IN WP (C) 2673 OF 2016 - DEL HC – ‘No one is above the law’: Delhi High Court lambasts a Commandant of 39th Battalion of ITBP for acting with extreme bias, malice  and vindictiveness against his junior officer with the sole objective to ruin his career, warns that the Court would not hesitate to take action against such erring officers
Justice Suresh Kumar Kait and Justice Neena Bansal Krishna [18.07.2023]

Read More: Manudev Dahiya v Union of India

Simran Singh

New Delhi, July 19, 2023: The Delhi High Court has directed the Indo-Tibetan Border Police (ITBP) to expunge the adverse remarks made against the petitioner, an Assistant Commander, in his Annual Performance Assessment Report (APARs) in light of his previous good performance and to conduct a review Departmental Promotion Committee (DPC) to consider promoting him from the date his immediate juniors were promoted with all consequential benefits.

The Division Bench comprising of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna concluded that the Reporting Officer, Commandant Rajesh Tomar (Commandant) when faced with the complaint making allegations of corruption against him, took out his irritation by writing an adverse APAR and also prepared Memos to justify his adverse remarks against the petitioner, who was his junior.

“The Memos which never were served or brought to the knowledge of the petitioner, have been relied upon by the respondents as a post facto justification for down grading the petitioner while writing the APAR. We therefore do not hesitate to hold that these four Memos had been created merely to justify the adverse report by the reporting Officer.”

The Bench further stated that "We are compelled to observe that Mr. Rajesh Tomar, Commandant, 39th Battalion has acted with extreme bias and has not even stopped from preparing documents/memos with the sole objective to ruin the career of the petitioner who has been deprived of the promotion that he deserved. The superior Officers are expected to demonstrate leadership and should be a Guide and a mentor for the subordinate Officers. The conduct of Mr. Rajesh Tomar reeks of vindictiveness and malice towards the petitioner. However, we refrain ourselves from recommending any action against Mr. Rajesh Tomar considering that he has already been dismissed from the service. Before concluding, we hereby advise all the concerned that while taking action against any subordinate officer/personnel, it has to be borne in mind that no one is above law and if such orders are challenged before the Court, the Court certainly will not hesitate to take action against the erring officer.”

The Bench was further compelled to observed that while the significance of APAR in the career progression can never be over emphasised, yet such whimsical conduct and that too, from those who are members of disciplined Force, was difficult to comprehend. “The Members of the Force face extreme challenging situations in the face of extreme adversity and their survival is only in there camaraderie and being together. Such hierarchical personal animosity as evident from this intermediate APAR of five months, is not only morale dampener for a competent Officer but is detrimental to the entire Force.”

In the matter at hand, the petitioner challenged his adverse APAR for the period between June 2014 to November 2014 and the orders dated 08.08.2015 and 0.12.2015 during his posting as Assistant Commandant with the 39th Battalion of ITBP. He had also sought to conduct a review DPC for promotion of the petitioner to the rank of Dy. Commandant with all consequential benefits.

During that period, his overall grading was marked as ‘zero’ despite having received appreciations from his superiors previously and performing his duties diligently.  

The petitioner argued that the Commandant was biased against him and acted with mala fide intentions. He claimed that after he had filed a complaint of corruption against the Reporting Office in April 2015, he prepared 4 show cause memos retrospectively to justify the adverse APAR. It was asserted that while writing the impugned APAR, the Appraisal Officer failed to reflect the conduct, character and capability of the petitioner thereby, damaging his entire future career prospect in the Organisation.

The petitioner had further claimed that the impugned Assessment for the period June, 2014 till November, 2014, asserted by the Reporting Officer had failed to assign any reason as to why and how the petitioner was granted ‘zero’, when his overall performance was ‘outstanding’. In fact, the subsequent APAR issued immediately after the petitioner was transferred to ITBP Academy for the period starting from end of November, 2014 till 31.05.2015, had given totally different picture as the rating jumped to ‘Very Good’, which itself spoke of mala fide and bias on the part of the Reviewing/Assessing Officer for the period when the petitioner was posted to 39th Battalion

However, the respondent ITBP argued that the petitioner was issued 4 memos during that period for various lapses which justified the adverse APAR.  

The Bench took note of the fact that the importance of writing APAR for the serving Officer was extremely important for the career progression yet, as a general principle which needed no reiteration, it was only the Administrative Authority which had the expertise to determine whether a candidate was fit or not for a particular post and the Court had no expertise. “Assessment of performance and recording of APAR/ACR of an employee is the job of the Administrative Authority of the particular employee and once the ACR is recorded by the superior Authority in accordance with the procedure, a Court of law is not required ordinarily to sit over like an appellate authority.”

While referring to the Supreme Court case of Swapan Kumar Pal v Achintya Kumar Nayak it was reiterated that the power of judicial review of the decision of Administrative Tribunal was very limited. “While exercising the power of judicial review, the courts must limit their role and interfere only if any legal error has been committed in the decision-making process. It cannot enter into the merits of the decision. Furthermore, while exercising the power of judicial review, the courts should not sit as an appellate authority and must remain confined to see whether the decision has been made in accordance with the settled principles of law.”

Thus the Bench was of the view that, in the light of the importance and significance of writing the APARs and the limited grounds on which the Courts may interfere as observed above, it would be pertinent to consider the averments of the petitioner.

After considering both sides' arguments, the Court observed that the 4 memos were never served upon or communicated to the petitioner, so they could not be considered while preparing the APAR. The Court was of the view that the Reporting Officer had acted with bias against the petitioner due to the complaint filed against him.

The Court stated that it was significant to communicate to the appraiser officer if any unacceptable conduct or behaviour, which may not necessarily be documented, was observed by the Reporting officer, and an opportunity must be given to explain before it being made a basis of adverse report which was in consonance with the principle of natural justice of being heard before being condemned. “There is nothing on record to show that these four Memos now relied upon by the respondents, were ever served or brought to the knowledge of the petitioner or any explanation was sought from him or any warning was ever given and ever advised to improve his conduct during the aforesaid period of almost five months, by the Reporting Officer. This supports the petitioner’s claim that he had no knowledge of the Memos till he received the copy of the APAR for the impugned period. ”

The Bench stated that “The lackadaisical explanation that there are no record of service of Memos leads to the inevitable conclusion that the Record was clandestinely prepared by Mr. Tomar with an ill motive and an element of Bias on account of the complaint of corruption made by the petitioner against him.”

The Bench stated that the 4 memorandums did not corroborate that the petition lacked any motivation or that he was fabricating facts and misguiding senior officers. Rather, from the said four Memos, three of then were given consecutively within three days while the fourth Memorandum was issued after a month. “We are compelled to note that the manner of issuing the memos and their content clearly reflects that the Reporting Officer was purposely trying to find faults in the working of the petitioner.