Kamalesh Talukdar vs The Union Of India & Othrs

Heard Mr. A. R. Tahbildar, learned counsel for the petitioner. Also heard Ms. A. Gayan, learned CGC for the respondents.

By filing this writ petition, the petitioner has prayed for setting aside and expunging the adverse/advisory remarks recorded in his Annual Performance Assessment Report (APAR) for the period from 01.04.2022 to 31.03.2023 and for a direction upon the respondent authorities to consider his case for promotion to the rank of Sub-Inspector (Radio Operator) by holding a Review Departmental Promotion Committee (DPC), with all consequential service benefits.

The petitioner was enrolled in the Border Security Force (BSF) as Head Constable (Radio Operator) on 03.10.2000. He was thereafter remustered/converted to the rank of Head Constable (Cipher) on 10.02.2011 and promoted to the rank of Assistant Sub-Inspector (Cipher) on 10.08.2017. The Cipher category was subsequently merged back into the Radio Operator category with effect from 26.10.2018. The petitioner thereafter joined Frontier Headquarters, BSF, Guwahati on 22.06.2023 on permanent posting from 126 Battalion, BSF.

While the petitioner was serving in 126 Battalion, BSF, his APAR for the period from 01.04.2022 to 31.03.2023 was recorded by the Reporting Officer. The Reporting Officer graded the petitioner as “Very Good”, which was agreed to by the Reviewing Officer and the Accepting Authority. However, the following remarks were recorded:

The petitioner submitted his representation dated 05.03.2024/07.03.2024 seeking removal of the aforesaid remarks. The same was considered and rejected by the Competent Authority on 27.09.2024. The petitioner thereafter submitted another representation dated 28.10.2024, which was rejected by the DIG, Sector Headquarters, BSF, Teliamura on 23.12.2024. The petitioner thereafter submitted a representation dated 30.01.2025 before the Director General, BSF, which was also considered but could not be acceded to.

In the meantime, the petitioner’s case for promotion from Assistant Sub-Inspector (Radio Operator) to Sub-Inspector (Radio Operator) for the vacancy years 2025 and 2026 was considered by the Preliminary Screening Committee. His case was not recommended on account of the adverse entry in his APAR for the year 2022-23. Being aggrieved by the adverse/advisory remarks and the consequential effect thereof upon his promotion, the petitioner has filed the present writ petition.

Mr. A. R. Tahbildar, learned counsel for the petitioner, submits that the adverse/advisory remarks recorded in the petitioner’s APAR could not have been made without following the procedure prescribed under the APAR Procedure and Instructions, 2012. He submits that the respondents themselves have admitted that there is no record of any written counselling, warning or guidance having been given to the petitioner during the relevant reporting period. The plea that verbal directions or advice were given as a matter of practice, therefore, cannot be accepted as compliance with the prescribed procedure.

Learned counsel submits that Clauses 2.24, 2.26 and 4.9 of the APAR Procedure and Instructions, 2012 clearly deal with the duties of the Reporting Officer in relation to warnings, counselling and guidance. Clause 2.24 provides that a warning or reprimand issued in writing need not automatically form part of the APAR and that such warning may be mentioned only where, despite the same, the officer has not improved. Clause 2.26 requires the Initiating Officer to counsel and guide the officer and apprise him of his shortcomings when noticed throughout the reporting period, so that adverse remarks do not come as a surprise at the stage of preparation of the APAR. Clause 4.9 also casts a duty upon the Reporting Officer to give necessary advice, guidance and assistance to correct the faults and deficiencies of the subordinate. Learned counsel submits that none of these requirements were followed in the case of the petitioner.

Learned counsel submits that the remarks recorded against the petitioner are vague and do not disclose any specific incident, date or particular act on the basis of which such observations were made. The subsequent comments furnished by the Reporting Officer while dealing with the petitioner’s representation refer to certain instances which were never mentioned in the APAR. He submits that such subsequent explanation, cannot be used to improve or supplement the remarks already recorded in the APAR, particularly when the petitioner was never apprised of those alleged shortcomings during the reporting period.

