K.V. Eapen, Member (Ad.)

1. The O.A has been filed by the applicant, a Sub Divisional Engineer (C-Buildings), BSNL at Thrissur. The applicant has appeared in person to argue his case, having opted not to appear through counsel. He has filed this O.A seeking a relief to expunge all the 'adverse' entries made by the 2nd respondent/Chief Engineer (Civil), BSNL AP Civil Zone, Vijayavada, who, he submits, was the Appellate Authority when he made a representation by way of an appeal against certain entries in his Annual Performance Appraisal Report (APAR) for 2017-2018. He has sought relief to expunge all the adverse entries by the 2nd respondent and the Reviewing Officer like "lack of proper coordination with RM is noticed..... etc." other than the suggestions for improvement and development, as they had been made with malafide documentary evidence."

2. The applicant submits that his APAR for the year 2017-2018 had been finalized by the Reviewing Officer with a final numerical grading of '6' which is 'Very Good'. The APAR records show that the Reporting Officer who is the 3rd respondent (Sub Divisional Engineer (Civil), BSNL Civil Sub Division, Manjeri) as well as the Reviewing Officer had certified that there were no adverse comments in the APAR. The APAR has been produced at Annexure A-4 and Annexure A-5. As per Annexure A-4 both the Reporting Officer and Reviewing Officer have chosen 'normal' rather than 'adverse' in the option provided in reply to the question "do you want to provide adverse comments" on the online APAR portal. However, certain remarks which were made in Annexure A-5 in the APAR by the Reporting Officer as well as Reviewing Officer in the pen picture section have been contested by the applicant, even though he accepts that they were not 'adverse' as certified by the two Officers. He then made an appeal to the 'Appellate Authority', the 2nd respondent, Chief Engineer (Civil), BSNL AP Civil Zone, Vijayawada to expunge the remarks made by the Reviewing Officer such as "lack of proper coordination with RM is noticed..... etc.". He submits that rather than looking at the matter in a proper manner, the 2nd respondent, has made a "quasi judicial over reach" himself, by entering certain further 'adverse' comments in the online APAR, which he has now produced at Annexure A-1. Thus it is sought as part of the relief to expunge the so called 'adverse entries' made by the 2nd respondent (Annexure A-1) as well by the Reviewing Officer at Annexure A-5 in his pen picture to the effect that "lack of proper coordination with RM is noticed".

3. It is submitted by the applicant in the O.A that the 2nd respondent has done this 'quasi judicial over reach' and entered adverse remarks in the Annexure A-1 'online APAR', based on some malafide documents submitted by the 3rd respondent. These documents had not been communicated to the applicant at the time of disclosure of APAR thus violating the orders of the Hon'ble Apex Court on this subject in Civil Appeal No. 7631/2002 dated 12.05.2008. The applicant had called the 2nd respondent on mobile phone on 27.12.2018 and had requested for a hearing to explain the faults on the findings of the 2nd respondent in his comments in Annexure A-1. The 2nd respondent, however, just instructed him to submit a review appeal, which he did vide Annexure A-3 dated 02.01.2019. However, he found that the adverse entries as per Annexure A-1 were already entered by the 2nd respondent in the employee's online portal without waiting for the review application to reach him through proper channel. Further, the 3rd respondent later informed him on 06.04.2019 that no second appeal is allowed and for that reason the review appeal cannot be considered. However, the applicant points out that the DoP&T order No. 21011/1/2010-Estt. A dated 13.04.2010 clarifies that while considering the representation, the competent authority decides the matter objectively in a quasi judicial manner on the basis of material placed before it. This means that the competent authority has to take into account the contentions of the officer who has represented the matter objectively against the particular remarks/grading in APAR.

4. The Annexure A-1 comments of the 'Appellate Authority' are as follows:

"The executive is found to be disobeying his reporting officer in spite of the written instructions, making false complaints to the higher authorities on the reporting and reviewing officers, acting with moral misconduct, habitually negligent of his work and duty by adopting dilatory tactics and acting against the interests of the company.

His appeal for upgrading his APAR grading to above 6 and for expunging the adverse remarks from the APAR was rejected vide letter No. 5(20)A/SE(C)/EKM/BSNL/2018/98 dated 20.12.2018 duly giving the reasons based on the documentary evidence."

