Central Administrative Tribunal - Delhi
Dr Sonali Badhe vs Enforcerment Directorate on 31 October, 2025
1
Item No 61 (C-4) O.A. No. 2385/2024 & batch
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No. 2385/2024 -- M.A./2989/2024
O.A. No. 2727/2024 -- M.A./560/2025
O.A. No. 2726/2024
O.A. No. 2728/2024
O.A. No. 2730/2024
O.A. No. 2729/2024
Reserved on: 16.10.2025
Pronounced on: 31.10.2025
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
Dr. Sonali Badhe,
Badhe, D/o Shri Gopalrao Badhe,
Aged about 48 years, R/o Headquarters Office,
Directorate of Enforcement, Pravartan Bhawan,
A.P.J. Abdul Kalam Road, New Delhi - 110011
(Currently at Headquarters Office, Directorate of
Enforcement, Pravartan Bhawan, A.P.J. Abdul Kalam Road,
New Delhi - 110011).
Email: [email protected]
...Applicant in all the O.A.s
(Applicant in person)
Versus
1. The Directorate of Enforcement
Through the Director, Pravartan Bhavan,
A.P.J. Abdul Kalam Marg,
New Delhi - 110003
Email: [email protected]
[email protected]
2
Item No 61 (C-4) O.A. No. 2385/2024 & batch
2. The Union of India
Through the Revenue Secretary,
Ministry of Finance,
First Floor, North Block,
New Delhi - 110001
Email: [email protected]
[email protected]
3. Union Public Service Commission (UPSC)
Through its Secretary,
Dholpur House,
Shahjahan Road,
New Delhi - 110069
Email: [email protected]
secyoffice
4. Shri Sanjay Kumar Mishra
Ex-Director,
Director, Directorate of Enforcement,
57, New Moti Bagh,
New Delhi
Email: [email protected]
5. Shri Yogesh Gupta
Former Special Director, Directorate of Enforcement,
Kolkata,
Currently Managing Director, Taxes Department,
Kerala State Beverages Corporation Limited (Govt. of
Kerala),
BEVCO Tower, Vikas Bhavan P.O.,
P.O., Palayam,
Thiruvananthapuram
Email: [email protected]
6. Ms. Neha Yadav
Joint Director (Vigilance),
Headquarters, Directorate of Enforcement,
Pravartan Bhavan,
A.P.J. Abdul Kalam Marg,
New Delhi - 110003
Email: [email protected]
[email protected]
...Respondents in O.A. No. 2385/2024
1. The Directorate of Enforcement
Through the Director, Pravartan Bhavan,
A.P.J. Abdul Kalam Marg,
3
Item No 61 (C-4) O.A. No. 2385/2024 & batch
New Delhi - 110003
Email: [email protected]
[email protected]
2. The Union of India
Through the Revenue Secretary,
Ministry
try of Finance,
First Floor, North Block,
New Delhi - 110001
Email: [email protected]
3. Union Public Service Commission (UPSC)
Through its Secretary,
Dholpur House,
Shahjahan Road,
New Delhi - 110069
Email: [email protected]
secyoffice
4. Shri Yogesh Gupta
Former Special
ecial Director, Directorate of Enforcement,
Kolkata,
Currently Managing Director, Taxes Department,
Kerala State Beverages Corporation Limited (Govt. of
Kerala),
BEVCO Tower, Vikas Bhavan P.O., Palayam,
Thiruvananthapuram
Email: [email protected]
5. Ms. Neha Yadav
Joint Director (Vigilance),
Headquarters, Directorate of Enforcement,
Pravartan Bhavan,
A.P.J. Abdul Kalam Marg,
New Delhi - 110003
Email: [email protected]
6. Shri Subash Agarwal, Special Director, ED, CGO
Complex,6th Floor, Salt Lake, Sector-
Sector-1, Kolkata - 700064;
Email: [email protected].
[email protected]
...Respondents in O.A. No. 2727/2024
4
Item No 61 (C-4) O.A. No. 2385/2024 & batch
1. The Directorate of Enforcement
Through the Director, Pravartan Bhavan,
A.P.J. Abdul Kalam Marg,
New Delhi - 110003
Email: [email protected]
[email protected]
2. The Union of India
Through the Revenue Secretary,
Ministry of Finance,
First Floor, North Block,
New Delhi - 110001
Email: [email protected]
3. Union Public Service Commission (UPSC)
Through
hrough its Secretary,
Dholpur House,
Shahjahan Road,
New Delhi - 110069
Email: [email protected]
secyoffice
4. Shri Sanjay Kumar Mishra
Ex-Director,
Director, Directorate of Enforcement,
57, New Moti Bagh,
New Delhi
Email: [email protected]
5. Shri Yogesh Gupta
Gup
Former Special Director, Directorate of Enforcement,
Kolkata,
Currently Managing Director, Taxes Department,
Kerala State Beverages Corporation Limited (Govt. of
Kerala),
BEVCO Tower, Vikas Bhavan P.O., Palayam,
Thiruvananthapuram
Email: [email protected]
gupta.yogesh@ni
6. Shri Subash Agarwal, Special Director, ED, CGO
Complex,6th Floor, Salt Lake, Sector-
Sector-1, Kolkata - 700064;
Email: [email protected].
[email protected]
7. Ms. Neha Yadav
Joint Director (Vigilance),
Headquarters, Directorate of Enforcement,
Headquarters,
5
Item No 61 (C-4) O.A. No. 2385/2024 & batch
Pravartan Bhavan,
A.P.J. Abdul Kalam Marg,
New Delhi - 110003
Email: [email protected]
...Respondents in O.A. No. 2726/2024
1. The Directorate of Enforcement
Through the Director, Pravartan Bhavan,
A.P.J. Abdul Kalam Marg,
New Delhi - 110003
Email: [email protected]
[email protected]
2. The Union of India
Through the Revenue Secretary,
Ministry of Finance,
First Floor, North Block,
New Delhi - 110001
Email: [email protected]
3. Union Public Service Commission
Commission (UPSC)
Through its Secretary,
Dholpur House,
Shahjahan Road,
New Delhi - 110069
Email: [email protected]
secyoffice
4. Shri Sanjay Kumar Mishra
Ex-Director,
Director, Directorate of Enforcement,
57, New Moti Bagh,
New Delhi
Email: [email protected]
5. Shri Yogesh Gupta
Former Special Director, Directorate of Enforcement,
Kolkata,
Currently Managing Director, Taxes Department,
Kerala State Beverages Corporation Limited (Govt. of
Kerala),
BEVCO Tower, Vikas Bhavan P.O., Palayam,
6
Item No 61 (C-4) O.A. No. 2385/2024 & batch
Thiruvananthapuram
Email: [email protected]
6. Ms. Neha Yadav
Joint Director (Vigilance),
Headquarters, Directorate of Enforcement,
Pravartan Bhavan,
A.P.J. Abdul Kalam Marg,
New Delhi - 110003
Email: [email protected]
7. Shri Subash Agarwal, Special Director, ED, CGO
Complex,6th Floor, Salt Lake, Sector-
Sector-1, Kolkata - 700064;
Email: [email protected].
[email protected]
...Respondents
ondents in O.A. No. 2728/2024
1. The Directorate of Enforcement
Through the Director, Pravartan Bhavan,
A.P.J. Abdul Kalam Marg,
New Delhi - 110003
Email: [email protected]
[email protected]
2. The Union of India
Through the Revenue Secretary,
Ministry of Finance,
First Floor, North Block,
New Delhi - 110001
Email: [email protected]
3. Union Public Service Commission (UPSC)
Through its Secretary,
Dholpur House,
Shahjahan Road,
New Delhi - 110069
Email: [email protected]
secyoffice
4. Shri Sanjay Kumar Mishra
Ex-Director,
Director, Directorate
Directorate of Enforcement,
7
Item No 61 (C-4) O.A. No. 2385/2024 & batch
57, New Moti Bagh,
New Delhi
Email: [email protected]
5. Shri Yogesh Gupta
Former Special Director, Directorate of Enforcement,
Kolkata,
Currently Managing Director, Taxes Department,
Kerala State Beverages Corporation Limited
Limited (Govt. of
Kerala),
BEVCO Tower, Vikas Bhavan P.O., Palayam,
Thiruvananthapuram
Email: [email protected]
6. Ms. Neha Yadav
Joint Director (Vigilance),
Headquarters, Directorate of Enforcement,
Pravartan Bhavan,
A.P.J. Abdul Kalam Marg,
New Delhi - 110003
Email: [email protected]
...Respondents in O.A. No. 2730/2024
1. The Directorate of Enforcement
Through the Director, Pravartan Bhavan,
A.P.J. Abdul Kalam Marg,
New Delhi - 110003
Email: [email protected]
[email protected]
2. The Union of India
Through the Revenue Secretary,
Ministry of Finance,
First Floor, North Block,
New Delhi - 110001
Email: [email protected]
3. Union Public Service Commission (UPSC)
Through its Secretary,
Dholpur House,
Shahjahan Road,
8
Item No 61 (C-4) O.A. No. 2385/2024 & batch
New Delhi - 110069
Email: [email protected]
secyoffice
4. Shri Sanjay Kumar Mishra
Ex-Director,
Director, Directorate of Enforcement,
57, New Moti Bagh,
New Delhi
Email: [email protected]
5. Shri Yogesh Gupta
Former Special Director, Directorate of Enforcement,
Kolkata,
Currently Managing Director, Taxes Department,
Kerala State Beverages Corporation Limited (Govt. of
Kerala),
BEVCO Tower, Vikas Bhavan P.O., Palayam,
Thiruvananthapuram
Email: [email protected]
6. Shri Subash Agarwal, Special Director, ED, CGO
Complex,6th Floor, Salt Lake, Sector--1, Kolkata - 700064;
Email: [email protected].
[email protected]
7. Ms. Neha Yadav
Joint Director (Vigilance),
Headquarters, Directorate of Enforcement,
Pravartan Bhavan,
A.P.J. Abdul Kalam Marg,
New Delhi - 110003
Email: [email protected]
...Respondents in O.A. No. 2729/2024
(By Advocates: Mr. R V Sinha with Ms. A S Singh, Ms.
