Hari Das vs The Union Of India And 10 Ors
2022 Latest Caselaw 4167 Gua

                                                               Page No.# 1/7

GAHC010238762019




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

                          Case No. : WP(C)/2376/2020

         HARI DAS
         S/O- LATE JAMVA DAS
         VILL- PUKHARI GRAM
         P.O- KUMAR GRAM, DIST- JALPAIGURI.
         WEST BENGAL
         PRESENTLY SERVING AS HAVILDAR/GD IN THE 11TH ASSAM RIFLES
         C/O- 99 APO
         PIN- 932011

          VERSUS

         THE UNION OF INDIA AND 10 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
         11TH ASSAM RIFLES
          C/O- 99 APO
          PIN- 932011

          4:G/115214 WO/GD S K MANDAL
         11TH ASSAM RIFLES
          C/O- 99 APO
          PIN- 932011
                                                                               Page No.# 2/7

            5:G/115261 WO/GD VISWANATH PRASAD
           11TH ASSAM RIFLES
            C/O- 99 APO
            PIN- 932011

            6:G/114769 WO/GD HARPAL SINGH
           11TH ASSAM RIFLES
            C/O- 99 APO
            PIN- 932011

            7:G/114797 WO/GD UDAY KUMAR THAPA
           11TH ASSAM RIFLES
            C/O- 99 APO
            PIN- 932011

            8:G/114800 WO/GD SHER SINGH
           11TH ASSAM RIFLES
            C/O- 99 APO
            PIN- 932011

            9:G/115216 WO/GD MEGH SINGH
           11TH ASSAM RIFLES
            C/O- 99 APO
            PIN- 932011

            10:G/114894 WO/GD PUSHKAR SINGH GUSAIN
           11TH ASSAM RIFLES
            C/O- 99 APO
            PIN- 932011

            11: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 10 ORS


                                 BEFORE
               HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

                                         ORDER

Date : 31-10-2022

Heard Ms. S. Bora, learned counsel appearing for the petitioner. Also heard Mr. A.K.

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Dutta, learned CGC appearing for therespondent Nos.1, 2 & 3. No one appears for respondent Nos.4 to 11, 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 ACRs for the period 2014-2015 and 2015- 2016.

3. The petitioner's counsel submits that the non-communication of the petitioner's ACRs for the period 2014-2015 & 2015-2016 and the subsequent denial of promotion due to uncommunicated ACRs 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 2014-2015 & 2015-2016 ACRs, so as to enable the petitioner to make a representation against the entries/grading given to the petitioner.

4. Mr. A.K. Dutta, learned CGC, on the other hand, submits that the grading of "Average" given in the petitioner's ACRs for the year 2014-2015 & 2015-2016 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 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, the last 5(five) years' ACRs are to be considered.

7. In terms of the guidelines, the petitioner has to secure the Benchmark of "Very Good" (Above Average or High Average) in the first 3 (three) ACR gradings and the grading of not below "Average" (Good) for the remaining 2(two) ACRs. The equivalent gradings in respect of Outstanding, Very Good, Good etc. vis-à-vis the words used in the Assam Rifles, is Page No.# 4/7

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 5 ACRs for the year 2013-2014 to 2017-2018 were considered by the respondents. The petitioner secured the required Benchmark in all his ACRs, except for the year 2014-2015 and 2015-2016, where he secured the ACR grading of "Average" which was equivalent to "Good".

The fact that the petitioner was not communicated the gradings in his ACRs for the period 2014-2015 & 2015-2016 is not disputed by the parties.

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 Page No.# 5/7

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 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 Page No.# 6/7

its employees. Only then would good governance be possible.

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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 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 2014-2015 & 2015-2016 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 year 2014-2015 & 2015-2016 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 ACRs. If the Entries/Grading for the ACRs 2014-2015 & 2015-2016 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 Page No.# 7/7

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