IMPORTANT POINT
The failure to properly communicate adverse remarks in an APAR invalidates their use against an officer's career progression.

JUDGMENT :

(Navin Chawla, J.)

1. This petition has been filed by the petitioner challenging the adverse remarks made by the Reporting Officer and the Reviewing Officer in the petitioner’s Annual Performance Appraisal Report (in short, ‘APAR’) for the year 2014-2015 as well as the Order dated 02.05.2019, whereby his representation against the said APAR was rejected.

2. It is the case of the petitioner that the petitioner joined the Border Security Force (in short, ‘BSF’) as an Assistant Commandant on 03.10.2011. After completion of his training, he was posted to the 142 Bn, Assam, and thereafter he was posted to 164 Bn, Dera Baba Nanak (DBN), Punjab, on 26.12.2013. He was granted the benefit of the Senior Time Scale (in short, ‘STS’) with effect from 03.10.2015, along with his batchmates. However, the name of the petitioner was not included in the final list of the officers who had been granted the STS benefit, and upon noticing the same, the Commandant, 164 BN, issued Signal dated 09.01.2017 to FTR HQ PB/FHQ (PERS DTE) seeking a clarification in this regard.

3. Instead of rectifying the exclusion of the petitioner, the respondents, vide Signal dated 02.08.2018, issued a recovery notice against the petitioner whereby it was observed that the name of the petitioner was not mentioned in the list of officers who were granted the STS but he was drawing basic pay with the STS due to erroneous fixation of pay and, therefore, recovery of the excess drawn pay and allowances shall be made against him.

4. The petitioner claims that aggrieved by the said recovery, he inquired about the reasons for the non-grant of the STS and was informed unofficially that his APAR for the year 2014-2015 had some adverse remarks. The petitioner claims that the adverse remarks in the said APAR were never communicated to the petitioner and he was not given an opportunity to represent/improve himself before the said adverse remarks were entered in his APAR. The petitioner claims that he downloaded the APAR for the year 2014-2015 for the first time only on 18.08.2018 from the IPP portal.

5. The representation dated 10.10.2018 of the petitioner was rejected vide Order dated 02.05.2019, stating that the adverse entries in the APAR for the year 2014-2015 were communicated to the petitioner on 14.07.2015 through the IPP portal and that the same was viewed/downloaded by the petitioner himself on 20.07.2015 through his personal ID on the IPP portal. It was also stated that the petitioner had failed to make a representation against the adverse entries at the relevant time. Aggrieved by this order, the petitioner has filed the present petition.

6. The learned counsel for the petitioner reiterates that the adverse remarks in the APAR for the year 2014–2015 were never communicated to the petitioner and he came to know about the same only on 18.08.2018 when he downloaded the said APAR for the first time. He submits that the respondents, in support of their plea that the adverse entries had been communicated to the petitioner, have placed reliance on a purported letter dated 10.07.2015, that was sent to the petitioner at the 164 Bn, which was then in Punjab. However, at the relevant time, the petitioner was undertaking a course at Indore and, therefore, he was never in knowledge of the said communication.

7. He further submits, by placing reliance on Clause 4.8 of the ‘APAR Procedure and Instructions-2012’ issued by the Directorate General, BSF, that it is mandatory for the respondents to communicate the adverse entries to the officer concerned after duly highlighting and underlining the same, and also to specify the nature of the remarks as to whether they are adverse or advisory. He submits that the said condition was not followed in the present case. He submits that even if the letter dated 10.07.2015 on which the respondents are placing reliance as a communication of the APAR to the petitioner is to be considered, the same does not meet the requirement of Paragraph 4.8 of th