An adverse APAR cannot rely on undisclosed material without affording an effective opportunity to respond.

The applicant, a Section Officer in the Intelligence Bureau, challenged adverse APAR-related decisions concerning two assessment periods: 1 April 2018–10 December 2018 and 2021–2022.

For the first period, he was awarded a “3” (Below Average). His representation was rejected as time-barred, and his subsequent appeal was also rejected.

In an earlier proceeding, OA No. 723/2020, the Tribunal quashed both orders and directed fresh consideration of his representation in accordance with law and in a fair and unbiased manner.

The competent authority subsequently rejected his representation by order dated 3 July 2023.

For the 2021–2022 APAR, the applicant alleged that no official work was assigned to him from October 2021 onwards despite written requests.

Nevertheless, he was required to submit a self-appraisal for the full year and was ultimately awarded a grading of “4” (Good) with adverse remarks.

His representation was rejected by memorandum dated 12 September 2022, relying, inter alia, on comments concerning his “work ethic” and alleged unwillingness to improve.

The applicant contended that the competent authority relied on additional adverse comments obtained from the Reporting and Reviewing Officers during the representation process without first disclosing them to him.

He further alleged bias and impermissible reliance on an earlier disciplinary proceeding and charge memorandum dated 16 February 2017.

The respondents maintained that the APARs were objectively prepared and that the applicant’s representations had been duly considered in accordance with applicable rules and departmental instructions.

The Tribunal also condoned the delay of 458 days in filing OA No. 339/2025.

Whether the impugned APAR decisions could be sustained when the competent authority relied on additional adverse comments or material that had not been communicated to the applicant, thereby denying him an effective opportunity to respond?

Whether an earlier disciplinary proceeding or penalty could be relied upon, directly or indirectly, to impose a further adverse consequence through a subsequent APAR assessment for the same alleged misconduct?

Whether the APAR decisions dated 3 July 2023 and 12 September 2022 required interference and fresh consideration by the competent authority?

An APAR must constitute a fair, objective, contemporaneous and performance-related assessment for the relevant period; it cannot substitute disciplinary proceedings or be used to impose a collateral punishment.

Adverse material having potential to affect an employee’s service prospects must ordinarily be disclosed, and the employee must be afforded a meaningful opportunity to represent against it before it is relied upon.

The principles of natural justice require that an authority deciding a representation cannot rely on fresh adverse material without giving the employee an opportunity to rebut it.

The principle against double punishment requires that misconduct for which an employee has already suffered disciplinary consequences cannot be used to impose a further adverse consequence for the same misconduct, unless any reliance on the earlier proceeding has a clear and rational nexus with the subsequent assessment and does not amount to fresh punishment.

Although courts ordinarily do not substitute their assessment for that of Reporting or Reviewing Authorities, they may interfere where the decision-making process is procedurally unfair, legally infirm or based on impermissible considerations.

The Tribunal found that, while considering the applicant’s representations, the competent authority obtained and relied upon additional comments concerning his “work ethic” and conduct.

These comments were not part of the material originally communicated to the applicant, and he was not given an opportunity to respond before his representations were rejected.

This was held to be a material procedural defect because the applicant was required to defend himself against the original APAR, while the deciding authority relied on undisclosed adverse material.

The Tribunal further noted that the respondents had referred to the applicant’s earlier disciplinary proceeding and charge memorandum dated 16 February 2017.

It held that an APAR for a subsequent period cannot operate as an additional or collateral punishment for misconduct for which disciplinary action has already been taken.

Any consideration of the earlier proceeding had to be demonstrably relevant to the subsequent assessment and could not result in double punishment.

The Tribunal therefore confined its intervention to the legality and fairness of the decision-making process and did not direct any particular APAR grading.

The matters were remitted to the competent authority for fresh, independent and objective reconsideration on the basis of legitimately relevant material relating to the relevant assessment periods.

Earlier disciplinary or penal action could not be used to impose a second adverse consequence for the same conduct.

Any adverse material proposed to be relied upon had first to be disclosed to the applicant, who was to receive a reasonable opportunity to respond; his response was required to be duly considered.

A reasoned and speaking order was to be passed within eight weeks from receipt of the certified copy of the order.

The Tribunal expressly clarified that it had not decided what grading should ultimately be awarded.

There was no order as to costs.