Delhi High Court: Reporting Officer Should Provide Opportunity for Improvement Before Forming Adverse Opinion

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Excerpt

On 21st December 2020, a Division Bench consisting of Hon’ble Mr Justice Rajeev Sahai and Hon’ble Ms Justice Asha Menon heard the case of Sanjeev Dhundia v. Union of India & Ors. via video conferencing.

The Petitioner, a Deputy Inspector General (DIG) in the Central Reserve Police Force (CRPF), filed a petition under Article 226 of the Indian Constitution against the Respondents w.r.t the grades and remarks in the petitioner’s Annual Performance Assessment Report (APAR).

Facts of the Case

The Petitioner joined as an Assistant Commandment in the CRPF in 1987. Due to his hard work, he used to receive very good performance evaluations and had also received regular promotions. He was later promoted to the rank of DIG in 2009. He had an impeccable service for more than 31 years in the Force. He had been appreciated by not only the higher authorities in the CRPF, but also by the President of India for his laudable work. 

The APAR received by the Petitioner for the period 1st April 2017 to 31st March 2018, awarded him 7.1 marks out of 10 by the Reporting and Reviewing Authorities. The Petitioner had also been graded as “Very Good” though certain adverse remarks like, lack of initiative, weak interpersonal relations, etc., were recorded by the Reporting Officer/Respondent, which were incompatible with the marks and grading. 

The Petitioner claimed that the Respondent had a very strained relationship with him. On 28th June, 2019, the Respondent had sent a complaint against the Petitioner accusing him of abusing and physically assaulting his staff and the very next day, with the same mindset, wrote his APAR.

Further, no prior warning had been issued to the Petitioner by the respondent before the adverse remarks were recorded by him in the APAR. Hence the petition was filed by the Petitioner, for deletion of the adverse remarks.

Contentions of the Petitioner

The Counsel contended that, before awarding a lower grade such as “Average” or any other adverse remarks, the individual should be advised well in advance so that he gets an opportunity to rectify himself over a period of one year. The incident had taken place in June 2019, and it could not be considered while preparing the APAR for the period of 1st April 2018 to 31st March 2019. Thus, the recording of APAR was against all guidelines, and was faulty and biased. 

The Counsel placed reliance on the following cases:

  • M.A. Rajasekhar v. State of Karnataka, (1996) 10 SCC 369 
  • State of UP v. Yamuna Shanker Mishra and Another, (1997) 4 SCC 7 
  • SK Sharma v. Union of India and others, 2015 SCC Del 13399

Contentions of the Respondent

Ms Nidhi Raman learned counsel contended that all guidelines and orders were adhered to, while APAR. Further, a three-tier system of assessment was established for the purpose of eliminating such bias. The Counsel contended that if the Petitioner had doubts about the fairness of his Reporting Officer, he could have made a complaint to the superior officers, but the Petitioner had made no such complaint.  

Court’s Analysis

The Court referred to the Swamy’s Compilation on confidential reports of central government employees and analysed the purpose/object of the APAR as:

“The system of APAR has two objectives: First 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.”

Thus, the Court observed that APAR was not meant to jeopardize the career of an individual, but to assist in their career development in a systematic manner. The Court referred to the case of Sukhdeo v. Commissioner Amravati Division (1996) 5 SCC 103, which held that:

“When an officer makes remarks he must eschew making vague remarks causing jeopardy to the service of the subordinate officer.”

The Court referred to the case of State of UP v. Yamuna Shanker Mishra and Another, (1997) 4 SCC 7, which held that:

“Before forming an adverse opinion, reporting officers should share the information which is not a part of the record with the officer concerned, have it confronted and then make it part of the record.”

The Court observed that the Petitioner had consistently received remarks such as “Outstanding”, and when the Reporting Officer/Respondent assessed the Petitioner, he recorded “Good” along with adverse remarks. Further, there was no record to prove that drop in the Petitioner’s performance. 

Court’s Decision

The Court held that no efforts were taken by the Respondent to find out the cause of the drop in the Petitioner’s performance, and had not assisted him in improving his performance. The Court did not find any justification for the Respondent to have recorded adverse remarks and to have downgraded the Petitioner in the APAR. 

The Court directed the deletion of the adverse remarks and the grading. The Court also directed to grant all consequential benefits to the Petitioner including a revised benchmark grading of ‘Very Good’. The petition was thus allowed. 

Click here to view actual judgement.


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