Gauhati High Court
Madan Lal vs The Union Of India And 17 Ors on 31 October, 2022
Page No.# 1/7
GAHC010238762019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. :WP(C)/2427/2020
MADAN LAL
S/O- LATE SUKH RAM
VILL- SEENBAL
P.O- KAPAHRA
DIST- BILASPUR
HP
PRESENTLY SERVING AS A HAVILDAR/GD IN THE 11TH ASSAM RIFLES
C/O- 99 APO
PIN- 932011
VERSUS
THE UNION OF INDIA AND 17 ORS
REP. BY THE SECRETARY TO THE GOVT OF INDIA
MIN OF HOME AFFAIRS
NEW DELHI- 110001
2:THE DIRECTOR GENERAL
ASSAM RIFLES
HQ DG
ASSAM RIFLES
SHILLONG- 11
3:THE COMMANDANT
11TH ASSAM RIFLES
C/O- 99 APO
PIN- 932011
4:G/115093 WO/GD TEK CHAND
11TH ASSAM RIFLES
C/O- 99 APO
PIN- 932011
5:G/115261 WO/GD VISHWANATH PRASAD
11TH ASSAM RIFLES
C/O- 99 APO
Page No.# 2/7
PIN- 932011
6:G/115214 WO/GD S K MANDAL
11TH ASSAM RIFLES
C/O- 99 APO
PIN- 932011
7:G/114711 WO/GD KAMLESH CHANDRA
11TH ASSAM RIFLES
C/O- 99 APO
PIN- 932011
8:G/114725 WO/GD JOYMAN GURUNG
11TH ASSAM RIFLES
C/O- 99 APO
PIN- 932011
9:G/2068 A WO/GD MADAN MOHAN
11TH ASSAM RIFLES
C/O- 99 APO
PIN- 932011
10:G/115140 WO/GD BISWAJIT DAS
11TH ASSAM RIFLES
C/O- 99 APO
PIN- 932011
11:G/115176 WO/GD SWINDER SINGH
11TH ASSAM RIFLES
C/O- 99 APO
PIN- 932011
12:G/115214 WO/GD S K MANDAL
11TH ASSAM RIFLES
C/O- 99 APO
PIN- 932011
13:G/114789 WO/GD HARPAL SINGH
11TH ASSAM RIFLES
C/O- 99 APO
PIN- 932011
14:G/114797 WO/GD UDAY KUMAR THAPA
11TH ASSAM RIFLES
C/O- 99 APO
PIN- 932011
15:G/114800 WO/GD SHER SINGH
11TH ASSAM RIFLES
C/O- 99 APO
PIN- 932011
16:G/115216 WO/GD MEGH SINGH
11TH ASSAM RIFLES
C/O- 99 APO
PIN- 932011
17:G/114894 WO/GD PUSHKAR SINGH GUSAIN
11TH ASSAM RIFLES
C/O- 99 APO
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PIN- 932011
18:G/114894 WO/GD SITAB SINGH
11TH ASSAM RIFLES
C/O- 99 APO
PIN- 932011
------------
Advocate for : MS. S BORA
Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA AND 17 ORS
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
Date : 31-10-2022
Heard Ms. S. Bora, learned counsel appearing for the petitioner. Also heard Ms. A.
Gayan, learned CGC appearing for the respondent Nos.1, 2 & 3. No one appears for
respondent Nos.4 to 18, even though notices were issued to them.
2. The petitioner is aggrieved in not being promoted from the post of Havildar (GD) to
Warrant Officer/GD (General Duty) while his juniors were promoted. The grievance of the
petitioner is that the petitioner has not been promoted on account of the petitioner not
securing the Benchmark in his un-communicated ACR for the period 2015-2016 and 2016-
2017.
3. The petitioner's counsel submits that the non-communication of the petitioner's ACRs
for the period 2015-2016 & 2016-2017 and the subsequent denial of promotion due to
uncommunicated ACR has prejudiced the petitioner. He submits that in terms of the judgment
of the Apex Court in Dev Dutt Vs. Union of India and Others, reported in (2008) 8 SCC
725, the petitioner should have been communicated with the gradings given in the 2015-
2016 and 2016-2017 ACR, so as to enable the petitioner to make a representation against the
entries/grading given to the petitioner.
4. Mr. A. Gayan, learned CGC, on the other hand, submits that the grading of "Below
Average" was adverse, but the grading of "Average" given in the petitioner's ACR for the year
2016-2017 is not an adverse grading and as such, there was no requirement for the
respondents to communicate the said grading to the petitioner. Further, in terms of Para 41
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of the Record Office Instruction No.4/97 pertaining to Annual Confidential Report : JCOs
issued by the Directorate General, Assam Rifles, the non-recommendation for promotion is
not required to be communicated to the JCO.
5. I have heard the learned counsels for the parties.
6. As per pleadings, it is seen that in terms of the latest guidelines applicable to the
Assam Rifles Personnel, for promotion from the post of Havildar/GD to Warrant
Officer/General Duty, the last 5(five) years' ACRs are to be considered.
7. In terms of the ACR criteria for the DPC 2019, a person has to secure "Very Good"
(Above Average or High Average) in the first three ACRS. The grading in the remaining 2
ACRs should not be below Average (Good). In the revised guidelines i.e. the ACRs for the
DPC 2020, a candidate has to secure the Benchmark of "Very Good" (Above Average or High
Average) in the first 4 (four) ACR gradings and the grading of not below "Good" for the
remaining 1(one) ACRs. The equivalent gradings in respect of Very Good, Good etc. vis-à-vis
the words used in the Assam Rifles, is reproduced in a chart hereinbelow, as follows:-
Points of ACR Grading Equivalence
04 points Above Average Very Good
03 points High Average Very Good
02 points Average Good
01 point Below Average Zero
8. The petitioner's 6 ACRs for the year 2013-2014 to 2018-2019 were considered by the
respondents by the DPC in the year 2019 and 2020. The petitioner secured the required
Benchmark in all his ACRs, except for the year 2015-2016 where he secured "Below Average"
which was equivalent to "Zero" and in 2016-2017, where he secured the ACR grading of
"Average", which was equivalent to "Good". Thus for the DPC 2019, the petitioner's ACR for
the year 2015-2016 was below the benchmark and for the DPC 2020, the 2015-2016 ACR and
2016-2017 ACR were below the benchmark.