Shriya Sharma and Ms. Jyoti Garg for RR-3, Mr. Pradeep
Kumar Sharma, Mr. Thakur Virender Pratap Singh Charak,
SR.CGSC, Ms. Shubhra Parashar, Mr. Pushpinder Singh
Charak, Ms. Shailja and Mr. Amit Kumar, Mr. Zoheb
Hossain and Mr. Vivek Gurnani)
Gurnani
9
Item No 61 (C-4) O.A. No. 2385/2024 & batch
ORDER
Hon'ble Mr. Manish Garg, Member (J) :
Since all the Original Applications have been filed by the same applicant and raise common issues of facts and law, they are being disposed of by this common order, with the consent of the applicant and learned counsel for the respondents, as the decision in one would necessarily have respondents, a bearing on the other. However, for the sake of brevity, the facts are being primarily extracted from O.A. No. 2385/2024.
2. The reliefs claimed by the applicant in each of the Original Applications are reproduced below: "O.A. No. 2385/2024
"a Quash and set aside the impugned order dated 24.6.2024 passed by the Respondent no.1 whereby the applicant's representation with respect to APAR for the period 2018-2019 2018 2019 was rejected by a non non-reasoned order.
b Declare that the APAR for 2018 2018-2019 period is non-est on account of being being in violation of APAR Rules, 2007 as there was an inordinate delay of 2 years by the reviewing officer in putting his comments and thereafter communicating the APAR to the applicant and direct the Respondent to upgrade the numerical grading of the Applicant in accordance with the rules and the work Applicant assigned to the applicant and the undisputed APARs of 10 Item No 61 (C-4) O.A. No. 2385/2024 & batch the previous years.
c Declare that the grading and remarks recorded in the APAR for the period 2018-2019 2018 2019 would be expunged and not be treated as adverse or below benchmark for consideration of the case of the applicant for further promotion and to grant all consequential benefits in light of the expunged remarks and revised grading.
d Pass any other orders as this Hon'ble Tribunal may deem appropriate."
O O.A. No. 2727/2024 "a) Quash and set aside the impugned order dated 26.04.2024 passed by the Respondent No.1, whereby the applicant's representation with respect to APAR for the period 01.04.2023 to 15.09.2023 was rejected by a nonnon- reasoned order, and beyond beyond the time granted by the order dated 13.03.2024 in OA No. 1034 of 2024.
b) Quash and set aside the communications dated 19.04.2024 and 17.05.2024 sent via e e-office, since the applicant has already submitted the physical/hard copy of the APAR for the truncated period 16.09.2023 to 31.03.2024. However, declare the right of the rep reporting officer or the reviewing officer to comment on the same stands forfeited for non-compliance non compliance of the timelines in view of Para 5.2 of Brochure of preparation and maintenance of APARs, which provide as under:
c) Declare that the report of the Reporting Officer in the AFAR for the period 01.04.2023 to 15.09.2023, 16.09.2023 to 31.01.2024, and 01.02.2024 to 31.03.2024 be treated as non-est non est on account of being in violation of AFAR Rules 2007 and the timelines as provided on CM dated 23.07.2009, and be directed directed to act as per Para 5.3 of the CM dated 16.02.2009.
d) Direct that the APARs of the applicant for the period 2023 24 would not be treated as adverse to the applicant, 2023-24 and also direct the respondent to "upgrade" the numerical grading of the applicant in accordance with the rules and the work assigned to the applicant. 11 Item No 61 (C-4) O.A. No. 2385/2024 & batch
e) Direct the respondent to consider the case of the applicant for promotions through PPC to be held by the UPSC on the basis of the undisputed APARs of the applicant for the previous years.
years
f) Declare that the grading and remarks recorded in the APAR for the period 01.04.2023 to 15.09.2023 would be expunged and not be treated as 'adverse' or below benchmark for consideration of the case of the applicant for further promotion, and to grant a all consequential benefits in light of the expunged remarks and revised grading.
g)Pass
g) Pass any other order(s) as this Hon'ble Tribunal may deem appropriate in the interest of justice." O.A. No. 2726/2024
a) Quash and set aside the impugned order dated "a) 26.04.2024 passed by the Respondent No.1, whereby the 26.04.2024 applicant's representation with respect to APAR for the period 2021-2022 2021 2022 was rejected by a cryptic order.
b) Declare that the APAR for the 2021 2021-2022 period is non est on account of being in violation of APAR R non-est Rules 2007, as there was an inordinate delay of 2 years by the competent authority in deciding the representation against the adverse entries/downgrading.
c) Declare that the APAR for the 2021 2021-2022 period is non est, as the same is vitiated by bias and inco non-est, incorrect statements of facts, and the downgrading in the APAR is without any basis.
d) Direct the Respondent to "upgrade" the numerical grading of the applicant in accordance with the rules, the work assigned to the applicant, and the undisputed APARs of the previous years.
e) Declare that the grading and remarks recorded in the APAR for the period 2021-2022 2021 2022 would be expunged and not be treated as 'adverse' or below benchmark for consideration of the case of the applicant for further promotion, and to grant allall consequential benefits in light of the expunged remarks and revised grading.
f) Pass any other order(s) as this Hon'ble Tribunal may deem appropriate."
appropriate.
12Item No 61 (C-4) O.A. No. 2385/2024 & batch O.A. No. 2728/2024
a) Quash and set aside the impugned order dated "a) 26.04.2024 passed by the Respondent No.1, whereby the applicant's representation with respect to APAR for the period 2020-2021 2020 2021 was rejected by a non non-reasoned order.
b) Direct the Respondent to "upgrade" the numerical grading of the applicant's APAR for the 2020 2020-2021 period in accordance accordance with the rules, the work assigned to the applicant, and the undisputed APARs of the previous years.
c) Declare that the grading and remarks recorded in the APAR for the period 2020-2021 2020 2021 would be expunged and not be treated as 'adverse' or below bencbenchmark for consideration of the case of the applicant for further promotion, and to grant all consequential benefits in light of the expunged remarks and revised grading.
d) Declare that the APAR for the 2020 2020-2021 period is non est, as the same is vitiated by bias and incorrect non-est, statements of facts, and the downgrading in the APAR is without any basis.
e) Pass any other order(s) as this Hon'ble Tribunal may deem appropriate."
appropriate.
O.A. No. 2730/2024
a) Quash and set aside the impugned order dated "a) 26.04.2024 passed passed by the Respondent No.1, whereby the applicant's representation with respect to APAR for the period 2019-2020 2019 2020 was rejected by a non non-reasoned order.
b) Declare that the APAR for the 2019 2019-2020 period is non est on account of being in violation of APAR Rules non-est 2007, as there was an inordinate delay of several months by the reviewing officer in putting his comments and thereafter communicating the APAR to the applicant, and direct the Respondent to "upgrade" the numerical grading of the applicant in accordance w with the rules, the work assigned to the applicant, and the undisputed APARs of the previous years.
c) Declare that the APAR for the 2021 2021-2022 period is non est, as the same is vitiated by bias and incorrect non-est, 13 Item No 61 (C-4) O.A. No. 2385/2024 & batch statements of facts, and the downgrading in the A APAR is without any basis.
d) Declare that the grading and remarks recorded in the APAR for the period 2019-2020 2019 2020 would be expunged and not be treated as 'adverse' or below benchmark for consideration of the case of the applicant for further promotion, and to to grant all consequential benefits in light of the expunged remarks and revised grading.
e) Pass any other order(s) as this Hon'ble Tribunal may deem appropriate."
appropriate.
O.A. No. 2729/2024
"a) Quash and set aside the impugned order dated 24.6.2024 passed by the Respondent no I whereby the applicant's representation with respect to APAR for the period 2022-23 2022 23 was rejected by a cryptic order and beyond the time prescribed for the same
b) Declare that the APAR for 2022 2022-23 period is non-est as the same is vitiated by bias and incorrect statement of facts and the downgrading in the APAR is without any basis
c) Direct the Respondent to "upgrade" the numerical grading of the Applicant in accordance with the rules and the work assigned to the applicant and the undisputed APARs of the previous years
d) Declare that the grading and adverse remarks recorded in the APAR for the period 2022 2022-23 would be expunged and not be treated as 'adverse' or below benchmark for consideration of the case of the applicant for further promotio promotion and to grant all consequential benefits in light of the expunged remarks and revised grading
e) Pass any other order(s) as this Hon'ble Tribunal may deem appropriate."
3. As evident from the above, the applicant, in various Original Applications, is seeking seeking to challenge certain 14 Item No 61 (C-4) O.A. No. 2385/2024 & batch adverse decisions and requests this Tribunal to provide relief based on the rejection or improper handling of her APARs (Annual Performance Appraisal Reports) for different periods.
(i) In O.A. No. 2385/2024, 2385/2024, the applicant seeks to quash the order dated 24.06.2024, where her representation regarding the APAR for the period 2018 2018-2019 was rejected without any reasoning. She requests the APAR to be considered non-est non est due to delays and violations of APAR Rules 2007, asking for an upgrade upgrade of her numerical grading in line with her work and the undisputed APARs from previous years. She also seeks expunging of the adverse remarks recorded in the APAR, with consequential benefits.
(ii) In O.A. No. 2727/2024, 2727/2024, the applicant seeks to quash the impugned mpugned order dated 26.04.2024, which rejected her representation concerning the APAR for the period 01.04.2023 to 15.09.2023. She highlights the violation of timelines and non reasoned non-reasoned rejection. The applicant requests that the report from the reporting o officer for multiple periods (01.04.2023 15.09.2023, (01.04.2023-15.09.2023, 16.09.2023 16.09.2023- 15 Item No 61 (C-4) O.A. No. 2385/2024 & batch 31.01.2024, 01.02.2024-31.03.2024) 01.02.2024 31.03.2024) be treated as non non-est. She further requests that the respondents be directed to upgrade her grading and to consider her case for promotions based on the previous previous APARs. The expunging of adverse remarks for the period 01.04.2023 01.04.2023-15.09.2023 and revised grading is also sought.