Learned counsel submits that the manner in which the remarks were communicated to the petitioner also does not satisfy the requirement of Clause 4.8 of the APAR Procedure and Instructions, 2012. He submits that the said provision specifically requires adverse/advisory remarks to be communicated to the official, duly highlighted and underlined, specifying whether the remarks are adverse or advisory, along with the full APAR in the prescribed format. The respondents have not produced any material to show that the remarks were communicated to the petitioner in the manner so prescribed. Mere availability of the APAR through the e-Sparrow portal, therefore, cannot by itself establish compliance with the procedure prescribed under the said clause.

Learned counsel submits that the petitioner was graded “Very Good” by the Reporting Officer and the said assessment was agreed to by the Reviewing Officer as well as the Accepting Authority. The isolated remarks recorded in the APAR, which are general in nature and unsupported by any specific instance, could not have been treated as sufficient basis for adversely affecting the petitioner’s promotional prospects. The said remarks having been relied upon for denying consideration of the petitioner’s promotion, the same could not have been sustained without following the procedure prescribed under the APAR Procedure and Instructions, 2012.

In support of his submissions, learned counsel has placed reliance upon the judgment of the High Court of Delhi in WP(C) No. 13219/2019, Prakhar Trivedi v. Union of India & Ors., decided on 24.12.2024. Relying upon the principles enunciated therein, learned counsel submits that the assessment recorded in an APAR must be objective, supported by reasons and relatable to the officer’s performance during the relevant reporting period. It is further submitted that where an adverse assessment is not supported by any specific incident or material reflected in the APAR, the same cannot subsequently be sought to be justified by referring to circumstances which were neither recorded in the pen picture nor formed the stated basis of the assessment.

Learned counsel for the petitioner has also relied upon the judgment of the Hon’ble Supreme Court in Dev Dutt v. Union of India & Ors., (2008) 8 SCC 725, to submit that the effect of an entry, and not merely its nomenclature, is material where the same has a bearing upon the promotional prospects of an employee. It is submitted that such an entry must be communicated to the employee so as to enable him to make a representation against it. Reliance is thereafter placed upon the judgment in Abhijit Ghosh Dastidar v. Union of India & Ors., (2009) 16 SCC 146, wherein the Hon’ble Supreme Court reiterated that non-communication of an entry having an adverse effect on promotion has civil consequences and that such an entry ought not to be taken into consideration for promotion.

Per Contra, Ms. A. Gayan, learned CGC for the respondents, submits that the petitioner’s APAR for the period from 01.04.2022 to 31.03.2023 was recorded by the Reporting Officer while the petitioner was posted in 126 Battalion, BSF. The petitioner was assessed as “Very Good” by the Reporting Officer and the said assessment was agreed to by the Reviewing Officer and the Accepting Authority. The remarks recorded in the APAR were based upon the assessment of the petitioner by the officer who had directly supervised him during the relevant period.

Learned CGC submits that the remarks were communicated to the petitioner through the e-Sparrow portal and that the petitioner thereafter submitted his representation seeking its removal. The said representation was duly considered by the Competent Authority after obtaining the comments of the concerned officers and was rejected on 27.09.2024. The petitioner thereafter made further representations before the higher authorities, which were also considered and rejected.

Learned CGC submits that the Reporting Officer, while furnishing his comments on the petitioner’s representation, had referred to certain instances relating to the petitioner’s conduct and performance during the relevant period. The remarks recorded in the APAR, therefore, were not without basis and were the result of the Reporting Officer’s assessment of the petitioner while working under his supervision.

On the question of counselling and guidance, learned CGC submits that no written counselling or guidance could be traced from the available records. It is submitted, however, that verbal directions and advice were given to personnel as a matter of practice. Learned CGC submits that the APAR was processed through the e-Sparrow portal after its implementation and that there was no separate manual procedure followed for communication of the APAR or the remarks contained therein.

Learned CGC submits that the petitioner’s case for promotion from Assistant Sub-Inspector (Radio Operator) to Sub-Inspector (Radio Operator) was considered in accordance with the applicable instructions. Referring to paragraph 8(K) of the instructions dated 21.01.2019, learned CGC submits that an employee having an adverse entry in the CRs/PARs for the years under consideration is not eligible for recommendation for promotion. Since the petitioner had the adverse entry in his APAR for the year 2022-23, his case was not recommended by the Preliminary Screening Committee for the vacancy years 2025 and 2026.