The fact that the petitioner was not communicated the gradings in his ACRs for the
period 2015-2016 & 2016-2017 is not disputed by the parties.
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9. In the case of Dev Dutt (supra), the Apex Court has held that every entry (and not
merely a poor or adverse entry) must be communicated to an employee under the State or
other service. It further held that even if there was no benchmark, non-communication of an
entry may adversely affect the employee's chances of promotion or getting some other
benefit. It also held that communication of an entry would enable the employee concerned to
have an opportunity of making a representation against the entry, if he feels it justified and
prays for it's upgradation. It thus held that non-communication of an entry was arbitrary and
was violative of Article 14 of the Constitution as held by the Constitution Bench of the Apex
Court in Maneka Gandhi vs. Union of India, reported in (1978) 1 SCC 248. The Apex
Court further held that when an entry is communicated to a public servant, he should have a
right to make a representation against the entry to the authority concerned and the authority
concerned must decide the representation in a fair manner and within a reasonable period. It
also held that the representation must be decided by an authority higher than the one who
gave the entry, otherwise there was a likelihood that the representation would be summarily
rejected without adequate consideration, as it would be an appeal from Caesar to Caesar. It
further held that when an entry is upgraded on the basis of a representation made by a
Government servant, the departmental promotion committee should consider the same.
10. Paragraphs 13, 17, 37 & 41 of the judgment in Dev Dutt (supra) is reproduced below :
"13. In our opinion, every entry (and not merely a poor or adverse entry) relating to an
employee under the State or an instrumentality of the State, whether in civil, judicial, police or
other service (except the military) must be communicated to him, within a reasonable period,
and it makes no difference whether there is a bench mark or not. Even if there is no benchmark,
non-communication of an entry may adversely affect the employee's chances of promotion (or
getting some other benefit), because when comparative merit is being considered for promotion
(or some other benefit) a person having a 'good' or 'average' or 'fair' entry certainly has less
chances of being selected than a person having a 'very good' or 'outstanding' entry.
....................................
17. In our opinion, every entry in the A.C.R. of a public servant must be communicated to
him within a reasonable period, whether it is a poor, fair, average, good or very good entry.
This is because non-communication of such an entry may adversely affect the employee in two
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ways: (1) had the entry been communicated to him he would know about the assessment of his
work and conduct by his superiors, which would enable him to improve his work in future (2)
he would have an opportunity of making a representation against the entry if he feels it is
unjustified, and pray for its upgradation. Hence non-communication of an entry is arbitrary,
and it has been held by the Constitution Bench decision of this Court in Maneka Gandhi vs.
Union of India (supra) that arbitrariness violates Article 14 of the Constitution.
.................. ..................
37. We further hold that when the entry is communicated to him the public servant should
have a right to make a representation against the entry to the concerned authority, and the
concerned authority must decide the representation in a fair manner and within a reasonable
period. We also hold that the representation must be decided by an authority higher than the
one who gave the entry, otherwise the likelihood is that the representation will be summarily
rejected without adequate consideration as it would be an appeal from Caesar to Caesar. All
this would be conducive to fairness and transparency in public administration, and would result
in fairness to public servants. The State must be a model employer, and must act fairly towards
its employees. Only then would good governance be possible.
.................. ..................
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 noncommunication would be
arbitrary, and as such violative of Article 14 of the Constitution."
11. Para 40 of the Record Office Instruction No.4/97 states that weak point/ adverse
remarks in the ACR will be communicated in writing to the JCOs, which reads as follows,
"40. Weak point/Adverse Remarks of Reporting Officer in the CR will be communicated to
the JCO in writing. Remarks of Reviewing/Senior Reviewing Officer, where applicable, will be
communicated in writing through the Initiating Officer."
12. Though Para No.41 of the Record Office Instruction No.4/97 provides that non-
recommendation for promotion by the Reporting Officer will not be communicated to the
concerned JCO, the weak points/adverse remarks have to be communicated in terms of Para
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40 of Record Office Instruction No.4/97.
13. Keeping in view the judgment of the Apex court in Dev Dutt (supra) and Paragraph
40 of the Record Office Instruction No.4/97, this Court finds that the weak point and the
grading given in the uncommunicated ACRs for the period 2015-2016 & 2016-2017 should
have been communicated to the petitioner.
14. The respondents are accordingly directed to communicate the entries and grading
given to the petitioner, in his ACRs for the years 2015-2016 & 2016-2017 and by giving him
an opportunity to make a representation against the same within 1 (one) month from today.
The petitioner's representation, if any, should thereafter be decided by an authority, higher
than the Reporting authority who gave the entry in the ACR. If the Entries/Grading for the
ACRs for the years 2015-2016 & 2016-2017 are upgraded, a review DPC should be
constituted, to consider the promotion of the petitioner to the post of Warrant Officer (GD)
from the date when his juniors were promoted.
15. The writ petition is accordingly disposed of in terms of the above observations and
directions. The entire exercise should be concluded within a period of 3 (three) months from
the date of receipt of a certified copy of this order.
JUDGE
Comparing Assistant
