IMPORTANT POINT
The central legal point established in the judgment is the violation of the principle of natural justice and audi alteram partem in recording adverse remarks in the APAR, emphasizing the importance of serving notice and providing an opportunity for the individual to present their case before recording adverse remarks.

JUDGMENT

Saurabh Banerjee, J.

1. As per facts involved, the petitioner, an Assistant Sub-Inspector (Ministerial) in the Border Security Force [Hereinafter referred to as `BSF'], communicated the adverse remarks recorded in his Annual Performance Appraisal Report [Hereinafter referred to as `APAR'] for the period from 01.04.2011 to 31.03.2012 and was also required to make a representation qua the same vide letter dated 17.12.2012 issued by the Commandant of 32 BN of BSF [Hereinafter referred to as `Commandant'].

2. On 09.01.2013, the petitioner made a representation to the Commandant, which was rejected by the Deputy Inspector General, Station Headquarters, [Hereinafter referred to as `DIG, SHQ'] BSF Jammu, vide order dated 03.04.2013.

3. Thereafter, the petitioner made other representations too, which, on 05.12.2018, were rejected by the Spl. Director General [Hereinafter referred to as `DG'] (Western Command), BSF. Undeterred, the petitioner once again made another representation before the DG, BSF on 06.09.2016 assailing the legality of the order dated 05.12.2018 as also the concerned APAR. This also, as before proved to be of no avail.

4. As such, the petitioner approached this Hon'ble Court by way of a writ petition being W.P.(C) No.2794/2021 against the respondents and the same was disposed of by this Court vide order dated 02.03.2021 directing the respondents to decide the second representation made by the petitioner by way of a reasoned order within a period of 8 weeks without being influenced by order dated 03.04.2013.

5. The said representation was also rejected by the DIG SHQ BSF Jaisalmer (North) vide impugned order dated 23.04.2021 in light of fresh comments received from the Initiating Officer [Hereinafter referred to as `IO'], the Reviewing Officer [Hereinafter referred to as `RO'] and the Accepting Authority [Hereinafter referred to as `AA'].

6. Hence, the petitioner vide the present petition under Article 226 of the Constitution of India seeks quashing of the impugned order dated 23.04.2021 and also a direction to the respondents to expunge the adverse remarks and upgrade his concerned APAR.

7. Learned counsel for the petitioner submits that the only rationale for the adverse remarks/ downgrading the concerned APAR is that during the period under report, petitioner had remained either on leave or under treatment due to his pyschotic disorder ailment and also did not assume any individual charge due to poor knowledge of office work because of which the IO and AA had graded the petitioner as `Average', albeit, without serving upon the petitioner any memo, advisory or like even though the RO had graded the petitioner as `Very Good'.

8. Learned counsel for the petitioner further submits that there was an apparent conflict between the grading given by the IO and RO because even though the IO had graded the petitioner as `Average', the RO had graded the petitioner as `Very Good'. In light of these circumstances, she submits that it was incumbent upon the AA to specify on what basis it agreed with the grading of the IO and disregarded that of the RO.

9. Learned counsel for the petitioner then submits that the IO was not authorized to initiate APAR of petitioner inasmuch as APAR of the petitioner, then a Head Constable, was required to be initiated by an Inspector whereas in the present case the concerned APAR was initiated by a Sub-Inspector. In view thereof, she submits that although the IO has stood by the adverse remarks given by him in the concerned APAR in question he has also opined that competent authority may consider upgradation of the concerned APAR in view of long service career of petitioner, especially in light of the extraordinary conduct of the petitioner and the same is evident from the fact that he has received a total of 13 rewards and has received `Very Good' grading in all APARs for the period of 2012-2013 to 2018-2019.

10. Per Contra, learned Central Government Standing Counsel for respondents submits that u