Allahabad High Court
Virendra Kumar vs Union Of India And 3 Ors. on 9 January, 2020
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 36 Case :- WRIT - A No. - 15276 of 2017 Petitioner :- Virendra Kumar Respondent :- Union Of India And 3 Ors. Counsel for Petitioner :- Rahul Agarwal,Malik Juned Ahmad Counsel for Respondent :- A.S.G.I.,Anil Kr.Panday,S.K. Srivastava Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri Ashok Mehta, learned Senior Advocate assisted by Shri Rahul Agarwal, learned counsel for the petitioner and Shri Anil Kumar Pandey, learned counsel for the respondents.
Petitioner, who is working as Second-in-Command (in brevity '2lC') in the Central Reserve Police Force1, is before this Court for a mandamus commanding the respondents to convene the review D.P.C. for consideration of promotion of the petitioner on the rank of Commandant C.R.P.F. It appears that the petitioner was initially appointed as Assistant Commandant (Directly Appointed Gazetted Officer, D.A.G.O.) on 03.01.1998 in C.R.P.F. The present controversy relates to the adverse remarks and below benchmark grading recorded in the Annual Performance Assessment Report2 of the petitioner for the year 2013-14 and part 2014-15, which however were on representation expunged partially. As it has been averred that the petitioner having more than 18 years of unblemished career, with no adverse reports/complaints regarding his performance level, had worked to the utmost satisfaction of his superior officers.
On 25.08.2012, the petitioner was promoted as Second-in-Command and posted to 177Bn C.R.P.F. at Sopore, Baramulla (J & K). While being posted in the aforesaid Battalion under the command of the Commandant 177 Bn. C.R.P.F. namely Shri J.N. Meena, the petitioner was assessed for 7 months APAR w.e.f. 25.08.2012 to 31.03.2013 as "Very Good". Further the APAR for the period 01.04.2013 to 31.03.2014 was assessed as "Good", however with certain adverse entries and subsequently for the period w.e.f. 01.04.2014 to 06.11.2014, the APAR of the petitioner was assessed by the very same officer as "Below Good". Thereafter, he was transferred to C.R.P.F. Range Amethi and was accorded APAR w.e.f. 17.11.2014 to 31.03.2015 and his very next APAR was assessed as "Very Good".
Suffice it to indicate that the petitioner was appreciated by I.G. Karnataka for commendable and successful command of Ad-hoc Battalion for more than one month for Karnataka Elections but also D.G's Commendation Disc and appreciation was awarded for the commendable job done during the General Parliamentary Election 2014 in J & K for excellent performance during assessment period 2014-15. It has also been relevant to mention here that petitioner has been in receipt of various commendations for service achievement for periods viz 2010-11, 2011-12, 2012-13, 2013-14, 2014-15, 2015-16. The same have been brought on record collectively as Annexure 2 to the writ petition. It is claimed that except to the assessment period 2013-14 and 2014-15 (part), the petitioner has been accorded with credible remarks i.e. 2009-10 "Very Good", 2010-11 "Very Good", 2011-12 "Very Good", 2012-13 "Very Good", 2013-14 "Good", 2014-15 "Good/Very Good (Part) given by DIGP Range Amethi and 2015-16 "Very Good". It further appears that petitioner was empanelled candidate for promotion on the rank of Commandant vide letter dated 13.04.2016. Surprisingly, his name did not find place in promotion list released on 20.10.2016 and he was superseded by his juniors on account of not found fit due to lacking A.C.R. criteria. It would not be out of place to mention that adverse APAR was received by the petitioner on 10.02.2015.
It appears that vis-a-vis the APAR 2013-14 and 01.04.2014 to 06.11.2014 (part), the petitioner preferred a representation before the Special D.G. C.R.P.F. J&K Zone. The Appellate Authority vide order dated 22.10.2015 was pleased to expunge full APAR 2013-14 and partial APAR 2014-15 with upgrading the benchmark from 'below Good' to 'Good'. It further transpires that once the petitioner has been superseded for promotion to the rank of Commandant on account of the adverse entries and not being found fit for promotion as lacking ACR criteria, the petitioner again preferred a representation on 09.11.2016 to D.G. CRPF, New Delhi and apprised regarding expunging the adverse entries/remarks for the aforesaid period of APAR. The same was returned with remark as 'no provision of 2nd appeal/representation/memorial against adverse entries in APAR'.
