Downgrading of an APAR without an opportunity of hearing is not consistent with law.

1. - The petitioner seeks to quash the order dated March 30, 1998 of the Rajasthan Civil Services Appellate Tribunal, Jaipur, whereby the appeal of the respondent No.1 was allowed and the petitioner State of Rajasthan was directed to provide opportunity of hearing to the respondent No.1 before down grading his A.P.A.Rs. for the period of 1992-93, 1994-95 and 1995-96 to reconsider the case of respondent No.1 for promotion.

2. The respondent No.1 R.B. Parmar, preferred appeal before the Tribunal with a prayer that down grading made in his Annual Performance Appraisal Report (APAR) be quashed and set aside and his promotion to super time scale of RAS be declared on merit basis alone. R.B. Parmar was promoted in the super time scale of RAS on the basis of seniority-cum-merit vide order dated July 5, 1997. For the purpose of promotion on the basis of merit alone a person must have outstanding/very good record in atleast five out of seven years preceding the year for which the DPC is held. As the APARs of R.B.Parmar for the five years out of preceding seven years were not found outstanding/ very good by the DPC, he was not promoted against the merit quota. Before the Tribunal, the State of Rajasthan took objection that appeal of R.B.Parmar was not maintainable as the promotion order did not cause any prejudice to him in as much as he was promoted against the quota of 1996-97 alongwith his juniors. Since he was not found meritorious by the DPC, he was promoted against the seniority cum merit quota.

3. Learned counsel appearing for the petitioner canvassed that in view of ratio propounded by their Lordships of the Supreme Court in Anil Katiyar's cases the Tribunal cannot sit in the judgment over the question whether the employee had been rightly graded or not. Ratio of U.P.Jal Nigam's case was also not properly appreciated. The Tribunal exceeded its jurisdiction in allowing the appeal.

4. On the other hand, learned counsel appearing for respondent R.B. Parmar, supported the impugned order and placed reliance on M.A. Rajasekhar v. State of Karnataka 1996(10) SCC 369 and U.P. Jal Nigam v. Prabhat Chandra Jain 1996 (2) SCC 363 .

5. I have reflected over the rival submissions and carefully scanned the material on record.

6. A look at the impugned order demonstrates that respondent R.B. Parmar's APAR in 1991-92 was outstanding but he was down graded as satisfactory in 1992-93. Further in 1994-95 and 1995-96 he was found outstanding by the reporting officer but the accepting officer downgraded him as good officer. Undenyingly the respondent was not afforded opportunity of hearing by the petitioner before downgrading his A.P.A. Reports.

7. If the officer did not work objectively or satisfactorily he should be given opportunity to correct himself of the mistake. He must be guided by the authority as to the manner in which he ought to have acted upon. If such exercise is not done the adverse remarks can not be said to be consistent with law.

8. In M.A. Rajasekhar's case (supra) their Lordships of the Supreme Court propounded that

"It is not settled law that the object of making adverse remarks is to assess the competence of an officer on merits and performance of an officer concerned so as to grade him in various categories as outstanding, very good, good, satisfactory and average etc. The competent authority and the reviewing authority have to act fairly or objectively in assessing the character integrity and performance of the incumbent."

9. In U.P. Jal Nigam's case (supra) it was held that-

"As we view it the extreme illustration given by the High Court may reflect an adverse element compulsorily communicable, but if the graded entry is of going a step down, like falling from 'very good' to 'good' that may not ordinarily be an adverse entry since both are a positive grading. All that is required by the authority recording confidentials in the situation is to record reasons for such downgrading on the personal file of the officer concerned