(WPS No.8802/2019) CGHC010344422019 2026:CGHC:34323 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 8802 of 2019 Hemant Kumar Jharia, (021140792) (SC), aged about 44 years, S/o Shri Kavindra Kumar Jharia, Working as Assistant Sub Inspector (Ministerial), TAC, Sector Headquarter, BSF, Bhilai, District Durg, Chhattisgarh – 490006 ... Petitioner versus 1. Union of India, Through Secretary, Ministry of Home Affairs, Directorate General BSF, Block No.10, CGO Complex, Lodhi Road, New Delhi 2. Deputy Inspector General (Staff), FHQ, Ministry of Home Affairs, Directorate General BSF, Block No.10, CGO Complex, Lodhi Road, New Delhi 3. Deputy Inspector General, Jowai Sector HQ, BSF, Jowai, Anjali, Shillong, Meghalaya 4. Commandant, 19 Bn BSF, Jammu and Kashmir. 5. 2IC (Second In-command), 19 Bn BSF, Jammu and Kashmir. 6. Gopal Das, Sub Inspector (Min), through Commandant, 83 Bn BSF, West Bengal ... Respondents For Petitioner : Mr. Anand Dadariya and Mr. Mukul Chaturvedi, Advocates. For Respondents : Mr. Amitesh Kumar Pandey, Central Government Counsel. Amicus Curiae: : Mr. Sharad Mishra, Advocate. Single Bench:- Hon'ble Shri Justice Sanjay K. Agrawal SISTA SOMAYAJULU Digitally signed by SISTA SOMAYAJULU Date: 2026.08.10 13:24:59 +0530 (WPS No.8802/2019) Order On Board 05/08/2026 1. The petitioner has preferred this writ petition calling in question legality, validity and correctness of the order dated 11-10-2018 (Annexure P-3), whereby the competent authority has recalled its earlier order dated 12-1-2018 and downgraded the petitioner’s Annual Performance Assessment Report (APAR) for the year 2014-15 from “Good” to “Average” after having previously expunged the adverse remarks and upgraded the grading. The petitioner also eventually seeks to challenge the order dated 27-2-2019 (Annexure P-5), by which his representation against non-promotion from the post of Assistant Sub-Inspector (Ministerial) to the post of Sub- Inspector (Ministerial) has been rejected finding no merit. 2. The aforesaid challenge has been made on the following factual backdrop: - 3. The petitioner was appointed as Constable (General Duty) in the Border Security Force (BSF) on 1-2-2002 and he earned promotions to the posts of Head Constable (Ministerial) and Assistant Sub- Inspector (Ministerial) and became eligible for consideration for promotion to the post of Sub-Inspector (Ministerial). The Departmental Promotion Committee (DPC) assembled on 18-12- 2018 to consider the case of eligible ASI (Ministerial) officers for promotion to the post of Sub-Inspector (Ministerial) in the BSF for the vacancy year 2019. However, the DPC, in respect of the (WPS No.8802/2019) petitioner herein, found that in the APAR for the year 2014-15, he has been awarded punishment of “reprimand” under Section 19(b) read with Section 53(g) of the Border Security Force Act, 1968 (for short, ‘the BSF Act’) on 24-7-2015 and that would bar him for promotion to the post of Sub-Inspector (Ministerial) and furthermore, on 11-10-2018, the competent authority has reviewed/ recalled its earlier order dated 12-1-2018 and downgraded him from “Good” to “Average” after having previously expunged the adverse remarks and upgraded the grading, therefore, the petitioner is not entitled for promotion and accordingly, his representation was rejected by order dated 27-2-2019 (Annexure P-5). It is the case of the petitioner that by the order dated 11-10-2018 (Annexure P-3), which is one of the basis for his non-promotion, he has been downgraded, but no opportunity of hearing was given, though it was communicated, however, on account of paucity of time, representation could not be made against that order and by order dated 27-2-2019 (Annexure P-5), his representation has been rejected and furthermore, minor penalty would not come in the way of the petitioner in granting promotion. Therefore, Annexures P-3 & P-5 be set aside and the respondents be directed to consider the case of the petitioner for promotion by constituting a review DPC. 4. Return has been filed supporting the orders impugned Annexures P- 3 & P-5 stating inter alia that on the basis of circular dated 11-9-2015 (Annexure R-4), there is no provision for further representation against the entries/grading made in the APAR; the earlier order (WPS No.8802/2019) dated 12-1-2018 has been recalled and the petitioner has been downgraded from “Good” to “Average”. The remarks made in his APAR have already been considered and finding no merit, his representation has been rejected and he was found unfit for promotion. 