ORDER : 1. The instant writ petition has been filed by the petitioner with the following prayers:- “1. By a suitable writ, order or direction, the communication dated 20.03.2013 made by DIG BSF may kindly be declared illegal and be quashed and set aside. 2. By an appropriate writ, order or direction, the order dated 19.12.2012 may kindly be declared illegal and it may kindly be quashed and set aside. 3. By an appropriate writ, order or direction, the adverse entry communicated by communicated dated 27.02.2012 may kindly be quashed and set aside. 4. The respondent may kindly be directed to consider the case of the petitioner for promotion and grant him promotion to the post of Assistant Commandant from the date his immediate junior i.e. respondent No.5 Prem Chand has been promoted to the post of Assistant Commandant with all consequential benefits. 5. In alternative without prejudice to above, by an appropriate writ, order or direction, the respondents be directed to decide the representation filed by the petitioner on 23.01.2013 against the adverse entry for the period between 01.04.2011 to 15.11.2011 communicated to the petitioner vide communication dated 19.12.2012 ignoring the said adverse entry while considering his case for promotion to the post of Assistant Commandant.” 2. The petitioner was communicated Annual Performance Assessment Report of the year 2010-2011 vide communication dated 27.02.2012, whereby he was informed that he was repatriated from Tear Smoke Unit (TSU) to his parent Unit on 21.09.2010 and he remained out with effect from 25.09.2010 to 21.02.2011, did not resume his duties at new place of posting and the same was termed as "a wrong precedence not expected from a member of the disciplined force". The relevant adverse comment made in the APAR of the petitioner is quoted as hereunder:- “During the period under report, individual had been repatriated from TSU to his parent unit on 21.09.2010. He remained out w.e.f. 25.09.2010 to 21.02.2011 i.e. from TSU even not resumed his duties at his new place of posting, which is a wrong precedence not expected from a member of the disciplined force.” 3. The petitioner submitted his representation regarding his APAR remarks. The petitioner in his representation submitted that his wife was having serious ailment and as such, due to sufficient reason, he was not able to join within the stipulated time. The petitioner submitted his representation regarding his APAR remarks. The petitioner in his representation submitted that his wife was having serious ailment and as such, due to sufficient reason, he was not able to join within the stipulated time. The petitioner also made a reference of Writ Petition filed before the Madhya Pradesh High Court at Gwalior Bench, challenging the petitioner’s repatriation order. 4. The representation of the petitioner was decided vide order dated 19.12.2012 and the Competent Authority while deciding the representation of the petitioner found that the petitioner even after his repatriation from TSU on 21.09.2010 with 60 days Earned Leave and 15 days joining period, reported back to TSU on 21.02.2011 after overstaying 74 days. The Competent Authority also recorded that the Initiating Officer and Reviewing Officer, in their comments, have brought out that the petitioner’s performance during the period remained ’Poor’ and he was verbally advised to improve on numerous occasions by his superiors but the petitioner did not show any improvement. 5. The petitioner after receipt of communication dated 19.12.2012 filed another representation and requested the Authorities that the remarks in his APAR were not justified. The petitioner had also specifically mentioned that the application submitted by him for extension of leave, was not dealt with by the Authorities. The efforts made by the petitioner while serving in the Disciplined Force, did not deserve such adverse comments and the petitioner also highlighted the fact of having good service record as no prior incident was ever pointed out, reflecting adversely on the performance of the petitioner. The Authorities by order dated 20.03.2013 returned back the representation of the petitioner by holding that representation once decided, did not give any right to the delinquent to move another representation, as per Office Memorandum dated 13.04.2010 of DoP&T. 6. The petitioner was again in receipt of communication dated 19.12.2012, whereby adverse comments were recorded in his APAR for the period between 01.04.2011 to 15.11.2011. The substance of the remarks reflected in his Part Performance Assessment Report mentioned that the petitioner was not able to cope up with the enhanced protection target of the TSU and the petitioner was found unsuitable for the specialized work of the unit. The substance of the remarks reflected in his Part Performance Assessment Report mentioned that the petitioner was not able to cope up with the enhanced protection target of the TSU and the petitioner was found unsuitable for the specialized work of the unit. The Authorities further recorded that when the production target of TSU was enhanced, the petitioner did not perform as per the expectation and his performance in a team was not as per the requirement and he was not able to produce efficient output. The relevant portion of communication dated 19.12.2012 related to adverse remarks in PPAR for the period 01.04.2011 to 15.11.2011, is quoted as under:- “Individual could not cope up with the enhanced production target of the TSU and was found unsuitable for the specialized work of the unit. When the production target of TSU was enhanced, individual could not perform as per expectations. His performance in a team was not as per requirement. He could not produce efficient output” 7. The petitioner after receipt of communication dated 19.12.2012, had submitted a representation which has been placed on record as Annexure -10. 