Delhi High Court
Sanjeev Dhundia vs Union Of India & Ors on 21 December, 2020
Equivalent citations: AIRONLINE 2020 DEL 1824
Author: Asha Menon
Bench: Rajiv Sahai Endlaw, Asha Menon
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 21st December, 2020
+ W.P. (C) 3533/2020
SANJEEV DHUNDIA ..... Petitioner
Through: Mr. Ankur Chhibber, Mr.
Anshuman Mehrotra, Mr.Harsh
Dhankar and Mr.Nikunj Arora,
Advocates
versus
UNION OF INDIA & ORS. .....Respondents
Through: Ms.Nidhi Raman, CGSC for R-1 to
R-3/UOI
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MS. JUSTICE ASHA MENON
[VIA VIDEO CONFERENCING]
JUSTICE ASHA MENON
1. The present petition has been filed by the petitioner, a Deputy
Inspector General (DIG) in the Central Reserve Police Force (CRPF),
under Article 226 of the Constitution of India against the recording of his
Annual Performance Assessment Report (APAR) by the respondents,
particularly the respondent No. 4, with the following prayers:
"(a) Issue a writ of certiorari for quashing of the
APAR for the period 01.04.2018 to 31.03.2019 to the extent
whereby adverse remarks have been given to the petitioner
and of the order dated 08.05.2020 whereby the
representation dated 03.10.2019 of the petitioner with
W.P.(C)3533/2020 Page 1 of 16
respect to the expunction of untenable remarks and
upgradation of grading in the APAR for the period 2018 -
2019 was rejected;
(b) Issue a writ of mandamus directing the
respondents to upgrade the grading and to expunge the
adverse remarks for the relevant period i.e. 01.04.2018 to
31.03.2019 and to grant all consequential benefits in light
of the expunged remarks and revised grading; and
(c) Pass any such orders as the Hon'ble Court may
deem fit in the light of above mentioned facts and
circumstances of the case."
2. The petitioner joined the CRPF in December, 1987 as an Assistant
Commandant. The petitioner claims that due to his hard work, he had
always received very good performance evaluations and had also
received regular promotions in due course. In 2009, he was promoted to
the rank of DIG. He has an unblemished service of more than 31 years in
the Force. He had been appreciated by not only the higher authorities,
including the Inspector General of Police, CRPF, but also by the
President of India for his meritorious work. Since the assessment year
2010-2011 he has been graded "Outstanding".
3. On 16th January, 2017, the petitioner was posted to West Bengal
Sector as DIG and served as the DIG (Adm) of the sector for nearly 6
months after which he took charge as DIG (Ops/Int & Trg) for the
remaining period of the year 2017-2018. During this period, he was the
2nd senior most officer in the sector after the Inspector General and
according to him, had performed his duties most creditably. However,
when in terms of the guidelines of the DoPT contained in OM dated 14th
May, 2009, the petitioner received his APAR for the period 1 st April,
W.P.(C)3533/2020 Page 2 of 16
2017 to 31st March, 2018 on 2nd April, 2019, he realised that he had been
callously awarded 7.1 marks out of 10 by the Reporting and Reviewing
Authorities in all attributes/traits. The petitioner had been graded as
"Very Good" though certain adverse remarks like, lack of initiative, weak
interpersonal relations, etc., were recorded by the Reporting
Officer/respondent No.4, which were incompatible with the marks and
grading. No prior warning/advisory had been issued to the petitioner by
the respondent No.4 before these adverse remarks were recorded by him
in the petitioner's APAR. Thus, this improper recording of the APAR for
the year 2017-2018 disclosed the bias that the respondent No.4 had
against the petitioner. The Accepting Authority however, graded him
"Outstanding". The petitioner, nevertheless filed an appeal for expunction
of the adverse remarks and which he submitted on 4th April, 2019 to the
Home Secretary, Ministry of Home Affairs (MHA) and which was
accepted vide order issued on 7th January, 2020.