(iii) In O.A. No. 2726/2024, 2726/2024, the applicant seeks to quash the order dated 26.04.2024, which rejected her representation regarding the APAR for 2021-2022 by a cryptic order. She claims that the APAR is non non-est due to violations of APAR Rules 2007, specifically citing delays in addressing adverse entries. The applicant further requests the upgrading of her grading, expunging of adverse remarks, and the consideration of her case for future promotions.
(iv) In O.A. No. 2728/2024, 2728/2024, the applicant challenges the rejection of her APAR representation for the period 2020 2020- 2021 through a non-reasoned non reasoned order dated 26.04.2024. She asserts that the APAR for this this period is non non-est due to delays in the review process and requests an upgrade of 16 Item No 61 (C-4) O.A. No. 2385/2024 & batch her numerical grading. The applicant seeks the expunging of adverse remarks and claims that the downgrading in the APAR is unjustified.
(v) In O.A. No. 2730/2024, 2730/2024, the appli applicant requests the quashing of the order dated 26.04.2024 regarding her APAR for the period 2019-2020, 2019 2020, which was rejected without reason. She argued that there was an inordinate delay by the reviewing officer, violating the APAR Rules. The applicant also seeks seeks the upgrading of her grading, expunging of adverse remarks, and to not have the downgrading treated as adverse for future promotions.
(vi) Finally, in O.A. No. 2729/2024,, the applicant seeks to quash the order dated 24.06.2024, rejecting her APAR representation sentation for the period 2022-2023.
2022 2023. She argues that the order was issued beyond the prescribed time and was cryptic in nature. She requests the APAR for this period to be treated as non-est non est due to bias and incorrect statements of fact, as well as the upgrading upgrading of her grading and the expunging of any adverse remarks. The applicant seeks to have the APAR not treated as below benchmark for 17 Item No 61 (C-4) O.A. No. 2385/2024 & batch promotion consideration and to receive all consequential benefits.
In all these O.As., the applicant is primarily seeking the quashing of the impugned orders, expunging of adverse remarks, upgrading of her grading, and consideration of her case for future promotions based on the corrected APARs.
4. Narrating the facts of O.A. No. 2385/2024 (lead case), the applicant who appeared appeared in person, submitted as under:
4.1. The applicant, an officer in the Department of Enforcement, is challenging the downgrading of her Annual Performance Appraisal Report (APAR) for the year 2018 2018-
2019, which was issued after she refused to comply with illegal orders from her superiors. The applicant alleges systematic harassment and malafide actions by her reporting officer, Shri Yogesh Gupta, and reviewing officer, Shri Sanjay Mishra, who both hold a personal grudge against her due to her refusal to act act unethically. This led to withdrawal of work, facilities, and a deliberate downgrading of her APAR over several years.
18Item No 61 (C-4) O.A. No. 2385/2024 & batch 4.2. The applicant highlighted the following key issues:
1. Delay and Non-Compliance Non Compliance with Rules: The APAR was delayed, with the reviewing officer officer submitting remarks nearly two years after the deadline (30.06.2021 instead of 31.07.2019). This delay violated the All India Services (Performance Appraisal Report) Rules, 2007, particularly Rule 6(1) and Rule 7B, which treat an APAR as "non-est"
"non if not completed in time.
2. Biased and Unjustified Downgrading of APAR APAR: Despite positive remarks about the applicant's intelligence and communication skills, the overall grading was downgraded from 8.8 to 6.42 without justification.
The officers failed to provide provide specific reasons for the downgrade, making the action appear arbitrary and based on personal bias, especially since the applicant had been a victim of harassment and was involved in litigation against her superiors.
3. Malafide Intent to Prevent Promotion Promotion: The downgrading was done with a clear intent to prevent the applicant from being considered for promotion, as the APAR grading impacts promotion eligibility. The 19 Item No 61 (C-4) O.A. No. 2385/2024 & batch applicant had been denied promotion to a higher post despite being the senior-most senior most officer e eligible for the position.
4.3. The applicant relied upon the following case laws:
(a) Sanjeev Dhundia v. Union of India India, 2020 SCC OnLine Del 1842: The Hon'ble Delhi High Court ruled that a sudden downgrade in the APAR without explanation or justification points to bias.
(b) Ravi Yashwant Bhoir v. The Collector Collector, (2012) 4 SCC 407: The Hon'ble Supreme Court held that the exercise of statutory powers for unauthorized purposes constitutes malice in law.
(c) M.A. Rajasekhar v. State of Karnataka Karnataka, (1996) 10 SCC 369: The Hon'ble Court emphasized that downgrading an officer's APAR without giving prior opportunity to correct deficiencies or detailing specific instances of failure is unjustified.
(d) Abhijit Ghosh Dastidar v. Union of India India, (2009) 16 SCC 146: Non-communication Non cation of an adverse APAR 20 Item No 61 (C-4) O.A. No. 2385/2024 & batch entry has civil consequences, affecting an officer's promotion prospects.
(e) R.K. Parashar v. M.P. Power Management Company, 2013 SCC OnLine MP 3759: Downgrading Company, an officer's APAR without justifiable cause constitutes malice in law.
l
(f) Commandant Ranjeet Singh Rana vs. Union of India,, 2019 SCC OnLine Del 7528: Adverse remarks cannot form the basis of an APAR if they were not communicated to the officer for explanation. 4.4. Arguing further, the applicant stated that the core issue e in the present Original Applications is the unlawful downgrading of the applicant's APAR, which appears to be motivated by personal bias and retaliation for her refusal to comply with unethical orders. This downgrading has harmed her career prospects, particularly particularly her eligibility for promotion, and has violated the rules and procedures outlined for APAR evaluation.
21Item No 61 (C-4) O.A. No. 2385/2024 & batch 4.5. Supporting her case, the applicant urged the following grounds:
1. Violation of APAR Timelines: Non-compliance with statutory deadlines for APAR completion and communication.
2. Malafide and Bias in the APAR Process: The downgrading was a result of personal animosity and arbitrary actions of the reporting and reviewing officers.
3. Failure to Provide Justification Justification for Downgrading: No specific reasons were given for the downgrade despite positive remarks in the pen picture section of the APAR.
4. Violation of Principles of Natural Justice: The applicant was not given an opportunity to rectify any alleged shortcomings shortcomings before downgrading the APAR.
In view of the above facts, the applicant prayed that the impugned orders in all the O.A.s be set aside and the APARs to be declared null and void, with her promotion 22 Item No 61 (C-4) O.A. No. 2385/2024 & batch and career progression to be considered based on her true merit.
5. Opposing the grant of relief, learned counsel for the respondents submitted as under:
5.1. Learned counsel for the respondents submitted that the primary contentions raised by the applicant, regarding the rejection of her representation and delayed communication of her APAR for the period 2018 2018-19, have been duly addressed by the Competent Authority, i.e., the Department of Revenue (DoR). Firstly, the applicant's representation against her APAR for the period 2018 2018-19 was considered and rejected rejected by the Department of Revenue (DoR) on 18.01.2023, following a thorough review of her performance records, self-appraisal, self appraisal, and comments from both the Reporting and Reviewing Authorities. The DoR found no merit in the applicant's representation, and the grading rading awarded by the Reporting and Reviewing Officers in the APARs was justified based on the applicant's performance during the said period. Despite this, the applicant continued to file multiple representations on the 23 Item No 61 (C-4) O.A. No. 2385/2024 & batch same grounds, which were again reje rejected by the DoR.
Furthermore, the DoR communicated on 25.04.2023 and 26.04.2024 that no further consideration would be entertained once the Competent Authority had decided on the matter.
5.2. Learned counsel submitted that secondly, the applicant's claim of of a violation of Rules regarding delayed communication of the APAR for 2018 2018-19 is misplaced. The delay in reviewing and communicating the APAR does not render it "non-est"
"non est" as alleged by the applicant. Moreover, the applicant's contentions regarding the del delayed review and communication of the APAR have already been duly considered and rejected by the DoR, and thus, her claim holds no relevance in the current proceedings.
5.3. Thirdly, the learned counsel for the respondents denied the applicant's allegations of malpractices and conspiracy aimed at denying her promotion. These allegations are entirely baseless and without merit. The grading awarded by both the Reporting and Reviewing Authorities was based on the applicant's actual 24 Item No 61 (C-4) O.A. No. 2385/2024 & batch performance, work output, and adherence to official responsibilities. The applicant's contention that the APAR grades were downgraded without justification is unfounded, as the grading was duly justified in the respective comments of the Reporting and Reviewing Authorities. Additionally, Additionally, the applicant's attempts to misrepresent the comments made by the Reporting and Reviewing Authorities are an attempt to deflect from her own shortcomings and avoid accountability for her performance. The learned counsel for the respondents further submitted submitted that the applicant had repeatedly failed to discharge her official duties properly, as reported by her supervisory officers.
5.4. Learned counsel for the UPSC submitted that the Union Public Service Commission (UPSC) has no role in the promotion process process for the post of Additional Director (Prosecution) in the Directorate of Enforcement, as per the Recruitment Rules dated 15.06.2011. The process of promotion to this post falls entirely within the domain of the Department of Revenue, and the UPSC's invo involvement is neither necessary nor relevant. The learned counsel for the 25 Item No 61 (C-4) O.A. No. 2385/2024 & batch respondents clarified that any action related to the Applicant's APAR grading and representations against adverse entries or remarks is within the purview of the Department of Revenue, not the UPSC. As such, the UPSC has been unnecessarily impleaded in the present O.A. 5.5. In addition, the respondents pointed out that the applicant has a history of engaging in habitual litigation, filing numerous baseless complaints and representations despite the decisions already made by the Competent Authority. This abuse of the legal system is evident from the applicant's repetitive filing of representations and complaints, even after the DoR has passed reasoned decisions. Such conduct serves no legi legitimate purpose and only wastes judicial resources, leading to unnecessary delays in resolving the matter. The applicant's repeated attempts to use the legal system to challenge decisions that have already been made demonstrate a clear intention to harass the he respondents and obstruct the due process.
