Full Judgment Text
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IN THE HIGH COURT OF DELHI AT NEW DELHI
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% Date of decision: 6 April, 2021
+ W.P.(C) 725/2020 & CM APPL.2120/2020
KRISHAN KUMAR AGARWAL ..... Petitioner
Through: Mr. Vishwendra Verma &
Ms. Shivali, Advocates.
Versus
DIRECTOR (HR) BHARAT SANCHAR NIGAM LIMITED AND
ORS. ..... Respondents
Through: Mr. Rajat Bhalla, Advocate.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MR. JUSTICE AMIT BANSAL
JUDGMENT
AMIT BANSAL, J. (Oral)
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1. The present Writ Petition impugns the order dated 18 November,
2019 passed by Central Administrative Tribunal (CAT), Principal Bench,
New Delhi. Vide the said impugned order, the CAT has dismissed OA
No.3337/2017 filed by the petitioner wherein the petitioner had sought
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setting aside of order/memo dated 26 February, 2017 passed by the
respondents; the expunging of adverse remarks/comments given in his
Annual Performance Appraisal Report (APAR) for the period of 2012-13
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and setting aside the letter dated 14 July, 2017 by which the respondents
have rejected the appeal of the petitioner on the point of maintainability.
W.P.(C)725/2020 Page 1 of 6
2. The brief facts relevant for deciding the present petition are set out
hereinafter.
3. The petitioner joined the Department of Telecommunications as
Assistant Divisional Engineer Telephones in the year 1999. Thereafter, he
became an employee of BSNL, respondent no.1. He was promoted to the
post of Divisional Engineer Telephones in the year 2003; Director in the
year 2008 and Deputy General Manager (DGM) in the year 2011. The
petitioner was posted as DGM, Tezpur on 28.06.2011.
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4. On 19 July, 2013, the petitioner was communicated the APAR for
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the period of 1 April, 2012 to 2 February, 2013 by the respondents which
was below the benchmark. The petitioner sent representations dated
26.09.2013 and 31.05.2016 to the respondents for upgrading of the overall
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grading and expunging the remarks/comments in APAR for the period of 1
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April, 2012 to 2 February, 2013, which was below the benchmark. The
said representations of the petitioner were rejected by the respondents on
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28 February, 2014 and 26 February, 2017 respectively. The petitioner
filed an appeal before the Competent Authority; however, the same was
rejected on the ground of maintainability. Aggrieved by the order/memo
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dated 26
February, 2017, the petitioner filed the OA before the CAT, from
which the present petition arises.
5. The said OA before the CAT was contested by the respondents by
filing counter affidavit. The grievance of the petitioner was that for the
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April, 2012 to 2 February, 2013, the Reporting
period in question i.e. 1
Authority gave 01 out of 10 numerical grading to the petitioner and in the
pen picture of the petitioner, serious dissatisfaction was expressed about his
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performance. Reviewing Authority agreed with the said assessment made
by the Reporting Authority. The petitioner claims that the said assessment
was without any basis and Reviewing Authority has accepted the remarks
of the Reporting Authority in a mechanical manner without any application
of mind.
6. The CAT, in the impugned order, observed that (i) the method of
preparation of APARs is almost foolproof and the likes and dislikes of any
superior officer are not permitted to be reflected in the APAR, as there are
many safeguards provided in the system; (ii) further, when a representation
is made by an employee to the Competent Authority, the Competent
Authority satisfies himself by calling for remarks of the Reporting and the
Reviewing Officers for the concerned period and it is only when he finds a
serious error or when the employee concerned demonstrates that the
assessment was not proper, that the Competent Authority can interfere; (iii)
the petitioner did not even plead that there was any personal animosity on
the part of the Reporting/Reviewing Officer against him; (iv) there is a
finality to the order passed by the Competent Authority. The judgment
relied upon by the petitioner before the CAT viz. Union Public Service
Commission Vs. Hiranyalal Dev and Ors , (1988) 2 SCC 242 was
distinguished on the ground that in that case adverse remarks were not
communicated to the officer concerned which is not the position in the
present case; (v) the decisions of CAT relied upon by the petitioner in OA
No.3897/2011 – Inspector (Exe.) Anil Kumar Vs. Union of India & Ors.,
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decided on 22 May, 2012 and order dated 20 September, 2018 passed by
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Chandigarh Bench of CAT in OA No.418/2017 were also distinguished.