5. Mr. Anand Dadariya, learned counsel appearing on behalf of the petitioner, would submit that by the order Annexure P-3 dated 11-10- 2018, the APAR of the petitioner could not have been downgraded despite there being any circular, without providing any opportunity of hearing which runs contrary to the decision rendered by the Supreme Court in the matter of State of U.P. v. Narendra Nath Sinha1. He would further submit that the punishment of reprimand awarded to the petitioner under Section 19(b) read with Section 53(g) of the BSF Act is only a minor punishment and that will not be a bar in granting promotion. Therefore, the respondents are absolutely unjustified in rejecting the representation of the petitioner and in non-granting promotion to him, as such, the writ petition deserves to be allowed. 6. Mr. Amitesh Kumar Pandey, learned Central Government Counsel appearing on behalf of the Union of India/respondents, would support the impugned orders and oppose the writ petition. 7. Mr. Sharad Mishra, learned amicus curiae, would submit that the petitioner must be communicated before downgrading his APAR for the relevant year from “Good” to “Average” in light of the decision of 1 (2001) 9 SCC 118 (WPS No.8802/2019) the Supreme Court in the matter of Dev Dutt v. Union of India and others2 which was further held to be a good law by the Supreme Court in the matter of Sukhdev Singh v. Union of India and others3 holding that the opportunity of hearing was necessary. He would further submit that the punishment of minor penalty would not be a bar in granting promotion. 8. I have heard learned counsel for the parties and considered their rival submissions made herein-above and also gone through the record with utmost circumspection. 9. The petitioner has been held to be unfit for promotion by recording two findings, which is apparent from the following observation made in the order Annexure P-5 rejecting his representation: - “10. Whereas, in view of the rule position explained, DPC held on 18.12.2018 had enjoyed full discretion to devise their own methods/procedures for objective assessment of the records of all the ASIs/Min including applicant for their empanelment and eventual promotion to the rank of SI/Min during the vacancy year 2019 and the promotion committee takes the adverse entries endorsed in his APAR for the year 2014-15 and punishment awarded u/s 19(b) of BSF Act 1968 On 24/07/2015 to ASI/Min into consideration and adjudged him as “UNFIT” for promotion. Thus, denial of promotion in respect of applicant to the rank of SI/Min during the vacancy year 2019 by the DPC is well within the purview of the rules and competency of the committee.” 10. The aforesaid order would show that the petitioner has been declared unfit for promotion on two grounds, firstly, he has been awarded punishment under Section 19(b) of the BSF Act which is principally 2 (2008) 8 SCC 725 3 (2013) 9 SCC 566 (WPS No.8802/2019) based on Section 53(g) of the BSF Act and secondly, in his APAR for the year 2014-15, he has been graded “Average”. 11. Let us firstly consider the first part, whether the award of minor penalty “reprimand simpliciter” would be a bar to promotion? 12.In this regard, the relevant provisions contained in the BSF Act may be referred herein. Section 19 of the BSF Act deals with absence without leave and Section 53 of the BSF Act deals with minor punishments. Both the provisions are reproduced herein-below for better understanding: - Section 19(b) “19. Absence without leave.—Any person subject to this Act who commits any of the following offences, that is to say, — (a) xxx xxx xxx (b) without sufficient cause overstays leave granted to him; or (c) to (g) xxx xxx xxx shall, on conviction by a Security Force Court, be liable to suffer imprisonment for a term which may extend to three years or such less punishment as is in this Act mentioned.” Section 53(g) “53. Minor Punishments.—Subject to the provisions of section 54, a commandant or such other officer as is, with the consent of Central Government, specified by the Director- General may, in the prescribed manner, proceed against a person subject to this Act, otherwise than as an officer or a subordinate officer, who is charged with an offence under this Act and award such person, to the extent prescribed, one or more of the following punishments, that is to say,— (a) to (f) xxx xxx xxx (WPS No.8802/2019) (g) severe reprimand or reprimand; (h) and (i) xxx xxx xxx.” 13.As such, the petitioner has been imposed minor penalty of reprimand under Section 19(b) read with Section 53(g) of the BSF Act. A careful perusal of the BSF Act would show that imposition of minor penalty is not a bar in granting promotion to the employee. In this regard, the decision by the Supreme Court in the matter of D.H.B.V.N.L. Vidyut Nagar, Hisar and others v. Yashvir Singh Gulia4 may be noticed herein wherein their Lordships of the Supreme Court have held that if imposition of a minor penalty is not a bar in granting promotion, due promotion be granted in accordance with the Rules and Regulations applicable. 