Delhi High Court
Sanjay Doval vs Union Of India & Ors. on 27 November, 2019
Equivalent citations: AIRONLINE 2019 DEL 1880
Author: S. Muralidhar
Bench: S. Muralidhar, Talwant Singh
$~26
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 6350/2018 & C.M. APPL. 36235/2018 (Impleadment)
SANJAY DOVAL ..... Petitioner
Through Dr. S. S. Hooda, Advocate
versus
UNION OF INDIA & ORS. ..... Respondents
Through Mr. Gigi C. George, Advocates for
Respondents No.1 to 3/UOI
CORAM:
JUSTICE S. MURALIDHAR
JUSTICE TALWANT SINGH
ORDER
% 27.11.2019 Dr. S. Muralidhar, J.:
1. A Deputy Commandant of the Border Security Force („BSF‟) has filed the present petition seeking the expunction of adverse remarks in his Annual Performance Appraisal Report („APAR‟) for the period from 1st April, 2011 to 27th December, 2011. He also challenges the orders dated 14th March, 2014 and 3rd July, 2014 passed by the Respondents rejecting his representations.
2. The Petitioner joined the BSF in 1997 and promoted as Deputy Commandant in March, 2004. He received an IG‟s commendation in 2008. According to the Petitioner, he has throughout had an unblemished and outstanding track record.
W.P.(C) 6350/2018 Page 1 of 83. Between 2009 and 2013, the Petitioner was serving in the 87th Battalion of the BSF. He proceeded on NSG deputation on 27th December, 2011. During 2011, the Petitioner served under Mr. S. M. Kispotta, Commandant. According to the Petitioner, there were some personal differences between him and the said Commandant and this led to the said adverse remarks being passed by Mr. Kispotta in his APAR.
4. The Court has perused the Annual/Part Performance Assessment Report for the said period. The pen picture of the Petitioner written by Reporting Officer i.e. Mr. Kispotta, Commandant reads as under:
"A young and physically well-built officer, who worked as QM/Coy Comdr SP Coy/Trg Offr/DDO. An Officer who is highly casual & knows his work very less and needs lots of direct supervision. He has got inclination towards disobedience. Inspite of instruction not to drive BSF vehicles, he on 15.04.2011 drove unit vehicle in campus and on 17.04.2011 drove M/Gypsy WB-02K-2149 from border BOP to Bn HQ, for which he was issued an 'ADVICE' vide letter No. ST/6088-89 dated 20.04.2011. In Sept, he was detailed to conduct an Addl ROE in case of SI Bhanu Pratap and in Oct an Addl AOE in case of HC Amarjeet, but he showed inclination towards disobedience and non-completion of order in completing the same timely, for which he was issued 'WARNING' by DIG SHQ BSF Malda vide his letter No. PA/1197-99 dated 26.11.2011. As DDO, he was casual while dealing with the Govt. transaction made in unit cash Book. For all the transaction made in cash Book on 14.9.2011/17.09.2011/19.09.2011 and 20.09.2011, he showed casualness by putting his initial as DDO on all transaction on 21.9.2011 and not on earlier days, for which he was issued 'ADVICE' vide letter No.ST/272-73 dated 11.10.2011. Also a Bill No.638 dated 09.90.2011 for Rs. 72,930/- was passed by RPAO shilling for payment to civil boatmans for hiring of boats, but the amount was not sent for W.P.(C) 6350/2018 Page 2 of 8 payment to civil boatmen till 19.10.2011 when surprise check of cash book was done by unit Comt. He was issued 'ADVICE' for his casualness vide letter No. ST/303-05 dated 19.10.2011."
5. Accordingly, the overall grade given by Reporting Officer was 3.18.
6. When the matter was placed before the Reviewing Officer i.e. the Deputy Inspector General, his remarks read as under:
"1. Remarks on the pen picture reflected by the reporting officer (To be filled by reviewing authority) "A young and smart officer who worked effectively and different appointments and now has been selected for NSG due to his ops achievements. He had certain med problems for same time."
2. Remarks by the Reviewing officer to indicate specifically the differences, if any with the assessment made by the reporting officer and the reasons therefore.
"The Officer had some medical problems due to which he has been ticked off by his Comdt, otherwise an enterprising Officer."
3. Overall grade on a scale of 1-10 (AI+BI+CI) [6.1]"
7. The matter was then placed before the Accepting Officer i.e. Inspector General. The relevant portion of the APAR read as under:
"Part VI- Acceptance
1. Do you agree with the remarks of the reporting/reviewing authorities?
Yes [tick No [struck mark in the out in the original] original] W.P.(C) 6350/2018 Page 3 of 8
2. In case of difference of opinion details and reasons for the same may be given I agree with the assessment & remarks of I.O
3. Overall grade (on a score of 1-10) [4.0]"
8. In other words, the Accepting Officer agreed with the Reporting Officer and disagreed with the Reviewing Officer.
9. Although in the APAR itself, there is a clear instruction in Column 2 that "in case of difference of opinion details and reasons for the same may be given", no reasons were given by the Accepting Officer.