8. Learned Senior Counsel for the petitioner submitted that the representation submitted by the petitioner against communication dated 19.12.2012, has not been decided till date and as such, the petitioner is continuously suffering in the matter of his promotion and during pendency of the writ petition, the petitioner has been promoted, whereas the petitioner was entitled to be promoted in the year 2010-11 itself. 9. Learned Senior Counsel for the petitioner Mr.Manoj Bhandari has made the following submissions while challenging the impugned orders:- (I) The finding and observation of the Competent Authority that performance of the petitioner was poor is wholly incorrect, as the allegation against the petitioner was that he remained absent and in such an eventuality, since the petitioner did not work at all during the relevant period, his performance could not have been termed as "poor" performance. (II) The petitioner had explained before the Authorities that he had 60 days Earned Leave to his credit and further the petitioner had filed an application for extension of leave, however, instead of deciding the said application, the Authorities in a most arbitrary manner have recorded a finding of his absence from the duty. (II) The petitioner had explained before the Authorities that he had 60 days Earned Leave to his credit and further the petitioner had filed an application for extension of leave, however, instead of deciding the said application, the Authorities in a most arbitrary manner have recorded a finding of his absence from the duty. (III) The Authorities though have mentioned that verbal warning was given to the petitioner, however, there was no material before the Competent Authority or any specific instance, where the petitioner was given any verbal warning and non-communication of any warning, runs contrary to the instructions issued by the respondents regarding APAR in BSF. (IV) The Reporting Officer as well as Reviewing Officer & Controlling authority are required to keep in mind the objective assessment of an Officer and in the present case, no objective assessment has been made and only on ipse dixit the petitioner has been communicated with the adverse remarks. The petitioner was not at all absent from duty or absence of the petitioner cannot be termed as "unauthorized absence", as the petitioner had valid justification on account of illness of his wife and such absence, will not be termed as "unauthorized absence", if the delinquent has proper explanation to offer to the Authorities, giving out the true version for remaining absent from the duty. (V) The entire exercise conducted by the respondents shows non-application of mind and the Authorities have acted in an arbitrary manner, while rejecting the representation of the petitioner. 10. Learned counsel for the petitioner places reliance on a judgment passed by the Apex Court in the case of State of U. P. Vs. Yamuna Shanker Misra & Ors. reported in AIR 1997 SC 3671 . 11. Learned counsel, on the strength of said judgment, submitted that the Controlling Officer before writing adverse remarks, should give prior sufficient opportunity in writing by informing the petitioner of the deficiency and should have advised him for the improvement. 12. Learned counsel further submitted that the order passed by the Authorities suffers from legal infirmity and as such, remarks which has been made by the Competent Authority, needs to be interfered with in the writ jurisdiction under Article 226 of the Constitution of India. 13. 12. Learned counsel further submitted that the order passed by the Authorities suffers from legal infirmity and as such, remarks which has been made by the Competent Authority, needs to be interfered with in the writ jurisdiction under Article 226 of the Constitution of India. 13. Per contra learned counsel for the Respondents submitted that this is an admitted position that the petitioner remained absent for 74 days and any absence for such a long period, in the disciplined force is always viewed seriously and in order to maintain discipline in the disciplined force, the authorities have rightly dealt with such a long absence period of the petitioner, while communicating adverse remarks to the petitioner. 14. Learned counsel further submitted that there is no provision of filing successive/second representation by the petitioner and the same is not maintainable, as per the instructions issued by the DoP&T. He submitted that the petitioner did not comply with the order of shifting him from TSU Unit to parent Unit and he took a chance by filing a writ petition before the MP High Court. 15. Learned counsel submitted that though initially interim order was passed in favour of the petitioner and thereafter, the writ petition was dismissed by the Court. 16. Learned counsel for the respondents submitted that even if plea of the petitioner of having 60 days Earned Leave to his credit, is accepted, even then the petitioner remained absent for 74 days and as such, plea taken by the petitioner is fallacious. 17. Learned counsel for the respondents further submitted that the extension of leave as sought by the petitioner, does not confer any right in favour of the petitioner to remain absent. 18. Learned counsel further submitted that grant of leave is sine qua non for an employee before he proceeds and only by submitting an application before the Authorities, the same does not ipso facto result into granting leave, applied on the medical grounds or on any other ground. 