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Serial No. 01

Supplementary List

HIGH COURT OF MEGHALAYA

AT SHILLONG

WP(C) No. 427 of 2025 Date of Hearing : 07.08.2026

Date of Decision :03.09.2026

Shri Rakesh Chopra

S/o Sh. Kewal Kumar Chopra

R/o SE (Civil), HQ Research & Development Estt. (BRO)

C/o, 99 APO … Petitioner(s)

Versus

1.Union of India

Through Secretary,

Ministry of Defence,

Department of Defence,

North Block, New Delhi-110011.

2. Union of India,

Through its Secretary,

Department of Personnel & Training

Ministry of Personnel, PG and Pensions

North Block, New Delhi-110011.

3. Joint Secretary Border Road

Department of Defence,

Ministry of Defence,

Border Road Wing, South Block,

New Delhi-110011.

4. DGBR, Border Road Organization

Seema Sadak Bhawan,

Ring Road, Delhi Cantt,

New Delhi-110010.

2026:MLHC:981 2026:MLHC:981

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5. Lt. Gen. Raghu Srinivas,

DGBR, Border Road Organization

Seema Sadak Bhawan,

Ring Road, Delhi Cantt,

New Delhi-110010.

6. Lt. Gen Rajeev Chodhary (Retd),

(Former) DGBR,

Through Border Road Organization

Seema Sadak Bhawan,

Ring Road, Delhi Cantt,

New Delhi-110010.

7. The Chief Engineer,

HQ Research & Development Estt (BRO)

Near William Carey University

Nongmynsong, Shillong

Meghalaya-793019 …. Respondent(s)

Coram:

Hon’ble Mr. Justice H.S. Thangkhiew, Judge.

Appearance:

For the Petitioner(s) : Mr. N.K. Gupta, Adv. with

Ms. M. Surong, Adv.

For the Respondent(s) : Dr. N. Mozika, DSGI with

Ms. M. Myrchiang, Adv.

i) Whether approved for reporting in Yes/No

Law journals etc:

ii) Whether approved for publication Yes/No

in press:

2026:MLHC:981 2026:MLHC:981

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JUDGMENT AND ORDER

1. The petitioner who is currently serving as a Superintending

Engineer (Civil) in the Border Road Organization is before this Court by the

instant writ petition seeking the expunging of negative entries made by the

Reviewing Officer (Respondent No. 6) in the 2022-23, Annual Performance

Assessment Report (APAR) and to restore the original grading given by the

Reporting Officer, to quash the rejection of representation and letter that

declared the petitioner’s APAR for the period 2023-24 as technically invalid

and to direct the respondents to follow DoPT procedure for 2023-24 period

including recording the petitioner’s self-appraisal and for issuance of No

Report Certificate.

2. Mr. N.K. Gupta, learned counsel for the petitioner submitted

that the petitioner has maintained a distinguished 31-year career within the

Border Road Organization (BRO) and in 2021, was also officially

recognized for having “Integrity Beyond Doubt”. However, he submits after

the petitioner had filed a whistle-blower complaint on 29.03.2022, regarding

mis-appropriation by Senior official for the BRO, the petitioner faced a

multitude of retaliatory administrative actions from the respondents Nos. 5

& 6. Despite these actions, he submits on 03.10.2022, the CVC issued a

protection order to shield him from victimization, on 08.05.2024 the Delhi 2026:MLHC:981 2026:MLHC:981

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High Court in WP(C) No. 16645/2022, had ruled that the actions of the

Department were unjust and arbitrary and that on 24.11.2025, the High Court

of Meghalaya in WP(C) No. 374/2025, had quashed a Charge-Sheet dated

22.04.2025, and a corrigendum dated 05.08.2025. The learned counsel has

asserted that there is a systematic institutional effort to retaliate against the

petitioner, which has compelled him to approach the Courts repeatedly,

seeking reliefs.

