Rajesh Kumar vs Union Of India And 4 Ors
2022 Latest Caselaw 4630 Gua

                                                                   Page No.# 1/4

GAHC010192392019




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

                         Case No. : WP(C)/5983/2019

         RAJESH KUMAR
         S/O- RAMESHWAR DAYAL, VILL- SADIK PUR, P.O- SHUKRULLHAPUR,
         DIST- FARRUKHABAD, UP, PRESENT SERVING AS A NO. G/3700117
         WARRANT OFFICER/GD IN THE 42ND ASSAM RIFLES C/O- 99 APO



         VERSUS

         UNION OF INDIA AND 4 ORS
         REP. BY THE SECRETARY TO THE GOVT OF INDIA, MIN OF HOME
         AFFAIRS, NEW DELHI- 110001

         2:THE DIRECTOR GENERAL
         ASSAM RIFLES
          HQ DIRECTORATE GENERAL
         ASSAM RIFLES
          SHILLONG- 11

         3:THE COMMANDANT
          42ND ASSAM RIFLES
          C/O- 99 APO
          PIN- 932042

         4:G/3700120N NAIB SUBEDAR/GD ABRAHAM THOMAS
          37TH ASSAM RIFLES
          C/O- 99 APO
          PIN- 932037

         5:G/ 3700125M NAIB SUBEDAR/GD DURGA BAHADUR CHHETRI
          37TH ASSAM RIFLES
          C/O- 99 APO
          PIN- 93203
                                                                                    Page No.# 2/4

Advocate for the Petitioner   : MS. S BORA

Advocate for the Respondent : ASSTT. S.G.I.




                                 BEFORE
            HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

                                           ORDER

Date : 23-11-2022

Heard Ms. S. Bora, learned counsel for the petitioner and Mr. K. Gogoi, learned counsel for the respondents in the Union of India.

2. The petitioner who was a Rifleman (GD) in the Assam Rifles was subjected to a process for promotion by the DPC in the year 2019, wherein the claim of the petitioner for promotion was refused whereas persons who were below the petitioner in order of seniority were promoted. The petitioner raises a claim that the uncommunicated ACR remarks of the year 2017-18 was taken into consideration while arriving at a conclusion to refuse promotion to the petitioner. Being aggrieved by the refusal of promotion by the DPC of 2019, this writ petition is instituted.

3. The law as to the applicability of an uncommunicated adverse remark in the ACR has been settled by the Hon'ble Supreme Court in its judgment of Dev Dutt Vs. Union of India & Ors., reported in (2008) 8 SCC 725, wherein in paragraph 41, it has been held as extracted:

"41. 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 military), certainly has civil consequences because it may affect his chances for promotion or get other benefits (as already discussed above). Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution."

4. A reading of the provision of para 41 of the judgment of the Hon'ble Supreme Court in Dev Dutt (supra) goes to show that non-communicated Page No.# 3/4

adverse entry in the ACR of a public servant, whether he is in civil, judicial, police or any other service (other than the military), would have adverse civil consequences as because it may affect his chances from promotion or get other benefits. Accordingly, it was held that non-communication of the adverse entry would be arbitrary and in violation of Article 14 of the Constitution of India.

5. In the instant case, as the adverse uncommunicated entry in the ACR of the year 2017-18 was also accepted as a material for arriving at the conclusion to refuse promotion to the petitioner in the DPC of 2019, we are of the view that the respondents have acted in an arbitrary manner as indicated above.

6. Accordingly, the refusal by the DPC of 2019 to grant promotion to the petitioner is set aside and a review DPC be constituted to examine the claim of the petitioner for promotion from Warrant Officer to Naib Subedar in the Assam Rifles. It is stated that the criteria to be followed by the DPC is to take note of the ACR of the last five years which were under consideration. As the adverse entry in the ACR of 2017-18 now cannot be taken into consideration, we require the reconstituted DPC to take note of the available four years of ACR of the petitioner for the last five years when the DPC was held in the year 2019 and take the average of it and interpolate it to be the ACR for the last five years. Upon undertaking the exercise, the DPC shall examine as to whether in doing so, the petitioner would have been entitled for a recommendation for promotion. If the review DPC arrives at its conclusion that by doing it in the correct manner as indicated above, the petitioner would have been entitled for promotion as per the DPC of 2019, appropriate recommendation be made and the consequential benefits of promotion be given to the petitioner with effect from the date the others were promoted pursuant to the DPC of 2019, by also providing the consequential seniority etc., if admissible under the law. On the Page No.# 4/4

other hand, if the review DPC finds that even after adopting the correct method the petitioner would not be entitled for promotion, a reasoned order be passed. The requirement to constitute the review DPC and taking a consequential decision be done within a period of two months from the date of receipt of certified copy of this order.

Writ petition stands disposed of as indicated above.

JUDGE

Comparing Assistant