4. The petitioner states that the respondent No. 4 and he had a very
strained relationship. It is further averred in the petition that on 28 th June,
2019, the respondent No.4 sent a complaint against the petitioner
accusing him of abusing and physically assaulting his staff and the very
next day, i.e., on 29th June, 2019, with the same mindset, wrote his APAR
for the period 1st April, 2018 to 31st March, 2019, grading him 5.8 marks
out of 10, i.e., "Good". Certain adverse remarks were also recorded by
him. Unfortunately, the Reviewing Officer and Accepting Authority also
affirmed these observations. Once again, no advisory/warning had been
issued to the petitioner before the recording of such adverse entries. The
petitioner, once again, filed his representation dated 3 rd October, 2019 to
W.P.(C)3533/2020 Page 3 of 16
the Home Secretary, MHA, for expunction of the adverse remarks and the
lower grading recorded in the APAR for the period 2018-2019 and for
upgrading the grading level which also was rejected by the MHA vide the
order dated 8th May, 2020. Hence the present petition.
5. The learned counsel for the petitioner submitted that the recording
of the APAR by the respondent No. 4 was against all guidelines issued by
the Government in this regard and against the law laid down by the
courts. Relying on Swamy's Compilation and the Standing Order No.
56/2001 with regard to the preparation and maintenance of annual
confidential reports of officers, he submitted that before recording of
lower grading such as "Average" or other adverse remarks, the individual
should be suitably advised in writing well in advance, so that the officer
had an opportunity to improve himself over the period of one year. It was
also argued that an incident that had allegedly occurred after the period
for which the APAR was to be recorded, could not be considered for
assessing an officer in a given year. Therefore, the complaint in respect of
an incident that occurred in June, 2019 could not have been considered
while recording the APAR for the year 2018-19. Therefore, procedurally
too, the recording was faulty and bias was writ large in the recording of
the APAR of the petitioner and the same was required to be set aside.
Reliance has been placed on the judgements of the Supreme Court in
M.A.Rajasekhar v. State of Karnataka, (1996) 10 SCC 369 and State of
UP v. Yamuna Shanker Mishra and Another, (1997) 4 SCC 7 and
Sukhdeo v. Commissioner Amravati Division (1996) 5 SCC 103 and the
judgement of the Delhi High Court in SK Sharma v. Union of India and
others, 2015 SCC OnLine Del 13399.
W.P.(C)3533/2020 Page 4 of 16
6. Ms.Nidhi Raman, learned counsel submitted on behalf of the
respondents that the petitioner's case had no merit. It was submitted that
it was in order to eliminate possibility of bias that a three-tier system of
assessment was in place. It was submitted that the Standing Orders had
been fully complied with while recording the APAR of the petitioner. A
time schedule was prescribed for recording of APAR upto 30 th June and
29th June was well within this time, and nothing could be attached to this
fact that the APAR was recorded on that date. Since the incident had
occurred on 13th June, 2019, notice of it could have been taken by
respondent No.4 while recording the APAR. It was also submitted that in
the entire petition, nowhere has the petitioner given an explanation for his
misconduct though he had in fact apologized to the constables with whom
he had misbehaved. Moreover, vide two communications dated 7 th
August, 2018 and 14th August, 2018, the petitioner had been given
opportunities to improve himself. This was also due compliance of the
guidelines. She distinguished all the cited case laws on facts and
submitted that if the petitioner had doubts about the fairness of his
Reporting Officer, he could have made a complaint to the superior
officers for being assessed by some other officer. But the petitioner had
made no such complaint. She therefore prayed that the petition be
dismissed.
7. These contentions were, however, countered by learned counsel for
the petitioner by submitting that the two letters cited by the learned
counsel for the respondents, were not memos or advisories and were only
intended to assess work done. Even in these letters, no specific area was
pointed out to the petitioner by the respondent No.4, where his work was
W.P.(C)3533/2020 Page 5 of 16
found unsatisfactory. As regards the vague remark that the petitioner had
no control over anger, once the petitioner was found to be of SHAPE 1,
his psychological condition could not be in doubt. Though it has not been
filed, the learned counsel for the petitioner informed this Court, that the
petitioner had been assessed as "Outstanding" for the subsequent year as
well. Thus, except for the period during which the respondent No.4 was
his Reporting Officer, his APAR had remained "Outstanding" and it was
not logically possible that his efficiency would have plummeted to
"Good" from "Outstanding" and then the very next year skyrocketed
again to "Outstanding".
8. It would be useful to refer to Swamy's Compilation on confidential
reports of central government employees, placed on record by the
petitioner. While cautioning that the "main focus of the Reporting Officer
should be developmental, rather than judgemental", it states the object of
recording the Annual Performance Assessment Report (APAR) in the
following words:
"4.Thus the system of APAR has two principal
objectives. First and foremost is to improve the
performance of the subordinate in his present job. The
second one is to assess his potentialities and provide him
appropriate feedback and guidance for correcting his
deficiencies and improve his performance."