It is claimed that as per existing policy for according promotion to the selection rank, the Bench Mark in ACR is three 'Very Good' and two 'Good' in the preceding last five years. It has also been pressed before this Court that even though the grading of the petitioner having been upgraded from 'Below Good' to 'Good' for the year 2014-15 and adverse entries though expunged for the years 2013-14 and 2014-15, but since the expunge was partial, there still remained certain adverse remarks on the dossier of the petitioner thus making him ineligible for consideration for promotion.
Shri Mehta, learned Senior Advocate has placed reliance on the Standing Order 52/2001, which provides that "The self-appraisal given by an officer is only intended to be a factual statement of work done by him. Where the reporting officer does not agree with the contents of the self-appraisal, it only means that there are factual errors in the resume presented by the officer. If it for that reason the reporting officer is to indicate the reason why he differs from what is stated in the self appraisal of the officer reported upon. The assessment be made in the appropriate column by the reporting officer. However, such disagreement of the reporting officer with the contents of self-appraisal received is not to be treated as adverse remarks and therefore, need not be communicated to the officer reported upon. Probably under this backdrop the adverse APAR for the year 2013-14 was not apprised well within time and the same was received by the petitioner on 10.02.2015. He has also relied upon the Standing Order 04/2015. For ready reference, paragraph 5.2 of Standing Order 04/2015 is extracted below:
Standing Order 04/2015: 5.2- "It is reiterated for the guidance of all concerned that the self-appraisal should be precise to the point and refer to the areas of responsibility of the officer reported upon and should be strictly within the prescribed limit of 300 words. The self-appraisal should reflect actual achievements during the period so that the scope for disagreement with it is reduced to the absolute minimum.
While it is not possible to make any generalization on the question which of the remarks of the reporting officer in relation to the self-appraisal of the officer reported upon should be treated as adverse or otherwise, the following may be taken as guidelines by all concerned:-
If the reporting officer records alongwith reasons along the column provided that the self-appraisal contains too much self-praise, such disagreement will not be considered as adverse remark. Therefore, while recording reasons for disagreement with the self-appraisal, the reporting officer may make it clear, whether or not his observations on the self-appraisal are to be taken as adverse remarks. If the Reporting Officer disagrees with the self-appraisal and intimates such disagreement to be taken as adverse, he may back it up with factual details and put them on record. Nothing prevents the Reporting Officer to point out the inadequacies or exaggerations in the self-appraisal and ask the officer if he would like to reconsider it. Such an approach may rule out the possibility of disagreement in a large number of cases.
The Reporting Officer's observations have necessarily to be with reference to the actual performance of the officer during the period and that too on the basis of established facts and other relevant materials contained in the Memorandum of Services etc."
In this backdrop, Shri Mehta vehemently contends that bare perusal of the self-appraisal column and the disagreement note referring to the same in the Appraisal Form of the APAR of the period 2013-14 and 01.04.2014 to 06.11.2014 would go to clearly elucidate that though the reporting officer has disagreed partly with the self-appraisal written by the petitioner but then as per clause 4.2 and clause 5.2 of the Standing Orders 56/2001 and 04/2015 (governing rules on the subject in issue), the Reporting Officer has nowhere mentioned/recorded a note that the same would be treated as adverse remark and in such circumstances, the D.P.C. has erred while treating the remark as adverse.
Shri Mehta submits that in most arbitrary manner, the Reporting Officer in the Pen-Picture Column has verbatim reiterated the very same wordings in relation to the petitioner as in the disagreement note. Since the same have not been recorded in the disagreement note to be taken as adverse, the very same wordings paradoxically cannot be treated as adverse remarks in the Pen Picture column recorded by the Reporting Officer, which smacks of clear malafides and bias of the Reporting Officer against the petitioner and the same is liable to be ignored, whereas, most of the adverse remarks had already been expunged by the superior official. While expunging the adverse remarks, the Competent Authority has also clearly proceeded to observe in his letter dated 22.10.2015 that "I also find that certain remarks of the Reporting Officer are too subjective in nature and not in consonance with instructions contained in point no.5(6) of Swamy's compilation on confidential reports of Central Government employees."