5. Further, the 2nd respondent had also in Annexure A-1 sent a direct letter to the applicant dated 20.12.2018 through his controlling officer wherein he had referred to the letter of the applicant of 02.08.2018 (copy provided at Annexure A-8) in which the applicant had appealed for enhancement of APAR grading for the period 2017-18 to 'above 6' and also to expunge the adverse remarks in the APAR. It was mentioned in the letter that the Appellate Authority (ie., 2nd respondent) had taken the para-wise comments of the Reviewing and the Reporting Officers on the applicant's contentions. The 2nd respondent had also examined certain relevant documents in support of their comments vide their letters cited as reference. The copies of the documents were also included in the letter to the applicant. After going through the appeal, documents as well as reply and comments received from the Reviewing and Reporting Officers, the 2nd respondent stated that he, 'after careful consideration of the above facts came to the conclusion that there is no need to upgrade the grading given in the APAR 2017-18 to above 6 and that there is no necessity to expunge any adverse remarks from your APAR 2017-18 and hence your appeal is rejected.' It is stated that this letter dated 20.12.2018 issued therefore even before the conversation between the applicant and the 2nd respondent took place on 27.12.2018 and before he submitted his 'second review application' produced at Annexure A-3 dated 02.01.2019.

6. The applicant has given a series of reasons in the O.A as to why there is malice and perversity in the grading given by the respondents and in especially the decision/comments taken by the 2nd respondent. He has produced along with his representation at Annexure A-3 various documents in this connection. He submits that the main document relied upon by the respondents is Annexure A-2. He claims that the document is a malafide document and that the main allegation is that "FRAC calculations" were not resubmitted by the applicant after making corrections as directed to him by Annexure A-2 by the 3rd respondent. He submitted that as per point-1 of the Annexure A-2 it is alleged that "Stair case area" was not taken by the applicant in actual calculation whereas, in fact, it had already been taken and resubmitted. Further, he has made other technical points in detail to drive home the conclusion that he has been ordered to do some work, which is absolutely impossible to do. It is on this basis that the 'adverse' entries have been made in the APAR. The applicant submits that the Appellate Authority/2nd respondent failed to take all these into consideration which has made the APAR adverse, with false allegations without any proof and with malafide documents. He relies on the decision of the Principal Bench of this Tribunal in O.A. No. 1223/2018 wherein it was held that "it is mandatory for the competent authority to furnish reasons in support of his conclusions."

7. The applicant submits that the adverse comments have been made by the 2nd respondent without proper justification. Further, he was not given an opportunity for being heard. In addition, there is no provision for the Appellate Authority to make any adverse entries or downgrade the APAR as per the decision by the Principal Bench of this Tribunal in O.A. No. 1568/2009 - A.K. Jain vs. Union of India - decided on 09.07.2010 wherein, at paragraph 11 it has been held that Authority other than Reporting/Reviewing Authority are precluded from making entries as the Reviewing Officer has clearly communicated that there is no adverse comments in the APAR and the APAR is 'Very Good'. Hence, the Appellate Authority should not have made such adverse comments as at Annexure A-1. He claims that the duties of the Appellate Authority are clearly explained in the DoP&T letter No. 21011/1/2005-Estt. (A)(Pt-II) dated 14.05.2009 and as per the decision of the Principal Bench of this Tribunal in O.A. No. 1568/2009 (supra) that the competent authority may reject the representation or may accept and modify the APAR accordingly and that there is no provision for any other authority for writing his remarks/comments about the work and conduct of an officer in his confidential reports other than the two levels, namely, Reporting Officer and Reviewing Officer. Taken together this proves the quasi judicial over reach by the Appellate Authority.