3. With regard to the petitioner’s 2022-23 APAR, it is submitted

that the Reviewing Officer (R-6), had no direct supervision over his works,

yet issued the impugned remarks and a below benchmark grading, which

rendered the petitioner ineligible for promotion. Further he submits the

Reviewing Officer completely disregarded the assessment of the Reporting

Officer, who had supervised the petitioner daily in Guwahati, and the down

grading violates Rule 1.3 and 1.4 of the APAR Policy, which provides that

the APAR process should be impartial and transparent, not to be used as a

tool to punish or discipline an officer and that counseling and guidance be

provided before an adverse report is filed. It is further submitted that the

Reviewing Officer had violated the mandate of DoPT OM dated 23.07.2009,

DoPT OM dated 13.04.2010 and clause 2.8 of the DoPT brochure, which

provides that a Reviewing Officer, must provide specific reasons when 2026:MLHC:981 2026:MLHC:981

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disagreeing with the Reporting Officer, and as such therefore, the

unreasoned down grade is ‘non-est’. It is contended that though the

Reviewing Officer had stated that the Reporting Officer had “over-

assessed”, no reason was however ascribed as prescribed by the Office

Memorandum.

4. Learned counsel has also highlighted the alleged discrepancy or

paradox between the Reviewing Officer’s numerical grades and qualitative

remarks and submits that while 6(six) (very good) was given for the work

output but however, in the “Pen picture”, the petitioner was labelled as

“habitual offender” and having “shaky loyalty”. It is also alleged that the

final score was “reverse-engineered” to prevent the petitioner’s promotion

and that the grade of 5.9 is calculated attempt to keep the petitioner just 0.1

points below the 6.0 benchmark for promotion. This action he contends by

the Reviewing Officer, shows a colorable exercise to predetermine a

negative outcome while evading accountability. It is also asserted that there

has been a violation of mandatory and binding legal framework as prescribed

in the DoPT guideline, and that these guidelines being executive instructions

are not merely directory but are mandatory safeguards and procedure

established to protect government servants from arbitrary, or biased

administrative actions. In this context, reference has been made by the 2026:MLHC:981 2026:MLHC:981

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learned counsel to the Timelines and Forfeiture Rule, and it is submitted that

completion of the APAR cycle is strictly governed by the DoPT OM dated

16.02.2009. This OM he submits, provides that a Reviewing Officer shall

forfeit his right to enter any remarks in the APAR, if they fail to meet the

31

st

August deadline and remarks entered after this deadline are considered

legally void as the officer is then “functus officio”. The respondents he

submits cannot selectively treat these mandatory deadlines as “directory” to

condone their administrative delay.

5. It is further submitted that to ensure adherence to these

mandatory guidelines, the framework provides a “Force-Forward”

mechanism under Para 5.1 of the DoPT APAR brochure, where if an officer

fails to submits their self-appraisal by the 15

th

April deadline, the Reporting

Officer must initiate the APAR suo muto. It is then submitted that the

procedure for recording remarks on an officer’s integrity is governed by the

DoPT OMs dated 20.05.1972, and 11.02.2016, which provides that any

adverse entry regarding integrity specifically a marking of “doubtful” must

be supported by a secret note containing specific, verifiable reasons for the

suspicion. With regard to deciding an officer’s representation against

adverse remarks, it is submitted that the same is governed by DoPT OM

dated 13.04.2010, and the same must be decided within 30(thirty) days of 2026:MLHC:981 2026:MLHC:981

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receipt. Under clause 9.5(i) of the OM dated 20.05.1972, he submits that the

authority deciding the representation must be superior to the Reviewing

Officer and that further the deciding authority is restricted to three aspects

i.e. the representation, the APAR itself and the views of the Reporting,

Reviewing Officer, if they are still in service, and that importing other

feedback or third-party recommendations is legally impermissible. The

learned counsel has also contended that the adverse APAR was used as a

tool for institutional retaliation due to the petitioner’s whistle-blower

complaint, inasmuch as, an internal noting sheet lists the complaint as points

highlighted against him, and that placing such disclosure before the

disposing authority and negative material violates the whistle-blower’s

protection and CVC orders which mandate such disclosures be shielded from

administrative reprisal.