In this backdrop, Shri Mehta submits that in the aforesaid facts and circumstances, the entire career of petitioner, which had been outstanding, has been ruined and his future career has already been blocked just due to adverse remark as has been indicated by the Commandant 177 Bn. C.R.P.F. The Departmental Authority while performing the DPC had also committed a manifest error in law while denying the rightful claim to the petitioner for promotion to the post of Commandant and as such, the petitioner is entitled to be given promotion from the date his juniors were promoted as the petitioner had already achieved the prescribed benchmark 'Good'.
In support of his submission, Shri Mehta has placed reliance on the judgement and order passed by Hon'ble High Court of Punjab and Haryana in Gian Singh vs. Union of India3 and submits that in the similar circumstances, the Court has intervened in the matter and relief has been extended to the petitioner therein and the present matter is also squarely covered with the aforesaid judgement and similar treatment may also be extended to the petitioner.
Per contra, Shri Anil Kumar Pandey, learned counsel for Union of India has vehemently opposed the writ petition and contends that the petitioner was found unfit for promotion to the rank of Commandant by the D.P.C. due to adverse remark in his APAR 2013-14 and part 2014-15 (w.e.f. 01.04.2014 to 06.11.2014), which was the material period under consideration of D.P.C. He has also relied upon the remark as has been given in Pen Picture column and the endorsement made by the Reporting Officer.
In this backdrop, Shri Pandey submits that the D.P.C. has considered the entire material fact and at this stage, it cannot be said that there is any arbitrariness in the same as whatever the material has been placed before the D.P.C., it has considered the same and accordingly denied to accord promotion to the petitioner. He has also submitted that APAR for the year 2013-14 (Covering period from 1.4.2013 to 31.3.2014) of the petitioner was initiated by Shri Jagdish Narayan Meena, Commandant, 177 Bn, CRPF (Reporting officer) and the petitioner was graded " good" with adverse remarks in Pen- Picture column. Shri R.S.Rautela, DIGP ( Ops), North Kashmir, CRPF, Baramulla (Reviewing Officer) reviewed his APAR and graded the petitioner as "Good". Besides, the Reviewing officer also agree with the remarks of the Reporting Officer and endorsed same as "Agreed". Apart from the above, in his Pen picture, the Reviewing officer also endorsed remarks "mDr vf/kdkjh dk dk;Z O;ogkj o viuh ftEesnkjh ds izfr :>ku dks mnklhu ik;kA mudh dk;Z iz.kkyh Hkh larks'ktud gSA mudk dk;Z dks fjiksVZ/khu vof/k esa vPNk ik;kA". Shri Nalin Prabhat, IPS, IG Kashmir Ops Sector, CRPF ( Accepting Authority) endorsed remarks that "I agree" and graded the petitioner as "Good". APAR for the year 2014-15 (Converting period from 1-4-2014 to 6-11-2014) of the petitioner was initiated by Shri Jagdish Narayan Meena, Commandant, 177 Bn, CRPF (Reporting Officer) and he was graded "Below Good" with adverse remarks in Pen-Picture column. Shri Hanumant Singh Rawat, DIGP (Ops), North Kashmir, CRPF, Baramulla reviewed his APAR and graded the petitioner as "Below Good". Besides, the Reviewing officer also agreed with the remarks of the Reporting officer and endorsed the same as "Agreed". The Reviewing Officer also endorsed remarks that "vf/kdkjh dk ys[kuh fp=.k fcYdqy nq:Lr fd;k x;k gSA vf/kdkjh dh dFkuh vkSj djuh ds chp ds xgjh [kkbZ gSA eS fjiksfVZax vf/kdkjh ls iw.kZr;k lger gWwA" Shri Nalin Prabhat, IPS, IG Kashmir Ops Sector, CRPF ( Accepting Authority) also graded the petitioner as "Below Good".