5.6. In conclusion, based on the submissions made above, learned counsel for the respondents submitted that the 26 Item No 61 (C-4) O.A. No. 2385/2024 & batch applicant's case lacks merit. The APAR grading, as well as the actions of the Department of Revenue Revenue, have been conducted in accordance with the relevant rules and procedures. Therefore, the reliefs sought by the applicant in each of the O.A.s should be rejected.
5.7. In the written submissions filed on behalf of the respondents, it is submitted that the APARs/ACRs of the applicant have been drawn and reviewed by multiple officers over the years, and this itself is a ground for non non-
interference by this Tribunal, as the subjective satisfaction of the reporting and reviewing authorities, held by different officers fficers over time, cannot be doubted merely on the basis of bald averments or baseless allegations raised by the applicant. While the applicant's averments in the present OAs pertain to the subjective satisfaction of reporting and reviewing officers, which, which, as per settled law, cannot be examined in the present proceedings, the respondents nonetheless rebut these claims in their submissions.
5.7.1. Regarding the representations submitted by the applicant concerning the APARs for the periods 2018 2018-19, 27 Item No 61 (C-4) O.A. No. 2385/2024 & batch 2019-20, and 2020-21, 2020 21, it is submitted that the Competent Authority, i.e., the Department of Revenue (DoR), after perusal of relevant records, found no merit in the applicant's representation and rejected it by order dated 18.01.2023. Despite this, the applicant co continued to file repetitive representations on the same grounds. The DOR, vide letters dated 25.04.2023 and 26.04.2024, reiterated that her representations had already been rejected and that there was no provision for further consideration of the case.
Similarly, larly, representations regarding the years 2021 2021-22, 2022-23, 23, and 01.04.2023 to 15.09.2023 were disposed of by detailed and reasoned orders dated 26.04.2024, leaving no scope for interference.
5.7.2. With regard to the allegation of non non-allocation of work, the respondents submitted that the applicant's claim is incorrect and contrary to records. The applicant has repeatedly raised false allegations instead of performing her duties. The legal officers, including the applicant, primarily provide advisory opinions opinions on legal issues when referred by competent authority/senior officers and monitor proceedings pending before legal forums. The respondents 28 Item No 61 (C-4) O.A. No. 2385/2024 & batch provided examples where the applicant's opinion was sought on important matters: an email dated 11.04.2023 on the impact of striking off companies under Companies Act, 2013 under FEMA/PMLA, and an email dated 01.05.2023 to examine the judgment in Ritu Chhabria v.
Union of India & Ors., W.P. No. 60 of 2023 2023, showing that legal opinions were sought as required. However, the applicant habitually sent daily avoidable and repetitive emails directly to the Finance Ministry, the Cabinet Secretary, Director of Enforcement, and other senior authorities in violation of the Office Memorandum dated 31.08.2015 (F. No. 11013/08/2013 11013/08/2013-Estt(A-III)), which prescribes that grievances should be routed through proper channels.
5.7.3 . The respondents further submitted that the applicant did not attend office work sincerely despite being directed by Office Note 01 of 2020-21 2020 21 dated 22.12.2020 to monitor important legal work. Documents provided indicate that work was allocated to her from from time to time, but she continued to claim otherwise, including sending emails on 29 Item No 61 (C-4) O.A. No. 2385/2024 & batch 12.07.2022 regarding cases involving juveniles, despite having provided comments on the same day.
5.7.4. The respondents also highlighted that identical issues of no-work no allocation ocation were previously raised in W.P.A. No. 5371/2020 before the Hon'ble Calcutta High Court, which was disposed of as infructuous on 30.09.2020. An appeal against this order was dismissed by the Division Bench of the Calcutta High Court on 03.12.2022, and and Civil Appeal No. 6827/2023 filed by the applicant against this order is pending before the Hon'ble Supreme Court, confirming the applicant's habitual litigation tendencies. The respondents submitted that the present O.A. is another frivolous and vexatio vexatious proceeding initiated by the applicant and that the applicant has a history of filing frivolous cases against the department instead of performing official duties, and it is well well-settled that frivolous and vexatious litigants deserve no equitable relief.
5.7.5. Regarding the sexual harassment complaint against Mr. A.C. Singh, the respondents submitted that this matter 30 Item No 61 (C-4) O.A. No. 2385/2024 & batch is entirely unrelated to the present O.A. The department had taken necessary action in accordance with law, and the officer concerned was penalized penalized with major penalty along with compensation by the Internal Complaints Committee (ICC) of the Department of Revenue. The said officer challenged the ICC's order before the Tribunal, which was set aside, and the applicant has approached the Hon'ble Delhi High Court against that order, which is pending adjudication.
5.7.6. Concerning alleged malafides, the respondents submitted that the applicant's entire case is based on bald assertions of malafide against multiple officers, which is insufficient. As per State of Bihar v. P.P. Sharma, IAS, (1992) SCC (Cri) 192, 192, mala fides means want of good faith, personal bias, grudge, oblique or improper motive, or ulterior purpose, and administrative action is presumed bona fide if done honestly. The determination of malafide involves establishing (i) personal bias or oblique motive and
(ii) whether the administrative action is contrary to lawful administrative power. Mere assertions or vague statements are insufficient; malafide must be demonstrated through 31 Item No 61 (C-4) O.A. No. 2385/2024 & batch admitted d or proved facts and circumstances. The respondents submitted that the applicant has failed to establish any malafide by any officer and that all actions taken were lawful and in good faith. 5.7.7. In light of the above, the respondents submitted that the present OAs are devoid of merit, the applicant has habitually filed frivolous and vexatious proceedings, APARs were validly drawn and reviewed, work was properly assigned, and malafide allegations are unsubstantiated. Consequently, the present OAs are lia liable to be dismissed.
6. Heard learned counsel for the respective parties and perused the pleadings available on record.
7. ANALYSIS :
"Human understanding is like a false mirror, which, receiving rays irregularly, distorts and discolors the nature of things by mingling its own nature with it." - Francis Bacon, The Great Instauration (2012), p. 33, Simon & Schuster.
7.1 The writing of an APAR cannot be stigmatic in nature, based merely on subjective opinion or personal satisfaction, 32 Item No 61 (C-4) O.A. No. 2385/2024 & batch without providing an opportunity to show cause. The APAR system is designed to follow principles of development rather than serve as a tool for judgment. It is inherently intended to allow scope for improvement. According to the respondents' own understanding, the APAR system evaluating the performance of government servants is a means to an end, and not an end in itself.
7.2 Performance appraisal is intended to be a collaborative exercise between the government servant being reported upon and the reporting officer. While fixi fixing targets, priority should be assigned item-wise, item wise, taking into account the nature and scope of the work. (Department of Personnel & Training O.M. No. 12/2/84-PP 12/2/84 PP dated 17th December, 1986) 7.3 In M/s Kranti Associates Pvt. Ltd. and Another v.
Masood Ahmed, Ahmed reported in (2010) 9 SCC 496, observed as under:-
"51. Summarizing the above discussion, this Court holds:
holds:-
(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.33
Item No 61 (C-4) O.A. No. 2385/2024 & batch
(b) A quasi-judicial quasi judicial authority must record reasons in support of its conclusions.
(c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.
(d) Recording Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi quasi-
judicial or even administrative power.
(e) Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations. disregarding
(f) Reasons have virtually become as indispensable a component of a decision -making making process as observing principles of natural justice by judicial, quasi quasi-judicial and even by administrative bodies.
(g) Reasons facilitate facilitate the process of judicial review by superior Courts.
(h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial judicial decision making justifying the principle that reason is the soul of justice.
(i) Judicial or even quasi-judicial quasi judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively consi considered. This is important for sustaining the litigants' faith in the justice delivery system.
(j) Insistence on reason is a requirement for both judicial accountability and transparency.
(k) If a Judge or a quasi-judicial quasi judicial authority is not candid enough about abo his/her decision--makingprocess, then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.
(l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or `rubber `rubber- stamp reasons' is not to be equated with a valid decision making process.
34Item No 61 (C-4) O.A. No. 2385/2024 & batch
(m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judg judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731 731-
737).
(n) Since the requirement to record reasons emanates from the broad doctrine doctrine of fairness in decision decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University of Oxford, 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions".
(o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "Due Process."
7.4. In Sukhdev Singh v. Union of India (UOI) and Ors Ors, (2013) 9 SCC 566, the Hon'ble Supreme Court ob observed as under:
"8.
8. In our opinion, the view taken in Dev Dutt that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied dissatisfied with the same. Communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR - poor, fair, average, good or very 35 Item No 61 (C-4) O.A. No. 2385/2024 & batch good - must be communicated to him/her within a reasonable period.
9. The decisions of this this Court in Satya Narain Shukla vs. Union of India and others and K.M. Mishra vs. Central Bank of India and others and the other decisions of this Court taking a contrary view are declared to be not laying Court down a good law."
law.
7.5 The summary of the examined Performance Appraisal (PA) recommendations is based on criteria and processes lucidly highlighted by Malos (1998; 2005) in his work The Importance of Valid Selection and Performance Appraisal.
"PA Criteria should be...
1. objective rather than subjective
2. job-related job related or based on a job analysis
3. focused on behaviors rather than traits
4. within the control of the ratee
5. specific functions, not global assessments
6. communicated to the employee The PA process should...
1. be standardized and uniform for all employees within a job group
2. be formally communicated to employees
3. use multiple, diverse, and unbiased raters
4. provide written instructions and training to raters
5. Contain Contain thorough and consistent documentation across raters that includes specific examples of performance based on personal knowledge.
6. Provide employees notice of performance deficiencies and opportunities to correct them.
7. provide access for employees to review appraisal results
8. provide formal appeal mechanisms that allow for employee input.
