Allowed

Radhakrishnan Nair M.P. v. Director General, Bsf

Kerala HC3 Jun 2016WP(C)/12178/2015

Case brief

AI extract

What is this about?

Petitioner challenged his supersession due to adverse grading in an Annual Performance Appraisal Report (APAR). The court found a violation of rules where one officer acted as both reviewing and accepting authority. It quashed the report and directed promotion consideration.

What did the court decide?

Exts. P3 and P5 quashed; Respondents directed to consider petitioner for promotion to Inspector(Tec) within two months without reference to Ext. P3.

Radhakrishnan Nair M.P. Vs Director General… — Pension and Retirement Benefits | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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FRIDAY, THE 3RD DAY OF JUNE 2016/13TH JYAISHTA, 1938H

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WP(C).No. 12178 of 2015 (V)

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PETITIONER :

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----------

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RADHAKRISHNAN NAIR M.P.

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SI/RM,NO.831540085,148 BN, BORDER SECURITY FORCE,KAINOOR, MULAYAM.P.O,THRISSUR-680571.

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BY ADVS.SRI.P.ALI

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SRI.A.MUHAMMED HASHIM

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RESPONDENTS :

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1. DIRECTOR GENERAL, BSF

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BOARD SECURITY FORCE,CGO COMPLEX, LODHI ROAD,NEW DELHI-110003.

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2. THE INSPECTOR GENERAL BSF(COMN),

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CGO COMPLEX,LODHI ROAD,NEW DELHI-110003.

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3. INSPECTOR GENERAL FRONTIER HQRS.BSF, SPECIAL OPERATIONS,ODISHA/BANGALURU-560063.

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4. DIG(COMN), FRONTIER HQRS BSF,BANGALURU-560063.

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5. THE DEPUTY INSPECTOR GENERAL,

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BORDER SECURITY FORCE,SECTOR HEADQUARTER, TC.NO.9/1776 & 1777, SASTHAMANGALAM.P.O,THIRUVANANTHAPURAM.

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6. THE COMMANDANT, 148 BN,BORDER SECURITY FORCE,KAINOOR,MULAYAM.P.O,THRISSUR-680571.

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R1 TO R6 BY ADV. SRI.JAISHANKAR V.NAIR, CGC

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BY SRI.N.NAGARESH,

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ASSISTANT SOLICITOR GENERAL

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 12178 of 2015 (V)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXT.P1:	PHOTOCOPH OF TO 31.3.2013	THE	APAR FOR THE PERIOD FROM 1.4.2012
EXT.P2:	PHOTOCOPH OF TO 31.3.2010	THE	APAR FOR THE PERIOD FROM 1.4.2009
EXT.P3:	PHOTOCOPH OF TO 31.3.2014	THE	APAR FOR THE PERIOD FROM 1.4.2013
EXT.P4:	PHOTOCOPH OF	THE	REPRESENTATION DATED 22.10.2014
EXT.P5:	PHOTOCOPH OF	THE	ORDER DATED 26.3.2015
EXT.P6:	PHOTOCOPY OF	MEDI	CAL CHECKUP REPORT 16.3.15
EXT.P7:	PHOTOCOPY OF HIGH COURT,D	THE ELHI	JUDGMENT IN WP(C)58/1994 OF HON'BLE DATED 9.5.2012.

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RESPONDENT(S)' EXHIBITS :

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EXT.R1(A): COPY OF REPORT DT 16 JAN 2013 SUBMITTED BY IC COMN, FTR HQ (PL OPS) BANGALORE.

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EXT.R1(B): COPY OF THE APPLICATION DT NIL REGARDING ABSENT REPORT SUBMITTED BY THE PETITIONER.

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EXT.R1(C): COPY OF THE ABSENT REPORT DT 25/FEB 2014 OF THE PETITIONER SUBMITTED BY INSPE(COMN) J.C. BHARADWAJ, IC COMN, FTR HQ(SPL OPS) BANGLORE.

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EXT.R1(D): COPY OF COMPLAINT DT 25 APR' 13 SUBMITTED BY EX HC (BSF) JAICHANDARAN AT BANGLORE.

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EXT.R1(E): COPY OF EXPLANATION SUBMITTED BY THE PETITIONER. EXT.R1(F): COPY OF OPD SLIP OF THE PETITIONER ISSUED BY BSF HOSPITAL, FTR HQ BSF BANGALORE DT 10/1/2014.

