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2022 DIGILAW 165 (MAN)

Munna Kumar Singh v. Union of India

2022-08-17

AHANTHEM BIMOL SINGH

body2022
JUDGMENT 1. Heard Mr. Anjan Prasad Sahu, learned counsel appearing for the petitioner and Mr. Kh. Samarjit, learned ASG appearing for the respondents. 2. The present writ petition had been filed with the prayer to quash and set aside the impugned order dated 16-01-2019, whereby the Director General, CRPF had refused to consider the representations dated 04-10-2018 and 13-11-2018 submitted by the petitioner against the entries of grading 'GOOD' in his Annual Performance Appraisal Report (APAR) for the period from 01-04-2017 to 31-03-2018 on the ground that there is no provision for considering the representation against the grading/ remarks recorded in the APAR after the expiry of the prescribed period of time for submitting such representations. The petitioner has also prayed for quashing or setting aside the adverse entries in his APAR for the period from 01-04-2017 to 31-03-2018 and for expunging the adverse entries in his APAR. 3. According to the petitioner, he is presently serving as Commandant (IRLA-3998), Group Centre, CRPF, Langjing, Imphal. The petitioner submitted his APAR for the period from 01-04-2017 to 31-03-2018 to the Reporting Authority, i.e., DIGP, CRPF, Group Centre, Langjing, Imphal on 05-04-2018. In part - II of the said APAR, the petitioner gave a brief resume of work done by him during the reporting period including the details of significant contributions made by the petitioner in the office through his work during the same period. The Reporting Officer accepted the said self-appraisal report of the petitioner and recorded his assessment in numerical figures with regard to assessment of work output, personal attributes and functional competency of the petitioner and gave the grading of 'VERY GOOD'. According to the petitioner, the Reviewing Authority downgraded the assessment of the Reporting Authority without assigning any reason and gave the grading of 'GOOD' only, which is below the benchmark of 'VERY GOOD' required for availing further promotion in the higher grade. The grading of 'GOOD' given by the Reviewing Authority in the APAR of the petitioner was accepted by the Accepting Authority and thereafter, the said APAR was communicated to the petitioner under a letter dated 16-08-2018 of the Spl. DG, NEZ, CRPF, with a specific direction to make representation against the entry in the said APAR if so desired and the said APAR was received by the petitioner on 28-08-2018. 4. In Para. DG, NEZ, CRPF, with a specific direction to make representation against the entry in the said APAR if so desired and the said APAR was received by the petitioner on 28-08-2018. 4. In Para. XIII of the Standing Order No. 04/2015 regarding preparation and maintenance of APAR of Officers in the CRPF, it is provided that the concerned Officer shall be given the opportunity to make any representation against the entries and the final grading given in the APAR within a period of 15 (fifteen) days from the date of receipt of the entries in the APAR and that in case no representation is received within 15 days, it shall be deemed that the concerned Officer has no representation to make and that the APAR will be treated as final. In the present case, the petitioner did not submitted any representation against the entries in his APAR within the prescribed period of 15 days, however, the petitioner wrote two letters dated 10-09-2018 and 26-09-2018 addressed to the concerned authorities of the CRPF requesting for extension of time for submission of his representation by giving certain reasons as mentioned in the said letters. When the authorities did not accede to his request, the petitioner submitted two representations dated 04-10-2018 and 13-11-2018 to the concerned authorities of the CRPF against the grading and entries in his APAR with a request for upgrading the grading given by the Reviewing Authority and also for expunging the adverse remarks of the Reviewing Authority entered in his APAR. However, the DG, CRPF declined to consider the representations submitted by the petitioner on the ground that there is no provision to consider the representations against the grading/ remarks recorded in the APAR after expiry of the prescribed period of 15 days, vide letter dated 16-01-2019 of the DIG, (CR & Vig.). Having been aggrieved, the petitioner approached this court by filing the present writ petition for redressing his grievances. 5. Mr. Anjan Prasad Sahu, leaned counsel appearing for the petitioner submitted that the Reviewing Authority downgraded the numerical grading given by the Reporting Authority in all the attributes relating to the assessment of work output, personal attributes and functional competency of the petitioner arbitrarily and without giving any reason. 