8. The applicant has also made the point that personal pique and prejudice are reflected in the comments of the Reviewing Officer that a lack of proper coordination with RM is noticed. He claims that he is an Ex-Serviceman possessing a character that is "exemplary" for his service (1980 to 1996) in the Indian Army. He has never been the recipient of any punishment of a memo or accused of any charges. Hence, these entries in his record are extremely disturbing to him. Annexure A-5 should be the final form of APAR as per law with reference to the decision by the Principal Bench of this Tribunal in O.A. No. 1568/2009 (supra). This order states that the duty of the Appellate Authority is well settled by the law which is to consider the grievance of the applicant in the manner described by the Hon'ble Supreme Court in the judgment dated 12.05.2008 in Civil Appeal No. 7631/2002 and to avoid "an appeal from Caesar to Caesar". He submits that the Appellate Authority/2nd respondent had relied only on the malafide documents without hearing his contentions while arriving at his conclusions as shown in Annexure A-1. Shorn through repetitive details, basically it, therefore, appears that the applicant is strongly objecting to the Annexure A-1 comments of the Appellate Authority brought out earlier. This is now according to him part of his online records along with the letter at Annexure A-1 issued by the Appellate Authority/2nd respondent, with 10 conclusions which he submits were erroneously drawn. He, therefore, seeks that all these should be expunged as also should the comments of the Reviewing Authority in his pen picture at Annexure A-5 that he displays lack of proper coordination with RM.

9. The respondents have filed a detailed reply statement in this regard. They have commented at paragraph 16 of the same that the contention of the applicant that adverse entries have been made by the 2nd and 3rd respondent is incorrect and, in fact, is contrary to his own statement in the O.A. The applicant himself has brought out in the O.A that his APAR had been finalized with a final grading of '6' which is 'Very Good' and that both the Reporting Officer/3rd respondent and the Reviewing Officer have also clearly certified that there are no adverse comments in APAR. It is stated that this final form of APAR is good enough for further promotion for the applicant and is free from adverse entries. The applicant himself was convinced of this as evidenced by his own statement that his final APAR grading is 'Very Good' and fit for promotion at the time of making his appeal to the Appellate Authority. The appeal was only for further upgrading of numeric grading and expunction of certain remarks. In this connection, it is stated by the respondents that the applicant's contention that the 2nd respondent/Appellate Authority relied on malafide documents supplied by the 3rd respondent is hypothetical. While rejecting the appeal made by the applicant for upgradation of his APAR grading, the 2nd respondent in his letter dated 20.12.2018 has exhaustively brought out all the factors leading to the decision.

10. It is submitted that the contention made by the applicant that the relevant documents were not communicated to him at the time of disclosure of APAR thus violating the judgments of the Hon'ble Supreme Court, is not correct. It is submitted that the applicant is aware that the process of disclosure takes place immediately on completion of the review process by the Reviewing Officer. This is evident from Annexure A-5 document which is the final copy of the APAR which is produced by the applicant. Neither the Reporting Officer nor the Reviewing Officer had stated in the said APAR that their pen picture or numerical grading have been made on the basis of these documents in question or any other document for that matter. It is submitted by the respondents that, as such, no question of any communication of documents to the applicant arises at all at the time of disclosure of APAR. The disclosure of APAR had taken place on 02.08.2018 to the applicant, whereas, the decision of the Appellate Authority has been recorded only on 28.12.2018, nearly 5 months after the disclosure of APAR. Thus, it is illogical for the applicant to expect disclosure of documents on which the Appellate Authority may rely on even before the process of appeal is set on motion. On the other hand the 2nd respondent having disclosed all such documents to the applicant has acted transparently and in tune with the judgments of the Hon'ble Apex Court. The time line of calls between the applicant and the 2nd respondent also proves this.

11. The respondents have also produced the comprehensive guidelines on maintenance and preparation of e-APAR dated 05.04.2018 at Annexure R-2(a). There is no further review as per these guidelines against a decision of the Appellate Authority in such cases. Hence, there is nothing called a 'review' appeal. The Section F (1-6) of the e-APAR guidelines stipulates as to how the appeals against the entries in the APAR are to be dealt with. The aggrieved person is required to make appeal through his login and upload the supporting documents, while the Appellate Authority during the decision making process which is offline shall call comments from the Reporting/Reviewing Officer. There is no personal hearing envisaged either with the applicant or with the Reporting/Reviewing Officer in the decision making process. Clearly, it appears that the applicant has confused between disposal of his appeal and what he calls as review appeal. According to the respondents, with the communication of the decision of the Appellate Authority to the applicant on 20.12.2018 vide the letter Annexure A-1, the procedure of the decision making process on the appeal had been completed in all respects. This is as per Section F(4) of the Standard Guidelines on e-APAR. Following the completion of this offline procedure, the decision shall be entered in the ESS portal as per Section F(5) by the concerned Administrator/Custodian. It is also provided that the decision of the Appellate Authority shall be treated as final as per Section F(6). In other words, the decision making process on appeal is incomplete unless an appropriate online entry is made on APAR and hence, what was done by Annexure A-1 was only a natural culmination of the appeal process.

