An APAR rating cannot be downgraded without prior notice and opportunity to represent.

The applicant, while serving as Chief Engineer under the South East Central Railway, was awarded an overall APAR grading of 4 for the period from 1 April 2020 to 28 February 2021 by the reporting authority, which was affirmed by the reviewing authority.

The accepting authority subsequently upgraded the grading to 6.

The applicant submitted a representation dated 20 December 2021 against the APAR assessment.

Respondent No. 1 thereafter restored the grading to 4 by order dated 29 April 2022, without giving the applicant an opportunity to respond to the proposed downgradation.

The applicant challenged the order before the Tribunal, contending that no warning, counselling, admonition, caution, or show-cause notice concerning his performance had been issued to him.

The respondents relied on a recorded warning dated 29 January 2021, a confidential letter dated 9 October 2020, and the applicable DoPT memoranda and Railway Board instructions.

Whether the competent authority could reduce the applicant’s APAR grading from 6, as recorded by the accepting authority, to 4 without giving him an opportunity to represent against the proposed downgradation?

Whether the order dated 29 April 2022 was vitiated for violation of the principles of natural justice, particularly audi alteram partem?

The Tribunal applied the settled principle of administrative law that an order having civil consequences must comply with the principles of natural justice.

In particular, the doctrine of audi alteram partem requires that a person be given a reasonable opportunity of being heard before an adverse decision is taken against him.

The Tribunal also considered the DoPT Office Memoranda dated 13 April 2010 and 14 May 2019 and the Railway Board’s letter dated 9 June 2017 governing consideration of representations against APAR gradings.

The absence of an express requirement for a show-cause notice in those instructions did not exclude the application of natural justice where a downgrade having civil consequences was contemplated.

When the applicant’s representation was considered, his operative APAR grading stood at 6, having been awarded by the accepting authority.

Respondent No. 1 could either reject the representation or further consider upgrading the grading on the material available.

However, once the authority formed the view that the grading of 6 was unwarranted and proposed to reduce it to 4, the applicant was entitled to notice and a reasonable opportunity to contest the proposed adverse action.

By directly restoring the grading to 4 without such an opportunity, the respondents deprived the applicant of a meaningful chance to explain his performance and thereby breached audi alteram partem.

The order was consequently unsustainable in law, irrespective of the respondents’ reliance on the alleged warning and confidential letter.

The respondents were permitted to issue the applicant an opportunity to represent against the proposed downgradation, consider his representation, and pass a reasoned and speaking order concerning the APAR for the period from 1 April 2020 to 28 February 2021.

The connected miscellaneous applications were disposed of, and the parties were directed to bear their own costs.