5. Mr. Anjan Prasad Sahu, leaned counsel appearing for the petitioner submitted that the Reviewing Authority downgraded the numerical grading given by the Reporting Authority in all the attributes relating to the assessment of work output, personal attributes and functional competency of the petitioner arbitrarily and without giving any reason. It has also been submitted that by virtue of the downgrading of numerical grading by the Reviewing Authority, the overall grade of the petitioner in his APAR had been reduced from 'VERY GOOD' to 'GOOD', which is below the benchmark of 'VERY GOOD' for availing promotion and other financial benefits. The learned counsel for the petitioner also submitted that the Reviewing Authority had acted in an arbitrary manner and has exceeded his power with respect to his duties for reviewing of the APAR of the petitioner and has also failed to adhere to the instructions for writing of APAR by not giving cogent reasons for downgrading it and that this fatal mistake has rendered his action of downgrading and pen picture given by him as illegal and accordingly, the same is liable to be quash and set aside. 6. The counsel for the petitioner further submitted that the Reviewing Authority had taken into consideration the displeasure issued by higher authorities against the petitioner, which are not at all related or relevant to the period of consideration of the petitioner's APAR and downgraded the grading of the petitioner and as such, such action of the Reviewing Authority is erroneous in law and exhibits biasness and mala fide intention on the part of the Reviewing Authority. The learned counsel for the petitioner vehemently submitted that in all the years since 2007-08, the petitioner had been graded either as 'OUTSTANDING' or 'VERY GOOD' and that downgrading his grade as 'GOOD' in the APAR for the period 2017-18 is unacceptable and such acts of the respondents, which will adversely affect the promotion of the petitioner, is illegal, unlawful, arbitrary, mala fide, bias, discriminatory, vindictive and capricious and accordingly, the same is liable to be quash and set aside. In support of his contention, the learned counsel relied on the judgment and order dated 27-02-2020 passed by a Single Bench of this court in WP(C) No. 1193 of 2018. Paras. 15 and 25 of the said judgment and order, relied on by the counsel for the petitioner, reads as under:- '15. In support of his contention, the learned counsel relied on the judgment and order dated 27-02-2020 passed by a Single Bench of this court in WP(C) No. 1193 of 2018. Paras. 15 and 25 of the said judgment and order, relied on by the counsel for the petitioner, reads as under:- '15. It can be seen from the above assessment that the petitioner was assessed as 'very good' and 'outstanding' for accomplishment of exceptional work/unforeseen tasks performed/for leadership qualities/ for initiative by the reporting/ reviewing authorities, but, at the same time, the petitioner was assessed 'good' for the period 23.06.2016 to 31.03.2017, which is below bench mark. The aforesaid assessment made by the authorities is impartial and no sufficient reasoning was given to arrive at such a conclusion. It is also seen from the records that before assessing grade 'good', the petitioner was not issued with any notice by the reporting authority. Therefore, this Court is of the view that without any justifiable ground and without providing any opportunity, the grade 'good' has been given by the authorities, which is in violation of the principles of natural justice.' '25. Thus, in all the years since 2007-08, the petitioner has been graded as either 'outstanding' or 'very good'. Downgrading the APAR in 2016-17 to 'good' is malafide and arbitrary and the same is not in consonance with the aforesaid decision cited by the petitioner.' 7. Mr. Kh. Samarjit, learned ASG appearing for the respondents draw the attention of this court at Para 13 (iv) of the Standing Order No. 04/2015 relating to preparation and maintenance of the Annual Performance Appraisal Report of Officers of the CRPF wherein it has provided as under:- '13. COMMUNICATION OF APAR ........... i) ... ii) ... iii) ... iv) The concerned officer shall be given the opportunity to make any representation against the entries and the final grading given in the Report within a period of fifteen days from the date of receipt of the entries in the APAR. The representation shall be restricted to the specific factual observations contained in the report leading to assessment of the officer in terms of attributes, work output etc. While communicating the entries, it shall be made clear that in case no representation is received within the fifteen days, it shall be deemed that he/she has no representation to