Learned CGC further submits that the petitioner had already availed the opportunity of making a representation against the remarks and the same had been considered and rejected by the Competent Authority. The subsequent representation dated 28.10.2024 was also rejected by the DIG, Sector Headquarters, BSF, Teliamura, on 23.12.2024. The representation dated 30.01.2025 addressed to the Director General, BSF, was also examined but no further relief was granted. Learned CGC, therefore, submits that the petitioner has already been given an opportunity to challenge the remarks and as such no interference is called for.

Learned CGC submits that the petitioner’s previous or subsequent APAR gradings cannot be a ground to interfere with the assessment made by the Reporting Officer for the particular reporting period. The Reporting Officer was competent to assess the petitioner on the basis of his conduct and performance during the relevant period and the adverse/advisory remarks were recorded in exercise of such assessment. She, therefore, submits that the writ petition is liable to be dismissed.

I have considered the submissions advanced by the learned counsel for the parties and also perused the materials available on record.

The petitioner has challenged the adverse/advisory observation recorded in his APAR for the period from 01.04.2022 to 31.03.2023, which was subsequently relied upon for not recommending his case for promotion to the post of Sub-Inspector (Radio Operator). The petitioner was graded “Very Good” by the Reporting Officer, which was agreed to by the Reviewing Officer and the Accepting Authority. At the same time, the Reporting Officer observed that the petitioner was a well-qualified Radio Operator, but needed to be accompanied by his colleagues, understand and realise their difficulties and pain in the Force, and show dedication to make himself worthy of the elite force. The said observation was thereafter treated as an adverse entry for consideration of his promotion.

The petitioner contends that the aforesaid observation could not have been recorded without following the procedure prescribed under the APAR Procedure and Instructions, 2012. The respondents themselves have admitted that there is no record of any written counselling, warning or guidance having been given to the petitioner during the relevant reporting period. The assertion that verbal directions and advice were given as a matter of practice cannot, therefore, take the place of the prescribed requirement of counselling, guidance and apprising the petitioner of his shortcomings.

It is in this context that the relevant provisions of the APAR Procedure and Instructions, 2012, require consideration. Clause 2.26 provides as follows:

Clause 4.9 further provides:

A plain reading of the aforesaid provisions shows that where any shortcoming in the conduct or performance of an officer is noticed, he is required to be counselled, guided and apprised of such shortcoming during the reporting period itself. The object is to enable the officer to understand the deficiency attributed to him and take corrective measures before the APAR is recorded.

In the present case, no record of any written counselling or guidance having been given to the petitioner during the relevant period has been produced. The respondents have sought to explain the absence of such record by stating that verbal directions and advice were given to personnel as a matter of practice. There is, however, no material to show that the petitioner was specifically apprised of the shortcomings which subsequently came to be reflected in his APAR. The requirement contemplated under Clauses 2.26 and 4.9, therefore, cannot be said to have been duly satisfied.

A perusal of the observation recorded in the petitioner’s APAR shows that no specific incident, date, duty or particular conduct was mentioned as the basis of the assessment. The observation is general in nature and does not clearly identify the deficiency attributed to the petitioner. The Reporting Officer, while furnishing his comments on the petitioner’s representation on 06.07.2024, subsequently referred to certain instances concerning the petitioner’s conduct and performance. However, those instances were not mentioned in the original APAR, nor is there any material to show that the petitioner had been apprised of such shortcomings during the reporting period. The subsequent comments, therefore, cannot be relied upon to supplement the particulars which were absent from the original APAR.

The overall assessment recorded in the APAR also cannot be overlooked. The petitioner was graded “Very Good” by the Reporting Officer, which was agreed to by the Reviewing Officer and the Accepting Authority. While such grading may coexist with an adverse or advisory observation, where such observation affects promotion, its basis must be clear and supported by the record. In the present case, no specific deficiency corresponding to the observation is disclosed. The petitioner cannot be expected to improve a deficiency which was neither brought to his notice during the reporting period nor clearly stated in the APAR.

