Gauhati High Court
Page No.# 1/6 vs Union Of India And 2 Ors on 9 August, 2024
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/6
GAHC010019392024
2024:GAU-AS:7760
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/695/2024
GURMIT SINGH @ GURMIT SINGH JARIAL
S/O- LATE MEHAR SINGH, RETIRED FROM SERVICE AS HAVILDAR/GD
(GENERAL DUTY) FROM 43RD ASSAM RIFLES C/O 99 APO, PIN- 932043
VERSUS
UNION OF INDIA AND 2 ORS
REPRESENTED BY THE SECRETARY THE GOVERNMENT OF INDIA,
MINISTRY OF HOME AFFAIR NEW DELHI- 110001
2:THE DIRECTOR GENERAL
ASSAM RIFLES
HEAD QUARTER DIRECTORATE GENERAL
ASSAM RIFLES SHILLONG 11
3:THE COMMANDANT
43RD ASSAM RIFLES
C/O 99 APO
PIN- 93204
Advocate for the Petitioner : MS. S BORA, MR. P BORAH
Advocate for the Respondent : DY.S.G.I., MR. U K GOSWAMI
BEFORE
Hon'ble MR. JUSTICE SANJAY KUMAR MEDHI
Advocate for the petitioner : Ms. S. Bora, Advocate.
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Advocate for the respondents : Shri U.K. Goswami, CGC.
Date of hearing : 09.08.2024
Date of Judgment : 09.08.2024
Judgment & Order
The grievance raised in this petition filed under Article 226 of the
Constitution of India is pertaining to denial of MACP. The primary contention is
that such denial is on the basis of certain gradings in the ACRs which according
to the petitioner were not communicated.
2. I have heard Ms. S. Bora, learned counsel for the petitioner. I have also
heard Shri U.K. Goswami, learned CGC, who has also filed affidavit-in-opposition
on 23.07.2024.
3. Ms. Bora, the learned counsel has submitted that the petitioner was initially
enrolled in the Assam Rifles on 17.09.1988 as Rifleman/G.D.(General Duty). The
grievance of the petitioner is that even after completion of 30 years of qualifying
service, he was deprived of the 3 rd MACP benefit. It is stated that he retired
from service on 01.10.2018 after completion of 30 years 13 days.
4. The specific case of the petitioner, as contended by the learned counsel, is
that the grant of MACPs were based on the gradings of the ACRs and such
gradings were not communicated. It is submitted that communication of the
gradings in ACRs in a mandatory requirement and a legal obligation by which
the employee gets an opportunity to file representation for upgrading the
gradings as well as to improve his performance.
5. The learned counsel has relied upon the following decisions on the aspect
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of the requirement to communicate the gradings of ACRs:-
i. Dev Dutt Vs Union of India and Ors reported in (2008)
8 SCC 725
ii. Anil Kumar Vs Union of India & Ors reported in 2019
(4) SCC 276.
iii. Sukhdev Singh Vs Union of India & Ors. reported in
(2013) 9 SCC 566.
6. Per contra, Shri Goswami, the learned CGC has submitted that the gradings
of the ACRs of the petitioner were not the sole reason for the impugned action.
He submits that the grant of the 3 rd MACP to the other incumbents were done
by following the procedure established in law and in a fair manner and none of
the said incumbents have been made parties. He has also highlighted the aspect
that it is not only the petitioner but certain other persons like him have been
denied grant of the 3rd MACP in the exercise performed.
7. The rival submissions have been duly considered.
8. Grant of MACPs is dependent on various factors out of which the gradings
in the ACRs is one of the major factors. That brings us to the aspect of the
importance of such gradings and the legal obligation of the employer to
communicate the gradings in terms of the settled law.
9. The Hon'ble Supreme Court in the case of Anil Kumar (supra), after
considering the earlier judgments holding the field, had reiterated the
requirement of an opportunity to be granted to an employee to submit
representation in respect of the ACRs. For ready reference, the relevant
observations are extracted hereinbelow:
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"10. In Dev Dutt v. Union of India a two-Judge Bench of this Court held
that fairness in public administration and transparency require that all
entries in the Annual Confidential Reports of a public servant must be
communicated within a reasonable period in order to enable the
employee to make a representation for upgradation. The view of the
Court was that non-communication of entries in the ACRs has civil
consequences since it may affect the chances of the employee for
promotion and other benefits. A failure to communicate would be
arbitrary. This Court held that these directions would apply to employees
of statutory authorities, public sector corporations and other
instrumentalities of the State, in addition to government servants.
11. A three-Judge Bench of this Court has in Sukhdev Singh v. Union of
India affirmed the correctness of the view taken in Dev Dutt noting that
an earlier three-Judge Bench in Abhijit Ghosh Dastidar v. Union of India
had adopted the same principle.
12. The three-Judge Bench in Sukhdev Singh, held thus :
'8. In our opinion, the view taken in Dev Dutt that every
entry in ACR of a public servant must be communicated to
him/her within a reasonable period is legally sound and helps
in achieving threefold objectives. First, the communication of
every entry in the ACR to a public servant helps him/her to
work harder and achieve more that helps him in improving
his work and give better results. Second and equally
important, on being made aware of the entry in the ACR, the
public servant may feel dissatisfied with the same.
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Communication of the entry enables him/her to make
representation for upgradation of the remarks entered in the
ACR. Third, communication of every entry in the ACR brings
transparency in recording the remarks relating to a public
servant and the system becomes more conforming to the
principles of natural justice. We, accordingly, hold that every
entry in ACR--poor, fair, average, good or very good--must
be communicated to him/her within a reasonable period.'
..."
10. The materials on record however do not indicate that the gradings were
communicated to the petitioner.
11. In view of the above, this Court is of the considered opinion that the
petitioner be given a chance to submit adequate representation on the aforesaid
gradings of the ACRs so as to convince the employer to make a higher grading.
At the same time, this Court as observed above, also records that the other
aspects of grant of MACPs are also to be taken into consideration by the
employer. In fact, in the aforesaid case of Anil Kumar (supra), the
observations made as quoted hereinbelow would also be relevant.
"17. The grant of MACP benefit is not a matter of right and it is after the Screening
Committee finds that the officer meets the benchmark that an upgradation can be
granted."
12. The grant of MACP benefit is not a matter of right and it is after the
Screening Committee finds that the officer meets the benchmark that an
upgradation can be granted.
13. In view of the aforesaid discussions, the writ petition is disposed of by
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giving liberty to the petitioner to submit a representation on those gradings of
the ACRs which according to the petitioner is not as per his performance. Such
representation may be filed within a period of 15 (fifteen) days from today and
on submission of such representation, the same is directed to be considered and
disposed of by a reasoned/speaking order which is required to be
communicated to the petitioner. The respondents are also directed to take
consequential action in case the representation is favourably considered. The
aforesaid exercise be completed expeditiously and preferably within a period of
2 (two) months from the date of receipt of the representation.
14. Writ petition is disposed of.
JUDGE
Comparing Assistant
