(Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for records and quashing the order dated 23.05.2018 passed by the 4th respondent vide No.31011/1/2013- Estt(VI) rejecting the appeal of the petitioner as regards expunging the grading Good as well as adverse remark made by the then 5th respondent against the petitioner for the period 1.4.2016 to 14.09.2016 in the Annual Performance Appraisal Report (APAR) and consequently direct the respondents to grant the Junior Administrative Grade (JAG) under Non-functional Financial Upgradation (NFFU) to the petitioner for the applicable period without taking into account the said grading and adverse remark entered by the then 5th respondent in the Annual Performance Appraisal Report (APAR) of the petitioner for the said period so as to receive the pay equivalent to the rank of Second-in-command, Central Reserve Police Force)

1. This Writ Petition has been filed seeking issuance of a Writ of Certiorarified Mandamus, calling for the records and quashing the order dated 23.05.2018 passed by the fourth respondent vide No.31011/1/2013-Estt(VI), rejecting the appeal preferred by the petitioner insofar as the expunging of the grading “Good” as well as the adverse remarks made by the then fifth respondent against the petitioner for the period from 01.04.2016 to 14.09.2016 in the Annual Performance Appraisal Report (hereinafter referred to as “the APAR” for the sake of brevity), and consequently directing the respondents to grant the Junior Administrative Grade (JAG) under Non-Functional Financial Upgradation (NFFU) to the petitioner for the applicable period, without taking into account the said grading and adverse remarks entered by the then fifth respondent in the APAR of the petitioner for the said period, so as to enable him to receive the pay equivalent to the rank of Second-in-Command, Central Reserve Police Force.

2. The petitioner joined as a Direct Recruit Sub-Inspector in the CRPF on 23.05.1998. During the year 2007, through the departmental examination, he was appointed as an Assistant Commandant and was promoted as Deputy Commandant with effect from 27.12.2016. During the year 2012, when the petitioner was posted as a trainer on deputation at the Sardar Vallabhbhai Patel National Police Academy from 06.08.2012 to 05.08.2017, he was entrusted with the additional responsibility of looking after the Senior Officers’ Mess. During such period, Mr.G.S.Rao, who was holding the post of Deputy Director (the fifth respondent), asked the petitioner to do a certain favour. When the petitioner expressed his inability on account his lack of authority, the said officer got offended, which resulted in the downgrading of his APAR.

3. The learned Senior Counsel would submit that, from 01.04.2009 to 31.03.2023, the grading of the petitioner was either “Very Good” or “Outstanding”, except for the period from 01.04.2016 to 14.09.2016. The learned Senior Counsel would further submit that, for a person who had excelled in his work both prior to and subsequent to the said period, such downgrading of his performance for a particular period is illogical and that such downgrading had occurred on account of the personal bias of the then fifth respondent. Hence, he prayed to interfere with the impugned order.

4. Per contra, the said contention was stoutly opposed by the learned Senior Panel Counsel appearing for the respondents and would contend that the petitioner was posted to the Basic Course Section to manage the training activities of IPS officer trainees in Indoor Studies. During his tenure, his performance and discharge of duties were assessed by his superior officers and recorded in the form of the APAR every year. It is the contention of the learned Senior Panel Counsel that, on 11.08.2016, when around 20 IPS probationers were standing outside the classroom and the Academy song was being played, the petitioner had not taken any action against the said IPS probationers, who had shown disrespect to the Academy song by chatting and laughing among themselves. Such conduct, according to the respondents, had adversely affected his performance. Therefore, the Reviewing Officer had awarded a grading of 5.98.

4.1. It is also his contention that the above conduct disclosed that the petitioner’s emotional balance was not appropriate and that he could explode under work pressure and that his discipline was not up to the mark. The fifth respondent had recorded the APAR after taking into consideration of the above verifiable materials. He would further submit that, while exercising the power of judicial review, this Court cannot interfere with such assessment. Hence, he prayed to dismiss the present Writ Petition.

5. I have given my anxious consideration to the submissions made on either side.

6. The factual position with regard to the petitioner’s place of posting and the duration of his posting is not in dispute. It is equally not in dispute that, except for the period from 01.04.2016 to 14.09.2016, the petitioner’s grading was either “Very Good” or “Outstanding”. During the said period, though the Reporting Officer had graded him as “Outstanding”, the Reviewing Officer and Accepting Officer have downgraded the same to “Good”. For the above downgrading, the petitioner would contend that, the then officer holding the designation of the fifth respondent, due to certain personal grievance had downgraded his APAR. However, the respondents dispute the said incident. Furthermore, since the then officer, Mr.G.S. Rao, IPS, is not arrayed as a party by name, this Court is of the view that it would not be appropriate to enter into the said aspect.

7. Here, the reasons for downgrading the petitioner have been mentioned in paragraphs 6 and 7 of the counter-affidavit. For ready reference, the same are extracted hereunder:-

                     “6. An incident occurred on 11.08.2016, wherein about 20 odd IPS probationers were standing outside the classroom by chatting and laughing in presence of the petitioner by disrespecting the Academy song. This is not expected of an Assistant Commandant rank officer (i.e. Petitioner). The Probationers caused disrespect to the Academy song in the presence of petitioner and he stood as mute spectator, hence he also connived in the indiscipline. The incident occurred in the presence of Joint Director (Admn & SC), who was the faculty to take the indoor class of IPS probationers on the day. Due to this JD (Admn & SC) has issued a Memorandum to the petitioner vide Memorandum No. JD(A)/2015/L-10 dated 11.08.2016. Copy of above Memorandum was endorsed to the Deputy Director (Basic Course) (Reviewing Officer) and Joint Director (BC) (Accepting Authority) and the Director (Appellate Authority).

