W.P.(C)/10486/2017 of VIDYA SHANKAR TIWARI Vs UNION OF INDIA AND ORS.

* IN THE HIGH COURT OF DELHI AT NEW DELHI+ W.P.(C) 10486/2017

VIDYA SHANKAR TIWARI

..... Petitioner Through: Mr. Ankur Chhibber & Mr.Bhanu Gupta, Advocates

versus

UNION OF INDIA AND ORS.

..... Respondents

Through: Ms. Ruchi Jain, Advocate

CORAM: JUSTICE S.MURALIDHAR JUSTICE I.S.MEHTA

O R R10.04.2019

1. The Petitioner who is at present Deputy Commandant with the Border Security Force (BSF) has filed the present petition seeking expunction of the adverse remarks initiated by the Initiating Officer for the period 1[st] April, 2013 to 31[st] March, 2014 in its Annual Performance Assessment Report („APAR‟) and further direction to hold review Departmental Promotion Committee (DPC) to consider the case of the Petitioner for promotion to the rank of Second-In-Command(2[nd] IC) and on him being found fit consequently grant promotion to 2[nd] IC from 5[th] October, 2016 when his batch mates and juniors were promoted.

2. It must be mentioned here that the Petitioner‟s representation dated 31[st]August, 2014 for expunging the adverse remarks was rejected by the orders dated 16[th] January, 2015 and 22[nd] June, 2017 which have also been

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challenged in the present petition.

3. The Petitioner states that he was rewarded and given commendations from time to time for the excellent performance of his duties during his stint at Jammu & Kashmir. He has also been awarded the President‟s Police Medal for Gallantry on 28[th] November, 2015. The Petitioner has set out the grading given to him in his APAR from 1[st] April, 2011 till 25[th] December, 2016 in tabular form as under:-

4. Accordingly, it is pointed out that except the period in question i.e. 1[st]April, 2013 to 31[st] March, 2014, the Petitioner‟s grading throughout has been either very good or outstanding. The main case of the Petitioner is that

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without any warning being issued to him about unsatisfactory work, the above adverse remark which is for one year in his APAR was both illegal and unjustified. Reliance is placed in the decisions in U.P. vs. Yamuna Shanker Misra (1997) 4 SCC 7, Sukhdeo vs. Commissioner Amravati Division, Amravati (1996) 5 SCC 103 and on the decision of this CourtinKrishna Rajak vs. Union of India 2012 SCC online Del 4454.

5. Interestingly, in the counter affidavit filed on behalf of the Respondents, it is inter-alia mentioned that the second representation was made by the Petitioner to the Director General (DG) on 17[th] October, 2016 requesting for permission to appear before him and explain his grievance about the adverse remarks in his APAR for the year 2013-14. In Para 9 of the counter affidavit it is pointed out that the Petitioner‟s case was examined and the DG, BSF in his recommendation has endorsed that “it is fit case for expunction of remarks. Proceed accordingly.”

6. However, when this was conveyed to the Ministry of Home Affairs (MHA), the recommendation was declined to be acted upon since according to the MHA “there is no provision to entertain the second appeal/representation against the adverse remarks/below benchmark grading in APAR”. Resultantly although the DG had himself recommended expunction of the remarks and adverse remarks, they continued to be there in the Petitioner‟s APAR for the year in question.

7. Learned counsel for the Respondents referred to noting pointing out that the comments of the Initiating/Reporting Officer as well as Accepting

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Officer were invited on the representation of the Petitioner. They pointed out to the various instances where the Petitioner had to be warned about his actions in particular. Learned counsel also draws the attention of the court to written endorsement made about having called the officer asking the reasons as to why he submitted COI on 16[th] November 2013 at new location and as to why he signed forwarding on 9[th] August 2013 i.e. on back date for which he has stated to be sorry. It further reads “advised him not to do such things in future.” According to learned counsel for the Respondent this was relatable to the specific instances noted in the confidential note dated 1[st]October, 2014 written by the Commandant 22[nd] Battalion to the IG, Frontier HQs, Rajasthan.

8. The above endorsement is not in the form of proper warning which had to be given in writing and the response of the Petitioner thereto had to also been placed with the writing warning in the APAR. There is not single instance of formal written warning being issued to the Petitioner for his unsatisfactory work and which forms part of the APAR. In fact this supports the case of the Petitioner that he has never been repeated any question to receive any such warning about unsatisfactory work.

9. Learned counsel for the Respondent pointed out that since there was no occasion for second representation against the adverse remarks, the Respondents could not act upon the recommendation of the DG that the said adverse remarks should be expunged.

10. The Court finds that the stand taken by the Respondents is hyper

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technical particularly since the superior officer i.e. DG has considered the adverse remarks for the year in question to be unjustified when compared to the remarks of the previous years and subsequent years which were either „‟„‟very good or outstanding.

11. It is then pointed out that the DG was himself not in position to observe the work of the Petitioner for the year in question. It is the Respondent themselves who have set out the remarks of the DG who recommended expunction of the adverse remarks. It is not the case of the Respondent that DG is not empowered to do so. In fact it is not even their case that in hierarchy, representations do get made to the DG about the adverse entries in an APAR.

12. The admitted position is that there is no previous warning issued to the Petitioner in writing seeking his explanation for his unsatisfactory work. This is contrary to the legal position explained by the Supreme Court in State of U.P v. Yamuna Shanker Misra (supra)and Sukhdeo v. Commissiner Amravati Division, Amravati (supra).

13. The question regarding expunction of adverse entries in an APAR, when it is the only one in series of years has been discussed with this Court in its judgment in Inspector G.D Krishna Rajak v. Union of India (supra). It was observed in that case that “it is not possible that for 11 years person is either „Very Good‟ or „Outstanding‟ and then for one year he drops to „Average‟ and then regains „Very Good‟ and „Outstanding‟ in the next three years.” Similarly, in the present case barring 2013-14 in series of years

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from 2011-12 and up to 2016-17 the Petitioner‟s grading is either „Very Good‟ or „Outstanding‟.

14. For all of the aforementioned reasons, the Court finds no justification in the adverse remarks for the period 1[st] April, 2013 to 31[st] March, 2014 in the Petitioner‟s APAR and directs its expunction. direction is issued to the Respondents to hold review DPC to consider the case of the Petitioner for promotion to the rank to 2IC and if so fit to grant him the said promotion from the date his batchmates and juniors were promoted, with all consequential benefits. Consequently the orders 16[th] January, 2015 & 22[nd]June, 2017 rejecting the Petitioner‟s representation against adverse remarks are hereby set aside.

15. The petition is disposed of.

S. MURALIDHAR, J.

APRIL 10, 2019 mw

I.S. MEHTA, J.

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