Uncommunicated APAR entries, including below benchmark gradings, cannot be considered by DPC for promotion; violates Article 14 and natural justice principles, entitling review DPC ignoring such entries.

ORDER

Hon'ble Dr. Sumeet Jerath, Member (A) :

The instant OA has been filed by the applicant under section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs :-

“i) quash the letters dated 19.11.2020 (Annexure A 15) as well as the letter dated 29.12.2020 (Annexure A 18) whereby while communicating the APARs for the year 2014 to 2019 advised the applicant to make a representation against APARS and informed the applicant that outcome of personal discussion/Assessment dated 26.11.2020 would be kept separately and further that APAR rating for the year 2019 is Poor and as per rules, case with poor performance rating in any appraisal year shall not be considered for promotion to the next year as the said stand of the respondents is totally contradictory if the letters Annexure A 15 and A 18 are read together and further to quash the APAR for the year 2014-19 as the same was never communicated to the applicant without assigning any justifiable reasons that thus the same can not considered for the purpose of promotion to the higher post of Joint Director Level 13 A in view of settled law;

ii) direct the respondents to promote the applicant as Joint Director Level 13 A from the date persons junior to the applicant has been promoted by ignoring the uncommunicated APAR and treating the said period of service of the applicant as excellent; pass any other order or direction which this Hon'ble Court may deem fit in the facts and circumstances of the case.

iv) Allow the instant OA with costs.”

2. The factual matrix of the case as per the counsel of the applicant is that the applicant was appointed as General Manager – R & D, Level 13 in the National Council of Cement and Building Material (NCCBM) on 27.10.2014. His service record remained clean and no adverse remarks were communicated to him during his tenure. On 26.05.2015, in view of his good performance, the applicant was given additional responsibility of the activities of the Centre of Quality Management, Standard and Calibration (CQC) and he continued to discharge these responsibilities satisfactorily. In the year 2018, the applicant was removed from the CQC without any prior notice or opportunity of hearing, despite his contribution of about four years. Aggrieved by this action, he submitted a representation dated 11.09.2018. Thereafter, a junior officer, Sh. P.N. Ojha, who allegedly did not possess the required qualifications or experience, was appointed as Head of CQC with effect from 14.09.2018. Since no reply was received against his first representation, the applicant submitted another representation on 25.10.2018 which was replied vaguely on 30.10.2018, stating that the matter would be placed before the competent authority. On 19.02.2019, the respondents withdrew the additional charge of CQC from the applicant. Subsequently, on 28.06.2019, a show cause notice was issued to him alleging misbehavior. The applicant submitted his reply on 01.07.2019 denying the allegations. However, a censure order was passed against him on 09.07.2019. Later, another show cause notice dated 20.08.2020 was issued to him alleging that he had bypassed the prescribed communication channel. Subsequently on 26.10.2020, the applicant was informed to appear before the Standing Selection Committee for consideration for promotion to the next higher post. In response, he submitted a representation dated 27.10.2020 stating that his APARs from 2014 onwards had not been communicated to him and requested postponement of the DPC. The respondents however, vide letter dated 19.11.202