19. Learned counsel for the respondents submitted that the plea taken by the petitioner that no warning/counselling was given to him, is not correct and as such, learned counsel refers to a circular dated 10.05.2010 issued by the HRD Department. 20. 19. Learned counsel for the respondents submitted that the plea taken by the petitioner that no warning/counselling was given to him, is not correct and as such, learned counsel refers to a circular dated 10.05.2010 issued by the HRD Department. 20. Learned counsel for the respondents further submitted that the Reporting Officer/Controlling Officer at may times had occasion to judge the performance of the Officer, who is working under him and even if, some verbal counselling is given, the same is sufficient to prove that the delinquent has been informed about his functioning and no instructions provide that there has to be only a written communication about certain shortcomings of the Officer. 21. Learned counsel for the respondents further submitted that the Competent Authority, while dealing with the representation of the petitioner, had framed the opinion about poor performance of the petitioner, not in respect of the period of absence but his overall performance has been taken into account and the same was found to be poor and as such, learned counsel submitted that the petitioner is wrongly attracting the theory of his working under the absent period and he has wrongly been assessed with the poor performance. 22. I have heard the submissions made by learned counsel for the parties and perused the material available on record. 23. The first issue before this Court is to consider the validity of the order dated 19.12.2012. 24. This Court finds that the petitioner was communicated that his repatriation from TSU to Parent Unit was on 21.09.2010 and the petitioner did not report till 21.02.2011 and as such, the Authorities found that such an act was a wrong precedent as it was not expected from any of the members of the Disciplined Force. 25. This Court, accordingly on careful reading of the order dated 19.12.2012, finds that the Competent Authority has recorded a finding that even if 60 days Earned Leave and 15 days joining period is allowable to the petitioner, then also he reported back to TSU on 21.02.2011 i.e. overstaying of 74 days. 26. 25. This Court, accordingly on careful reading of the order dated 19.12.2012, finds that the Competent Authority has recorded a finding that even if 60 days Earned Leave and 15 days joining period is allowable to the petitioner, then also he reported back to TSU on 21.02.2011 i.e. overstaying of 74 days. 26. This Court finds that explanation of the petitioner that his wife was ailing and he had 60 days Earned Leave to his credit and as such, the Authorities have wrongly come to the conclusion that the petitioner had overstayed for 74 days, this Court finds that the Authorities cannot be said to have acted in any arbitrary manner, if they have taken into account the absence period of the petitioner, without proper explanation for 74 days. 27. The submission of learned counsel for the petitioner that the petitioner had submitted an application for sanctioning leave on account of illness of the petitioner’s wife and as such, the circumstances prevented the petitioner from joining, this Court is afraid to accept the submission of learned counsel for the petitioner that only by submitting an application, the petitioner had assumed that the Authorities have granted and sanctioned leave to him. 28. The submission of learned counsel for the petitioner that the Authorities, while taking into account the comments of Initiating Officer/Reviewing Officer/Controlling Officer, had termed the performance of the petitioner as ‘Poor’, as the petitioner had not worked during this period, this Court finds that the said Officers while commenting about performance of the petitioner, as poor have not taken into account the alleged period of absence but a general comment has been made that the performance of the petitioner has been poor. 29. The submission of learned counsel for the petitioner that the period of absence itself was required to be considered for adjudging the performance of the petitioner and since the petitioner did not work at all during the absence period and as such, the Authorities were not justified in terming the petitioner's performance as poor and accordingly, in view of past and present conduct of the petitioner and his performance, the Authorities have wrongly termed the performance of the petitioner as ‘poor’, suffice it to say by this Court that it is the satisfaction of the Authorities in respect of adjudging the working of an employee. The petitioner has not levelled any kind of mala-fides against any Officer where it can be termed that the Authorities were prejudiced against the petitioner or they have acted in an arbitrary manner. 