9. establish a system to detect potentially discriminatory effects or abuses of the system overall."36
Item No 61 (C-4) O.A. No. 2385/2024 & batch 7.6 In Valerie Davis v. Florida Agency for Health Care Administration Administration, Case No. 14-13563, 13563, decision dated 18.05.2015 (United States Court of Appeals for the Eleventh Circuit, arising out of an appeal from the United States District Court for the Northern District of Florida), while denying the prayer of FAHCA, it was observed as under:-
"First, we are unpersuaded by FAHCA's claim that the district court erred by denying its motion for judgment as a matter of law concerning Davis's discrimination claim. A judgment as a matter of law is granted to a defendant when the plaintiff fails to present present a sufficient evidentiary basis for a reasonable jury to find in her favor on a material element of her claim. Howard, 605 F.3d at 1242. When a substantial conflict in the evidence exists, and reasonable people may reach different conclusions, the motion for judgment as a matter of law must be denied. motion Gowski v. Peake, 682 F.3d 1299, 1311 (11th Cir. 2012).To raise a successful retaliation claim under Title VII, a plaintiff must show that: (1) she engaged in statutorily protected activity; (2) she suffere suffered a materially adverse action; and (3) a causal connection existed between the protected activity and the adverse action. Howard, 605 F.3d at 1244. After the plaintiff establishes these elements, the defendant must articulate a legitimate, non non-retaliatory reason for the challenged action. Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1277 (11th Cir. 2008). If the defendant provides a nonretaliatory reason, then the plaintiff must show that the defendant's reason is a pretext for retaliation. Id. In retal retaliation cases, a materially adverse action is any action that may dissuade a reasonable worker from making or supporting a discrimination charge. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). In Burlington, the Supreme Court noted that the significance of a retaliatory act depends on the context of the act, and a specific action may be materially adverse in some situations but immaterial in others. Id. at 69. We've said that "Burlington 37 Item No 61 (C-4) O.A. No. 2385/2024 & batch also strongly suggests that it is for a jury to dec decide whether anything more than the most petty and trivial actions against an employee should be considered materially adverse to him." Crawford v. Carroll, 529 F.3d 961, 973 n.13 (11th Cir. 2008) (quotation omitted). We've held that an employee suffers a m materially adverse action when she receives an unfavorable performance review that affects her eligibility for a pay raise. Id. at 974. We've also noted that a set of actions may constitute an adverse employment action when considered collectively, even if some actions do not rise to the level of an adverse employment action individually. Shannon v. Bellsouth Telecomm., Inc., 292 F.3d 712, 716 (11th Cir. 2002). To show a causal connection, the plaintiff must show that the decision maker was aware of her prot decision-maker protected conduct, and that the protected activity and adverse action were not wholly unrelated. Kidd v. Mando Am. Corp., 731 F.3d 1196, 1211 (11th Cir. 2013). In the absence of other evidence demonstrating causation, a three three-month interval between the protected protected activity and the adverse action is too long to show causation through temporal proximity. Brown v. Ala. Dep't of Transp., 597 F.3d 1160, 1182 (11th Cir. 2010). A plaintiff in a Title VII retaliation case must also show that retaliatory animus was the bu but-for cause of the challenged adverse action. Booth v. Pasco Cnty., 757 F.3d 1198, 1207 (11th Cir. 2014). We have noted that a jury may infer that a defendant's action was retaliatory if it is permitted to disbelieve the defendant's explanation for the action.
action. Id. In this case, Davis presented sufficient evidence for a reasonable jury to conclude that she suffered retaliation. As the record reveals, Davis demonstrated first that she had engaged in statutorily protected activity with evidence of the grievanc grievance she filed with FAHCA's human resources department. Second, she showed that she had suffered a materially adverse action with evidence of the unsatisfactory performance evaluation Suzanne Hurley gave her that constituted the first step to Davis being fire fired from FAHCA. As for establishing a causal connection, she demonstrated that the evaluation was not wholly unrelated to her grievance because Hurley raised complaints about Davis's poor grammar, insubordination, and lack of communication in the evaluation that only began after she learned about Davis's grievance. She also presented enough evidence for a jury to reasonably conclude that her grievance was the but for cause of the retaliatory action, since Davis testified but-for that Hurley got along well with her un until she was interviewed about the discrimination grievance. Furthermore, the jury could have reasonably inferred 38 Item No 61 (C-4) O.A. No. 2385/2024 & batch retaliatory animus because Davis presented sufficient evidence for the jury to disbelieve FAHCA's explanations for Hurley's actions towards DavDavis. Therefore, the district court did not err by denying FAHCA's renewed motion for judgment as a matter of law for Davis's retaliation claim. We are also unconvinced by FAHCA's argument that the district court abused its discretion by denying the motion for or a new trial concerning Davis's retaliatory hostile work environment claim. For starters, FAHCA waived its right to challenge the omission of a retaliatory hostile work environment instruction because it did not object to the court's exclusion of that instruction.
instruction. Badger, 612 F.3d at 1342. Moreover, since Davis did not prevail on a retaliatory hostile work environment claim at trial, FAHCA has not shown that the exclusion of this theory of liability from the jury instructions affected its substantial righ rights.
Nor did the court commit any error, plain or otherwise, by permitting Davis to state during her closing argument that a hostile environment was part of the retaliatory conduct. As the record shows, Davis did not argue a retaliatory hostile work environment environment theory during her closing argument; instead, she said only that this environment was part of the materially adverse action taken against her by FAHCA for the purposes of her retaliation claim. She accurately informed the jury that they had to find a materially adverse action taken against her because of her materially grievance in order to conclude that she suffered from retaliation, and explained that a set of actions may constitute a materially adverse action when considered in the aggregate, even if individual actions do not rise to a materially adverse action. Shannon, 292 F.3d at 716. As for FAHCA's argument that it should have been granted judgment as a matter of law because Davis improperly argued for a retaliatory hostile work environment, it is meritless. As we've already held, the district court correctly concluded that the jury had sufficient evidence to reasonably conclude that FAHCA was liable for retaliation. Therefore, the district court did not abuse its discretion by denying FAHCA's motion for a ne new trial."
7.7. No performance appraisal system can be said to be perfect; it can only be legally justified if it is based on objective rather than subjective criteria. Fairness, and the perception of fairness, remain important considerations.
39
Item No 61 (C-4) O.A. No. 2385/2024 & batch
7.8 There cannot
can be a hands-off
off approach by either the
reviewing authority or the accepting authority when the APAR review contains considerably more process process-related information than content-related content related information. In such cases, the courts are duty-bound duty bound to examine the m matter with objectivity, within the powers and scope of judicial review.
7.9 In Zamora v. City of Houston(2015), Houston(2015), a Fifth Circuit Court of Appeals case, the City was held liable for retaliation under the "cat's paw" theory. The ruling affirmed that an employer employer can be held responsible for an adverse employment action, even if the final decision decision-maker has no retaliatory motive, provided that a biased subordinate influenced the decision.
7.10 "The 'cat's paw' theory holds an employer liable for a discriminatory or retaliatory action if the biased subordinate, with the motive to discriminate or retaliate, uses an unbiased, formal decision-maker decision maker as an instrument to carry out the action. The supervisors' retaliatory statements to IA, which were a key influence in th the decision 40 Item No 61 (C-4) O.A. No. 2385/2024 & batch to suspend Zamora, made them a 'cat's paw' for the Chief of Police. The court found that without the supervisors' biased statements, the investigation's outcome would have been different." (emphasized) 7.11 When there is evidence that performanc performance appraisal ratings decreased or were altered after an employee filed a claim or submitted an action, decisions are significantly more likely to favor the employee than the organization.
Illustratively, reference may be made to the case October 2011 Performance Perfor Review.. Crawford exhausted his claim that his adverse performance rating in October 2011 was the product of racial discrimination and a racially hostile work atmosphere. He attached a copy of the performance review to his complaint, putting the Depar Department on notice that it was of concern and merited scrutiny. In addition, Crawford enclosed a three-page three page summary of events casting relevant light on his claims of racial discrimination, which expressly mentioned that:
(i) his supervisors were "setting [him up] to fail," J.A. 28;
(ii) the set-up up included the performance performance-review process, in 41 Item No 61 (C-4) O.A. No. 2385/2024 & batch which one of those same supervisors had made false statements during his previous performance review; and
(iii) all of his supervisors denied him the support needed to perform orm his job successfully.
Furthermore, the content of the performance review itself raised questions of material fact. Although his prior review had given him a perfect "five" rating, this time Crawford was given the shockingly low score of "zero" for his work performance, even though the components of that rating included a weighted score of 1.92 in the "Performance Goals" section and 0.689 in the "Competencies" section. At oral argument, counsel for the Department was unable to explain how the total score ended up as "zero" .
Together, Crawford's enclosure of the performance review, his reference to performance reviews as part of a targeted effort to make him fail, and the facial oddity of Crawford's "zero" rating provided sufficient information for the agency ency to investigate Crawford's claim that the performance review was part of the racial discrimination he alleged he suffered.
42Item No 61 (C-4) O.A. No. 2385/2024 & batch (See: Case No. 16-5063, 16 James Crawford v. Elaine C. Duke, Acting Secretary, Department of Homeland Security,, decided on 11.08.2017 - United States Court of Appeals for the District of Columbia Circuit. In the given case, the performance review was previously used as evidence that the employee did not exhaust internal avenues with their employer. In the appeal, the employee demonstrated that he attempted to appeal the evaluation, but nothing came of his discussions with his supervisor.) 7.12 In W.P.(C) 16171/2025 - Government of NCT of Delhi and Ors v. Sh. Rajendra Singh Rawat Rawat, decided on 17.10.2025, the Hon'ble Delhi High Court urt also observed as follows:-
follows:
"13. It is trite law, that the APAR plays very vital part in the service jurisprudence.. In this regard, we may make a reference of the Judgement of the Supreme Court in State Bank of India v. Kashinath Kher, (1996) 8 SCC 762, wherein it was opined as under:
"...The object of writing the confidential report is twofold, i.e. to give an opportunity to the officer to remove deficiencies and to inculcate discipline. Secondly, it seeks to serve the improvement of quality and excell excellence and efficiency of public service. This Court inDelhi Transport Corpn. case[Delhi Transport Corpn. v. D.T.C. Mazdoor Congress, 1991 Supp (1) SCC 600 : 1991 SCC (L&S) 1213] 43 Item No 61 (C-4) O.A. No. 2385/2024 & batch pointed out the pitfalls and insidious effects on service due to lack of objectives objectives by the controlling officer. Confidential and character reports should, therefore, be written by superior officers higher up the cadres. The officer should show objectivity, impartiality, and fair assessment without any prejudices whatsoever with the hi highest sense of responsibility alone to inculcate devotion to duty, honesty and integrity to improve excellence of the individual officer. Lest the officers get demoralised which would be deleterious to the efficacy and efficiency of public service. Therefore, they should be written by a superior officer of Therefore, high rank..."