14.Similarly, the Allahabad High Court in the matter of Dr. 10305N Lt. Col. R. Saini v. Union of India5 has held that the punishment of “Reprimand’ or ‘Severe Reprimand” does not debar an employee from being considered for promotion nor does it affect his acting or substantive promotion but is taken cognizance of as part of employee’s overall record of service in assessing him for such promotion. It has further been held that in other words, punishment of “Reprimand” or “Severe Reprimand” by itself does not disqualify an employee for being considered for promotion and is made part of the record only. 4 (2013) 11 SCC 173 5 2001 SCC OnLine All 632 (WPS No.8802/2019) 15.The Delhi High Court in the matter of Rajesh Kumar PV v. Union of India and another6 has considered the question, “Can minor punishment of “severe reprimand” be a basis to deny promotion in perpetuity” and relying upon the earlier decisions held that the punishment of “severe reprimand” cannot be a reason to deny promotion, if otherwise found suitable. 16.Accordingly, it is held that the reprimand simpliciter awarded to the petitioner herein under Section 19(b) read with Section 53(g) of the BSF Act cannot be a reason to deny promotion, if he is otherwise found suitable. The first ground on which the petitioner has been declared unfit for promotion, is answered accordingly. 17.Now, the second ground on which the petitioner has been declared unfit for promotion i.e. APAR for the year 2014-15 in which he has been graded “Average”, remains for consideration. 18. The Annual Performance Assessment Report (APAR) for the year 2014-15 was recorded and the same was communicated to the petitioner on 27-8-2015. The petitioner submitted detailed representation seeking expunction of the adverse remarks specifically pointing out his satisfactory service record, awards received and the favourable observations recorded by the Initiating Officer, which was rejected on 6-11-2015. The petitioner preferred further representation before respondent No.3 i.e. the competent authority under the applicable BSF ACR Procedure and Instructions, seeking reconsideration and expunction of the adverse APAR. By 6 2023 SCC OnLine Del 3807 (WPS No.8802/2019) order dated 12-1-2018, after objectively examining the entire matter, respondent No.3 passed order expunging the adverse remarks and upgrading the APAR grading for the year 2014-15 from “Average” to “Good” holding that the Initiating Officer, being directly in-charge of the ministerial staff, was the best person to assess the petitioner’s performance. However, at the instance of an objection raised by the Headquarters i.e. Directorate General, BSF, Personnel Directorate (Staff Section), New Delhi, respondent No.3 purportedly reviewed and cancelled its own earlier order dated 12-1-2018 and the adverse APAR of the petitioner for the year 2014-15 was restored from “Good” to “Average”, but it was done without affording opportunity of hearing to the petitioner against which now, representation made by the petitioner has been rejected. It is the case of the petitioner that downgrading of APAR of the petitioner from “Good” to “Average” was done without affording opportunity of hearing to him, which is in violation of the principles of natural justice. 19. In this regard, the decision rendered by the Supreme Court in Narendra Nath Sinha’s case (supra) may be noticed herein profitably in which it has been held that before downgrading the relevant entry, opportunity of hearing is imperative, and observed by their Lordships as under: - “4. The main ground on which he challenged the downgraded entries was that the reviewing officer and/or accepting officer had not stated any reason/justification for downgrading the entries given by the reporting officer which were either “very good” or “excellent” or “outstanding”. On a perusal of the judgment of the High Court we find that the (WPS No.8802/2019) arguments advanced on behalf of the writ petitioner, respondent herein were on the line noticed above. The High Court felt persuaded to accept the contentions raised on behalf of the writ petitioner mainly on the ground of non- compliance with principles of natural justice inasmuch as no intimation was given to, no explanation called for from the writ petitioner before downgrading the “excellent” or “outstanding” entries to “satisfactory” or “good”. It was further contended by the writ petitioner that no reason/ justification was given in support of such downgrading.” In Narendra Nath Sinha’s case (supra), their Lordships set aside the downgrading on the ground that the Reviewing Officer downgraded the entries and the Accepting Officer agreed with him, but before downgrading the entries no opportunity was alleged to have