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Judgment
Per Hon’ble Mr. Pankaj Kumar, Member-Administrative
In this case relating to the Annual Performance Appraisal Report (APAR), the applicant has sought following reliefs:
“(i)This Hon’ble Tribunal may kindly be pleased to quash the impugned order dated 25/28.06.2019, issued by the office of respondent no. 2 (Annexure No. A-1 to this O.A.).
(ii)The applicant further prayed that in the interest of justice the APAR for the period 2006-07 and 2007-08 be expunged for all other purposes like promotion, up-gradation etc.
(iii)To direct the respondents to read the APAR for the period 2006-07 and 2007-08 for all other purposes and if need be then the APARs for the preceding years be read.
(iv)To pass such other orders which are found just fit and proper under the circumstances of the case.
(v)To allow the original application with cost.”
The facts of the case are that the applicant’s performance in APARs for the years 2006-07 and 2007-08 was recorded as ‘Good’ which is below the benchmark of ‘Very Good’ prescribed for promotion. The APARs were communicated to the applicant vide letter dated 29.04.2013. The applicant represented to respondent no. 3 on 15.05.2013 for upgradation of his performance recorded therein, but it was rejected vide order dated 18/19.07.2013. The applicant represented again on 29.07.2013 which met the same fate vide order dated 01/10.03.2014. His further representations dated 30.01.2014 and 22.01.2015 were also turned down vide order dated 09/16.10.2015. The applicant ventilated his grievance through representation dated 07.10.2017 but it was also rejected vide order dated 21.07.2018.
The Indian Council for Agricultural Research (ICAR) issued instructions dated 19.06.2018 regarding direct submission of representations against gradings given in APARs to the respective Deputy Director General (DDG). Following issuance of these instructions, the applicant preferred representation dated 07.08.2018 to respondent no. 2, i.e., DDG concerned. The decision of respondent no. 2 rejecting the applicant’s representation was communicated to the applicant vide order dated 25/28.06.2019. Aggrieved, the applicant has preferred this OA.
The applicant contends that the reporting officer, Anil Kumar Verma (respondent no. 4) was prejudiced against him and that he tampered with his assessment of the applicant’s performance in the APAR for 2006-07 from ‘Very Good’ to ‘Good’ by applying white correction fluid under the influence of the then respondent no. 3 who was also prejudiced against him. His second contention is that both APARs for 2006-07 and 2008-09 are liable to be expunged as they have been recorded on the same day. His third contention is that the two APARs should be expunged also for the reason that the reporting officer could not record his assessment before 30th June of the relevant year as stipulated in the rules. Fourthly, the applicant avers that respondent no. 2 has rejected his representation relying on the comments forwarded by the then reporting officer (respondent no. 4) and the reviewing officer while failing to appreciate his achievements recorded in the self appraisal which had been agreed to by the reporting and the reviewing officers.
Per contra, the respondents contend that respondent no. 4 evaluated the applicant’s contribution as ‘Good’ without bias. They assert that respondents no. 4 never recorded the applicant’s performance as ‘Very Good’ and there was a slip of pen which was erased and duly signed by respondent no. 4. They also contend that the applicant himself failed to submit his APAR for 2006-07 on time and that he submitted it only on 29.08.2007 and since the time available for review was upto 31.08.2007, the respondent no. 4 made efforts to record his assessment in course of the working day on 29.08.2007 itself. They aver that respondent no. 2, on the basis of reports of reporting and reviewing officers did not find merit in upgrading the APARs for 2006-07 and 2007-08.
We have heard both the parties.
The scope of judicial review of APAR is delineated in following terms by Hon’ble High Court of Delhi in the judgment and order dated 18.07.2023 in W.P.(C) 2673/2016 Manudev Dahiya vs UoI through DG ITBP:
“33.While the importance of writing APAR for the serving Officer is extremely important for the career progression yet, as a general principle which needs no reiteration, it is only the Administrative Authority which has the expertise to determine whether a candidate is fit or not for a particular post and the court has no expertise. Assessment of performance and recording of APAR/ACR of an employee is the job of the Administrative Authority of the particular employee and once the ACR is recorded by the superior Authority in accordance with the procedure, a court of law is not required ordinarily to sit over like an appellate authority. The Apex Court in Swapan Kumar Pal vs. Achintya Kumar Nayak (2008) 1 SCC 379 observed that the power of judicial review of the decision of Administrative Tribunal is very limited. While exercising the power of judicial review, the courts must limit their role and interfere only if any legal error has been committed in the decision-making process. It cannot enter into the merits of the decision. Furthermore, while exercising the power of judicial review, the courts should not sit as an appellate authority and must remain confined to see whether the decision has been made in accordance with the settled principles of law.” (emphasis supplied)
In the following paragraph, we proceed to examine the objections raised by the applicant keeping in view the scope of judicial review quoted above.
The first objection of the applicant is that the reporting officer (respondent no. 4) and the reviewing officer (the then respondent no. 3) were prejudiced against him. In support of his claim he alleges that respondent no. 4 was not taking interest in the research work during the years 2006-07 and 2007-08 and that in order to deflect his own dereliction of duty, respondent no. 4 tried to show that assistance provided by the applicant was not ‘Very Good’. This has been refuted by the respondents by highlighting that respondent no. 4 achieved sufficient research targets during 2006-07 and 2007-08 which was published in the Annual Report 2006-07 and 2007-08 of ICAR-CISH Lucknow (Annexure CR-4 to the counter affidavit). The applicant claims, without placing any evidence on record, that respondent no. 4 was not mentally sound at the relevant point of time; a claim which, again, has been rebutted by the respondents. The applicant also claims that the reviewing officer was also prejudiced against him, but he has not supported this claim with any evidence. The applicant claims that respondent no. 4 tampered with the APAR for 2006-07 by first recording the assessment as ‘Very Good’ and then erasing the word ‘Very’ by applying white correction fluid and appending his signature. The respondents acknowledge correction to the extent that it was a slip of pen, but they refute the applicant’s contention of tampering.
