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5. The applicant has adopted the following grounds in support of his OA:-

(i) His APAR for the previous 17 years had all been Outstanding while the applicant had been awarded only 5.87 which is below benchmark. There was no reason as to how the APAR for the period under consideration could have dipped as much as they have done now;

(ii) The guiding instructions were not followed while recording the APAR under consideration of the applicant. The applicant received the blank APAR form on 22.6.2012 which was filled up and submitted on 27.6.2012 whereupon the Reporting Officer recorded his remarks on 19.2.2013. Moreover the competent authority considered his representation dated 3.4.2013 beyond a period of 30 days. The applicant has relied upon the decision of the Honble Supreme Court in Swaran Singh Chand vs Punjab State Electricity Board & Ors AIR 2010 SC 151 and HV Nirmala vs Karnataka State Financial Corporation 2008(7) SCC 639 in support of this point.

6. It is also the case of the applicant that none of the reasons for giving below benchmark entry in the APAR as stated by the respondents in their counter affidavit is sustainable in light of clear admission on this part. Replying to the charge that the applicant had not launched immediate investigation following the search operation in Raymond and Singhania Group, he submits that he had to travel to Washington and Georgia on official tour from 12.11.2011 to 19.11.2011. The applicant further submits that it was not his primary job to prepare the appraisal report, as the same is to be done by ADIT/DDIT under the guidance of the Additional/Joint DIT. No advisory has been given to him to complete the report himself. In the case of raid on the premises of one Ponty Chadha, the applicant submits that it resulted in surrender of income of Rs.175 crores. The applicant further submits as one of the grounds that APAR under dispute is recorded in respect of the period from 22.7.2011 to 17.2.2012. One of the reasons for adverse entry is that the applicant went on leave from 21.2.2012 to 13.4.2012 whereas the leave has been duly sanctioned by the reviewing officer. The applicant questions that if he was on leave from 21.2.2012 to 13.4.2012, then how this period could have been incorporated in this APAR.

8. Forwarding of representation to the competent authority.

(a) Where there is no accepting for APAR

(b) Where there is accepting authority for APAR 21st September 06th October

9. Disposal of representation by the competent authority Within one month from the date of receipt of representation.

10. Communication of the decision of the competent authority on the representation by the APAR Cell 15th November

11. End of entire APAR process, after which the APAR will be finally taken on record.

Therefore, we do not find it expedient or advisable to tread over this forbidden territory, and refrain from making any assessment on the remarks made in the APAR of the applicant, thereby leaving this issue open.

34. In respect of the last of the issues, we hold that we have already taken stock of the situation. We find that it has been well admitted by the applicant that the remarks were recorded much after the due date prescribed both by the reporting as well as reviewing officers and also that the representation has been decided almost 9 months late by the competent authority. We have also taken note that in case of Devendra Swaroop Saxena Vs. Union of India & Ors. (supra), it is held that remarks recorded after the expiry of the period prescribed are not sustainable in the eyes of law, particularly when the APAR form had been submitted well within time by the applicant. We have also found that both the reviewing and reporting officers have retired, thus, the period under consideration, according to the judgment in the case of V.K. Singhla, Commissioner of Income Tax Vs. Secretary, Ministry of Finance and Ors (supra), is liable to be treated as No APAR period for the simple reason that consultation with the reporting and the reviewing officers has been included as a part of the process. We have further seen that once the procedure has been provided in the APAR, the same has to be followed and will have the force of law till such time as regular APAR rules and recruitment rules are framed. At the same time, we also find that the challenge to the competence of the Chairman, CBDT to decide the representation is not tenable. We have left the issue open regarding the remarks recorded in the APAR of the applicant, as the same is not within our competence nor do we have essential details on the basis of which such decision could be taken.