6. It is further contended that the petitioner had submitted his self-

appraisal on 24.06.2024, but however an objection was raised by letter dated

10.07.2024, with regard to the submission of the interim PAR before the

retirement of the Reporting Officer i.e. 31.01.2024. It is submitted that the

deadline was then extended by the DoPT to 30.06.2024 for the 2023-24

APAR cycle due to the General Elections, which was well within the time

limit prescribed for the remaining period of the year (01.02.2024 to 2026:MLHC:981 2026:MLHC:981

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31.03.2024). It has also been urged that the term “Technically Invalid” has

no basis in the CCS Rules or the DoPT APAR brochure as the official

framework recognizes only 3(three) situations for an un-assessed period

namely; (i) Valid APAR (ii) No Report Certificate (NRC) and (iii) Gap

Certificate. It is asserted that an NRC is only for periods where officer has

worked under a Reporting Officer for less than 3(three) months, whereas in

the case of the petitioner he had worked under the concerned Reporting

Officer for the entire reporting year i.e. 01.04.2023 to 30.01.2024. It is

submitted that as per the APAR brochure (Para 5.1) it provides that if a self-

appraisal is not received, the Reporting Officer must initiate the APAR, and

that in this regard the Reporting Officer Shri Manv Prasad was duly

empowered to write the reports within 1(one) month of retirement i.e. until

29.02.2024 but failed to do so. It is further argued that as per the DoPT OM

dated 16.02.2009, failure to initiate the APAR, forfeits his rights to enter

remarks and the APAR should have been forwarded to the Reviewing

Officer and thus the respondents’ failure to ensure this procedure was

followed cannot be used to penalize the petitioner.

7. It has been contended that the respondents’ attempt to penalize

the petitioner for the alleged delays in submitting reports as an Inquiry

Officer is legally impermissible, as an officer who has been appointed as an 2026:MLHC:981 2026:MLHC:981

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Inquiry Officer performs a quasi-judicial function and acts as an independent

adjudicator rather than a subordinate. In this context, the learned counsel has

cited the case of Zunjarrao Bhikaji Nagarkar vs. Union of India (1999) 7

SCC 409, wherein he submits it has been held that negligence or delay in

quasi-judicial duties cannot form the basis for adverse APAR remarks unless

there is prove of mala fide or extraneous considerations. To take adverse

action it is submitted for an Inquiry Officer’s conduct requires a formal

procedure, i.e. full opportunity to explain and CVC advise, which it is

asserted that the respondents have bypassed such mandatory process and

have used the APAR as an instrument of punishment.

8. The respondents it is submitted have also committed perjury by

stating on oath that the memorandum of charges was active when in fact this

Court had already been quashed and set aside the chargesheet in a previous

writ petition and further the affidavits were sworn by junior officers, and that

the respondents had engaged in a manufactured process designed to

prejudice his career. It is also further asserted that though this Court had set

aside and quashed the chargesheet on 24.11.2025, however, during the DPC

meeting held on 10.12.2025, the respondents failed to inform the other DPC

members of this judicial order, which led the DPC to apply the seal cover

procedure purportedly on a disciplinary proceeding that no longer existed in 2026:MLHC:981 2026:MLHC:981

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the eye of law. In conclusion, it is prayed that the Reviewing Officer’s entries

be expunged by quashing and setting aside all numerical downgrades in the

APAR for 04.09.2022 to 31.03.2023, and to restore the Reporting Officer

grading as final and direct the same be treated as 7.0, as assessed, and also

to quash the NRC and to preserve Self-appraisal for APAR 2023-24.

9. Dr. N. Mozika, learned DSGI assisted by Ms. M. Myrchiang,

learned counsel for the respondents has firstly taken up the issue of territorial

jurisdiction and submits that no part of the cause of action arose within this

Courts’ jurisdiction. It is argued that the representation was disposed of in

Delhi and the petitioner’s receipt of the rejection in Shillong is a mere

incidental correspondence. The learned DSGI has relied upon the judgment

in the case of Ex Rect Vinod Kumar vs. Union of India 2006 SCC OnLine

Del. 1401 to contend that parties cannot confer jurisdiction by consent and

that substantial or integral cause of action must exist within the Court’s

territory. The Departmental Promotion Committee (DPC), which handles the

consideration for promotion of the petitioner, it is submitted, is held in Delhi

and that the petitioner’s posting to Shillong is a fortuitous circumstance.