It is trite that the burden of proof for demonstrating malice or prejudice lies on the person making such claim. In our view, the applicant has been unable to support his claim of prejudice on part of the reporting officer and the reviewing officer with credible evidence. On the contrary, we notice varying grounds cited by the applicant without material to support them. The allegation of malice is made not only against respondent no. 4, but also against the then reviewing officer, which is not found to be established in the absence of reliable evidence. Moreover, the fact that respondent no. 2 upheld the assessment of applicant’s APAR for 2006-07 and 2007-08 also goes against the applicant’s claim of prejudice. To sum up, the applicant’s claim of prejudice is not established, in our opinion.
The next objection of the applicant is that the APARs for 2006-07 and 2007-08 should be expunged as they were recorded on the day of their submission itself. The applicant has not cited any rule or provision prohibiting recording of assessment by the reporting officer on the day the APAR is submitted. Perusal of the APARs in question reveals that the applicant submitted his APAR for 2006-07 on 29.08.2007 and it was assessed on the same day by the reporting officer. The respondents have explained that as the deadline for review (31.08.2007) was drawing nearer, the reporting officer assessed on the day of submission itself. Coming to APAR for 2007-08, it is noted that the applicant submitted it on 04.05.2008 and respondent no. 4 assessed it on 06.05.2008. We do not find such promptitude on part of the reporting officer exceptionable at all for the reason that the reporting officer is expected to record his assessment in the APAR without undue delay.
The third objection raised by the applicant is that the APARs for 2006-07 and 2007-08 should be expunged as they were reported upon after the due date, i.e., 30th June of the relevant year. It is observed that the applicant submitted his APAR for 2006-07 on 29.08.2007 and so he is estopped from taking the plea of assessment by the reporting officer after 30th June of that year (2007). As far as the APAR for 2007-08 is concerned, it is observed that the applicant submitted it in time and it was assessed by the reporting officer well before 30th June of 2008.
The fourth objection of the applicant is that respondent no. 2 relied on the comments of reporting officer (respondent no. 4) and did not pay heed to the achievements mentioned in the APARs while disposing of his representation.
On the issue of consultation with the reporting and the reviewing officers, the following provision of ICAR’s instructions dated 19.06.2018 is relevant:
“Subject: Issuing of instructions regarding the direct submission of representations against the gradings given in the APARs to the respective DDG of the SMD – regarding. …
Step 4 – On receiving the representation of the employee, the SMD may call for comments of the Reporting Officer and Reviewing Officer (if they are still in service). The DDG of the SMD may take a decision on representation of the employee in accordance with the instructions contained in DOPT’s OM dated 13.04.2010 and reiterated in Council’s letter No. TS/11(13)/13/Estt. IV dated 13.10.2016.” (emphasis supplied) It is evident from the above that the comments of the reporting and the reviewing officers may be obtained before deciding representation against APAR. We find this provision unexceptionable as both sides must be heard in order to make a fair decision in the matter. It cannot be said that the respondent no. 2 has acted in violation of the instructions by obtaining comments from respondent no. 4.
On the issue of reliance on comments of the reporting officer only by respondent no. 2, it is noted that respondent no. 2 disposed of the applicant’s representation in following terms:
“The representation in respect of Shri Ramendra, STO, CISH for upgradation of APARs for the year 2006-07 and 2007-08 have been examined holistically keeping in view the work done by Shri Ramendra Tewari, STO and the observations/gradings made by the then Reporting & Reviewing Officers, in his APARs for these two years and also the comment recently offered by Shri Anil Kumar Verma, Scientist, and the Appellate Authority is of the considered opinion that though Shri Ramendra Tewari, STO is found to have attended to his official duties with due diligence yet he does not seem to have mentioned any specific achievement/significant contribution at the time of filling up of his APARs for the year 2006-07 to 2007-08 respectively which could warrant further upgradation of APARs for these two consecutive years. Therefore, looking into the given details, the grading of “good” as given by the then Reviewing Officer for both the years 2006-07 to 2007-08 respectively in respect of Shri Ramendra Tewari, STO is upheld.” (emphasis supplied) It is evident from the above that respondent no. 2 disposed of the applicant’s representation after examining the work done by the applicant, the assessment recorded by the reporting officer and the reviewing officer and the comments offered by the then reporting officer (respondent no. 4) and upheld the assessment in view of lack of any specific achievement or significant contribution mentioned by the applicant in the APARs warranting their upgradation. We observe that respondent no. 2 has decided the applicant’s representation in terms of the prescribed procedure and on the basis of relevant material. Mindful of the scope of judicial interference highlighted in Manudev Dahiya (supra), it is not our place to weigh in on the merits of the decision made by respondent no. 2.
To conclude, the applicant has failed to make out a case for intervention of this Tribunal in the matter, in our opinion.
In view of the foregoing, this OA is dismissed for being devoid of merit.
Associated MAs also stand disposed of.
Parties shall bear their own costs.