No. S/356885L Warrant ... vs The Union Of India And 2 Ors
2021 Latest Caselaw 1540 Gua

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GAHC010050882021




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : WP(C)/2140/2021

            NO. S/356885L WARRANT OFFICER/CIPHER LAXMAN PUN
            S/O. D.R. PUN, VILL. EX SERVICEMEN COLONY KIMIN, P.O. KIMIN, DIST.
            NORTH LAKHIMPUR, ASSAM, PRESENTLY SERVING AT 16TH ASSAM
            RIFLES C/O. 99 APO, PIN-932016.



            VERSUS

            THE UNION OF INDIA AND 2 ORS
            REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME
            AFFAIRS, NORTH BLOCK NEW DELHI-110001.

            2:THE DIRECTOR GENERAL ASSAM RIFLES SHILLONG

             MEGHALAYA- PIN-973011.

            3:THE COMMANDANT 16TH ASSAM RIFLES
             C/O. 99 APO
             PIN-932016

Advocate for the Petitioner   : MR V KUMAR

Advocate for the Respondent : ASSTT.S.G.I.
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                                    BEFORE
                    HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                             ORDER

Date : 30.04.2021

Heard Mr. B. Pathak, learned counsel for the petitioner and Mr. S.K. Medhi, learned CGC appearing for the respondents.

2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the impugned order No. 1.36011/Rec-02/2021/966 dated 30.01.2021 (Annexure-

6) thereby retiring him on completing 30 years of qualifying service w.e.f. afternoon on 01.05.2021.

3. The learned CGC has raised a preliminary issue of lack of territorial jurisdiction of this Court to entertain the writ petition on the ground that the petitioner was posted within the

State of Manipur and serving at 16th Assam Rifles, C/O 99 APO, Pin 932016.

4. Countering the said preliminary issue, the learned counsel for the petitioner has submitted that the petitioner is a resident of district North Lakhimpur, Assam and, as such, this Court would have territorial jurisdiction to entertain the present writ petition.

5. The learned counsel for the petitioner has submitted that as per the show cause notice dated 07.07.2020, the petitioner is sought to be not retained beyond 30 years of qualifying service in view of the existing ACR criteria. It is submitted that as per the stand taken in the affidavit-in-opposition, the respondents had categorically stated in paragraph 15 thereof that as per para 37 of Records Office Instruction No.5 of 1997, ACR is not required to be shown to the non-commissioned officers. In this connection, it is submitted that if as per entries made in the ACR, there is an entry of "not recommended for promotion" it would amount to adverse entry as it would adversely affect his service career. Accordingly, it is submitted that Page No.# 3/7

un-communicated adverse entry in the ACR cannot be relied upon to the compulsory retire the petitioner on completion of 30 years of service. In support of his contention that un- communicated ACR cannot be relied upon, the learned counsel for the petitioner has relied on the following cases, viz., (1) Devdutt Vs. Union of India, (2008) 8 SCC 725 , (2) Abhijit Ghosh Dastidar Vs. Union of India, (2009) 16 SCC 146 , (3) Sukhdev Singh Vs. Union of India, (2013) 9 SCC 573, (4) Sheo Balak Singh Vs. Union of India, (2016) 3 GLR 573 , as affirmed by the Division Bench of this Court vide judgment and order dated 03.08.2017 in WA 224/2016, The Union of India & Ors. Vs. Sheo Balak Singh .

6. Per-contra, the learned CGC has relied on the Records Office Instruction No. 1 of 2004 and 2 of 2005 dated 21.08.2015 and it is submitted that as per para 3 thereof, the Assam Rifles Personnel must have the following criteria:

(a) ACRs

(i) Out of last five ACRs grading minimum three report should be "High Average".

                 (ii)          Rest two report should not be below "Average".

                 (iii)        Should be recommended for promotion in all five reports.

(b) Med Standard. JCO's/ NCO's should be med category Sharp, except battle casualties.

(c) Discipline

(i) JCO's/ NCO's should not be involved in any disciplinary cases.

(ii) No discp cases pending/ contemplated against the JCO's/ NCO's at the time of review.

(iii) Integrity of the JCO's/ NOC's should not be doubtful.

(iv) No vigilance complaints is pending against him.

(d) Recommended to be endorsed by IO/RO/SRO has been asked separately for service review keeping the aspect specified in this instrs.

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7. The learned CGC has referred to statement made in paragraph 3 of the affidavit-in- opposition and it is submitted that out of five ACR for the years 2014-15 to 2018-19, the petitioner was not recommend for promotion for the period from 01.09.2016 to 31.08.2017 and therefore, in terms of the Records Office Instruction No. 1 of 2004 and 2 of 2005, the petitioner did not meet the ACR criteria to be considered for promotion and it is submitted that as per Records Office Instruction No. 5 of 1997, as the petitioner did not receive any below average figurative assessment, the ACR including non-recommendation for promotion was not required to be communicated to the petitioner. To counter the case laws submitted by the learned counsel for the petitioner, the learned CGC has also placed reliance on the case of Abhijit Ghosh Dastidar (supra).

