Annual Performance Appraisal Report Determining Career Progression Must Be Written By Superior Officers With Impartiality: Delhi High Court

Background Facts

The employee joined the Indo-Tibetan Border Police (ITBP) in 2005 and was promoted to the post of Deputy Commandant (Telecom) in May 2010. In July 2012, while posted as Deputy Commandant, he discovered certain irregularities in the telecom store. He reported these irregularities in a memo dated July 17, 2012. Two days later, on July 19, 2012, he filed another report to the Commandant (Vigilance), claiming that the store had been opened without permission under the instructions of respondent (a senior officer).

The employee alleged that, as a consequence of reporting the irregularities and filing a complaint against respondent, his Annual Performance Appraisal Report (APAR) for the assessment years 2012-13 and 2013-14 was downgraded with adverse remarks. The employee made several representations to higher authorities in 2014 and 2018, seeking revisions of his APAR grading and the removal of the adverse remarks, but his requests were repeatedly rejected. Aggrieved by the same, the employee filed the writ petition.

The employee contended that the downgrading of his APAR for the years 2012-13 and 2013-14 was a result of malice and bias on the part of respondent, who had retaliated against him for reporting the store irregularities. He also pointed out that in later years his ratings were improved, which he claimed demonstrated the arbitrary nature of the downgrades.

The employee argued that respondent was biased against him because, in May-June, the employee had requested leave to care for his father, who was suffering from cancer. Respondent denied the leave request and instead forced the employee to attend a Mountaineering Course at MSI, Auli, issuing a Movement Order on May 25, 2012. The employee had to appeal to the DIG (ITBP) for the leave, which was eventually granted. The employee claimed this likely angered the respondent.

The respondents contended that the APAR grading for the years 2012-13 and 2013-14 was based purely on the employee's performance during the appraisal period and was not influenced by any personal factors.

The respondents argued that the employee's complaint about deficiencies in the store and his report to the Commandant (Vigilance) did not create any valid grounds for apprehending bias. They pointed out that the Vigilance Department investigated the employee's complaint and took action against some officers, but no action was taken against respondent. They submitted, by referring to the APAR for the other period, that the employee has almost consistently been graded at the same scale, that is, at the level of “good”, except on a few occasions.

The respondents further argued that respondent was merely the Initiating Officer for the employee's APAR. His remarks were reviewed by both the Reviewing Officer and the Accepting Officer. The Reviewing Officer provided independent remarks on the employee's performance, which aligned with those given by respondent. They argued that each appraisal period is evaluated independently, and the improved ratings in later years could not be used to challenge the validity of the downgrading in the earlier years.

The respondents further stated that the employee was promoted to Deputy Commandant on the condition that he would complete a mandatory pre-promotional course at the earliest opportunity. He was assigned to attend this course at the Mountaineering & Skiing Institute, Auli, starting on May 28, 2012, and was issued Movement Orders on May 25, June 5, and June 12, 2012. However, the employee did not report to the institute and instead took 20 days of leave from June 14 to July 3, 2012. This showed irregularities on employee's part.

Findings of the Court

It was noted by the court that the adverse remarks and downgrading of the employee's APAR for the years 2012-13 and 2013-14 were based on an assessment of his performance during the relevant period. The reporting and reviewing officers had evaluated his performance, and the downgrading was proportionate to their assessment of his work and conduct.

It was noted by the court that the denial of leave was related to the employee's promotion, which was contingent upon completing a pre-promotional course at the earliest opportunity. The employee's refusal to attend the course led to his case being referred to the Personnel Department of the ITBP for further review. The memo dated June 13, 2012, outlined that the employee was aware of his obligation to complete the course and the consequences of not doing so. Based on these facts, it was concluded by the court that there was no valid basis for the employee to claim or suspect bias against respondent.

The case of Manoj Dhyani v. Union of India & Ors. was referred by the court wherein the Supreme Court held that while assessing the performance of a subordinate, a superior must carefully evaluate the information gathered and exercise due diligence when writing an Annual Performance Appraisal Report (APAR). Remarks made in the APAR are crucial in evaluating a subordinate's performance and forming an opinion about their career advancement. Therefore, the remarks must be made fairly and without bias, as they can significantly affect the subordinate's future.

The case of State Bank of India vs. Kashinath Kher (1996) was also referred by the court wherein the Supreme Court emphasized the significance of an Annual Performance Appraisal Report (APAR) in determining career progression and promotions. The Court stressed that such reports must be written by superior officers with objectivity, impartiality, and fairness, free from any prejudice, and with a strong sense of responsibility.

It was observed by the court that the employee failed to provide substantial evidence to prove that respondent acted with malice, bias, or in retaliation for the employee's reporting of irregularities in the telecom store. The court found no credible material to support the employee's allegation that the adverse entries in the APAR were motivated by irrelevant considerations.

The court rejected the employee's argument that his APAR was downgraded as retaliation for reporting irregularities. It was held by the court that the adverse entries were based solely on the employee's performance and not influenced by any external factors.

With the aforesaid observations, the Writ Petition was dismissed.

Case No. : W.P.(C) 8090/2018

Counsel for the Petitioner : Shailendra Singh, Abhuday Dhasmana, Advs

Counsel for the Respondents : Anjana Gosain, Nippun Sharma, Devesh Khanagwal, Advs.