WP(C)/68/2021 of JC No.3000886L NB SUB L.S. SINGH Vs THE UNION OF INDIA AND 6 ORS. on 9 September 2024

J U D G M E N T

1. The petitioner herein being aggrieved by the Speaking Order No.LS Singh/UPAO-Legal/1126/2019/2454 dated 29.01.2020 by which therepresentation dated 30.09.2019 filed by him for upgradation of his ACRgrading and/or to ignore the weak points found therein was rejected asdevoid of merit, has now approached this Court with this petition underArticle 226 of the Constitution of India with a prayer for issuance of awrit in the nature of mandamus and/or certiorari by setting aside the saidimpugned Speaking Order and for grant of promotion with allconsequential benefits thereof.

2. Background facts as is seen from the petition and the materials onrecord is that the petitioner was enrolled in the Assam Rifles on 21.05.1986 as Rifleman (GD). In due course he was promoted to therank of Naik w.e.f. 02.04.1995 and again, he was further promoted to therank of Havildar/GD w.e.f. 10.10.1997. On 01.09.2007 he was finallypromoted to the rank of Nb Subedar.

3. It is an admitted fact of the petitioner that for promotion from therank of Nb Subedar to the rank of Subedar the relevant recruitment rulesunder the Assam Rifles is based on seniority-cum-merit subject to thefulfilment of the following criteria:

a.Should have three years’ service in the rank of Naib Subedar(GD).(GD).

b. Should be in medical category SHAPE-I.

c.Should have passed Map Reading standard I.

4. The petitioner has further stated that for promotion to the rank ofNaib Subedar the ACR criteria framed by the Director General, AssamRifles/respondent No. 2 as found in Record Office Instructions (ROI) 4of 1997 is based on a 9 point basis beginning with 1 point for “BelowAverage” in ascending order to 9 point for “Outstanding”.

5. As per the relevant communication dated 25.06.2012 the ACRcriteria for promotion inter alia from the rank of Naib Subedar toSubedar w.e.f. 01.01.2013 are as follows:

a. Three out of Five ACRs should not be below “Above Average”(i.e. minimum 7 points).(i.e. minimum 7 points).

b. Remaining Two ACRs should not be below “High Average”

(i.e. minimum 5 points).

c. Out of last Five reports, Three must be frombn/ARTC&S/NSG (not applicable to GD Pers forming part ofany AR team of any discipline att to AR/Army/fmn)(Applicable to GD pers only).bn/ARTC&S/NSG (not applicable to GD Pers forming part ofany AR team of any discipline att to AR/Army/fmn)(Applicable to GD pers only).

d. Should have been recommended for promotion in the last five(5) reports.(5) reports.

6. Again, the petitioner has averred that it has come to hisknowledge that in the year 2018 a vacancy arose for the post of Subedarand a DPC was held by the respondent authorities wherein Shri.Hirendra Pathak/respondent No. 7 who was junior to the petitioner wasgranted promotion thereby rendering the petitioner to be superseded.

7. Being aggrieved by such supersession, the petitioner had preferreda writ petition before this Court registered as WP(C) No. 309 of 2018and this Court vide order dated 30.07.2019 had inter alia directed therespondents to communicate the entries made in the relevant ACRs toenable the petitioner to file a representation.

8. The petitioner accordingly filed a representation dated 05.08.2019with a prayer to the respondent authority to upgrade the entries of hisACRs and to consider him for promotion with retrospective effect.However, the said representation was rejected vide order dated03.09.2019.

9. The petitioner then preferred another representation dated30.09.2019 with a prayer for upgradation of his ACR grading and/or to ignore the weak points in his ACR and consequently to grant himpromotion to the rank of Subedar/GD retrospectively w.e.f. 16.07.2018.This too, was rejected vide the order dated 29.01.2020. Hence thispetition.

10. It is however admitted by the petitioner that in course of theseproceedings the petitioner was granted promotion to the rank of Subedar(GD) vide promotion order dated 28.03.2022 w.e.f. 16.04.2022.