9. It is therefore clear that APAR is not meant to fix officers so that
their future career is jeopardized. Rather, it is intended to inform them
how well or otherwise they have performed the job assigned and plan
W.P.(C)3533/2020 Page 6 of 16
their career development in a systematic manner, so that when they come
to know their defects they can take remedial measures.
10. No doubt, the Supreme Court in Sukhdeo (supra) was dealing with
a case of compulsory retirement. However, some of its observations
regarding adverse remarks and the principles of natural justice can be
noted profitably:
"6. ......................... In this case, the power
exercised is illegal and it is not expected of from that
highly responsible officer who made the remarks. When
an officer makes the remarks he must eschew making
vague remarks causing jeopardy to the service of the
subordinate officer. He must bestow careful attention to
collect all correct and truthful information and give
necessary particulars when he seeks to make adverse
remarks against the subordinate officer whose career
prospect and service were in jeopardy. In this case, the
controlling officer has not used due diligence in making
remarks. It would be salutary that the controlling officer
before writing adverse remarks would give prior
sufficient opportunity in writing by informing him of the
deficiency he noticed for improvement. In spite of the
opportunity given if the officer/employee does not
improve then it would be an obvious fact and would form
material basis in support of the adverse remarks. It
should also be mentioned that he had given prior
opportunity in writing for improvement and yet was not
availed of so that it would form part of the
record.........".
11. Again, the Supreme Court in Yamuna Shanker Mishra (supra),
observed as below:
W.P.(C)3533/2020 Page 7 of 16
"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.................. 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 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 notoriety and may be within his
knowledge. Before forming an opinion to be adverse,
reporting 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 judgement, conduct, behaviour,
integrity or conduct/corrupt proclivity. If despite being
given such an opportunity, the officer fails to perform the
duty, 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 be open to him
to have it corrected by appropriate representation to the
higher authorities or any 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
higher levels and it becomes a successful tool to manage
W.P.(C)3533/2020 Page 8 of 16
the services with officers of integrity, honesty, efficiency
and devotion."
12. It is apparent that in the light of the objectives of assessing an
officer, the assessment should include the positive and negative traits and
the shortcomings have to be brought to the notice of the concerned officer
in writing if the intention is to incorporate in the APAR, improvement
upon written advisories. Without such written advisories, it would be
improper for a Reporting Officer to make adverse remarks about
performance or attitude in the evaluation he makes of the officer. The pen
picture of the petitioner written by the respondent No. 4 on 29 th June,
2019 is reproduced below for ready reference:
"Unless and until he is nudged no initiatives taken
on his own. He was asked an explanation (vide letter
No.A.XII.2/2018-WBS-PS dated 07/08/2018 and
14/08/2018) for his non-performance for which
appropriate reply yet to be received. Attitude and
behaviour towards subordinates staffs are not officer like.
Temperament is mercurial and no control over his Anger.
I rate him as a 'Good' officer."
13. The reliance of the respondents in the present case, on the letters
dated 7th August, 2018 and 14th August, 2018, as being advisories, is
misconceived. These letters and the reply of the petitioner dated 14 th
August, 2018 have been placed as Annexure P-2 colly. to the Additional
Affidavit filed by him. The letter dated 7th August, 2018 (at page 370 of
the electronic file) is to the following effect:
W.P.(C)3533/2020 Page 9 of 16
"OFFICE OF THE INSPECTOR GENERAL OF
POLICE, WEST BENGAL SECTOR, CRPF, HC BLOCK,
SECTOR-3, SALT LAKE, KOLKATA
No. A.XII.2/2018-WBS-PS Dated, the 07 August, 2018.
To
Shri Sanjeev Dhundia,
DIG (Ops. Int & Trg),
WBS, CRPF,
Kolkata
Subject: PERFORMANCE OF RESPONSIBILITIES:
REG.
The DIG(Org), CRPF vide their letter No.
O.IV.7/2013-Org-D.A.3 dated 11.07.2016 has delineated
the duties of DIG (Ops, Int & Trg) posted in the Sector
HQ as per Annexure-II.