10. It is then submitted that the APAR timelines are directory and

not mandatory and are executive instructions rather than statutes, and if such

guidelines are mandatory all parties would have to adhere to the same 2026:MLHC:981 2026:MLHC:981

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strictly. The non-compliance or neglect of these timelines by an officer it is

submitted may be punishable but does not invalidate the action taken, such

as a delayed appraisal and, in this context, reliance has been placed on the

case of State of U.P. vs. Manbodhan Lal Srivastavas AIR 1957 SC 912 to

illustrate the distinction between directory and mandatory provisions. With

regard to the specific appraisal for the period 04.09.2022 to 31.03.2023, it

has been submitted that there was a 40-day delay by the Reporting Officer

and a subsequent 26-day delay by the Reviewing Officer and that the delay

on the part of the Reviewing Officer was because the file was received late

from the Reporting Officer. It is also been pointed out that the petitioner

failed to submit a self-appraisal report for this period, despite of reminder

sent on 08.08.2023, and is now seeking selective condonation to condone

the Reporting Officer’s delay, where he received a favourable grading of 7.0,

while challenging the Reviewing Officer delay, where the grading was 5.9.

11. With regard to the contention that as prescribed by OM dated

11.02.2016, that secret note procedure has to be followed or to give

observation that “not watch the officer’s work”, it is submitted that Para-3

of the said OM specifically states that remarks against the integrity column

of APAR of the officer reported shall be made by the Reporting Officer, and

as such is for his guidance and not for the Reviewing Officer. As far as OM 2026:MLHC:981 2026:MLHC:981

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dated 23.07.2009 is concerned, it is submitted that the same provides that a

provision be made in the APAR in the relevant section for remarks by the

Reviewing Officer to indicate differences with the assessment made by the

Reporting Officer, and as such remarks were made in this context that the

Reporting Officer had over assessed and had been liberal in the assessment.

12. It is then submitted that the petitioner submitted his APAR on

24.06.2024 for the period 01.04.2023 to 31.03.2024 and it is contended that

the same was beyond the prescribed timeline and that the APAR submission

was also defective, for which by letter dated 10.07.2024, he was required to

submit and interim PAR before the Reporting Officer (retired), on

31.01.2024. Though the petitioner submitted a clarification on 26.07.2024,

stating that he was on leave for portion of the time and that if a self-appraisal

is not received, the Reporting Officer is obligated to fill up the APAR, it is

the case of the respondents it is submitted that the self-appraisal for the 2023-

24 period remained defective, and was submitted beyond the timeline. It is

thus maintained by the learned DSGI that the petitioner, has consistently

neglected his administrative responsibilities regarding his performance

report, despite receiving reminder.

13. With regard to the representation filed by the petitioner, it is

submitted that though the communication was issued by the Deputy 2026:MLHC:981 2026:MLHC:981

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Secretary, he was not the deciding officer as the speaking order dated

22.05.2025, explicitly states that ‘competent authority has rejected the

representation’ and the Deputy Secretary merely acted as the official channel

to convey that decision. It has been further submitted that the representation

was decided by a consultation process as per administrative guidelines,

which require taking the views of the Reporting and Reviewing Officers into

account if they are still in service, and in this manner, comments were

received from the Reporting Officer (Shri P.K.H. Singh) on 23.01.2024, but

however, as the Reviewing Officer had already retired, his specific

comments could not be obtained. As to the delays of 18 months in disposing

of the representation, it has been contended that firstly the 30-day timeline

for disposing of such representations are directory and not mandatory,

secondly, the petitioner had acquiesced to the delay by awaiting the outcome

without challenging the same and had approached the Court only after

receiving a negative result. The learned DSGI also maintained that the

speaking order cannot be disregarded solely because of the time factor and

that remanding the matter back to the authority based on delay would be

counterproductive, apart from the fact that the word ‘shall’ can be read as

‘may’ and ‘may’ can be read as ‘shall’ depending on the context. 2026:MLHC:981 2026:MLHC:981