11. Heard Mr. P. Nongbri, learned counsel for the petitioner who hassubmitted that with reference to the DPC held in the year 2018 whereinhis junior colleague had been considered for promotion but in his case itwas refused on the ground that he was found lacking in the ACR criteria,the petitioner had approached this Court challenging the said decisionand that this Court vide the order dated 30.07.2019 had directed therespondent authorities to communicate to the petitioner the entries madein the ACR. However, the respondent authorities had instead furnished aone page communication dated 03.09.2019 to him, inter alia, citing thereason as to why he was not considered for promotion, the same beingthat his ACR grading for the year 2013 was 7(Above Average), 2014 -5(High Average), 2015 - 5(High Average), 2016 - 5(High Average), and2017 - 7(Above Average), which according to the respondent authoritieswas found to be inadequate to be considered for promotion as the normlaid down is that to be considered for promotion, a JCO should havebeen graded at least three reports of “Above Average” and two of “HighAverage”.

12. The learned counsel has further submitted that not being satisfiedwith the said communication dated 03.09.2019, the petitioner has filed another representation dated 30.09.2019 wherein it was pointed out thatthe non-consideration of promotion to him on the basis of the ACRgrading has to be considered as adverse/weak report and in terms of thenorms laid down in the “Record Office Instructions (ROI) No. 4/97,instructions at 40 has mandated that weak points/adverse remarks of thereporting officer in the CR must be communicated to the JCO in writingwhich was not done so at the relevant point of time.

13. In this regard, the learned counsel has referred to the case of DevDutt v. Union of India & Ors. reported in (2008) 8 SCC 725, para 12,15, 16 & 17 and the case of Abhijit Ghosh Dastidar v. Union of India &Ors., (2009) 16 SCC 146, para 5, 8 & 10 to submit that non-communication of the relevant entries in the ACR is held to be arbitrary,adversely affecting the promotional aspiration of the concerned official.

14. Another limb of argument advanced by the learned counsel is thatthe ACR for the year 2015-16 which was the ground for refusal ofpromotion of the petitioner was never communicated to him at therelevant point of time but was done so only after more than five years orso, that too on the strength of the order dated 30.07.2019 passed by thisCourt in WP(C) No. 309 of 2018 (supra). This has prejudiced the case ofthe petitioner which has prevented him to file representation at therelevant point of time as the said ACR grading has been relied upon toadversely affect the promotion of the petitioner. It is also the contentionof the petitioner that it is settled law that uncommunicated adverseremarks/reports in the ACR cannot be taken into account if promotion isto be considered. In this regard, the case of Sanjeev Ranjan v. Union ofIndia reported in (2018) 4 Gauhati Law Reports 405, para 15 & 16 and the case of Mohamed Affan Farooqui v. Union of India & Ors., WA No.35/2022 order dated 01.03.2023, High Court of Meghalaya have beencited.

15. As to the impugned order, the learned counsel has submitted thatthe same does not disclose any reasons or findings with regard to theupgradation of the ACR of the petitioner. No reasons was also cited as towhy the grading of petitioner’s ACR was lowered from 7 in the year2013 to 5 in the year 2014 till 2016. The only reason given is that anyalteration or upgradation in the grading earned by the petitioner in hisACR for the year 2013-14, 2014-15 and 2015-16 would set a badprecedence and bad paradigm in the force and the same would reopen alarge number of cases which would not be in the interest of theOrganisation. This, according to the learned counsel is not an acceptableexplanation and by itself is arbitrary and against the essence of the orderdated 30.07.2019 (supra). The case of Coal India Ltd. & Ors v. SarojKumar Mishra, (2007) 9 SCC 625, para 19 is referred to in this regard.

16. It is therefore the prayer of the learned counsel that the saidimpugned Speaking Order under challenge be set aside and quashed andthe petitioner be directed to be promoted to the rank of Subedar (GD)with retrospective effect from the year 2018.

