Neeraj Kumar v. Union of India

1. Allowed, subject to just exceptions and as per extant Rules.

2. The application is disposed of. W.P.(C) No.6915/2021

3. The petitioner, an Inspector in the respondents Border Security Force (BSF), has filed this petition, (i) seeking promotion to the post of Assistant Commandant; and, (ii) seeking quashing of the Part Performance Appraisal Report (PPAR) for the period 1st April, 2011 to 1st September, 2011, to the extent the same contains adverse remarks against and confers low numerical grading, to the petitioner; alternatively, reliefs of, (iii) promotion with effect from 2018; and, (iv) grant of benefit of 2nd Modified Assured Career Progression (MACP) with effect from 21st April, 2017, are claimed. 2021:DHC:2175-DB

4. The matter has a chequered history, though lucidly detailed in the petition. The facts emerging from the petition are, (i) that the petitioner was informed of his PPAR for the impugned period of 1st September, 2011 containing adverse remarks and giving low numerical grading, for the first time on 31st August, 2012; (ii) that the petitioner first represented thereagainst, after nearly six months i.e. only on 16th January, 2013 and which representation was rejected on 24th June, 2013; (iii) that the petitioner, after waiting for nearly ten months, made another representation on 30th April, 2014, which was also rejected on 25th June, 2014; (iv) that the petitioner appears to be satisfied, and did not take the matter of his PPAR for the impugned period any further; (v) that the batch mates of the petitioner were granted the benefit of MACP on 21st April, 2017 and which MACP was denied to the petitioner, for the reason of the impugned PPAR; (vi) that the petitioner, who had earlier allowed the matter of the impugned PPAR to rest, then got served a legal notice dated 3rd May, 2017 on the respondents BSF qua the denial of MACP, again representing against the PPAR for the impugned period and seeking MACP benefits from 21st April, 2017, when his batch mates were granted the said benefits; (vii) that the respondents BSF, vide their response dated 28th June, 2017, denied the said representation of the petitioner also; (viii) that it is at that stage i.e. after almost five years from the date when the petitioner was first informed of the PPAR for the impugned period, that the petitioner filed W.P.(C) No.7812/2017 impugning the same; (ix) that the aforesaid writ petition was disposed of vide order dated 4th December, 2019, directing a review of the impugned PPAR of the petitioner in the manner prescribed therein; (x) that the respondents BSF, vide order dated 11th February, 2020 impugned in this petition, have refused to interfere with the impugned PPAR; and, (xi) that the petitioner after waiting for more than one year, has now filed this petition.

5. We have at the outset only enquired from the counsel for the petitioner, why the challenge by the petitioner, insofar as to the PPAR for the impugned period, be not dismissed on the ground of delay, laches, acquiescence and waiver. Reference in this regard may be made to Narender Singh Vs. Union of India MANU/DE/9347/2006, Sanatan Prasad Vs. High Court of Delhi MANU/DE/0347/2012, Arun Kumar Poddar Vs. Union of India MANU/DE/1139/2014, Mukul Kumar Misra Vs. Union of India MANU/DE/2687/2017, Shiv Narayan Balai Vs. Union of India MANU/DE/0389/2021 and Anupam Kumar Vs. Director General, Border Security Force 2021 SCC OnLine Del 2648, in all of which delayed challenge to APAR was not entertained. We cannot, in the year 2021, interfere with the PPAR for the period 1st September,

2011.

6. The counsel for the petitioner contends that the aspect of delay ought not arise in view of the order dated 4th December, 2019 in W.P.(C) No.7812/2017 earlier filed by the petitioner. It is stated that the order therein was complied with, only on 11th February, 2020 and this petition has been filed about one and a half years therefrom and there is no delay.

7. We are unable to agree.

8. The matter has to be looked at holistically. This Court, in the order dated 4th December, 2019 in W.P.(C) No.7812/2017, directed the officer, who at the relevant time was the Accepting Authority of the impugned PPAR and who had since retired, to consider the impugned PPAR, having regard to the earlier and subsequent Annual Performance Appraisal Reports (APARs) of the petitioner. It is not as if the said officer has not had a look; he has still opted to retain the impugned grading/adverse remarks. The counsel for the petitioner has contended that considering the earlier and subsequent APARs, there should have been a reversal/modification of the impugned PPAR. It is further contended that no reason whatsoever have been given by the said officer, for retaining the impugned PPAR. We are unable to agree. This Court, in order dated 4th December, 2019 in the earlier writ petition of the petitioner, though directed consideration, consciously did not direct any reasoned order to be passed. Once the limited relief which was granted by this Court in the order dated 4th December, 2019 has been complied with, notwithstanding the delays on the part of the petitioner in approaching the Court, this Court cannot perpetuate the exercise relating to a PPAR which is more than a decade old. Also, had this Court in the order in the earlier writ petition felt that any wrong had been done to the petitioner by the impugned PPAR, this Court, instead of directing the Accepting Officer to have a relook, would have itself quashed the impugned PPAR and / or granted the relief to the petitioner. This Court refrained from doing the same also and only granted limited relief. Once the relief which was available to the petitioner, was not granted in the earlier round, the petitioner cannot, in the second round, get the said relief, particularly when there is no change in circumstances since the first round.

9. It cannot be lost sight of that the challenge to the impugned PPAR, is only to get promotion / MACP benefit from an earlier date. Grant of such relief, also effects seniority of others, who are not before this Court and leads to further litigation. It is for this reason that the personnel aggrieved from his APAR / PPAR is required to challenge the same immediately and cannot afford to wait till the effect of the said APAR / PPAR is felt, in promotion or other benefits. In the matter of APAR / PPAR, delay otherwise also has the effect of retirement and displacement of the officers who have recorded the APARs/PPARs under challenge and otherwise also memory fades and the matter becomes stale, with the concerned officers losing interest.

10. We are thus not inclined to interfere with the PPAR for the impugned period or with the grant of MACP with effect from 10th April, 2018.

11. The counsel for the petitioner then states, that the petitioner could have been denied promotion on the basis of impugned PPAR, only till the year 2017-2018 inasmuch as only the APARs for the previous five years were required to be looked at. It is contended that there is no reason why the petitioner has not been granted promotion in the year 2018, 2019 and 2020, when the batch mates of the petitioner were promoted.

12. The counsel for the respondents BSF appearing on advance notice states that he has not been able to obtain instructions on the aforesaid aspects.

13. Issue notice, limited to the aforesaid aspect.

14. Notice is accepted by the counsel for the respondents BSF.