30. The submission of learned counsel for the petitioner that the petitioner was never advised through any written communication by the Officers and only recording reason of giving verbal advise, cannot be of any assistance to the respondents, this Court finds that the instructions which have been issued by the Department of Personnel, as have been relied upon by counsel for the petitioner, provide in Point No.2.26 that it will be the responsibility of the Initiating Officer to counsel and guide the Officer as well as to apprise him of his shortcomings and the said adverse remarks which was made should not come as a surprise to the Officer reported upon. The relevant instruction 2.26 is quoted as hereunder:- “The report should neither contain any assessment pertaining to a period prior or subsequent to the reporting period, nor should the assessment be based on a single or isolated instance. It is the responsibility of the Initiating Officer to counsel and guide the officer as well as to apprise him of his shortcomings, when noticed, throughout the reporting period. This obligation of duty should not be deferred to the time of initiation of APAR, so that adverse remarks, if any, do not come as a surprise to the officer reported upon.” 31. This Court is afraid to accept submission of learned counsel for the petitioner that it is only by way of a written communication or counselling for informing and writing to the delinquent, that such compliance is said to be made under the instructions. 32. This Court finds that the Superior Officer/Reviewing Officer at times can have overall view of the working of a delinquent and if, any verbal instruction is given or counselling is done then same may be as per the requirement of the moment and it is not expected that the Reviewing Officer will first, in fact, give warning in writing to the delinquent and only then it will be assumed that proper compliance has been made. 33. There is no dispute on the fact that while writing APAR of a person, the Authorities have to be very cautious and they have to act in a responsible manner. 33. There is no dispute on the fact that while writing APAR of a person, the Authorities have to be very cautious and they have to act in a responsible manner. This Court also finds that in the present case, the petitioner has also been communicated about his performance in the subsequent year as well and as such, it cannot be said that the Authorities in any manner, have acted arbitrarily. 34. The submission of learned counsel for the petitioner that assessment of an Officer has to be objective and the Authorities should not form their opinion about working of an Officer, without considering the relevant facts, suffice it to say by this Court that it is the Authorities who have to watch the performance of the persons who are working under them and if after coming to know of certain serious lapses then opinion is framed in such an eventuality, it cannot be said that the Authorities have not been making assessment in a proper and objective manner. 35. The submission of learned counsel for the petitioner that the petitioner cannot be charged with an allegation of unauthorized absence as the petitioner was facing difficulty due to illness of his wife and he was prevented by sufficient reason, as such, the Authorities have wrongly termed the absence of the petitioner as unauthorized absence, this Court finds that the plea which was taken by the petitioner about ill health of his wife might be a genuine reason for seeking leave, however, if the petitioner did not get a proper permission from the Authorities or his leave was not sanctioned, the proper course would have been to join the force and then ask for leave. In the present case, the petitioner at his own thought that the extension of leave applied by him, has resulted into automatic sanctioning of the leave. 36. This Court finds that the petitioner is a member of Disciplined Force and if absence is for a considerable period then the Authorities in order to maintain discipline in the entire force, have to take the relevant steps for dealing with the situation. 37. 36. This Court finds that the petitioner is a member of Disciplined Force and if absence is for a considerable period then the Authorities in order to maintain discipline in the entire force, have to take the relevant steps for dealing with the situation. 37. The submission of learned counsel for the petitioner that there has been non-application of mind and the Authorities have not acted in a proper manner, this Court finds that representation of the petitioner has been dealt with by the Authorities, while passing the order dated 19.12.2012 and as such, it cannot be said that the Authorities have not applied their judicious mind. This Court would have accepted the plea of learned counsel for the petitioner, had the Authorities not kept in mind the 60 days Earned Leave and 15 days joining period to the credit of the petitioner and had they treated the entire period as absent, then probably this Court would have formed its opinion in different way. 38. The submission of learned counsel for the petitioner that the communication dated 19.12.2012 about the adverse remark in the APAR for the period between 01.04.2011 to 15.11.2011, has still not been decided in spite of the fact that the petitioner submitted his representation way back on 23.01.2013, this Court finds that the Authorities if have received the representation of the petitioner and further the petitioner has been suffering on account of not taking any decision on representation of the petitioner, the Authorities are expected to act swiftly in this matter and delay of more than 8 years, is a considerable delay. 39. This Court directs the respondents-Authorities to take a final view in respect of the representation which has been submitted by the petitioner. 40. This Court accordingly does not find any reason to interfere in the orders challenged before this Court and as such, the present writ petition stands dismissed. 41. The direction to decide the representation of the petitioner dated 19.12.2012 (Annex.7) will be carried out by the respondents within a period of five weeks after receipt of copy of this order. It goes without saying that in case, the representation of the petitioner is accepted by the respondents, the necessary consequence would follow.