17. In response, Mr. R. Debnath, learned CGC appearing for therespondents in his submission has contended that though the petitionerhas come into the zone of consideration for promotion to the post ofSubedar (GD) in the year 2018, his case, along with other eligiblecandidates was considered by the DPC. However, since he was found tobe lacking in the ACR criteria, the benchmark of which was laid down in the Record Office Instructions (ROI) 4/2002, he was found noteligible to be promoted.

18. The learned CGC has also submitted that for personnel situated asthat of the petitioner to be considered for promotion under the ACRcriteria, one should have secured a grading of three “Above Average”rating and two “High Average” rating for the preceding five years.However, since the petitioner could secure only two “Above Average”and three “High Average” for the years 2012-13 to 2016-17, moreparticularly having been graded “ High Average” for the year 2015-16for which there was a remark that he was ‘lacking for promotion’,therefore, he could not have been promoted to the rank of Subedar.

19. On the contention of the petitioner that he was not made known ofthe grading in the ACRs, particularly that of the year 2015-16, thelearned CGC has submitted that though the petitioner was graded as“High Average” for that year, the same is neither a low figurativeassessment nor adverse in nature, hence there was no requirement forthe said ACR to be communicated to the petitioner.

20. The learned CGC has further submitted that in compliance withthis Court’s order dated 30.07.2019 (supra), the petitioner has filed arepresentation dated 05.08.2019 for upgradation of his entries andconsequent promotion to the post of Subedar. On this representation, thepetitioner was furnished with the relevant ACR grading obtained by himfor the relevant period which was done so vide communication dated03.09.2019 to show that he was found not eligible for promotion.

21. The learned CGC has also submitted that in response to the communication dated 03.09.2019, the petitioner had once again filedanother representation seeking upgradation of his ACR and has alsoraised the issue that because of the alleged non-communication of theACRs to him at the relevant point of time, the same which ought to havebeen counted as an adverse report, the resultant affect has left himwithout an option to file representation at the relevant point of timewhich ought to have been considered by the respondent authorities,however the fact is that the respondent authority has considered thesame and has passed a speaking order dated 29.01.2020 (impugnedherein) and as such, no case can be made out by the petitioner for hispromotion then.

22. Yet another submission made by the learned CGC is that thepetitioner has no case made out in his favour at this juncture, as by hisown admission, he was granted the 3[rd] financial upgradation under theModified Assured Career Progression (MACP) Scheme since the year2016 whereby his pay scale was equivalent to that of a Subedar (GD).

23. As to his promotion to the post of Subedar (GD), the petitionerbeing eligible and having fulfilled all the eligibility criteria, he wasaccordingly promoted as Subedar (GD) vide order dated 28.03.2022w.e.f. 16.04.2022, as such, he could not have had any grievance that hiscase for promotion was not considered, submits the learned CGC.

24. This Court having heard the parties and on perusal of the petitionand other related materials including the counter affidavit filed by therespondents and also on going through the record of proceedings of theDepartment as far as the case of the petitioner is concerned, is made tounderstand that this is the second round of litigation before this Court pursued by the petitioner herein.

25. Facts and circumstances as narrated hereinabove need not berepeated except for emphasis. However, it appears that the petitionerwhen he was serving in the post of Naib Subedar, at the relevant point oftime, that is in the year 2018 when a vacancy for the post of Subedararose, the same being the immediate promotional post, the case of thepetitioner along with other similarly situated Officers was considered bythe Departmental Promotion Committee. Records would show that thepetitioner being found fit in many respects, is however not consideredfor promotion solely on the ground that he lack in the area of ACRcriteria (supra). Therefore, his case for promotion was not consideredand instead his immediate junior who is the respondent No. 7 herein wasfound fit to be promoted.