He further apprised to the Court that aggrieved with below bench mark grading and adverse remarks in his APAR for the year 2013-14, the petitioner preferred a representation dated 24.2.2015 to the SDG, J&K Zone, CRPF. After taking into consideration the representation submitted by the petitioner, the SDG, J&K, Zone vide Order No. A.XII.11/2015-DC-(CR & Vig.) dated 22.10.2015 partially expunged the adverse remarks endorsed in the APAR 2013-14 but the final grading "Good" recorded in the APAR was not changed. Similarly, aggrieved with below bench mark grading and adverse remarks in his APAR for the period from 1.4.2014 to 6.11.2014, the petitioner submitted another representation dated 6.4.2015 to SDG, J&K Zone. After taking all aspects into consideration, SDG J&K Zone partially expunged the adverse remarks and upgraded the grading from ' Below Good' to 'Good' vide Order No. A.XII.11/2015-DC-2(CR & Vig.) dated 22.10.2015. Dissatisfied with SDG, J&K Zone order dated 22.10.2015, the officer had further submitted a representation dated 9.11.2016 to DG CRPF (Advance copy). He also took personal audience of DG CRPF through video conference vide his application dated 5.12.2016 in connection with adverse remarks in his APARs mentioned above. In this backdrop, he submits that as per clarification issued by DOPT, there is no provision to entertain any 2nd appeal/ representation/memorial against the adverse rearks/ below benchmark gradings is APAR after the 1st appeal/ representation is decided by the competent authority (the authority next senior to the accepting authority). Therefore, 2nd representation of petitioner was not considered and the petitioner was apprised about the factual position vide Directorate letter No. R.XIII- 13/2016-DA- 11 (APAR) dated 30/12/2016 and as such, at this stage, no interference is required in the matter as the claim of the petitioner has been considered by the Authorities and the relief as is admissible has been accorded to him.
Heard rival submission and perused the record.
As per the record, which has been placed before the Court, the Court is of the considered opinion that as per the existing rules/norms, the petitioner had achieved the prescribed benchmark 'Good' after expunging the adverse entries to avail the benefit of promotion. More-so, it has also been apparent that no ACR of the petitioner for last five years under which his case was considered for promotion, could have been assessed as adverse remarks, inasmuch as, the adverse entries in the Pen Picture Profile of the petitioner had already been expunged for the year 2013-14 and from 01.04.2014 to 06.11.2014 (part), the APAR had already been upgraded to 'Good' from 'Below Good' and only the adverse remarks as recorded in the disagreement note to the self-appraisal was left out and the same since was not recorded to be taken as an adverse remark by the Reporting Officer. As per paragraph 4.2 and paragraph 5.2 of the Standing Orders 56/2001 and 04/2015, the same could in no uncertain terms was liable to be treated as adverse remark/entries against the petitioner, which the DPC has apparently done. More-so, the specific remarks which were expunged were not isolated remarks/words, but in continuation of the earlier remarks and thus the expunction is liable to be treated as a whole.
The Court is also of the opinion that once the entry was expunged and accordingly, before the DPC the upgraded remarks had to be placed instead of placing the complete report consisting of adverse, which were given by the Commandant. At this stage, the Court is not inclined to adjudicate on this score as nothing concrete is being placed to find out whether the Reporting Officer, who has submitted the credentials of the petitioner before the DPC, has also submitted the previous remarks, even though the same has been expunged and, on this score, no specific stand can be taken. However, in changed scenario and taking into account a cumulative consideration of the matter, it appears that the adverse remarks against the petitioner were recorded in most arbitrary manner and thus required to be set aside.
In the case of Gian Singh (supra), the Division Bench of Punjab and Haryana High Court has held as follows:-
"6. The short question that arises for consideration is - Can the adverse remarks recorded against the petitioner be sustained ?
