Non-communication of Adverse APAR Remarks and Lack of Supporting Evidence Vitiates Denial of Financial Upgradation

The applicant, a Junior Telecom Officer at BSNL, was denied financial upgradation from grade E-2 to E-3 (due in 2010) because of adverse remarks in his Annual Performance Appraisal Report (APAR) for 2008-09

While the Reporting Officer had given positive remarks, the Reviewing Authority recorded that the applicant was "unable to guide as team leader" and "unable to extract work from staff"

These remarks were never formally communicated to the applicant

BSNL rejected his representations as time-barred, claiming he had signed a pre-printed certificate in 2009 stating he "agreed and accepted" the remarks

The applicant contended he only received the full APAR via an RTI request in 2017 and was never issued warnings or memos regarding his performance during the period

1. Whether the respondents were required to communicate the entire APAR, including adverse remarks, to the applicant to allow for a representation

2. Whether the Reviewing Authority's remarks were legally sustainable absent any prior notice or evidence of work deficiency

3. Whether a pre-printed "agreement certificate" signed by the employee constitutes a valid waiver of the right to represent against adverse entries

The Tribunal primarily applied the principles established by the Hon'ble Supreme Court in Dev Dutt v. Union of India, which mandates that every entry in an ACR/APAR (whether fair, average, or good) must be communicated to the public servant to ensure transparency and fairness

It further relied on U.P. Jal Nigam v. Prabhat Chandra Jain, regarding the requirement to provide reasons for downgrading an officer

State of U.P. v. Yamuna Shanker Misra, which stipulates that adverse remarks must be based on objective periodic inspections and the officer should be given an opportunity to improve through prior advisory/corrective notes

The Tribunal found that BSNL failed to follow the mandatory procedure for communicating APARs as established in Dev Dutt and subsequent DoPT instructions dated 14.05.2009

The "agreement certificate" relied upon by BSNL was deemed invalid because it was a signed proforma that did not prove the applicant was actually shown the full adverse remarks or given a 15-day window to contest them as required by law

Furthermore, the Reviewing Authority’s remarks were found to be subjective opinions unsupported by any record of warnings, memos, or "Memo of Service" during the reporting period

Because the Reviewing Authority failed to provide objective reasons for effectively downgrading the Reporting Officer’s positive assessment, the remarks were held to be biased and non-est in the eyes of law

The court ordered the expunging of the adverse remarks from the 2008-09 APAR and directed the respondents to consider the applicant’s claim for financial upgradation from E-2 to E-3 from the date his juniors were upgraded, with all notional benefits, within 12 weeks