26. Being aggrieved by such denial for promotion, the petitioner hadapproached this Court with an application under Article 226 of theConstitution of India, the same being registered as WP(C) No. 309 of2018. The main contention of the petitioner in the said application is thatbecause of the adverse and weak report in his ACR, which was nevercommunicated to him to enable him to file a proper representation andsuch non-communication being violative of the procedure laid down inthe ROI No. 4 of 1997, he was denied of his rightful contention to bepromoted to the next higher post.

27. This Court has vide order dated 30.07.2018 disposed of theapplication with the following directions:

“….the respondents authorities are directed to communicate the entries made in the ACR to the petitioner to enable him make arepresentation, if he so, chose within a period of 1 (one) month.The representation so presented will be decided within a period of1 (one) month thereafter in accordance with law. Further, it isdirected that if the entry is upgraded in consideration of therepresentation, the respondents authorities thereafter shallconsider the case of the petitioner for promotion retrospectivelyby holding DPC. The entire exercise shall be within a period of 6(six) months from the date of receipt of the certified copy of thisorder…”

28. In compliance with the said direction of this Court (supra) therespondent authorities have issued a communication to the petitionerdated 03.09.2019 wherein at para 3 of the same is indicated the reasonwhy the petitioner was not recommended for further promotion since hewas lacking in ACR criteria inasmuch as from the year 2013-2017 thepetitioner was graded “Above Average” in only two years and wasgraded “High Average” in three years when he is required to obtain atleast three “Above Average” within the said 5 years’ period.

29. Not being satisfied with this communication dated 03.09.2019 thepetitioner had filed two separate representations which culminated in theresponse of the respondent authorities to the same vide the SpeakingOrder dated 29.01.2020 (impugned herein).

30. It is the case of the petitioner that communication of entries in theACR of a public servant is mandatory since non-communication of thesame would be considered as an arbitrary action being thus violative ofthe provision of Article 14 of the Constitution of India. The case of DevDutt (supra) and other authorities on the same point have been cited bythe petitioner to bring home this point. To be clear on this issue it maynot be out of place to reproduce para 12, 15, 16 and 17 of the said judgment of Dev Dutt (supra) as under:

“12. It has been held in Maneka Gandhi v. Union of India [(1978)1 SCC 248] that arbitrariness violates Article 14 of theConstitution. In our opinion, the non-communication of an entryin the ACR of a public servant is arbitrary because it deprives theemployee concerned from making a representation against it andpraying for its upgradation. In our opinion, every entry in theAnnual Confidential Report of every employee under the State,whether he is in civil, judicial, police or other service (except themilitary) must be communicated to him, so as to enable him tomake a representation against it, because non-communicationdeprives the employee of the opportunity of making arepresentation against it which may affect his chances of beingpromoted (or get some other benefits). Moreover, the object ofwriting the confidential report and making entries in them is togive an opportunity to a public servant to improve hisperformance, vide State of U.P. v. Yamuna Shankar Misra [1997(4) SCC 7]. Hence such non-communication is, in our opinion,arbitrary and hence violative or Article 14 of the Constitution.

15. If we hold that only “poor” entry is to be communicated, theconsequences may be that persons getting “fair'”, “average”,“good” or “very good” entries will not be able to represent for itsupgradation, and this may subsequently adversely affect theirchances of promotion (or get some other benefit).

16. In our opinion if the office memorandum dated 10/11-9-1987,is interpreted to mean that only adverse entries (i.e. “poor” entry)need to be communicated and not “fair”, “average” or “good”entries, it would become arbitrary (and hence illegal) since it mayadversely affect the incumbent's chances of promotion, or getsome other benefit. For example, if the bench mark is that anincumbent must have “very good” entries in the last five years,then if he has “very good” (or even “outstanding”) entries for fouryears, a “good” entry for only one year may yet make himineligible for promotion. This “good” entry may be due to thepersonal pique of his superior, or because the superior asked himto do something wrong which the incumbent refused, or becausethe incumbent refused to do sycophancy of his superior, orbecause of caste or communal prejudice, or for some other extraneous consideration.

extraneous consideration.

