Delhi High Court
Ashwani Kumar Mishra vs Union Of India And Ors on 25 January, 2021
$~Suppl.-29
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 351/2021 & CM APPL.911/2021
ASHWANI KUMAR MISHRA ..... Petitioner
Through Mr.Javed Ahmed, Advocate.
versus
UNION OF INDIA AND ORS ..... Respondents
Through Mr.Ajay Gupta, Advocate.
% Date of Decision: 25th January, 2021
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MS. JUSTICE ASHA MENON
JUDGMENT
MANMOHAN, J (Oral):
1. Present writ petition has been filed to expunge the adverse remarks
recorded in the petitioner's Annual Performance Assessment Report
(hereinafter referred to as 'APAR') and to challenge the order dated 08th
May, 2020 passed by respondent no.4 on the ground that it had been passed
without jurisdiction. Petitioner has also sought a direction to respondent
no.2 to issue the petitioner's Non Initiation Certificate [NIC] for the period
commencing 01st April, 2016 to 17th December, 2017.
2. On 11th January, 2021, learned counsel for the petitioner had stated
that he was not pressing prayers (b) and (c) of the writ petition i.e. to
expunge the adverse remarks recorded in the petitioner's APAR as well as
to challenge the order dated 08th May, 2020. However, today, learned
W.P. (C) 351/2021 1 of 4
counsel for the petitioner states that he may be allowed to re-agitate the
said prayers.
3. Mr. Javed Ahmed, learned counsel for the petitioner contends that the
reviewing authority- Mr. Ashish Batra, had added adverse remarks for the
period 20th December, 2016 to 31st March, 2017 without jurisdiction as the
petitioner belonged to CRPF. He states that on 29th December, 2017, the
reviewing authority- Mr. Ashish Batra had erroneously recorded in
petitioner's APAR that the petitioner had been prematurely repatriated to
his parental department on account of adverse remarks. He points out that
the petitioner had already been repatriated in normal course without
assigning any reason. He further states that the petitioner had sent a
representation to respondent no.2 to expunge the adverse remarks however,
the same was illegally sent to Mr. Ashish Batra, who had no jurisdiction to
decide the same.
4. He submits that as per the OM dated 21st May, 1965, a separate secret
note should have been recorded and followed up. In support of his
contention, he relies upon Note (a) at page 81 of the paper book.
5. Having heard learned counsel for the parties, this Court is of the view
that learned counsel for petitioner having given up prayers (b) and (c) of
the writ petition cannot re-agitate them. It is settled law that questions
outside the preview of the notice issued at the time of admitting the appeal
cannot be entertained at a later stage. [See: Spring Meadows Hospital vs.
Harjol Ahluwalia, (1998) 4 SCC 39].
6. Further having perused the paper book, this Court finds that Mr.
Ashish Batra, IPS, IG (Ops) Jharkhand, Ranchi, was the reviewing
authority of the petitioner, as during the relevant period, the petitioner had
W.P. (C) 351/2021 2 of 4
joined Jharkhand Police on deputation. Consequently, this Court is of the
view that for the aforesaid period no officer of CRPF could have been the
reviewing authority of the petitioner.
7. Accordingly, this Court is of the opinion that not only respondent
no.4 was legally entitled but he had the exclusive jurisdiction to decide the
petitioner's representation dated 08th May, 2020. The relevant portion of
the order dated 08th May, 2020 passed by respondent no.4 is reproduced
hereinbelow:-
"...........He has been motivated time and again orally to improve
his modus operandi, to take initiative for conducting operation
against naxals however no improvement had been found in his work
performance. He has wrongly and in factually claimed. For the
tenure commencing from 20.12.2016 to 31.03.2017 no special
achievement has been obtained. On account of his failure to take
initiative, six incidents had been occurred by the Maoist PLFI,
JJMP and JPC like militant groups. Time and again the senior
officers of police head quarter Jharkhand, Ranchi visited District
Chatra and motivated him to improve his functioning however no
particular efforts was made by him in this direction.
In the aforesaid circumstances the recorded grading in the APAR
of Mr. Ashwani Kumar Mishra then Police Superintendent
(Operation Chatra) has been found proper and proportionate by
reviewing his performance during the relevant period. No valid
reason has been assigned by the applicant in order to improve his
remarks or grading recorded in the APAR of the relevant period.
Hence Received APAR is being returned. The same also has been
endorsed by director general and police inspector general
Jharkhand Ranchi."
(emphasis supplied)
8. Further as the reviewing authority -Mr.Ashish Batra had recorded the
adverse remarks in petitioner's APAR for the period 20th December, 2016
to 31st March, 2017 in accordance with law, there is no question of the
petitioner being issued Non Initiation Certificate for the period
W.P. (C) 351/2021 3 of 4
commencing 01st April, 2016 to 17th December, 2017.
9. This Court is also of the view that Note (a) at page no.81 of the paper
book, relied upon by learned counsel for the petitioner, outlines the
procedure which has to be followed if the reviewing authority has doubt
with regard to integrity of the officer concerned. In the present case,
remark of the reviewing authority pertains to 'Efficiency' and not
'Integrity' of the petitioner. Consequently, the procedure relied upon by
the petitioner in the said Note is irrelevant.
10. Accordingly, the present writ petition being bereft of merits is
dismissed along with pending application.
MANMOHAN, J
ASHA MENON, J
JANUARY 25, 2021
KA
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