7. Normally, this court would be reluctant to interfere with the remarks recorded by the competent authority. It is the prerogative of the employer to assess the performance of the employee and to record its opinion. Still further, it may not be normally possible for the employer to support every remark by tangible evidence, as, in the very nature of things, concrete material may not be available with regard to everything. A man's reputation may be extremely bad. Yet, there may be no material on the file to support an adverse remark about the reputation. In spite of this, whenever it is found that the remarks have been recorded in a totally arbitrary manner or on account of extraneous considerations, the writ court shall not be precluded from interfering or reviewing the matter.
8. What is the position in the present case ?
9. The petitioner had been communicated the following remarks vide communication dated February 12, 1990:-
"(i) You possess wavering loyalty. Your egoism, whims and fancies, obstinate nature and ill mannerism plays a key role in that;
(ii) You display immaturity and insobriety while dealing with superiors and in performance of duties.
(iii) Your initiative, drive and determination require improvement as at times found to be lacking. You have wavering and flinching determination.
(iv) Your work attitude is slow, casual and not result-oriented.
(v) Your ability to work in a team is not upto the desired level.
(vi) You have average intelligence. At times failed to assess the situations well and did not suitably respond.
(vii) You are always critical of superiors, argumentative and obstinate and do not hesitate to use unparliamentary language.
(viii) Your relations with subordinates is loose and you try to win them over by adopting cheap and unofficer like methods.
(ix) You are just about an average officer. Your performance is below the desired level. Your behaviour too is below the norms of officership. When advised to improve upon you try to create scandalous atmosphere in the unit. You do not attend PT and avoid operational commitments. You should try to avoid use of slang, abusive and unparliamentary language towards your superiors and show sufficient maturity and sobriety.
(x) You at times avoided your commitments as AC (Ops) against extremism. Even when a section of the unit came under heavy fire by extremists you did not move and even disobeyed the orders of the Commandant to do so.
(xi) You are temperamental and need proper tackling."
10. Thereafter, vide letter dated February 13, 1991, the petitioner was conveyed the following adverse remarks:-
"Fitness for promotion Not yet fit for promotion."
11. He had represented. Vide order dated February 14, 1991, the petitioner was informed as under:-
"Having carefully examined the representation of the officer, comments of both the Reporting and Reviewing officers and the relevant records, I found the remarks against Srl. No. 1, 2, 7, 8, 9 & 10 as mentioned in para 1 above, are motivated and not based on facts. The Reporting Officer as well as the Reviewing Officer have not brought out any tangible facts to substantiate these remarks. Therefore, I order expunction of these remarks. They are further substituted/modified as under:-
Sl. 1 Loyal Sl. 2 Sober and mature Sl. 7 Satisfactory Sl. 8 Good Sl. 9 Nil Sl. 10 Nil Remarks against Srl. No. 3, 4, 5, 6, & 11 as mentioned in para 1 of this order, are based on facts and I, therefore, order retention of these remarks in the ACR of Shri Gian Singh Asstt. Commandant, for the period from 20.8.1988 to 31.3.1989."
12. Even though his representation against the remarks conveyed vide letter dated February 13, 1981 was rejected, the petitioner had submitted a representation dated September 30, 1991 to challenge the orders by which his claim for expunction of all the adverse remarks had been partly rejected. The decision was conveyed to the petitioner vide letter dated July 1, 1992. The remarks that "he is temperamental and needs proper tackling" and "not yet fit for promotion" were expunged.
13. A perusal of the above facts shows that according to the Inspector General of Police himself, the remarks against the petitioner were "motivated and not based on facts." It was further observed that "the Reporting officer as well as the Reviewing officer have not brought out any tangible facts to substantiate the remarks". Thus, the authority was satisfied that the remarks against the petitioner were not based on an objective consideration and that there was no material at least in respect of some of the adverse comments. Still further, the next higher authority viz. the Director General had considered it appropriate to again interfere and remove two out of the remaining six adverse comments. When considered in totality, it is apparent that out of the 12 adverse comments that had been made on the petitioner's performance, the authorities had found it necessary to expunge eight.