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14. The learned DSGI has rebutted the allegation of mala fide

against the respondent No. 6 (rank of Lt. General) by submitting that he was

four levels than the petitioner and never had the opportunity to observe his

works and being a high official had no reason to have any mala fide against

the petitioner, and he also having since retired, even his comments were not

available for disposing of the representation. It is lastly argued that this Court

had quashed only the memorandum of charges and not the charges which

have not been wiped out, which have only halted the disciplinary

proceedings but does not wipe out the allegations, and the same can still be

taken into account for other purposes.

15. Heard the learned counsel for the parties.

16. Before delving into the contentions raised by the petitioner, it is

relevant to note herein that while the instant writ petition was pending

judgment, a miscellaneous application being M.C [WP(C)] No. 128 of 2026

was filed by the petitioner bringing on record new facts after the judgment

had been reserved and a prayer sought for opening of the sealed cover and

to act upon the DPC recommendation, which was held on 10.12.2025. This

Court by order dated 10.06.2025, while disposing of the application, had

observed that on the quashing of the chargesheet and corrigendum and by

operation of OM dated 14.09.1992, there was no necessity of placing the 2026:MLHC:981 2026:MLHC:981

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case of the petitioner under sealed cover and had noted that the action of the

respondents, had only fortified the assertion made by the petitioner of a

vendetta against him. However, on a subsequent hearing it has been reported

by the respondents that the sealed cover was opened and the petitioner found

unfit for promotion.

17. The issue that has to be decided presently therefore, is whether

downgrading the petitioner’s 2022-23 APAR is legally sustainable, whether

declaration of the of the petitioner’s 2023-24 report as technically invalid, is

baseless or punitive, and whether non-adherence to the prescribed timelines

will adversely affect the petitioner’s promotion. Added to this is the

objections raised with regard to territorial jurisdiction of this Court to

entertain the writ petition.

18. Before dealing with the grievances of the writ petitioner as

given hereinabove, as the respondents have raised an objection on territorial

jurisdiction, it is firstly to be noted that this is the second round of litigation

whereby the writ petitioner has approached this Court. In the first round of

litigation i.e. WP(C) 327 of 2025, which was disposed of on 24.11.2025, this

objection was not raised by the respondents in their pleadings, and has been

raised now, only at the stage of final arguments. This Court therefore, will

not attach much significance to this objection which appears to have been 2026:MLHC:981 2026:MLHC:981

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made as an afterthought. Moreover, the events leading to the present

situation being continuous, whereby the service record affects him wherever

he is stationed, jurisdiction in this particular case is not limited to a single

location. As such, the objection is not sustained.

19. On the other main issues, upon consideration of the pleadings,

materials placed on record and the applicable guidelines governing the

preparation and consideration of Annual Performance Assessment Reports

(APARs), this Court is of the considered view that the grievance of the

petitioner, insofar as the APAR’s for the periods 04.09.2022 to 31.03.2023

and 2023-31.03.2024 are concerned, merits consideration.

20. With regard to APAR for the year 04.09.2022 to 21.03.2023, it

is important to note that the Reporting Officer, who had the occasion to

supervise the petitioner in the discharge of his duties, had assessed the

petitioner at the level of 7.0. The Reviewing Officer, however, differed from

the assessment and reduced the grading to 5.9, while recording that the

petitioner had been "over-assessed". The materials on record do not disclose

any cogent or specific reasons demonstrating the basis on which such

substantial departure from the assessment of the Reporting Officer was

made. 2026:MLHC:981 2026:MLHC:981

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21. The requirement of recording reasons where the Reviewing

Officer differs from the assessment of the Reporting Officer is not an empty

formality. The APAR system, is intended to provide a fair and objective

assessment of the performance of a Government servant and cannot be

permitted to become an instrument of penalty or adverse action. As such, it

can safely be concluded that the mandate of DoPT OM dt. 23.07.2009, has

not been adhered to, which at (ii) has provided as follows:

“(ii) A provision may be made in the APAR in the relevant

section for remarks by the reviewing officer to indicate

specifically the differences, is any, with the assessment made

by the reporting officer, and the reasons therefor.”