14. The same was further reiterated by the Supreme Court in State of U.P. v. Yamuna Shanker Misra Misra, (1997) 4 SCC 7, which reads as under:-
under:
"7.
7. It would, thus, be clear that the object of writing the confidential reports and making entries in the character rolls is to give an opportunity to a public servant to improve excellence. Article 51 51-A(j) enjoins upon every citizen the primary duty to constantly constantly endeavour to prove excellence, individually and collectively, as a member of the group. Given an opportunity, the individual employee strives to improve excellence and thereby efficiency of administration would be augmented. The officer entrusted with the duty to write confidential reports, has a public responsibility and trust to write the confidential reports objectively, fairly and dispassionately while giving, as accurately as possible, the statement of facts on an overall assessment of the performance performance of the subordinate officer. It should be founded upon facts or circumstances. Though sometimes, it may not be part of the record, but the conduct, reputation and character acquire public knowledge or notoriety and may be within his knowledge. Before forming an opinion to be adverse, the reporting Before officers writing confidentials should share the information which is not a part of the record with the officer concerned, have the information confronted by the officer and then make it part of the record. This amounts to an opportunity given to the erring/corrupt officer to correct the errors of the judgment, conduct, behaviour, integrity or conduct/corrupt proclivity. If, despite being given such an opportunity, the officer fails to perform the duty, corr correct his conduct or improve himself, necessarily the same may be recorded in the confidential reports and a copy thereof supplied to the affected officer so that he will have an opportunity to know the remarks made against him. If he feels aggrieved, it would would be open to him to have it 44 Item No 61 (C-4) O.A. No. 2385/2024 & batch corrected by appropriate representation to the higher authorities or any appropriate judicial forum for redressal. Thereby, honesty, integrity, good conduct and efficiency get improved in the performance of public duties and standard of excellence in services constantly rises to standard higher levels and it becomes a successful tool to manage the services with officers of integrity, honesty, efficiency and devotion."
15. In this regard, we may also note the observation made by this Court Co in Sh. Sandeep Dhaka v. Union Of India & Ors., Ors. 2025:DHC:623-DB, DB, which reads as follows:
"7. At the outset, we would note that an APAR performs a very vital function for not only the assessment of an officer for his career progression, but also to inf inform him of his shortcomings and areas where he needs to improve. The aim of writing APARs is to have an objective assessment of an individual's professional and personal qualities, competence, personality, integrity, and employability, and to provide the individual individual appropriate feedback and guidance for correcting his deficiencies, and to improve his performance to serve the interest of enhancing efficiency of the Force. The assessment report of a Government employee is a privileged document, which involves a tremendous responsibility on the part of the Reporting and the Reviewing Authorities, and therefore, it is essential that the APAR is filled with due care and attention, and that the said task is not casually undertaken."
16. In the present case, the very very sanctity of the APAR has been compromised by the aforesaid action of the Reporting Officer. The learned Tribunal, therefore, has rightly held that the said APAR should be expunged and should not be relied upon."
7.13 In the present case, where the appli applicant seeks to demonstrate that her negative employment outcome was unrelated to her actual performance, she is establishing that her performance was satisfactory. Performance appraisals prior to 2018 can serve as a record of 45 Item No 61 (C-4) O.A. No. 2385/2024 & batch performance over time, with ratings ratings consistently higher compared to the period post-2018, post 2018, as illustrated in the following chart:
Year 2010- 2011- 2012- 2013- 2014 2015- 2016-17 2017- 11 12 13 14 (Mahar 16 18 ashtra Govern ment on lien as Admini strator Genera l and Official Truste
e) Num 9 9 9 9 A 8 8 8.8 eric Grade Gradi ng Com Sincer Excell The The No Officer Ms. Sonali She is ment e, ent officer officer Comm is Badhe is a very s by outsta Work, is is ents hardwo well upright the nding, cable hardw hardwo rking versed , Repo hardw of orking rking, and with knowle rting orking handl and sincere has PMLA and dgeable Offic officer ing she and accom CRPC and er , good compl almos dedicat plished provisions perfor knowl ex t ed. She all the including mance edge legal single has task court oriente of law issues hande handle assigne procedure d , dly d the d to s. She is officer.
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47
Item No 61 (C-4) O.A. No. 2385/2024 & batch
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7.14 There is nothing on record to establish that any material was placed before the authorities regarding targets or priorities assigned item-wise item wise to the applicant by her superior officer, which she failed to fulfill. Behavioral or attitudinal issues, as well as complaints against officials by passing the e routine channel, cannot form the sole basis for numeric grading (0-10), (0 10), as this would reflect subjective satisfaction rather than objective assessment, as is evident from the following tabular chart:
Yea Numer Date of Date of Date of Date of Date of Impun r ic Submissio comme Commen Communict representa ed Gradin ns of Self nts by ts by the ion of APAR tion order g APAR the Reviewi 48 Item No 61 (C-4) O.A. No. 2385/2024 & batch & Reporti ng ng Officer OA Officer 201 6.42 11.04.19 29.05.19 30.06.21 14.07.21 16.07.21 18.01.8- 23
30.06.19 31.07.19 19 201 4.6 Unable to 25.09.20 30.06.21 14.07.21 16.07.21 18.01.9- submit 23
20 (email for 30.09.20 15.11.20 extension) 202 5.4 Request to 30.09.21 17.11.21 20.12.21 21.12.21 18.01.
0- allow more 23 21 time and keep the same in 30.09.21 15.11.21 abeyance till decision HC, WB. 202 5.81 15.04.22 20.06.22 05.08.22 31.08.22 15.09.22 26.04. 1- 24 30.06.22 31.07.22 22 202 5.83 15.04.23 30.05.23 22.06.23 06.07.23 09.07.23 26.04. 2- 24 30.06.23 31.07.23 23 202 5.8 1.4. 16. 16.10.23 Review 15.02.24 19.10.23 26.04. 3- 23 09. Officer 24 24 to 23 Demitted 19.02.24 15. to 9.2 31. 3 3.2 (tru 4 ncat ed peri od) 09. 15. --- Without 10. 4.2 Review 23 4 (by har d cop y as ther e was a tech nica l erro r) 49 Item No 61 (C-4) O.A. No. 2385/2024 & batch
As per the DOPT instructions, any grading of 1 or 2 (for work output, personal attributes, or overall performance) should be adequately justified in the pen-
picture through reference to specific shortcomings or failures. Similarly, any grading of 9 or 10 should be supported by mention of concrete achievements or exceptional accomplishments. While awarding numerical grades, the reporting and reviewing authorities are expected to evaluate the officer in comparison with a broader group of peers currently worki working under their supervision. In the present case, there is no material evidence on record to substantiate the basis of assessment for the years in question. Numerical gradings have been awarded on a scale ranging from 4.6 to 6.42 6.42, respectively.
Even with respect respect to the assessment of personal attributes, which carries a 30% weightage,, the justification for the grading is not evident from the available record. 7.15 We further draw attention to the observations made by the Reporting Officer and the Reviewing Of Officer regarding the applicant's work allocation, along with our 50 Item No 61 (C-4) O.A. No. 2385/2024 & batch corresponding observations, which are reproduced in the tabular form below:
Year and Comments by Comments Our OA Reporting Officer by Reviewing observations Officer 2019-20 The officer is unable to The officer is We fail to work together as a intelligent but understand OA team. Has good has what are the 2730/2024 communications kills interpersonal interpersonal but filing frivolous issues in issues in the complaints/cases office. offices which against the department has not been spelt out.
2020-21 Dr. Sonali G. Badhe is She is There is
an intelligent officer intelligent nothing on
OA having good officer record to
2728/2024 knowledge of law and however indicate that
procedures but observe making the complaints
that however, she did frivolous filed by the
not perform the duties complaint complainant
assigned to her duties against other were ever
due to her
he behavioural officers. declared
aspects. frivolous by
any court of
law.
2021-22 She is knowledgeable She has No details
and intelligent officer diverted her provided
OA but has not performing energy regarding such
2726/2024 the assigned duties by towards other activities.
citating frivolous activities.
reasons and has
attitudinal and
behavioural issues.
2022-23 She is intelligent officer She is No show cause
but has intelligent notice given.
OA No. behavioural/attitudinal officer,
2729/2024 issues. however, she
has not used
her potential
for office
work.
2023-24 She is intelligent officer Review officer DOP&T
but has Demitted instructions
OA No. behavioural/attitudinal ought to have
2727/2024 issues. been followed.
51
Item No 61 (C-4) O.A. No. 2385/2024 & batch
7.16 Illustravely, from a perusal of the APAR of the applicant for the period 01.04.2018 to 31.03.2019 31.03.2019, it is observed, d, at page 107 of the paper book, that the assessment of work output has been recorded as follows:
Reporting Authority Reviewing Authority 1. Accomplishment of 7 7 assigned/planned work 2. Quality of output 6 6 3. Exceptional 6 6 performance Overall Grading on 2.53 2.53 performace/achivements We fail to comprehend the criteria on the basis of which an overall grading of 2.53 has been assigned. As per the DoP&T instructions, the overall grading ought to have been derived by taking into consideration the average of the marks awarded under the parameters of Accomplishment of Targets (7), Quality of Output (6), and Exceptional Performance (6). Accordingly, the manner in which the overall rating of 2.53 has been arrived at remains unexplained and inconsistent inconsistent with the prescribed guidelines, i.e it would have been 6.3 , which has to be read as 7.52
Item No 61 (C-4) O.A. No. 2385/2024 & batch 7.17. Similarly, in the columns for Assessment of personal Attributes and Assessment of Functional Competency, the grading has been recorded as follows:
Reporting g Authority Reviewing Authority 1. Attitude to work 7 7 2. Sense of 7 7 Responsibility 3. Overall bearing 6 6 and personality 4. Emotional stability 6 6 5. Communication 8 8 skills 6. Capacity to 6 6 effectively handle critical issues/emergency conditions 7. Leadership 6 6 Qualities 8. Accomplishing the 7 7 assigned tasks within given time frame Overall Grading 1.99 1.99 Accordingly, the manner in which the overall rating of 1.9 has been arrived at remains unexplained and inconsistent with the prescribed guidelines, i.e it would have been 6.6 , which has to be read as 7.