14. The petitioner alleges that the remarks were based on extraneous considerations. In fact, in paragraph 3 of the writ petition, it has been averred that the "remarks in the second half of the annual confidential report were due to the vindictive attitude of Shri J.R. Soni." It has been further averred that the remarks were conveyed after almost a year. These averments have not been controverted. The officer has not filed a reply in spite of the fact that he had been impleaded by name. The allegations have not been denied by him. Still further, it is established on the record that the petitioner's performance on December 14, 1989 had been commended. It was observed that his "brave action and leadership was responsible for the spectacular success". By another letter of November 15, 1990, the petitioner was informed that the party under his command had "reached the place of encounter and displayed courage and operational skill... During this encounter, four dreaded terrorists were killed and four AK 47-rifles, one rocket launcher with 2 shells, one 7.62mm Chinese made pistol were recovered with large quantity of ammunitions." These letters of appreciation relate to the petitioner's performance during the period for which the adverse remarks had been recorded. If the petitioner had shown bravery and displayed courage as well as operational skill, it cannot be understood as to how he can be described as wavering in his loyalty or lacking in initiative, drive and determination. Still further, if the authorities themselves were satisfied that the adverse comments were motivated and were not based on facts, it would not be safe to sustain the adverse remarks recorded against the petitioner.
15. On a cumulative consideration of the matter, it appears that the adverse remarks against the petitioner were recorded arbitrarily and, thus, deserve to be quashed.
16. It was then contended that since the petitioner was superseded on account of the adverse comments, the respondents should be directed to reconsider his claim for promotion w.e.f. November 1992 when persons junior to him had been promoted. Mr. Mohunta contests this claim on the ground that the Departmental Promotion Committee had considered the petitioner's record for the preceding five years and declared him unfit for promotion.
17. It is undoubtedly correct that in the written statement filed on behalf of the respondents, it has been specifically averred that the Committee had considered the petitioner's record of service for the preceding five years. However, nothing has been pointed out to show that there were any adverse comments on the petitioner's record of service except the remarks which have been mentioned above. Still further, even from the record, nothing has been pointed out to show that the petitioner had been communicated any adverse remarks on an earlier occasion. Irrespective of that, the fact remains that the remarks recorded for a part of the year 1988-89 were adverse. These adverse comments could have weighed with the Departmental Promotion Committee in declaring him to be unsuitable. In view of the finding that the adverse comments cannot be sustained, it would only be fair that the Committee reconsiders the petitioner's case in the light of the changed record. It is, accordingly, directed that the petitioner's case for promotion w.e.f. November 1992 when persons junior to him were promoted, shall be considered afresh in the light of the changed situation. The needful shall be done within three months from the date of receipt of a certified copy of this order.
18. The writ petition is allowed in the above terms. The impugned orders, copies of which have been produced as Annexures P.5 and P.6, are quashed. In the circumstances, the parties are left to bear their own costs."
It is undoubtedly correct that in the counter affidavit filed on behalf of Union of India, it has been specifically averred that the Committee had considered petitioner's record of service for the preceding five year, but however nothing has been pointed out to show that there were any adverse comments on the petitioner's record of service, except the remark which has been mentioned above and more-so the adverse remark as has been informed to the petitioner is only in the year 2014-15 and adequately he has made representation, which was considered and adverse entries were expunged.
Paragraph 17.7 of the Standing Order 56/2001 clearly postulates obliteration of the portion of adverse remarks in such a manner so as to give no indication to anyone of any adverse remarks ever being recorded against an officer. While considering the case of the petitioner, the aforesaid guidelines were not followed in the strict sense and true spirit and in most arbitrary manner, the petitioner has been declared unfit for promotion on the basis of an adverse remarks, which had already been expunged, whereas, the same had to be read as well.
Accordingly, in view of the aforesaid observation, the adverse comments cannot sustain. Mandamus is issued to the respondents to reconsider the petitioner's case for promotion on the post of Commandant with effect from the date his juniors were promoted keeping in mind the changed scenario. The needful to be done within two months period from the date of production of certified copy of this order.
With these observations, the Writ Petition is allowed.
Order Date :- 09.01.2020 A.Pandey