8. In view of the nature of grievance raised in the present writ petition, this writ petition stands admitted for hearing, keeping the issue of territorial jurisdiction open.

9. In connection with the territorial jurisdiction, the Court is inclined to observe that this writ petition was moved on 10.03.2021 and the matter was thereafter listed on 19.04.2021 and 29.04.2021 and only with the filing of affidavit-in-opposition today, the issue of territorial jurisdiction has been taken up when the petitioner is to superannuate on 01.05.2021. Moreover, as the petitioner is a resident of State of Assam, the Court is of the considered opinion that the respondent should not be prejudiced if the matter is taken up by this Court for the time being till the issue of territorial jurisdiction is decided on the next date of listing.

10. Considered the prayer for interim relief.

11. At the outset, it would be relevant to quote paragraph 37 of the Records Office Instruction No. 5 of 1997 hereinbelow:

"37. ACRS will not be shown to the NCOs concerned. Adverse remark, weak Page No.# 5/7

points or/ and below Average figurative assessment in any quality under para 12 of ACR form will be communicated in writing in the form of a letter to the NCOs concerned by the Initiating Officers. In case the IO is posted out or is not available, the unit concerned will be responsible for communicating the weak points/ adverse remarks/ below average figurative grading in any quality to the NCO concerned. A copy of the communication duly signed and dated by the NCO and countersigned by the IO or the Officer communicating the same, will be enclosed with the ACRs. Letter No and date under which the same are communicated will be mentioned against para 17 of part II of ACR form. Recommendation/ Non-recommendations for promotion and overall grading will not be communicated."

12. Seen the records produced by the learned CGC, specifically the ACR for the period from 01.09.2016 to 31.08.2017, wherein the concerned officials have not recommended the petitioner for promotion at paragraph 15(b) of the ACR.

13. On joint reading of paragraph 37 of Records Office Instruction No. 5 of 1997 and paragraph 3 of Records Office Instruction No.1 of 2004 and 2 of 2005, it prima-facie appears that recommendation/ non-recommendation for promotion and overall grading "average" figurative assessment was not required to be communicated to the petitioner. The records produced by the learned CGC discloses that for the period of 01.09.2016 to 31.08.2017, the ACR contains remark that the petitioner is not recommended for promotion.

14. It must be mentioned that in the case of Dev Dutt (supra), Sukhdev Singh (supra) and Sheo Balak Singh (supra), the Supreme Court of India had held with no uncertain terms that not only adverse entry, but every entry in the ACR of a public service must be communicated to him within a reasonable period whether it is poor, fair, average, good or very good entry. In the case of Dev Dutt (supra), the appellant was in service of Boarder Roads Engineering Service. In the case of Sukhdev Singh (supra), the appellant was appointed as Deputy Page No.# 6/7

Director of Training and in the case of Sheo Balak Singh (supra), he was serving as Superintending Engineer in the Boarder Roads Engineering Service. In the present case in hand, the petitioner is the member of the Armed Force under the Assam Rifles. It would be relevant to refer to the case of Abhijit Ghosh Dastidar (supra), which was decided by the Supreme Court of India with a three Judge Bench Coram. Paragraphs 7 and 8 thereof are quoted below:

"7. It is not in dispute that CAT, Patna Bench passed an order recommending the authority not to rely on the order of caution dated 22-9-1997 and the order of adverse remarks dated 9-6-1998. In view of the said order, one obstacle relating to his promotion goes.

8. Coming to the second aspect, that though the benchmark "very good" is required for being considered for promotion, admittedly the entry of "good" was not communicated to the appellant. The entry of "good" should have been communicated to him as he was having "very good" in the previous year. In those circumstances, in our opinion, non-communication of entries in the annual confidential report of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances of promotion or getting other benefits. Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution. The same view has been reiterated in the abovereferred decision (Dev Dutt case [(2008) 8 SCC 725 : (2008) 2 SCC (L&S) 771 : (2008) 7 Scale 403] , SCC p. 738, para 41) relied on by the appellant. Therefore, the entries "good" if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him."

15. The observation made in paragraph 4 creates a distinction between civil, judicial, police or any other service on one hand and services under the Armed Forces on the other. Therefore, the ratio of cases cited by the learned counsel for the petitioner is found to be distinguishable when it comes to non-communication of entries in the ACR of person who is the member of the Armed Forces.

16. Therefore, in light of the observations made by Supreme Court of India in paragraph 4 of the case of Abhijit Ghosh Dastidar (supra), this is not found to be a fit case for passing any interim order so as to stay the operation of the impugned order dated 30.01.2021. However, it is provided that in the event the writ petition is decided in favour of the petitioner, the Page No.# 7/7

petitioner would become entitled for consequential relief which would flow from interference, if any, with the impugned order dated 30.01.2021.

17. 2(two) weeks time is granted to the petitioner to file affidavit-in-reply, if so advised. The respondents are at liberty to file any document on which they intend to rely for the purpose of hearing by way of affidavit.

18. Records produced today is retained.

19. List after 2(two) weeks on a date to be fixed by the office.

JUDGE

Comparing Assistant