12. It is submitted by the respondents that the decision on the appeal of the applicant was made on 20.12.2018. The subsequent events after one week of the decision such as the telephone call on 27.12.2018 and or the 'review' application on 02.01.2019 etc. were in connection with the applicant's intention to make a second appeal or review of appeal. As far as 'review' appeal is concerned the applicant had been intimated that there is no provision for second appeal or review of appeal as per Section F(7) of Annexure R-2(a) guidelines on e-APAR. The applicant had also admitted that he has received this intimation on 06.04.2019. The DoP&T, Government of India order dated 13.04.2010 has, therefore, not been contradicted. In fact, the 2nd respondent has acted only in accordance with the guidelines in force. The 2nd respondent had called for para-wise comments from both the Reporting Officer as well as Reviewing Officer on the appeal of the applicant along with supporting documents. It is also submitted that the DoP&T order of 13.04.2010 was issued as a guideline in respect of APAR's of a specific period (the reporting period prior to 2008-2009) if representation were received against below benchmark grading. On the other hand, it is clear that the applicant's appeal before the Appellate Authority was neither in the context of a below benchmark grading nor pertaining to a reporting year prior to 2008-2009. Thus, the applicant has sought to misguide the Tribunal by quoting a few lines from a Government of India order, knowing fully well that the said order belonged to a specific situation in a specific period. The Appellate Authority had given as many as 10 valid reasons leading to his conclusion. The applicant has failed to comprehend the sum and substance contained in the decision of the Appellate Authority conveyed to him on 20.12.2018. Nowhere in the Annexure A-1 decision was it mentioned that a particular document placed before the authority had been regarded as the main document which was relied upon. All the documents placed before the Appellate Authority were relied upon and considered before the decision was made.

13. It is further submitted by the respondents that there are established procedures and legal practices for the Appellate Authority to follow which had been given in the Guidelines on e-APAR under Section F(1-6) (Annexure R-2[a]). Further, even the Government of India order dated 14.05.2009 relied upon by the applicant has been referred to only to the extent of para 2(vii), ignoring para 2(vi) which speaks about how Appellate Authority shall deal with representation/appeal. The applicant's contention is that the Appellate Authority has made 'adverse' comments in his APAR while there were no adverse remarks recorded by the Reporting/Reviewing Officer. However, this contention made by the applicant against the Appellate Authority is completely unfounded. The applicant had presented Annexure A-5 as the final APAR after the decision of the Appellate Authority on 28.12.2018 and after the said decision was disclosed to him. The respondents submit that this is the true copy of the APAR final printout. Further, it is the applicant alone who has exclusive access to information in his login page of the BSNL ESS Portal, which is not accessible, viewable or printable for anyone else. The remarks of the Appellate Authority at Annexure A-1 were, therefore, only an informative pen picture meant only for the applicant to know. The same was not part of any official record or official information or official printout as can be seen from the final APAR printout presented by the applicant himself in Annexure A-5. Unless made public by the applicant this information is not available in any other domain. When such information is not available in official records or in any other medium they do not form part of APAR for future references. Hence, his apprehension that the Appellate Authority had made adverse entries in his APAR which already had a grading of 'Very Good' is completely unfounded. While any such so called adverse remarks were not available in the final APAR printout that he is in possession of, the applicant had some moral responsibility in his own interests to enquire with the Administrator or Custodian of the APAR to find out the truth, if required by an official representation. Rather than approaching the Tribunal calling the decision of the Appellate Authority a 'quasi judicial over reach', he could have found out the position directly from the respondents. In other words, the respondents submit that all these records were only accessible to the applicant alone and no one else. Hence the records which he has now produced publicly in the O.A at Annexure A-1 had been only known to him earlier.