                     7. Shri Khan Salim Ahmed (Petitioner) submitted his APAR on 11.05.2017 for the period from 01.04.2016 to 14.09.2016 to the Reporting Officer. The petitioner was assessed by the Reporting Officer and given grading "8.7" in APAR on 5.6.2017. On the basis of the petitioner's performance and discipline for the period from 01.04.2016 to 14.09.2016, the Reviewing Officer has given grading "5.98" (Good) on 09.08.2017 with clearly mentioning the pen picture that "Shri Khan Salim Ahmed is a competent and capable officer with integrity beyond doubt. But his emotional balance is not appropriate. He explodes under work pressure. His discipline is not up to mark. He is manipulative in his ways. Cannot be entrusted critical work." The Accepting Authority on 08.09.2017 has accepted with remarks as "I agree with the opinion of reviewing officer. With Grading "GOOD."

8. On a perusal of paragraph 6 of the counter affidavit, this Court does not find any error on the part of the petitioner. It is not the case of the respondents that the petitioner had disrespected the Academy song. The alleged misconduct was only on the part of the trainees. More curiously, at the relevant point of time, the fourth and fifth respondents were also present. The reason for downgrading the petitioner was that he had not initiated any action against the IPS probationers. This Court is of the view that, when a higher official, namely, the Deputy Director (R5), was present, expecting the petitioner to take action against the IPS probationers appears somewhat illogical. Even, if the petitioner did not take any action against young IPS probationers, it may be at the best construed as serendipitous incidence.

9. It is relevant to mention that, even according to the respondents, the petitioner is a competent and capable Officer with integrity beyond doubt. Having recorded the same, the respondents have stated that his “emotional balance is not appropriate and he explodes under work pressure” and that his discipline is not up to the mark. It has also been stated that he is manipulative in his ways and cannot be entrusted with critical work.

10. The very observations made against the petitioner, who had performed his duties efficiently and had secured the grading of “Very Good” and “Outstanding” for almost seven years prior to the impugned grading, and for six years subsequent thereto, would indicate that the conclusion that he would lose his emotional balance, lacked discipline, could not be entrusted with critical work and was manipulative in his ways only during the period from 01.04.2016 to 14.09.2016 is hyperbolic and illogical.

11. Further, such conduct would not surface only for a limited period. If really the petitioner had been exhibiting such conduct, the same would have definitely been reflected in his previous and subsequent periods of service. However, his performance during the previous and subsequent periods remained very consistent, with high grading.

12. As a matter of fact, even during the impugned period from 01.04.2016 to 14.09.2016, the Reporting Officer had graded him as “Outstanding”. On a perusal of the reasons stated in paragraphs 6 and 7 of the counter affidavit, this Court is unable to find any reason as to why the Reviewing Officer and the Accepting Officer had not accepted the grading given by the Reporting Officer, which, as a matter of fact, also stands in favour of the petitioner. Therefore, this Court is of the view that, in the absence of any reason for not accepting the grading given by the Reporting Officer, the downgrading by the Reviewing Officer and the Accepting Officer is vitiated.

13. At this juncture, it is relevant to refer to the judgment of the Hon’ble Supreme Court in State of Uttar Pradesh v. Yamuna Shanker Misra, reported in (1997) 4 SCC 7, which reads as follows:-

                     “7. It would, thus, be clear that the object of writing the confidential reports and making entries in the character rolls is to give an opportunity to a public servant to improve excellence. Article 51A(j) enjoins upon every citizen the primary duty to constantly endeavour to prove excellence, individually and collectively, as a member of the group. Given an opportunity, the individual employee strives to improve excellence and thereby efficiency of administration would be augmented. The officer entrusted with the duty to write confidential reports, has a public responsibility and trust to write the confidential reports objectively, fairly and dispassionately while giving, as accurately as possible, the statement of facts on an overall assessment of the performance of the subordinate officer. It should be founded upon the facts or circumstances. Though sometimes, it may not be part of record, but the conduct, reputation and character acquire public knowledge or notoriety and may be within his knowledge. Before forming an opinion to be adverse, the reporting/officers writing confidentials should share the information which is not a part of the record with the officer concerned, have the information confronted by the officer and then make it part of the record. This amounts to an opportunity given to the erring/corrupt officer to correct the errors of the judgment, conduct, behaviour, integrity or conduct/corrupt proclivity. If, despite giving such an opportunity, the officer fails to perform the duty, correct his conduct or improve himself necessarily, the same may be recorded in the confidential reports and a copy thereof supplied to the affected officer so that he will have an opportunity to know the remarks made against him. If he feels aggrieved, it would be open to him to have it corrected by appropriate representation to the higher authorities or any appropriate judicial forum for redressal. Thereby, honesty, integrity, good conduct and efficiency get improved in the performance of public duties and standards of excellence in services constantly rises to higher levels and it becomes successful tool to manage the services with officers of integrity, honesty, efficiency and devotion."

14. In the present case, this Court is left with no manner of doubt that the recording of the aforesaid downgrading by the Reviewing Officer and the Accepting Officer in the APAR for the period from 01.04.2016 to 14.09.2016 is contrary to law. Accordingly, the same are hereby ordered to be expunged. In view of the expunging of the grading recorded by the Reviewing Officer and the Accepting Officer, the petitioner is also entitled to the consequential relief of a direction to the respondents to grant the Junior Administrative Grade (JAG) under Non-Functional Financial Upgradation (NFFU) to the petitioner for the applicable period, so as to enable him to receive the pay equivalent to the rank of Second-in-Command, Central Reserve Police Force.

15. In the result, this Writ Petition is allowed as indicated above. No costs.