been afforded, nor any reason alleged to have been given for down-gradation, and observed as under: - “9. On the facts and in the circumstances of the case, we are of the view that the Principal Secretary of the Public Works Department of the Government of Uttar Pradesh should consider the matter afresh applying his mind to the grievances raised by the petitioner in the representations submitted by him in the light of the provisions of the Rules and executive instructions relating to making entries in the administrative character roll and promotion from the post of Superintending Engineer to Chief Engineer Level II and pass a reasoned order. The Principal Secretary should give a reasonable opportunity of hearing to the respondent so that he may place before the authority the materials available on record in the Department which may be relevant for consideration of the matter.” 20. As such, before downgrading the petitioner’s APAR from “Good” to “Average”, the petitioner ought to have been afforded opportunity so that he may justify that his up-gradation from “Average” to “Good” was fully justified, but, however, no such opportunity was given to (WPS No.8802/2019) the petitioner before downgrading him and he was downgraded to “Average” in violation of the principles of natural justice. 21. The Supreme Court in the matter of U.P. Jal Nigam and others v. Prabhat Chandra Jain and others7 laid down the procedure to be followed in downgrading of entry in the Confidential report and held that reason for such a change must be recorded in the personal file and the employee must be informed of the change in the form of advice, otherwise the downgrading cannot be sustained. It has been observed by their Lordships as under: - “3. We need to explain these observations of the High Court. The Nigam has rules, whereunder an adverse entry is required to be communicated to the employee concerned, but not downgrading of an entry. It has been urged on behalf of the Nigam that when the nature of the entry does not reflect any adverseness that is not required to be communicated. 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, and inform him of the change in the form of an advice. If the variation warranted be not permissible, then the very purpose of writing annual confidential reports would be frustrated. Having achieved an optimum level the employee on his part may slacken in his work, relaxing secure by his one-time achievement. This would be an undesirable situation. All the same the sting of adverseness must, in all events, not be reflected in such variations, as otherwise they shall be communicated as such. It may be emphasised that even a positive confidential entry in a given case can perilously be adverse and to say that an adverse entry should always be qualitatively damaging may not be true. In the instant case we have seen the service record of the first respondent. No reason for the change is 7 (1996) 2 SCC 363 (WPS No.8802/2019) mentioned. The downgrading is reflected by comparison. This cannot sustain. Having explained in this manner the case of the first respondent and the system that should prevail in the Jal Nigam, we do not find any difficulty in accepting the ultimate result arrived at by the High Court.” 22. Reverting to the facts of the present case in light of the principles of law laid down in Narendra Nath Sinha’s case (supra) and U.P. Jal Nigam (supra), I am of the considered opinion that the competent authority while passing the order dated 11-10-2018 (Annexure P-3) downgrading the petitioner from “Good” to “Average”, while following the Governmental circular, ought to have given opportunity of hearing to the petitioner before downgrading him enabling him to show cause and justify that grading him “Good” is justified. 23. In that view of the matter, the order dated 11-10-2018 (Annexure P- 3) as well as the order dated 27-2-2019 (Annexure P-5) both are set- aside/quashed. The matter is remitted to the competent authority to consider the APAR for the year 2014-15 afresh after giving an opportunity of hearing to the petitioner and then pass order afresh, as it has already been held that the mere imposition of minor penalty would not be a bar in granting promotion. Depending upon the outcome of the fresh consideration, a review DPC may be convened and the petitioner’s case may be considered afresh, in accordance with law. Page 13 of 13 (WPS No.8802/2019) 24. With the aforesaid observation and direction, the writ petition stands allowed to the extent indicated herein-above. There will be no order as to costs. 25. This Court appreciates the assistance rendered by Mr. Sharad Mishra, learned counsel, who appeared as amicus curiae and made submissions and also assisted the Court on short notice. Sd/- (Sanjay K. Agrawal) Judge Soma