14. The applicant has later submitted in his rejoinder that what the respondents have contended is not the factual position. He has downloaded the digital APAR and produced it at Annexure A-10 along with the rejoinder. He submits that the paper APARs and paper DPCs are no more valid in BSNL. The print outs taken by him produced at Annexure A-10 shows the remarks made by the 2nd respondent produced by him at Annexure A-1. He claims, therefore, that the contention of the respondents that these remarks do not form part of the APAR for future references etc. is not correct. In fact these negative remarks are not just an informative pen picture provided for the improvement of his services as claimed by the respondents. These are on the other hand harmful remarks and an encroachment on his freedom and liberty. However, the respondents have stuck to their stand that in the APAR his final grading is '6' and nothing adverse has to be communicated to him. The grading '6' is taken as 'Very Good' as per Government of India order produced at Annexure R-2(f) dated 23.07.2009. The grading was awarded on the basis of an assessment on his work output, personal attributes and functional competency. Having secured a score of '7' for the purpose of promotion; all the contentions of the applicant with regard to APAR grading proving to be harmful to him are proved to be untrue. The applicant has already been promoted to SDE (C) on a regular basis against the 67% Seniority cum Fitness quota, vide letter dated 30.12.2021 which has been produced at Annexure R-2(g). This shows that there was nothing adverse in his APAR when the matter of his promotion was being considered. At that time the APAR of this particular year 2017-18 had also been taken into account before deciding on the promotion. The grading of '6' is thus not a below bench mark grading, as brought out by the applicant, but is a 'Very Good' grading. In fact, the Reviewing Officer had upgraded the numerical grading given by the Reporting Officer, to '6'. The Reviewing Officer clarified that he has no admitted disagreement on the pen picture of Reporting Officer in APAR. He had given a clarification letter to the Appellate Authority when the Appeal was being considered and this has formed part of the decision of the Appellate Authority. This clarification letter of the Reviewing Officer has been produced at Annexure R-2(e). Further, the Reviewing Officer has also struck to his point that the applicant did not have proper coordination with RM in the said Annexure R-2(e) letter. He has clarified therein that he has noticed several instances during the period of reckoning where lack of coordination by the applicant has come to the fore.

15. In short, it appears from the contentions made by the respondents that they have taken the position that the applicant has not suffered even one bit as a result of his APAR gradings or entries for 2017-18. His appeal was one for upgrading the grading as well as for striking out of certain comments. This had to be dealt with by the Appellate Authority after following normal procedure. In the course of this normal procedure, various documents have to be called for by the Appellate Authority. The Appellate Authority then came to a conclusion which is communicated only to the applicant. He himself had to download the same and take the printout. It was not accessible publicly.

16. We have carefully considered all these issues and the facts of the matter as brought out in the previous paragraphs are quite clear to us. The role and purpose of the Annual Performance Appraisal Report (APAR) has been clarified in a series of judgments by various Hon'ble Courts as well as by the DoP&T, the main coordinating Ministry for such matters. It is to be viewed as a record or reporting document, whose primary role is for the development of the potential and performance of the employee. It is not to be treated as a tool or a system for harassing the employee or to demotivate him from his job. On the other hand, it is to be treated as a means for improving capacity, efficiency as well as performance. For a fair assessment in this regard the system has devised a clear process, which involves assessment by at least three levels of authorities before the APAR is finalised. These three levels of authorities are generally completely different and cannot normally be the same person. In the case at hand we have noted that there were three different persons who assessed the applicant. Over and above this, there is the procedure of appeal which we have gone into in detail in the above discussions. In fact, we find that the BSNL's procedure for dealing with the appeal is quite comprehensive. It has clarified exactly what needs to be done by the Appellate Authority and all required steps have been followed quite meticulously.

17. On balance we find therefore that the advise or comments that have been given to the applicant in this O.A through the APAR should have been taken by him in the right spirit. He should have taken these comments in a positive way in order to improve his own performance and understand how he is being viewed by different assessors. He should have introspected about his own attitude which has caused these comments to be made. He could have taken this as an incentive to self correct, to perform better rather than taking it negatively and bringing it out in the open by rushing to the Tribunal with allegations against officials. By this process something between him and his employer has become public. Thus, while not accepting the contentions made by the applicant in the O.A., we advice him to take these comments in right spirit. He may strive to improve his performance in due course to make himself a better employee of the BSNL rather than taking it as a blow on his ego.

18. Hence, taking a comprehensive view of the above considerations as well as the fact that the procedure appears to have been properly followed in the entire process of finalisation of the APAR, we are not allowing the O.A. The O.A is accordingly dismissed. No order as to costs.

The O.A is accordingly dismissed. No order as to costs.