make. The representation shall be restricted to the specific factual observations contained in the report leading to assessment of the officer in terms of attributes, work output etc. While communicating the entries, it shall be made clear that in case no representation is received within the fifteen days, it shall be deemed that he/she has no representation to make. If the concerned APAR Section does not receive any information from the concerned officer on or before fifteen days from the date of disclosure, the APAR will be treated as final.' It has been submitted that in the present case the entries in the APAR of the petitioner was communicated to him under cover of a letter dated 16-08-2018 with a clear instruction that any representation against the grading in the said APAR should be submitted within a period of 15 days from the date of receipt of the APAR. The petitioner received the said letter along with the APAR on 28-08-2018, however, he failed to submit any representation within the prescribed period of 15 days. It has also been submitted that the petitioner submitted his representations dated 04-10-2018 and 13-11-2018 after a lapse of more than 35 days and accordingly, the authorities declined to consider such representations on the ground that the representations are time barred and that there is no provision under the Standing Order No. 04/2015 for condoning the delay in submitting the said representations. In view of the above, no illegality or irregularity had been committed by the authorities in refusing to consider the representations submitted by the petitioner and in issuing the impugned order dated 16-01-2019. 8. The learned ASG submitted that the contention of the petitioner that the Reviewing Authority downgraded the grading of the petitioner in the APAR without giving any reason is incorrect and does not tally with the entries made in the said APAR of the petitioner. It has been submitted that sufficient cogent reasons have been given by the Reviewing Officer for downgrading the assessment of the petitioner's performance on the basis of the documents available on record. It has been submitted that the petitioner has deliberately suppressed his own acts of indiscipline, violation of orders and misbehaviour for which the petitioner had been awarded displeasure and punishment of stoppage of increments after conducting a formal enquiry for such acts in the past two years. It has been submitted that the petitioner has deliberately suppressed his own acts of indiscipline, violation of orders and misbehaviour for which the petitioner had been awarded displeasure and punishment of stoppage of increments after conducting a formal enquiry for such acts in the past two years. The learned ASG also submitted that the displeasure had been issued to the petitioner vide letter dated 15-12-2017 which comes within the period of consideration of the APAR of the petitioner for the period from 01-04-2017 to 31-03-2018 and that the petitioner did not challenge the contents of the displeasure and thus accepted the commission and omission of serious misconduct leading to such downgrading in his APAR. 9. It has further been submitted that the Reviewing Authority, being the Head of Department, is privy to all confidential reports or files of the petitioner and after taking into account the warnings given to the petitioner by two previous IG and punishment awarded to him on two counts and the displeasure given against the petitioner, the Reviewing Authority had given pen picture of the performance of the petitioner and downgraded the grading given by the Reporting Officer and that the Reviewing Authority had acted well within his power and that there has been no violation of any instruction by the Reviewing Authority. The learned ASG submitted that the Reviewing Authority need not bring everything in pen picture in detail when the contents of displeasure have been referred to in the APAR which is self-explanatory. It has also been submitted that if the petitioner was not satisfied with the final grading/ remarks recorded in his APAR, he should have submitted his representation within the prescribed period of 15 days and having failed to do so, he cannot blame the authorities or raise allegations against them for his lapses. The learned ASG submitted that the present writ petition is devoid of merit and the same is liable to be dismissed. 10. This court considered the submissions made by the learned counsel appearing for the parties and also perused the materials available on record. The learned ASG submitted that the present writ petition is devoid of merit and the same is liable to be dismissed. 