2. Please submit the details of initiatives undertaken
and work done by you during the period 01.04.2018 to
30.06.2018 with respect to the duties mentioned in Annexure-II
of the letter under reference, particularly on points at Sl.Nos.
17, 20, 21, 22, 23, 24, 25, 26, 28 and 29. The information
should reach the undersigned within three days.
Sd/-
7/8/18
(S Raveendran)
Inspector General"
14. It is seen that it merely calls upon the petitioner to give details of
what he has done in respect of the duties as delineated in the letter of the
DIG (Org) to which he submitted his response (at page 371). Apparently,
W.P.(C)3533/2020 Page 10 of 16
the respondent No. 4 was not satisfied with the reply and so issued the
letter dated 14th August, 2018 (at page 374). A perusal thereof would
show that it alleges that the petitioner's response lacks specifics and calls
upon him to furnish the dates of various activities and visits claimed in
the response. It nowhere specifies the shortcomings noticed in the
performance of the duties as disclosed by the petitioner in his response. It
does not call upon the petitioner to improve on his performance, neither
in defined areas nor in general. In short, these letters cannot be termed as
'advisories' in writing, as understood in the light of the observations of
the Supreme Court extracted above.
15. With regard to his observation that the petitioner had a mercurial
temper, the record does not bear it out. The incident of June, 2019 is
stated to have been preceded by an earlier incident. What must be borne
in mind is that this prior incident had occurred in the year 2017.
Therefore, how was the abusive incident occurring in 2017 or in June,
2019 relevant for the assessment year 2018-2019. It was improper for the
respondent No. 4 to have coloured his assessment by events that occurred
much prior to or subsequent to the year of assessment. In any case, the
fact that the petitioner was found in SHAPE 1 dispels any doubt on the
state of his mental health. The adverse remarks were therefore totally
uncalled for.
16. What can constitute bias has been spelt out succinctly in the
judgement of this court in SK Sharma (supra). It was observed:
"14. As in all cases where bias is alleged, the issue
which the court has to address itself is as to whether
there was likelihood of bias. The party alleging bias is
W.P.(C)3533/2020 Page 11 of 16
not under an onus to prove bias; rather it is the danger or
likelihood of bias of the public official concerned, in the
circumstances of a given case. In one of the most
celebrate cases, R v Bow Street Metropolitan Stipendiary
Magistrate & Ors, Ex parte Pinochet Ugarte (No 2)
[1999] 2 WLR 272 ["the Pinochet case"] discussed those
tests. There, the House of Lords set aside its earlier
decision when it was disclosed (after delivery of
judgment), in the earlier appeal, that Lord Hoffmann,
(one of the members of the Appellate Committee who
heard the appeal), had some link with Amnesty
International. That body was an intervener in the appeal;
the judge was an unpaid director of the Amnesty
International Charity Ltd ("AICL"), a charity wholly
controlled by Amnesty International. The House of Lords
held that the relationship between Lord Hoffmann and
Amnesty International through his directorship in AICL,
led to his automatic disqualification from sitting on the
hearing of the said appeal without the need to investigate
whether there was a likelihood or suspicion of bias in the
circumstances of that case. The Supreme Court in
Badrinath (supra) and D.C. Agarwal and the other cases
previously cited vividly summarized the applicable test in
these cases- it is not one of proven bias; rather it is proof
of reasonable likelihood of bias."
17. This court, as reflected in several decisions, has been reluctant to
accept a situation where an officer consistently assessed as "Outstanding"
or "Very Good" becomes "Good" or "Average" in one or two years in the
absence of any cogent data justifying it. No doubt, an APAR is intended
for an annual assessment of performance. There may be differences in the
performance of an officer from one year to the next. However, the
W.P.(C)3533/2020 Page 12 of 16
differences should not occur on account of different Reporting Officers.
The performance cannot also be erratically or whimsically assessed that
in the midst of consistent 'excellent' performances an officer slides to
'good' or 'average' or 'below average' performances in a couple of
instances. What is more, whenever the Reporting Officer notices any such
slide, it is incumbent upon him/her to find out the reason for the decline
in performance and to resolve the issue(s) causing the fall in the
performance of the officer who has till then been 'excellent' in the
discharge of his duties.