17. In our opinion, every entry in the ACR of a public servantmust be communicated to him within a reasonable period,whether it is a poor, fair, average, good or very good entry. This isbecause non-communication of such an entry may adverselyaffect the employee in two ways: (1) Had the entry beencommunicated to him he would know about the assessment of hiswork and conduct by his superiors, which would enable him toimprove his work in future; (2) He would have an opportunity ofmaking a representation against the entry if he feels it isunjustified, and pray for its upgradation. Hence, non-communication of an entry is arbitrary, and it has been held by theConstitution Bench decision of this Court in Maneka Gandhi v.Union of India [(1978) 1 SCC 248] that arbitrariness violatesArticle 14 of the Constitution.”

31. Though the contention of the respondents is that the gradingobtained by the petitioner for the year 2015 and 2016 are “HighAverage”, that is 5 points, the same is neither a low figurativeassessment nor adverse in nature and hence was not communicated tothe petitioner being found not necessary. However, it was preciselybecause of such grading received by the petitioner in the said 5 years’period in question that has adversely affected his promotional prospect.Therefore, as was held in the case of Dev Dutt (supra) and other relatedcases that every entry in the ACR of a public servant whether poor, fair,average, good or very good must be communicated to him/her within areasonable period, to allow such public servant to make a representationfor upgradation etc. of his/her ACR grading, the same would beapplicable to the case of the petitioner.

32. However, this aspect of the matter has been dealt with in the casefiled by the petitioner, that is in WP(C) No. 309 of 2018 and this Courttaking cognizance of the principles as laid down in the case of Dev Dutt (supra) and other related cases has accordingly passed a direction in thisregard calling upon the respondent authorities to communicate the saidACR entries to the petitioner.

33. As a follow-up to the proceedings in WP(C) No. 309 of 2018, thepetitioner not being satisfied with the findings rendered vide theimpugned order dated 29.01.2020 has reiterated his prayer for grant ofpromotion from the post of Naib Subedar to the post of Subedar (GD)w.e.f. 16.07.2018.

34. At this point of time, it is no longer relevant for the petitioner tosay that he was not communicated with the entries in his ACR for therelevant period as the same was covered by the communication dated03.09.2019. In spite of not being satisfied with the said communication,the petitioner has once again approached this Court harping on the sameissue.

35. This Court on careful perusal of the impugned order does not findany infirmity in the same inasmuch as the respondent authority hascovered the entire case of the petitioner and has reiterated that becauseof his inadequate grading in his ACR for the relevant period he couldnot be considered for promotion. His prayer for upgradation of suchentries has not been entertained for which process this Court could findno fault thereof.

36. Be that as it may, the fact that the petitioner was granted financialupgradation in the year 2016 under the MACP Scheme which was notdenied by him, the respondent authority confirming the fact that becauseof the said financial upgradation by which his pay scale was equivalent to the pay scale of a Subedar (GD), therefore, there is no financial lossto the petitioner. It is also brought out in course of these proceedings thatthe petitioner has since been promoted to the post of Subedar (GD)w.e.f. 16.04.2022, therefore, no discrimination is found apparent as faras the petitioner is concerned.

37. In view of the observations made hereinabove, this Court findsthat the petitioner has not been able to make out a case on merits. Thispetition is accordingly devoid of merits and the same is herebydismissed.

Facts

38. It may be mentioned that the authorities cited by the petitioner,some of which are found not applicable to the case of the petitionerand/or such authorities being relevant to the subject matter but notexactly applicable to the factual matrix of the case herein, have not beenextensively discussed by this Court. Suffice it to say that the crux of thematter in this petition having been duly considered and decided,discussion of such authorities if at all, is but academic.

39. The relevant records of the Department produced before thisCourt is directed to be handed over to the learned CGC handling thiscase.

40. Petition disposed of. No costs.

Judge