of the Reviewing Officer i.e., Sh. Kuldeep Dhar.

Thus, it emerges that the Accepting Officer proceeded to record his grading and observations solely on the basis of the comments / grading given by the Reporting Officer. The petitioner is, therefore, correct in urging that the assessment by the Accepting Officer was in violation of the procedure prescribed under the standing order, which mandates that the APAR must be forwarded for the Accepting Officer's assessment after the assessment is made both by the Reporting Officer and the Reviewing Officer.

11.

In our considered view, this provision for the Accepting Officer to endorse his remarks on the APAR only after the assessment is made by both the Reporting Officer and the Reviewing Officer ensures that before the Accepting Officer makes his assessment, he has the advantage of the views expressed both by the Reporting Officer as also the Reviewing Officer. In the present case, since the Accepting Officer gave the grading of 'Below Good' by accepting the grading of 'Below Good' given by the Reporting

Officer, we find merit in the petitioner's plea that had the grading of 'Very Good' endorsed by the Reviewing Officer, also been available before the Accepting Officer, his assessment may have been different. 12.

In the light of the aforesaid, we have no hesitation in holding that the assessment made by the Accepting Officer being contrary to the laid down procedure cannot be sustained and is accordingly set aside. Having set aside the assessment made by the Accepting Officer, the question before us now is whether the grading of 'Very Good' given by the Reviewing Officer, as prayed for by the petitioner, should be treated as final. Having given our thoughtful consideration to this issue, we are of the opinion that in the peculiar circumstances of the present case, when the assessment made by the Reviewing Officer was also violative of the procedure laid down in the standing order no. 04/2015, the said assessment can also not be sustained. We are, therefore, of the considered view that the assessment of both the Reviewing Officer as also the Accepting Officer are liable to be set aside. 13.

Once the assessment by both the Reviewing Officer and the Accepting Officer are found to be unsustainable, the only assessment which is in accordance with the Standing Order is that of the Reporting Officer. In such a situation, when we have assessment by only the Reporting Officer, we would have normally remanded the APAR back to the Reviewing Officer and the Accepting Officer for their de novo assessments. However, we are informed that both these officers already stand superannuated and therefore, the matter cannot be remanded back to them. 14.

In these circumstances when as against the laid down three tier system for recording of APARs, we are left with only one valid assessment i.e. the assessment by the Reporting Officer, we have no other option except to set

aside the impugned APAR itself. Any other course of action would imply that the assessment made by a single officer has to be accepted, which in our view would not only be violative of the standing order but also cause grave prejudice to the petitioner, who has alleged bias on the part of the Reporting Officer.

15.

For the aforesaid reasons, the writ petition deserves to succeed. We accordingly allow the writ petition by setting aside the impugned APAR of the petitioner for the year 2016-2017. The respondents are directed to grant all consequential benefits including consideration for promotion and other service benefits to the petitioner by ignoring the impugned APAR. 16.

The writ petition is allowed in the aforesaid terms. (REKHA PALLI) JUDGE (SHALINDER KAUR) JUDGE AUGUST 21, 2024 ab