22. This Court is also conscious of the fact that the petitioner had

earlier approached the authorities and this Court, in relation to proceedings

which have subsequently been interfered with by judicial orders. The

subsequent order passed by this Court in relation to the sealed-cover

proceedings, has already noticed the manner in which the petitioner's

promotional prospects came to be dealt with and had directed the

respondents to open the sealed cover and consider the petitioner in

accordance with law.

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23. In the facts and circumstances of the present case, therefore, the

impugned remarks and downgrading, particularly when considered

alongside the qualitative remarks appearing in the APAR, cannot be

sustained without the matter being reconsidered in accordance with the

prescribed procedure. The impugned APAR entries cannot be permitted to

operate to the prejudice of the petitioner without a fresh and procedurally

compliant consideration.

24. Accordingly, the impugned adverse remarks and the

downgraded grading of 5.9 recorded by the Reviewing Officer in respect of

the APAR for the period 04.09.2022 to 31.03.2023 are hereby set aside.

25. The respondents are directed to reconsider the said APAR

strictly in accordance with the applicable DoPT instructions and APAR

guidelines, after taking into consideration the assessment of the Reporting

Officer and by recording specific and cogent reasons for any departure

therefrom. The exercise shall be undertaken by an authority competent under

the applicable rules and by an officer unconnected with the impugned

assessment, so as to ensure fairness and objectivity.

26. It is, however, made clear that this Court does not direct that the

grading of 7.0 awarded by the Reporting Officer, shall automatically be

treated as the final grading. The fresh consideration shall be undertaken in 2026:MLHC:981 2026:MLHC:981

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accordance with the applicable rules and on the basis of the material

legitimately available for consideration.

27. In respect of the APAR for the period 01.04.2023 to 31.03.2024,

here the respondents have a stronger defence, inasmuch as, the contention of

the respondents is that the petitioner submitted his APAR/self-appraisal late

and defectively. In the view of this Court the petitioner, however, has an

arguable answer because the DoPT Guidelines/Mechanism at Clause 5.1

thereof, requires the Reporting Officer to initiate the APAR, where the self-

appraisal is not submitted.

28. Accordingly, as the APAR for the period 01.04.2023 to

31.03.2024 is concerned, the respondents shall reconsider the petitioner's

case in accordance with the applicable DoPT procedure and shall not deny

the petitioner the benefit of consideration merely on the basis of the

expression "technically invalid" without identifying the specific statutory or

administrative provision authorising such treatment.

29. The respondents shall also consider the petitioner's self-

appraisal and determine, in accordance with the applicable APAR

guidelines, whether the circumstances warrant preparation of a valid APAR,

a No Report Certificate, or any other permissible course under the governing

instructions. 2026:MLHC:981 2026:MLHC:981

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30. As the main issues have been discussed, the other contentions

raised though ancillary, in the opinion of this Court are not necessary to be

gone into at this juncture. The judgments placed by the parties though noted,

are not discussed as this writ petition is being disposed of on the short points

as adjudicated above.

31. The exercise shall be completed within a period of six weeks

from the date of receipt of a certified copy of this order.

32. The respondents shall thereafter reconsider the petitioner's case

for all consequential service benefits, including promotion, if otherwise due,

in accordance with the result of the aforesaid exercise and applicable rules.

33. It is clarified that this Court has not expressed any opinion on

the petitioner's entitlement to promotion on merits and the competent

authority shall take an independent decision in accordance with law.

34. The writ petition is accordingly allowed in part in the above

terms.

35. No order as to costs.

JUDGE

Meghalaya

03.09.2026

“V. Lyndem- AR-PS” 2026:MLHC:981 2026:MLHC:981