Facts
The applicant, a Junior Telecom Officer (JTO) at BSNL, was granted financial upgradation from E-1 to E-2 in 2007
Source reference: p. 3his next upgradation from E-2 to E-3, due in 2012, was denied because a Departmental Promotion Committee (DPC) found him unfit based on adverse remarks in his Annual Performance Appraisal Reports (APARs) for 2008-09 and 2009-10
Source reference: p. 3-6While the Reporting Officer had graded him highly (9.5+), the Reviewing Authority downgraded him, citing inability to motivate staff and poor attitude toward public grievances
Source reference: p. 10-11BSNL rejected his representations on the grounds that they were time-barred and that the applicant had signed a certificate "agreeing and accepting" the remarks at the time
Source reference: p. 6-7The applicant contended he was never formally communicated the adverse entries or given an opportunity to represent against them
Source reference: p. 4Issues
1. Whether the respondents failed to communicate the entire APARs/adverse remarks to the applicant in violation of established legal principles
Source reference: p. 9 / para. 6(i)2. Whether the "acceptance certificate" signed by the employee acts as a valid substitute for the formal communication of adverse remarks
Source reference: p. 9 / para. 6(iii)3. Whether the Reviewing Authority's remarks were sustainable without prior warnings or objective evidence of deficiency
Source reference: p. 10 / para. 8(iii)Law Applied
The Tribunal primarily applied the precedent of Dev Dutt v. Union of India (2008), which mandates the communication of all entries in an APAR (whether fair, poor, or good) to the public servant to ensure transparency and allow for representation
Source reference: p. 4It relied on State of U.P. v. Yamuna Shanker Misra (1997), asserting that remarks must be objective and preceded by advisory or corrective notices
Source reference: p. 5It observed the Department of Personnel and Training (DoPT) instructions dated 14.05.2009 regarding the disclosure of APARs
Source reference: p. 4Para 174(4) of the PT Manual Vol-III regarding the recording of adverse entries
Source reference: p. 10Reasoning
The Tribunal found that the complete APARs for 2008-09 and 2009-10 were never formally conveyed to the applicant, which is a mandatory requirement under Dev Dutt
Source reference: p. 11It dismissed BSNL's reliance on a signed "printed proforma" of acceptance, holding that such a certificate does not satisfy the legal requirement for fair opportunity and cannot be used to bypass the duty to communicate adverse entries
Source reference: p. 11The Tribunal observed that the Reviewing Authority's remarks were subjective opinions lacking any supporting documentation or prior warnings issued to the applicant during the reporting period
Source reference: p. 11Since the Reporting Officer had found the applicant's performance excellent (grading over 9.5), the Reviewing Authority's unsubstantiated downgrading was deemed biased and hit by non-application of mind
Source reference: p. 11Holding
The Tribunal allowed the OA and quashed the impugned orders dated 04.04.2014 and 28.12.2016
It ordered the expunging of the adverse remarks recorded by the Reviewing Authority for the years 2008-09 and 2009-10. The respondents were directed to reconsider the applicant’s claim for financial upgradation from E-2 to E-3 effective from 09.12.2012 (the date his juniors were upgraded) and provide all consequential notional benefits within 12 weeks
Source reference: p. 11-12Original Court PDF
Hans RajvsBharat Sanchar Nigam Limited
Click to open original judgment
Original judgment, available to read, download and summarize on LawLens.in