10. This court considered the submissions made by the learned counsel appearing for the parties and also perused the materials available on record. On careful examination of the entries made in the APAR of the petitioner for the period from 01-04-2017 to 31-03-2018, this court found that the Reviewing Authority downgraded the grading given by the Reporting Authority in respect of the assessment of work output, personal attributes and functional competency of the petitioner and reasons have been given by the Reviewing Authority for such downgradation which are reproduced herein for ready reference:- 'Quoting of displeasure and grading of officers 'VERY GOOD', I do not agree in totality. The grading of the officer is over assessed. Has been over assessed in all attributes brought out in numerical assessment. Performance has not been commensurate to grading.' 'Behaviour of officers is not commensurate to his rank and seniority. He is belligerent and arrogant in his general behavior. Despite repeated warnings from the seniors in the past has not brought about change in his behaviour towards sub-ordinates. Needs to bring about perceptible change in his behavior to control his temper. Has a tendency to loose talk. Not fit for independent command.' 11. In the affidavit-in-opposition filed on behalf of the respondents, serious allegations had been made against the petitioner. In the affidavit-in- opposition, it has been stated that the displeasure issued against the petitioner in the month of December, 2017 comes within the period of consideration of the petitioner's APAR and that he accepted the contents and grounds for issuance of displeasure for abusing, threatening and using unparliamentary language against a newly recruited sub-ordinate officer belonging to Scheduled Caste and that the contents of such displeasure are sufficient to substantiate the contents of pen picture and numerical assessment of the petitioner. It has also been stated that the Reviewing Authority being the Head of Department is privy to all confidential reports or files in respect of the petitioner and that on perusal of series of advisories in preceding years and enquiries conducted for acts of indiscipline and displeasure and punishment awarded clearly substantiate the grounds for downgradation in the conduct and behavior of the petitioner. It has also been stated that sufficient verbal advices were given to the petitioner to improve his conduct and performance. However, such serious allegations have not been controverted or denied by the petitioner by filing a rejoinder affidavit or otherwise and such serious allegations made against the petitioner remains on record undenied and uncontroverted. 12. As the Reviewing Authority had recorded in writing the reasons for downgrading the assessment given by the Reporting Officer in the APAR of the petitioner in the year 2017-18 and since the statements given by the respondents in their affidavit-in-opposition about the misbehaviour, misconduct, warning, punishment and displeasure against the petitioner remain uncontroverted, this court, in exercise of its power for judicial review, cannot examine the adequacy or sufficiency of the reasons given by the Reviewing Authority for downgrading the assessment given by the Reporting Authority in the APAR of the petitioner and also the correctness of the statements made by the respondents in their affidavit-in-opposition by examining and appreciating the evidences. On careful consideration of the rival submissions advanced by the learned counsel for the parties and on examination of the materials available on record, this court also found that the authorities have not violated any provisions of the relevant guidelines or Standing Orders and have acted well within its power and jurisdiction. In view of the above, this court do not find any ground or reason for interfering with the actions of the respondents. 13. The judgment and order dated 27-02-2020 passed by a co-ordinate bench of this court in WP(C) No. 1193 of 2018, which has been relied on by the counsel for the petitioner, had been passed on the ground that in all the years since 2007-08, the petitioner had been graded as either 'Outstanding' or 'Very Good' and that downgrading the APAR in the year 2016-17 to 'Good' without giving any reason was mala fide and arbitrary and accordingly, such grading was interfered with by the court. In the present case, the Reviewing Authority had recorded in writing the reasons for downgrading the assessment given by the Reporting Officer in the APAR of the petitioner and as the serious allegations raised against the petitioner by the respondents in their counter affidavit remain uncontroverted and undenied, the aforesaid judgment relied on by the counsel for the petitioner, in my considered view, is not applicable in the facts and circumstances of the present case. In the result, the present writ petition fails and the same is hereby dismissed, however, without any order as to costs.