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EXT.R1(G): COPY OF DISCHARGE SUMMARY OF PETITIONER ISSUED BY BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE IP NO. 3874

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EXT.R1(H): COPY OF MEDICAL INVESTIGATION REPORT OF THE PETITIONER DT 1/03/2014 ISSED BY VICTORIA HOSPITAL, BANGALORE.

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WP(C).NO. 12178 OF 2015 (V)

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EXT R1(I): COPY OF REQUEST APPLICATION DT 3 APR 2014 FOR 30 DAYS E/LEAVE SUBMITTED BY THE PETITIONER.

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EXT.R1(J): COPY OF FTR HQ BSF BANGALORE LETTER DT 4/7/2014 REGARDING POSTING/TRANSFER OF THE PETITIONER.

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EXT.R1(K): COPY OF FTR HQ BSF BANGALORE ORDER DT 30 APR 2015.

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EXT.R1(L): COPY OF THE ENTRIES OF MEDICAL CATEGORY AT PAGE NO. 36 OF SCREENING RECORD (SR).

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EXT.R1(M): COPY OF LETTER OF FTR HQ BSF BGLR DT 29/9/2014.

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EXT.R1(N): COPY OF LETTER OF 148 BVN BSF DT 4/10/2014. EXT.R1(O): COPY OF FTR HQ BSF(SPL OPS) BGL ION NO.1812 DT 17/6/2013.

//TRUE COPY//

P.A.TO JUDGE

P.V.ASHA J.

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W.P.(C) No.12178 of 2015

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--------------------------------------------- Dated this the 3^rd day of June, 2016

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J U D G M E N T

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The petitioner is a Sub Inspector (Radio Mechanic) in Border Security Force (for short 'BSF'). He filed this writ petition challenging Ext.P3 adverse remarks on the basis of which he was superseded for promotion to the post of Inspector (Tec.).

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In Ext.P3, which is the Annual Performance Assessment Report (APAR) in respect of the petitioner for the year 2013-2014, he was awarded overall grade of 3.55. There were certain adverse remarks in it in respect of his physical condition. Even though, he had submitted a representation against the adverse remarks contained in Ext.P3 and those adverse remarks were expunged as per Ext.P5, no alteration was effected to the overall grading. On account of this, the petitioner who was due for promotion as Inspector happened to be superseded. In the APAR for the year 2012-13, he was graded very good with the score of 6, as seen from Ext.P1. The petitioner submits

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that the overall scores granted in the APAR of 2010-11 and 2011-12 were 5.5 and 5, respectively. It is pointed out that an officer with a score of 4 to 6 alone is entitled to be considered for promotion to the cadre of Inspector. In view of the grading of the petitioner at a score of 3.55, the DPC which met in April 2015, did not consider the case of the petitioner for promotion, even though he was sufficiently senior. It was at that stage that the petitioner approached this Court filing this writ petition, seeking to quash Exts.P3 adverse remarks in the APAR for 2013-14 and the appellate order Ext.P5 and praying for a declaration of his entitlement for promotion on the basis of the seniority in the cadre of SI/RM.

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The respondents have filed a counter affidavit stating that petitioner was not entitled to any revision of grade on account of Ext.P5 order expunging the adverse remarks. It is stated that no marks were awarded with respect to which the adverse remarks were entered and therefore the overall grading continued to be 3.55 and therefore the petitioner who remained with a score below

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W.P.(C) No.12178 of 2015

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4 is not eligible to be considered for promotion.

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I heard the learned counsel for the petitioner and learned Central Government Standing Counsel appearing for the respondents.

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The petitioner has raised several contentions in this writ petition. But I find that this writ petition can be disposed of without going into all those contentions, in the following manner.

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The learned counsel for the petitioner pointed out an apparent violation of the provisions contained in the All India Service (Performance Appraisal Report) Rules, 2007 (hereinafter referred to as “the Rules”), [produced as Ext. P10, along with the reply affidavit] in the APAR of the petitioner for the year 2013-2014, referring to the

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designation as well as signature put by the initiating/reporting officer, thereafter, that of the reviewing authority and that of the accepting authority. From Page 7 of the APAR, it can be seen that one Shri.Mahesh Kumar Agarwal with the designation DC (iph)

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had signed the APAR in the capacity of the

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W.P.(C) No.12178 of 2015

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Reporting/Initiating authority on 29.05.2014. In the next page of the APAR below the column for review in Part IV Shri.A.K.Tripathi, DIG(COMN) has signed as Reviewing Authority. In the next page under Part VI acceptance also Shri.A.K.Tripathi, DIG(COMN) has signed as Accepting Authority retaining the overall grade of 3.55. In this context it is relevant to have a look at the provisions contained in the Rules. Accepting authority is defined under Rule 2(a) as follows:

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“2(a) “accepting authority” means the authority which supervises the performance of the reviewing authority as may be specifically empowered in this behalf by the Government”.