The aforesaid requirement was considered by the High Court of Delhi in Prakhar Trivedi (supra), wherein the Court held that the pen picture must contain a clear and objective assessment confined to the relevant reporting period and supported by specific material. The Court further held that subsequent circumstances not recorded in the pen picture cannot be relied upon to supplement or justify an adverse assessment. The said principle applies to the present case, as the specific instances subsequently relied upon by the Reporting Officer were neither recorded in the petitioner’s APAR nor shown to have been brought to his notice during the relevant reporting period.

The requirement relating to communication of an adverse/advisory observation is also specifically dealt with under the APAR Procedure and Instructions, 2012. Clause 4.8 provides as follows:

A plain reading of the aforesaid provision shows that the requirement is not merely to make the APAR accessible to the concerned officer. The provision prescribes the manner of communication, including highlighting and underlining of the remark, specification of its nature and communication of the full APAR in the prescribed format. The respondents have relied upon the availability of the APAR through the e-Sparrow portal, but have not placed any material to demonstrate compliance with the manner of communication specifically contemplated under Clause 4.8. The subsequent submission of a representation by the petitioner cannot, by itself, cure the procedural requirement relating to communication.

The petitioner has also relied upon the judgments of the Hon’ble Supreme Court in Dev Dutt (Supra) and Abhijit Ghosh Dastidar (Supra). In Dev Dutt (Supra), the Hon’ble Supreme Court held that an entry in the service record which may affect an employee’s chances of promotion is required to be communicated to him so as to enable him to make a representation against the same. In Abhijit Ghosh Dastidar (Supra), the Court applied the said principle where an uncommunicated entry had operated to the prejudice of the employee in his consideration for promotion. In the present case, the petitioner subsequently made representations against the observation, which were duly considered by the competent authorities. Therefore, this Court is not proceeding on the basis that the petitioner was unaware of the entry. However, since the said observation was relied upon to deny him recommendation for promotion, its validity has to be examined not only on the basis of the opportunity of representation, but also on whether it was recorded and communicated in accordance with the APAR procedure and on a clear and objective basis.

The respondents have also relied upon paragraph 8(K) of the instructions dated 21.01.2019, under which an adverse entry in the CRs/PARs for the years under consideration affects eligibility for recommendation for promotion. The said provision explains the consequence of an adverse entry upon the petitioner’s promotion, but does not dispense with the requirements prescribed under the APAR Procedure and Instructions, 2012. The record shows that the petitioner’s case was not recommended by the Preliminary Screening Committee for promotion to the post of Sub-Inspector (Radio Operator) for the vacancy years 2025 and 2026 on account of the adverse entry in his APAR for the period from 01.04.2022 to 31.03.2023. The entry has thus directly affected his promotional prospects.

In the present case, there is no material showing that the petitioner was counselled or apprised of the alleged shortcomings during the relevant reporting period. The observation recorded in the APAR is general and unsupported by any specific incident or circumstance, while the particulars subsequently furnished by the Reporting Officer were not part of the original assessment. The respondents have also failed to demonstrate communication of the adverse/advisory observation in the manner prescribed under Clause 4.8. The fact that the petitioner subsequently came to know of the entry and submitted representations cannot cure these deficiencies.

In view of the aforesaid circumstances, the adverse/advisory observation recorded in the petitioner’s APAR for the period from 01.04.2022 to 31.03.2023 cannot be permitted to operate to the prejudice of the petitioner. The said adverse/advisory observation is accordingly set aside and stands expunged. Consequently, the respondents shall convene a Review Departmental Promotion Committee (DPC) and reconsider the petitioner’s case for promotion to the post of Sub-Inspector (Radio Operator), without taking into consideration the aforesaid adverse/advisory observation.

The aforesaid exercise shall be completed within a period of three months from the date of receipt of a certified copy of this order. If the petitioner is found fit for promotion, he shall be entitled to consequential service benefits in accordance with law.

The writ petition stands allowed and disposed of in terms above. There shall be no order as to costs.