18. In the present case, the petitioner has consistently been recorded as
a 'very good' and 'outstanding' officer, as is clear from the APARs
placed as Annexure P-3 in the electronic file, and as is not disputed by the
respondents. When the same Reporting Officer, i.e. respondent No. 4 had
assessed the petitioner as "Very Good" with adverse remarks, for the
previous year i.e. 1st April, 2017 to 31st March 2018, the Accepting
Authority upgraded it to "Outstanding" despite such adverse remarks and
which remarks were subsequently expunged by the MHA. The very next
year, the respondent No. 4 graded the petitioner only as "Good". The
letter of 14th August, 2018 is itself reflective of the prejudice of the
respondent No. 4 for he seems to have been peeved with the petitioner for
having described in his reply of 14th August, 2018, that, he had liaised
with BPR&D, CDTS, IIT Kharagpur to design various courses suitable
for Force officers and personnel and obtain seats in the same, as he has
remarked in his letter dated 14th August, 2018 that the initiative for
designing the courses had been undertaken by him, i.e. respondent No. 4
and not the petitioner and that "taking credit of the work done by a senior
W.P.(C)3533/2020 Page 13 of 16
was not proper" and it "should have been avoided". This seems to be the
only piece of "advice" that the respondent No. 4 had given in writing, to
the petitioner! But again, there is nothing to show that the petitioner had
subsequently, too, claimed for himself, the work done by his senior
officers, including the respondent No. 4. The petitioner has offered a
plausible explanation for not submitting a reply to this second letter of the
respondent No.4. According to him, the reply had not been sent in writing
on account of the discussion he had had on 14th August, 2018 with the
respondent No. 4. The respondents in their counter affidavit have
admitted that such a meeting had in fact taken place. It is probably on
account of the lack of trust between the two that the petitioner recorded
what transpired on the same letter (page 374 of the electronic file).
19. The petitioner has succeeded in establishing bias on the part of the
respondent No. 4 in assessing him for the year 2018-2019. There is
nothing on the record which shows that the performance of the petitioner
had dropped drastically in that year which deserved a grading of "Good".
The previous incident of abuse of staff had occurred in 2017 and the other
case had happened, according to the respondent No.4, in June, 2019. The
complaint given by the respondent No. 4 recommending departmental
action against the petitioner on 28th June, 2019, a day before he recorded
the APAR, reflects the state of mind of the Reporting Officer, and there
was real likelihood of bias. He should have held his hand, if he was
unable to collect his thoughts, to correctly assess the petitioner. Writing
in the APAR that the petitioner had not shown initiative or had to be
prodded or had to be nudged into action, without quoting specific
instances, which were also followed up and substantiated by written
W.P.(C)3533/2020 Page 14 of 16
advisories for improvement, and relying on letters sent in the early part of
the assessment year, which in any case do not qualify as advisories, to
make such adverse remarks in the APAR, leaving no opportunity for the
petitioner to improve his performance, militates against principles of
natural justice and the objectives of recording the APARs. No efforts
seem to have been made by the respondent No.4 to find out the causes
why the performance of the petitioner who was an 'outstanding' officer
had in that year fallen so steeply, and to thereafter, make efforts to
remove the issues interfering with excellence in performance of his
duties. Moreover, when no written advisories were issued to the petitioner
to improve his performance, it cannot be concluded that the petitioner had
continued with unsatisfactory performance despite cautioning and
opportunities to improve, to substantiate the adverse remarks recorded by
the respondent No.4.
20. In the circumstances, we find no justification for the respondent
No.4 to have recorded adverse remarks and to have downgraded the
petitioner to the grading of "Good" in the APAR of the petitioner for the
period 1st April, 2018 to 31st March, 2019. The order dated 8th May, 2020
rejecting the representation of the petitioner against the adverse remarks
and downgrading without considering all these factors and reflecting a
non-application of mind, deserves to be and is hereby set aside. The
respondents are directed to expunge the adverse remarks and the grading
of 'Good' for the relevant period i.e. 1st April, 2018 to 31st March, 2019
and to grant all consequential benefits to the petitioner including a revised
benchmark grading of 'Very Good' and to ensure that the DPC, which
may be constituted to consider the petitioner for promotion as and when it
W.P.(C)3533/2020 Page 15 of 16
is due, shall ignore this grading of "Good" for the said period, for the
purposes of promotion of the petitioner.
21. The petition is accordingly allowed.
ASHA MENON, J.
RAJIV SAHAI ENDLAW, J. DECEMBER 21, 2020 manjeet W.P.(C)3533/2020 Page 16 of 16