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Under Rule 2(j) reporting authority is defined:

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“2(j) “reporting authority” means such authority or authorities supervising the performance of the member of the service reported upon as may be specifically empowered in this behalf by the Government”.

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Reviewing Authority is defined under Rule 2(k) as :

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W.P.(C) No.12178 of 2015

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”(k) “reviewing Authority” means the authority or authorities supervising the performance of the reporting authority, as may be specifically empowered in this behalf by the Government.”

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As already pointed out in this case while Shri.Mahesh Kumar Agarwal is the reporting/initiating authority, the reviewing authority as well as the accepting authority are one and the same i.e., the very same Shri.A.K.Tripathi, DIG(COMN) and he has singed in his capacity as reviewing authority as well as the accepting authority. Going by the definition given in Rule 2(a) given for accepting authority, it cannot be said that the very same person with the very same designation i.e., Shri. A.K.Tripathi, supervises his own performance and can act in a dwell capacity of reviewing authority as well as the accepting authority. In the above circumstances, it can very well be seen that the performance appraisal report in the case of petitioner for the year 2013-14 is not in accordance with the provisions contained in the Rules and at the same time there is gross violation. Rule 3 provides

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W.P.(C) No.12178 of 2015

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that the reporting authority shall write the performance appraisal report in the form specified by Government in schedule 2 and the officer reported upon and the reporting, reviewing and accepting authority shall ensure that the portion of the forms which are to be filled by them are completed by them within the time limit specified in this behalf by the Central Government. There is no provision which permits the same person to act in dual capacities of reviewing and accepting authorities. Petitioner's contention in this regard in para 5 is answered in para 11 of the counter affidavit saying that the channel of rendition of APAR of communication set up of FTR HQ Comn Staff, reviewing Officer is Dy. Inspector General (Comn) and Accepting Authority is Dy. Inspector General (Comn). But how the same person can function in both these capacities contrary to the rules is not stated anywhere.

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When the rules provide for writing the APAR in a particular manner setting apart separate space for each of the authorities and those authorities are defined in the

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rules, the APAR has to be written in that manner alone and by the authorities specified therein. It is this APAR which stands in the way of the promotion of petitioner, keeping him away from the zone of consideration. A grading given in such an APAR cannot be allowed to be the basis for denying consideration of the case of petitioner by the DPC and for the denial of promotion. In these circumstances the remarks as well as the grading awarded in the case of the petitioner in Ext P3 i.e., his APAR for year 2013-14 is liable to be set aside and I do so.

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Petitioner has got a grievance that on account of the grading given in Ext.P3, he was superseded and his juniors have already been promoted. In view of the fact that I have already set aside the grading as well as remarks in Ext.P3, the respondents have to consider the case of petitioner for promotion without any reference to Ext P3 i.e., the APAR for the year 2013-14. This Court had already passed an interim order on 10.04.2015 to keep in abeyance one post for SI/RM. Therefore petitioner's case

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W.P.(C) No.12178 of 2015

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can be considered against the said vacancy and on being found eligible he will be entitled to promotion with effect from the date of promotion of his junior with all consequential benefits.

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In these circumstances the writ petition is allowed as follows:

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(a) Exts.P3 and P5 are quashed;

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(b) The respondents are directed to place the

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case of the petitioner before the Departmental Promotion Committee for promotion to the post of Inspector(Tec) within a period of two months;

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for promotion, without any reference to Ext.P3 i.e., his APAR for 2013-14;

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(d) On being found eligible by the DPC, petitioner shall be granted all consequential benefits including promotion against the post kept vacant with effect from the date

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of promotion of his juniors with all

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W.P.(C) No.12178 of 2015

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consequential benefits;

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(e) The entire action as directed shall be

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completed within a period of 3 months from the date of receipt of a copy of the judgment.

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Sd/- P.V.ASHA, JUDGE.

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AS/07/06/16

Radhakrishnan Nair M.P. v. Director General, Bsf

Case brief

What is this about?

What did the court decide?

Radhakrishnan Nair M.P. v. Director General, Bsf

Case brief

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What did the court decide?

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