Reporting Reviewing
Authority Authority
1.Knowledge of 7 7
Laws/Rules/Procedures/IT
skills
2.Strategic planning
lanning ability 6 6
3. Decision making ability 7 7
4.Inititative 7 7
5.Coordination ability 5 5
53
Item No 61 (C-4) O.A. No. 2385/2024 & batch
6.Ability to motivate and 6 6
develop subordinates/work
in team
Overall grading on 1.90 1.90
functional Competency
Accordingly, the manner in which the overall rating of 1.90 has been arrived at remains unexplained and inconsistent with the prescribed guidelines, i.e it would have been 6.3 , which has to be read as 7 7. From a perusal of the above, it appears that all the APARs of the applicant, which are impugned herein, have been recorded in a similar manner and with a predetermined mind, without due consideration of the instructions issued by the DoP&T, insofar as the grading on the scale of 1-10 1 10 is concerned, which ought to have been done on an average basis through proper scaling.
7.18. We have also perused the impugned order dated 26.04.2024, which reads as under:
"Sub:
Sub: Representation received from Dr. Sonali G. Badhe, DLA, regarding Adverse Remarks/Grading in her APAR for the period 01.04.2018 to 31.03.2019, 31.03.2019, 2019 2019-20, 2020-21, 2021 2021-22, 2022-23 23 and for the period 01.04.2023 to 15.09.2023 - regarding.
Ref: Order dated 13.03.2024 in O.A. No. 1034/2024 of the Hon'ble Central Administrative Tribunal (CAT), Principal Bench, New Delhi.54
Item No 61 (C-4) O.A. No. 2385/2024 & batch Madam, Reference is invited invited to the Order dated 13.03.2024 in O.A. No. 1034/2024, i.e., Dr. Sonali G. Badhe vs. Enforcement Directorate and Others of Hon'ble Central Administrative Tribunal (CAT, Pr. Bench, New Delhi whereby Hon'ble CAT directed as under:
(i) The respondent/competent authority shall decide the applicant's representation dated 26.09.2023 and 19.10.2023 (this is also a representation against APAR for period 01.04.2023 to 15.09.2023) as expeditiously as possible and preferably within a period of three hree weeks from the date of receipt of certified copy of this order.
(ii) The respondents/competent authority shall decide the aforesaid representation in accordance with law independently and on their own merits by passing a speaking order. A copy of the speaking order so passed be given to the applicant.
2. In compliance of the the above said order of Hon'ble CAT. I am directed to refer you representation dated 26.09.2023 & 19 10.2023 addressed to Revenue Secretary requesting to reconsider against APARs for the year 2018 2018-19, 2019-
20, 2020-21,
2020 2021-22, 2022-23
23 and for period 01.04.
01.04.2023
to 15.09.2023 and for upgrading the same.
3. As regards APARs for the year 2018 2018-19 (29.05.2018 to 31.03.2019). 2019-20 2019 20 and 2020 2020-21 (voluntarily written from 11.12.2020 to 31.03.2021) are concerned it is stated that your representations against the abo above APARS were duly considered by competent authority and the same were rejected vide DoR's order dated 18.01.2023 (copy enclosed).
4 In reply to your email dated 07 03.2023, Department of Revenue vide letter dated 25.04.2023 (copy enclosed) informed you that that in terms of DOP&T'S OM No. consideration may 21011/1/2005 21011/1/2005-Esll. (A) (Pt.ll) dated 14.05.2009, the competent authority after due consideration may reject the representation or may accept and modify the APAR accordingly. The comptent authority has already decided rejection of your representation for APAR for the year 2018.10 (29 05 2018 to 31 03 2019), 2019 2019-20 and 2020-21 21 (voluntarily written from 11 12 2020 to 31 03 2021) and as per aforesaid OM there is no provision of further consideration of case alter decision of 55 Item No 61 (C-4) O.A. No. 2385/2024 & batch the competent authority. The above position is accordingly reiterated 4 Your representations dated 14 09 2022. 09 07 2023 and 19.02 2024 against APAR for the year 2021 2021-22 2022-23 and for period 01 04 2023 to 15 09 2023 respectively have been considered considered by the Competent Authority and decision of Competent Authority has been conveyed to you vide Order(s) dated 26 04 2024 (copies enclosed)"
The impugned order, despite the directions of the Tribunal in the earlier round of litigation, is devoid of reasons and is cryptic in nature. The respondents were expected to apply their minds independently, and the case of the applicant ought not to have been disregarded solely on the ground that there is no provision for further consideration by the competent authority. This conclusion is, however, premised on the caveat that no statutory or other rule expressly mandates such reconsideration in the present case. Nevertheless, there exists no rule or provision imposing a bar to the contrary--particularly contrary particularly when th the Court had specifically directed that the matter be considered.
7.19. It was vehemently argued by the learned counsel for the respondents that, in cases of mala fide or malice in fact, a very high burden lies on the applicant to prove the same, 56 Item No 61 (C-4) O.A. No. 2385/2024 & batch which she has allegedly failed to discharge. In Ratnagiri Gas and Power Private Limited v. RDS Projects Limited and Others (2013) 1 SCC 524, the Court laid down that the law casts a heavy burden on the person alleging mala fides. The Court further held that when a p petitioner alleges malice in fact, it is obligatory for the petitioner to furnish particulars and implead the persons against whom such malice in fact is alleged. The following principles have been laid down in the said judgment:
"25. ......................The ......................The law casts a heavy burden on the person alleging mala fides to prove the same on the basis of facts that are either admitted or satisfactorily established and/or logical inferences deducible from the same. This is particularly so when the petitioner alleges alleges malice in fact in which event it is obligatory for the person making any such allegation to furnish particulars that would prove mala fides on the part of the decisiondecision-maker. Vague and general allegations unsupported by the requisite particulars do not not provide a sound basis for the court to conduct an inquiry into their veracity.
XXXXXXXXXXXXXXXX 26.1. In State of Bihar v. P.P. Sharma, 1992 Supp. (1) SCC 222, this Court summed up the law on the subject in the following words: (SCC p. 260, paras 50 50-51) "50. 'Mala fides' means want of good faith, personal bias, grudge, oblique or improper motive or ulteri ulterior purpose. The administrative action must be said to be done in good faith, if it is in fact done honestly, whether it is done negligently or not. An act done honestly is deemed to have been done in good faith. An administrative authority must, therefore, act in a bona fide manner and should never act for an improper motive or ulterior purposes or contrary to the requirements of the statute, or the basis of the circumstances contemplated by law, or 57 Item No 61 (C-4) O.A. No. 2385/2024 & batch improperly exercised discretion to achieve some ulterior purpose. The determination of a plea of mala fide involves purpose.
two questions, namely, (i) whether there is a personal bias or an oblique motive, and (ii) whether the administrative action is contrary to the objects, requirements and conditions of a valid exercise exercise of administrative power.
51. The action taken must, therefore, be proved to have been made mala fide for such considerations. Mere assertion or a vague or bald statement is not sufficient. It must be demonstrated either by admitted or proved facts and circumstances circumstances obtainable in a given case. If it is established that the action has been taken mala fide for any such considerations or by fraud on power or colourable exercise of power, it cannot be allowed to stand." (emphasis supplied) 7.20. "Malice in fact"
fact" is a different thing. It means an actual malicious intention on the part of the person who has done act."(Shearer case, 1914 AC 808 HL, AC pp. the wrongful act."(Shearer 813-14) 7.21. In Civil Appeal Nos. 11473 11473-11474 of 2018 -
Amarendra Kumar Pandey v. Union of India & Ors, decided on 14.07.2022, the Apex Court held as follows:
"29.
29. The action based on the subjective opinion or satisfaction, in our opinion, can judicially be reviewed first to find out the existence of the facts or circumstances on the basis of which the the authority is alleged to have formed the opinion. It is true that ordinarily the court should not inquire into the correctness or otherwise of the facts found except in a case where it is alleged that the facts which have been found existing were not supp supported by any evidence at all or that the finding in regard to circumstances or material is so perverse that no reasonable man would say that the facts and circumstances exist. The courts will not readily defer to the conclusiveness of the authority's opini opinion as to the 58 Item No 61 (C-4) O.A. No. 2385/2024 & batch existence of matter of law or fact upon which the validity of the exercise of the power is predicated.
30. The doctrine of reasonableness thus may be invoked. Where there are no reasonable grounds for the formation of the authority's opinion, judicial review in such a case is permissible. [See Director of Public Prosecutions v. Head, (1959) AC 83 (Lord Denning).
31. When we say that where the circumstances or material or state of affairs does not at all exist to form an opinion and the action based on such opinion can be quashed by the courts, we mean that in effect there is no evidence whatsoever to form or suppo support the opinion. The distinction between insufficiency or inadequacy of evidence and no evidence must of course be borne in mind. A finding based on no evidence as opposed to a finding which is merely against the weight of the evidence is an abuse of the power power which courts naturally are loath to tolerate. Whether or not there is evidence to support a particular decision has always been considered as a question of law. [See Reg. v. Governor of Brixton Prison, Armah, Ex Parte, (1966) 3 WLR 828at p. 841].
32. It It is in such a case that it is said that the authority would be deemed to have not applied its mind or it did not honestly form its opinion. The same conclusion is drawn when opinion is based on irrelevant matter. [See Rasbihari v. State of Orissa, AIR 1961969 SC 1081].