Accordingly, CAT was pleased to dismiss the OA filed by the petitioner.
7. The present petition was filed by the petitioner impugning the above
said order of CAT. The said petition was contested by the respondents by
filing counter affidavit.
8. We have heard counsels for the parties. Ld. Counsel for the petitioner
has contended that there was no basis whatsoever for the petitioner being
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granted 01 out of 10 in the overall grading for the period from 1 April,
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2012 to 2 February, 2013; the remarks given against various parameters in
the Reporting Format are completely arbitrary and without any basis; the
remark of “doubtful” against “Integrity” was without any material in
support; the pen picture drawn by the Reporting Officer was completely
inaccurate. The petitioner has also contended that the Reviewing Officer
has mechanically agreed with the said assessment without applying his
mind to the same. It is vehemently contended on behalf of the petitioner
that throughout his long career, all his APARs have been ‘very good’ and
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therefore, the poor grading in the APAR for the period 1 April, 2012 to 2
February, 2013 is an aberration and should be set aside.
9. The respondents along with their counter affidavit have filed all the
APARs of the petitioner for the period 1999 to 2018 along with a table that
summarizes APARs for each of the aforesaid years. A perusal of the
aforesaid table would demonstrate that it is not just for the period in
question that the performance of the petitioner has been graded below bar.
Even, for the period 18.08.2011 to 31.03.2012, the petitioner has been given
the officer does not have
a grading of 02 out of 10 with the remarks that “
W.P.(C)725/2020 Page 4 of 6
any knowledge in any field and highly indisciplined, corrupt and no
dedication to work”. Further, the pen picture for the said period states, that
“the officer need to improve on all attributes”. Further, the integrity was
also noted as “Doubtful
”. It may be pertinent to mention here that the
Reviewing Officers who reviewed the APAR of the petitioner for the said
two periods are different. Further, the petitioner did not file any
representation against the APAR for the said period of 18.08.2011 to
31.03.2012.
Even for the subsequent periods, though the grading given to the petitioner
is ‘good’, but the pen picture in respect of the petitioner is not satisfactory.
In this regard, reference may be made to the APARs of the petitioner from
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October, 2013 onwards. The contention of the petitioner
the period from 1
that just because he has got ‘good’/ ‘very good’ grading in the earlier and
the subsequent periods, he cannot be given low grading in a particular
period is without any merits. Every person can have ups and down in his
performance and the performance of a person cannot be judged on the basis
of his performance in earlier or later periods. In the present case, the
grading given to the petitioner has been duly reviewed by a Reviewing
Officer and thereafter, the Competent Authority has considered the report of
both the Reporting Officer as well as the Reviewing Officer and found the
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same to be in order. Further, for the period from 1 April, 2012 to 31
March, 2013, two different Reporting Officers have given him low grading.
As per the own case of the petitioner, his posting at Tezpur was tough and
therefore the petitioner could not perform his work satisfactorily. APARs
for both the aforesaid periods were duly disclosed to the petitioner and the
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petitioner has duly submitted his representations against the said APARs,
which have been duly considered. That being the position, there is hardly
any scope of interference by the Court in the APARs of the Petitioner.
10. In light of the above, no case is made out for interference with the
order of the CAT.
11. The present petition is dismissed.
AMIT BANSAL, J.
RAJIV SAHAI ENDLAW, J.
APRIL 06, 2021
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