Uncommunicated APARs cannot be relied upon for promotion; a Review DPC must reassess the candidate.

The South Eastern Railway issued a notification dated 23 February 2017 to fill 34 posts of Intermediate Apprentice Mechanics/Junior Engineer (Mechanical) under the 25% promotional quota.

The applicant, a Technician-I, was found eligible and appeared in the written examination, securing 69.50 marks out of 100.

Although the last empanelled UR candidate secured 60.50 marks, the applicant was not empanelled because he was awarded an aggregate of 56.75 marks, including 9 out of 15 marks for APARs.

The applicant subsequently discovered that his APAR gradings for 2015–16, 2016–17 and 2017–18, each graded “Good”, had not been communicated to him before the Selection Committee considered them.

After an earlier Tribunal direction requiring consideration of his representations, the respondents passed a speaking order dated 30 January 2021 rejecting his claims.

The applicant challenged that order in the present O.A.; meanwhile, the Tribunal directed the respondents to keep one post vacant.

1. Whether the respondents could lawfully rely upon the applicant’s uncommunicated “Good” APAR gradings for 2015–16, 2016–17 and 2017–18 while assessing his suitability for empanelment.

2. Whether the applicant was entitled to reconsideration by a Review DPC/Selection Committee after exclusion of the uncommunicated APARs and consideration of validly communicated APARs.

3. Whether the alleged irregularities concerning the initiation of the APARs and non-consideration of the applicant’s awards warranted a fresh appraisal of his record of service.

The Tribunal applied the principles of natural justice and Article 14 of the Constitution, holding that every APAR/ACR entry which adversely affects an employee’s promotional or empanelment prospects must be communicated, even if the entry is described as “Good” and is not traditionally treated as adverse.

Relying on Dev Dutt v. Union of India, (2008) 8 SCC 725, and Abhijit Ghosh Dastidar v. Union of India, (2009) 16 SCC 146, the Tribunal held that uncommunicated entries having civil consequences cannot ordinarily be used against an employee.

It further relied on R.K. Jibanlata Devi v. High Court of Manipur (Registrar General) & Ors., 2023 LiveLaw (SC) 139, for the rule that where uncommunicated ACRs/APARs have been considered by a DPC or Selection Committee, they must be ignored and the candidate must be reconsidered through a Review DPC on the basis of the remaining, preceding or subsequently communicated valid reports.

The Tribunal also considered the Railway Board’s selection guidelines under RBE Nos. 272/1999 and 102/2002, including the Selection Committee’s role in assessing service records.

The respondents admitted that the applicant’s three APARs had not been communicated before the Selection Committee met on 30 June 2019.

The Tribunal rejected the respondents’ contention that communication was unnecessary merely because the reports were graded “Good”, holding that those gradings reduced the applicant’s comparative score and therefore had adverse civil consequences in the selection.

Since the applicant received only 9 of 15 APAR marks and was 3.75 marks below the cut-off, the uncommunicated reports materially affected his non-empanelment.

His subsequent communicated APARs contained “Outstanding” gradings, demonstrating that reconsideration on the basis of valid reports could materially alter his score.

The Tribunal therefore held that the speaking order could not stand.

Although it did not base the decision exclusively on the alleged unauthorized initiation of the APARs or the omission of the applicant’s awards, those allegations reinforced the need for an objective reconsideration by a Review DPC.

The respondents were directed to convene a Review DPC/Selection Committee within twelve weeks to reassess the applicant’s candidature.

The Review DPC was directed to ignore the uncommunicated APARs for 2015–16, 2016–17 and 2017–18 and consider the applicant’s validly communicated APARs in accordance with Dev Dutt and R.K. Jibanlata Devi.

If the applicant secured at least the cut-off mark of 60.50, he was to be empanelled against the vacancy kept reserved under the interim order, with consequential seniority and notional pay-fixation benefits from the date of empanelment of his batchmates or juniors.

If no physical vacancy remained available, the respondents were directed to create a supernumerary post to accommodate him.

No order as to costs was made.