Gauhati High Court
No. Jc 2900502L Subedar Gd Rabi Charan ... vs Union Of India And 3 Ors on 26 July, 2024
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GAHC010088572023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2516/2023
NO. JC 2900502L SUBEDAR GD RABI CHARAN DEB BARMA
S/O LT. N DEBBARMA PRESENTLY SERVING AS A SUBEDAR/GD GENERAL
DUTY IN THE 42ND ASSAM RIFLES C/O 99 APO PIN 932042
VERSUS
UNION OF INDIA AND 3 ORS
REP.BY THE SECRETARY THE GOVT. OF INDIA MINISTRY OF HOME AFFAR
NEW DELHI-110001
2:THE DIRECTOR GENERAL ASSAM RIFLES
HEAD QUARTER DIRECTORATE GENERAL ASSAM RIFLES SHILLONG 11
3:THE COMMANDANT 42ND ASSAM RIFLES
C/O 99 APO PIN 932042
4:AS PER HON'BLE HIGH COURT ORDER DTD. 13.05.2024 IN IA (C) NO.
1261/2024
THE NAME OF RESPONDENT NO. 4 IS STRUCK OFF
Advocate for the Petitioner : MR V KUMAR
Advocate for the Respondent : DY.S.G.I.
BEFORE
HON'BLE MR. JUSTICE KARDAK ETE
ORDER
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Date :- 26.07.2024.
Heard Mr. B. Pathak, learned counsel for the petitioner. Also heard Ms. B.
Sarma, learned CGC appearing for respondent Nos.1--3.
(2) It is stated at the bar that the name of respondent No.4 was struck off, as
he has retired during the pendency of the Writ Petition, vide order dated
01.04.2024.
(3) By filing this Writ Petition, the petitioner has put to challenge the order of
promotion dated 04.09.2020, whereby the respondent No.4 was promoted
allegedly superseding the petitioner from the post of Subedar/GD to Subedar
Major/GD. The petitioner also challenged the entry/remarks in his ACR, based
on which the respondent has not considered the promotion of the petitioner.
(4) The petitioner is presently serving as a Subedar/GD in the Assam Riffles,
who was initially appointed as a Rifleman on 04.03.1983. He was posted to
different places under the Unit of Assam Riffles. The petitioner was promoted to
the rank of Havildar/GD in the year 1996 and to the rank of Nb Subedar/GD in
the year 2005. Thereafter, he was promoted to the rank of Subedar/GD in the
year 2014.
(5) The petitioner, being eligible to be promoted to the rank of Subedar
Major/GD, made a representation to the respondent authorities for promotion
on 16.11.2022. However, the respondent authority has intimated the petitioner
that he could not be promoted due to lack of ACR for the year 2017-2018 and
other remarks/entries in the ACR of the petitioner.
(6) It is contended that the respondent authorities had promoted the
respondent No.4 vide order dated 04.09.2020, who is junior to the petitioner.
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Aggrieved by the same, the petitioner has filed a representation before the
respondent authority, however, same evoke no response.
(7) Mr. B. Pathak, learned counsel for the petitioner submits that the
intimation by the respondent authority dated 19.11.2022, clearly reflects that
the petitioner was not considered for promotion due to certain entries/remarks
in his ACR, including lack of ACR for the year 2017-2018. He submits that it is a
settled position of law that the authority cannot rely on the remarks in the ACR,
which is not communicated to the petitioner. He further submits that there is no
record to show that such an entries/remarks in the ACR of the petitioner was
ever communicated to him. Therefore, not promoting the petitioner on the basis
of un-communicated entries/remarks in the ACR of the petitioner, is illegal and
as such the authorities may be directed to communicate the entries/remarks in
the ACR of the petitioner, so as to enable him to submit a representation.
(8) In support of his submissions, Mr. B. Pathak, learned counsel for the
petitioner has relied on the judgment of the Hon'ble Supreme Court in the case
of Dev Dutt vs. Union of India and others reported in (2008) 8 SCC 725 and also
the order of this Court in Writ Petition (C) No.8039/2022 ( No.G/2083 Ex
Havildar/GD Hardev Singh Chauhan vas. Union of India and others ).
(9) Ms. B. Sarma, learned CGC, while referring to the affidavit filed on behalf
of the respondent authorities, submits that since there is no adverse remarks in
the ACR of the petitioner, no communication is required, as it is only in the
event of adverse remarks, the entry/grading in the ACR is required to be
communicated. She further submits that for non-consideration of his promotion,
the petitioner has neither approached the authority by filing representation nor
approached this Court at the appropriate stage. Rather he has slept over his
right. Therefore, at this belated stage, no relief can be granted to the petitioner.
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(10) I have considered the submissions of learned counsel for the parties and
perused the materials available on record.
(11) It is no longer res integra that every entry or grading, adverse or not, in
the ACR should be communicated to the officer/officials by the authorities
concerned. In the present case, there is no dispute that the remark in the ACR
was not communicated to the petitioner. The record reveals that the ground of
not promoting the petitioner to the post of Subedar Major/GD is lack of the ACR
for the year 2017-2018 and certain entry/ remarks in the ACR of the petitioner.
(12) Since the non-consideration of the promotion of the petitioner is based on
the lack of ACR for the year 2017-2018 and certain entry/ remarks in the ACR,
non-communication of the same, in my view, has definitely caused prejudice to
the petitioner, even if the entry/grading in the ACR of the petitioner is not
adverse.
(13) Having considered the materials, I am of the considered view that non-
communication of the ACR to the petitioner had an adverse affect as the
respondent authorities have based on such ACR in not promoting the petitioner
from the post of Subedar/GD to Subedar Major/GD.
(14) In view of the above and considering the settled position of law, it is
directed that the respondent authority shall communicate the entry/remarks in
the ACR to the petitioner within a period of fifteen (15) days from today, so as
to enable the petitioner to file a representation against such entry/remarks in
the ACR. If the ACR is not communicated to the petitioner, it is directed that the
respondents shall ignore the un-communicated entry/remark in the ACR of the
petitioner, if the petitioner is otherwise eligible to be considered for promotion to
the post of Subedar Major/GD and his case shall be considered within a period
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of fifteen (15) days, thereafter, in accordance with law.
(15) The above directions are issued considering the fact that the petitioner is
slated to retire on 31.08.2024.
(16) With the above directions, the Writ Petition is disposed of. No order as to
costs.
JUDGE
Comparing Assistant