10. The case of the Petitioner is that on account of the above adverse remarks, his future promotion to Second-in-Command (2 IC) got stalled, and the recommendation of the Departmental Promotion Committee („DPC‟) in that regard was kept in a sealed cover. He further states that throughout his career in the BSF, which spans over 22 years, he has never had any adverse remarks except for the above said short period of 1st April, 2011 to 21st December, 2011.
11. In response to the notice issued in the present petition, a counter affidavit has been filed by the Respondents in which, inter-alia, it is stated that the Petitioner was issued many advices/warnings.
12. However, a closer look at these details reveals that seven of these W.P.(C) 6350/2018 Page 4 of 8 advices/warnings were issued by the same Commandant, Mr. Kispotta between the period from 20th April, 2011 to 20th October, 2011. Only one warning was issued by the DIG on 26th November, 2011, and that too for an inconsequential act of "delay in completion of Record of Evidence and Additional Abstract of Evidence to be recorded by him."
13. In other words, the Respondents are unable to dispute that but for the above eight months long period from 1st April, 2011 to 27th December, 2011, there has not been any instance of memos, warnings or advices being issued to the Petitioner in his over two-decade long career.
14. The Petitioner has in paragraph 34 of his writ petition mentioned that the integrity of the Initiating Officer itself was recorded to be doubtful in his ACR of 1998, and he was given an IG‟s displeasure in 1999 and 2000. He was issued an IG‟s advice in 2013, and again a DG‟s displeasure in 2018. In particular it is stated:
"he got question paper of written test photocopied from a shop which resulting in leakage of the question paper, he is not being trusted to command a battalion for quite some time, therefore such an officer cannot be allowed to spoil the career of a bright and upright officer such as the Petitioner herein."
15. Surprisingly in reply to this paragraph, the Respondents have in their counter affidavit stated as under:
"35. That the contents of Para No. 34 of the petition are absolutely wrong and denied. It is submitted that Initiating Officer is a dedicated officer who upholds high professional standards. It is further submitted that the Judgment quoted is not applicable in present Writ Petition. The Endorsement in PPAR is W.P.(C) 6350/2018 Page 5 of 8 strictly as per his performance during the assessment year."
16. In other words, there is no specific denial of the above averments concerning the Initiating Officer in para 34 of the writ petition.
17. Here is a case of a person with an unblemished track record for over 22 years, with any and all adverse remarks being limited to the period of eight months between 1st April, 2011 and 27th December, 2011. From the counter affidavit of the Respondents, it becomes clear that the Petitioner‟s future promotion as 2 IC was withheld only on account of the said adverse remarks in the three DPCs held on 6th October, 2016, 15th November, 2017 and 3rd July, 2018. He was assessed as „unfit‟ only because of the above adverse remarks.
18. The short ground on which, according to the Court, the adverse remarks should be directed to be expunged is that no reasons have been given by the Accepting Authority for disagreeing with the Reviewing Officer and agreeing with the Reporting Officer. It therefore vitiates the adverse remarks as pertains the Accepting Authority.
19. The second reason is in view of the legal position explained by the Supreme Court in State of Uttar Pradesh v. Yamuna Shanker Misra (1997) 4 SCC 7 where it was observed as under:
"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 51A(j) enjoins upon every citizen the W.P.(C) 6350/2018 Page 6 of 8 primary duty to 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 of the subordinate officer. It should be founded upon the facts or circumstances. Though sometimes, it may not be part of 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/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 giving 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 appropriate judicial forum for redressal. Thereby, honesty, integrity, good conduct and efficiency get improved in the performance of public duties and standards of excellence in services constantly rises to higher levels and it becomes successful tool to manage the services with officers of integrity, honesty, efficiency and devotion."
20. In the present case, the Court is left with no manner of doubt that the recording of the above adverse remarks in the APAR of the Petitioner for the period from 1st April, 2011 to 27th December, 2011 is contrary to law and is W.P.(C) 6350/2018 Page 7 of 8 hereby ordered to be expunged. The Petitioner‟s case for promotion as 2 IC will now be considered by a Review DPC with reference to the date when the first DPC for considering such promotion was held. If found fit, the Petitioner shall be granted notional promotion and pay fixation as 2 IC from the date that his immediate junior was so promoted. The necessary orders in this regard be passed not later than eight weeks from today.
21. The petition is allowed in the above terms but in the circumstances no order as to costs. The pending application is also disposed of.
S. MURALIDHAR, J.
TALWANT SINGH, J.
NOVEMBER 27, 2019 mw W.P.(C) 6350/2018 Page 8 of 8