33. In the case of Rohtas Industries Ltd. v. S.D. Agarwal and another, AIR 1969 SC 707, it was held that the existence of circumstances is a condition precedent to form an opinion by the Government. The same view was earlier expressed in the case of Barium Chemicals Ltd. and another v. Company Law Board and others, AIR 1967 SC 295.
34. Secondly, the court can inquire whether the facts and circumstances so found to exist have a reasonable nexus with the purpose for which the power is to be exercised. In other words, if an inference from facts does not logically accord with and flow from them, the Courts can interfere treating them as an error of law. [See Bean v. Doncaster Amalgamated Collieries, (1944) 2 All ER 279 at p. 284]. Thus, this Court can see whether on the basis of the facts and circumstances found, any reasonable ma man can say that an opinion as is formed can be formed by a 59 Item No 61 (C-4) O.A. No. 2385/2024 & batch reasonable man. That would be a question of law to be determined by the Court. [See Farmer v. Cotton's Trustees, 1915 AC 922]. Their Lordships observed:
"........... in my humble judgment where all the material facts are fully found, and the only question is whether the facts are such as to bring the case within the provisions properly construed of some statutory enactment, the question is one of law only." [See also Muthu Gounder v.
Government of Madras, M (1969) 82 Mad LW 1].
35. Thirdly, this Court can interfere if the constitutional or statutory term essential for the exercise of the power has either been misapplied or misinterpreted. The Courts have always equated the jurisdictional review with tthe review for error of law and have shown their readiness to quash an order if the meaning of the constitutional or statutory term has been misconstrued or misapplied. [See Iveagh (Earl of) v.Minister of Housing and Local Govt., (1962) 2 QB 147; Iveagh (Earl rl of) v. Minister of Housing and Local Govt. (1964) 1 AB 395].
36. Fourthly, it is permissible to interfere in a case where the power is exercised for improper purpose. If a power granted for one purpose is exercised for a different purpose, then it will be deemed that the power has not been validly exercised. If the power in this case is found to have not been exercised genuinely for the purpose of taking immediate action but has been used only to avoid embarrassment or wreck personal vengeance, then the power will be deemed to have been exercised improperly. [See Natesa Asari v. State of Madras, AIR 1954 Mad 481].
37. Fifthly, the grounds which are relevant for the purpose for which the power can be exercised have not been considered or grounds which arear not relevant and yet are considered and an order is based on such grounds, then the order can be attacked as invalid and illegal. In this connection, reference may be made to Ram Manohar v. State of Bihar, AIR 1966 SC 740; Dwarka Das v. State of J. and K., K AIR 1957 SC 164 at p. 168 and Motilall v. State of Bihar, AIR 1968 SC 1509. On the same principle, the administrative action will be invalidated if it can be established that the authority was satisfied on the wrong question: [See (1967) 1 AC 13]."60
Item No 61 (C-4) O.A. No. 2385/2024 & batch 7.22.. Malice is a wrongful act committed when a person does an act that he knows or intends is likely to cause harm to a career, based solely on subjective satisfaction while enjoying the privilege to do so, thereby resulting in adverse entries without show cause.
cause. Many of the remarks were the exact opposite of the positive attributes previously noted in her by the same authority. Admittedly, the remarks were not communicated to the applicant within the time limits prescribed under the prevailing rules governing ACRs. There is also no evidence that the officer's attention was drawn during the year to her alleged falling standards, along with the necessary caution or advice to give her a chance to improve. Objectivity is the paramount consideration rather than subjectivity.
subjectivity. Had the grading been based on subjective satisfaction, the remedy would have been elsewhere; for instance, issuing a memo or a show-cause cause notice in another set of proceedings. 7.23 In J.D. Srivastava v. State of Madhya Pradesh Pradesh, 1984 SCR 2 466, 466, in an appeal to the Apex Court, it was contended that the High Court had recommended the compulsory retirement of the appellant without applying its 61 Item No 61 (C-4) O.A. No. 2385/2024 & batch mind, and thus the decision was based on collateral considerations and was arbitrary. On behalf of the Hi High Court, it was contended that the personal confidential records of the appellant were considered by the Full Court Meeting, and the decision to retire the appellant under Fundamental Rule 56(3)(a) was taken after due consideration of the entire record. Allowing Allowing the appeal, the Court held that the power to retire a government servant compulsorily in public interest under a service rule is absolute, provided the authority concerned forms a bona fide opinion that such an order is necessary in public interest.. However, if the decision is based on collateral grounds or is arbitrary, it is liable to be interfered with by the courts.
7.24. In Civil Appeal No. 6161 of 2022 - Captain Pramod Kumar Bajaj v. Union of India and Another Another, decided on 03.03.2023, the Apex Court, in a case concerning compulsory retirement under Fundamental Rule 56(j), observed:
"39.
39. Dehors the aforesaid allegations of institutional bias and malice, having perused the material placed on 62 Item No 61 (C-4) O.A. No. 2385/2024 & batch record, we find merit in the other grounds taken by the appellant. It is noticed that though FR 56(j) contemplates that the respondents have an absolute right to retire a government servant in public interest and such an order could have been passed against the appellant any time after he had attained the age o of fifty years, the respondents did not take any such decision till the very fag end of his career. The impugned order of compulsory retirement was passed in this case on 27th September, 2019 whereas the appellant was to superannuate in ordinary course in January, January, 2020. There appears an apparent contradiction in the approach of the respondents who had till as late as in July, 2019 continued to grade the appellant as 'Outstanding' and had assessed his integrity as 'Beyond doubt'. But in less than three months reckoned therefrom, the respondents had turned turtle to arrive at the conclusion that he deserved to be compulsorily retired. If the appellant was worthy of being continued in service for little short of a decade after he had attained the age of 50 years and of being granted an overall grade of 9 on the scale of 1 - 10 on 31st July, 2019 it has not been shown as to what had transpired thereafter that made the respondents resort to FR 56(j) and invoke the public interest doctrine to compulsorily retire him with just three months of service left for his retirement, in routine. In such a case, this Court is inclined to pierce the smoke screen and on doing so, we are of the firm view that the order of compulsory retirement in the given facts and circumstances of the case cannot be sustained. The said order is punitive in nature and was passed to short short- circuit the disciplinary proceedings pending against the appellant and ensure his immediate removal. The impugned order passed by the respondents does not pass muster as it fails to satisfy the underlying test of serving muster the interest of the public."
7.25. In a case where it is found that an employee was not at fault at all, yet was subjected to illegal termination or termination motivated by malice, it may be unfa unfair to deny him the benefits of employment that he would have enjoyed 63 Item No 61 (C-4) O.A. No. 2385/2024 & batch but for the illegal or mala fide termination. The effort of a Court must then be to restore the status quo in a manner appropriate to the facts of each case. The nature of the Court's charges, charges, the exact reason for the termination as evaluated, and, of course, the question of whether the employee was gainfully employed, are all matters that the Court will consider. (See: Civil Appeal No. 7607 of 2021 2017) - Pradeep S/o (Arising out of SLP (C) No. 21346 of 201 Rajkumar Jain v. Manganese Ore (India) Limited & Ors,, decided 10.12.2021).
7.26.We We also observe that, on the issue of delay, it has been vehemently argued that the act of reviewing and communicating the APAR does not render it non est, as contended by the applicant. This reasoning would, conversely, apply equally to the respondents. However, the question remains unanswered as to whether the prescribed timelines for recording and reviewing the APAR, as stipulated in the relevant DOPT instructions, instructions, were adhered to. This aspect has neither been addressed in the impugned order(s) nor has any finding been recorded by the Competent Authorities regarding compliance with the 64 Item No 61 (C-4) O.A. No. 2385/2024 & batch prescribed time schedule or, in the event of delay, whether such delay was justified in terms of the DOPT Office Memorandum No. 21011/02/2009 21011/02/2009-Estt.(A) dated 16.07.2009 and 23.07.2009.
To sum up: "Every man has a right to his own opinion, but no man has a right to be wrong in his facts" - Bernard Baruch, (1946), (1946) and "Everyone is entitled to his own opinion, but not his own facts" - U.S. Senator Late Daniel Patrick Moynihan (1983).
(1983)7.27. The discretionary powers vested in the Reporting Officer, Reviewing Officer, and Accepting Officer cannot be exercised in a manner that results results in the deprivation of an individual's career advancement without affording a reasonable opportunity to be heard or issuing a show cause notice in writing. The purpose of the APAR system is to aid, not to impede, impede, an officer's career progression. 7.28. We also place on record our deep appreciation for the learned counsel for the respondents, who presented the case before us with humility and diligence, advancing the best possible arguments in support of the respondents' 65 Item No 61 (C-4) O.A. No. 2385/2024 & batch position. However, we are unable to concur with his submissions, having regard to the facts and circumstances of the present case.
8. CONCLUSION :
8.1. In view of the foregoing detailed analysis, the impugned actions/orders passed by the respondents for the respective years in each of the Original Original Applications are hereby quashed and set aside. The adverse remarks recorded in all the impugned APARs of the applicant in the respective Original Applications are accordingly expunged and directed to be taken off the official records.
8.2. The Competent Competent Authority among the respondents, i.e., the Revenue Secretary, is directed to revise and upgrade the numerical gradings of the applicant in accordance with the applicable rules, in the APARs of the respective years, within a period of forty-five forty (45) days ays from the date of receipt of a certified copy of this order.
8.3. It is clarified that the observations made hereinabove shall not be construed as any adverse comments against 66 Item No 61 (C-4) O.A. No. 2385/2024 & batch any of the official respondents impleaded in their respective capacities. It is further clarified that the aforesaid observations are confined strictly to the present Original Applications, without prejudice to the rights and contentions of either party in any other proceedings pending between them, whether before this Tribunal or any other Court of Law.
8.4. The Original Applications are accordingly allowed in the aforesaid terms. All pending Miscellaneous Applications, if any, shall stand disposed of. No costs.
(Anand S. Khati) (Manish Garg) Member (A) Member (J) /as/