Mohammed Affan Farooqui vs . Union Of India & 2 Ors.
2022 Latest Caselaw 421 Meg

 Serial No. 01
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                       HIGH COURT OF MEGHALAYA
                              AT SHILLONG

WP(C) No. 266 of 2020
                                            Date of Decision: 02.08.2022

Mohammed Affan Farooqui               Vs.    Union of India & 2 Ors.


Coram:
              Hon'ble Mr. Justice W. Diengdoh, Judge

Appearance:
For the Petitioner/Appellant(s)   :
                               Mr. P. Nongbri, Adv.
                               Mr. M.L. Nongpiur, Adv.
For the Respondent(s)       : Mr. R. Debnath, CGC.

_______________________________________________________________

i) Whether approved for reporting in Yes/No Law journals etc.

ii) Whether approved for publication in press: Yes/No

JUDGMENT AND ORDER

1. On being denied promotion to the post of Commandant in the

Assam Rifles, the petitioner has approached this Court with this petition

under Article 226 with a prayer for issue of a writ in the nature of

mandamus to direct the respondents herein to grant the said promotion with

all consequential benefits including seniority with retrospective effect

from 31.03.2020.

2. According to the petitioner, he is serving as Second-in-

Command (2IC) in Assam Rifles since 31.03.2014 and is due for

promotion to the post of Commandant having completed the minimum

eligibility length of service. One of the criteria for promotion from the post

of 2IC to Commandant as per the provisions of the Assam Rifles Group

'A' Combatised Posts Recruitment Rules, 2001 is by promotion from

amongst the Second-In-Command of Assam Rifles who have minimum

eligible service of 4 years as Second-in-Command and a total of 15 years

Group 'A' service provided they are following acceptable medical

category of SHAPE-1 or relaxation given by the Government to certain

categories from time to time.

3. The procedure to be observed by the Departmental Promotion

Committee (DPC) while considering promotion of personnel of the Assam

Rifles is by noting the Confidential Report (CR) of the incumbent for the

preceding five years, which CR was graded on a nine points system with

9 points awarded to those who are graded 'Outstanding', 8 or 7 points for

'Above Average', 6 or 5 points for 'High Average', 4 points for 'Average',

3 or 2 points for 'Low Average' and 1 point for 'Below Average'.

4. According to the petitioner, on 14.10.2019, the Assam Rifles

convened a DPC for promotion of 2ICs to 8 vacant posts of Commandant.

Vide letter No. Unclass A 1716 dated 31.03.2020, 6 (six) 2ICs have been

granted promotion while the petitioner whose name was also under

consideration was denied promotion apparently due to a shortfall in the

ACR criteria for the year 2015-16.

5. The petitioner has also averred that immediately after the DPC

was held, the ICR/ACR for the period from 01.04.2009 to 31.03.2016

spanning a period of seven years was received by him on 13.01.2020 from

the respondents issued vide letter No. MS/V-R/9-2019/236, dated

29.11.2019. In this regard, it is said that the last ACR pertaining to the

period from 01.04.2015 to 31.03.2016 was communicated to the petitioner

in the year 2019 after three and a half years (42 months) and as such, for

the said delayed communication of the ACR, the ACR for 2015-16 has lost

its purpose and cannot be used to the prejudice of the petitioner.

6. Mr. P. Nongbri, learned counsel for the petitioner while pointing

out the above to this Court, has submitted that the petitioner was prejudiced

when his case for promotion was not considered, firstly, on the basis of the

alleged adverse entries in his ACR pertaining to the year 2015-16 for

which no opportunity was given to him to rebut the same or to be allowed

to improve on his performance, conduct or character as the case may be

and secondly, since on the basis of the un-communicated ACR which

contained the alleged adverse entry, his case for promotion has been

denied.

7. The learned counsel also submits that the delay in

communication of the ACR is a violation of the ACR guidelines which

mandates that the same should be communicated to the concerned officer

or employee within a reasonable period so that he can make any

representation if so required. The delay of non-communication of the ACR

is also a violation of the principles of natural justice, particularly when in

a case such as the petitioner's, promotion was denied on the basis of

adverse entry on an un-communicated ACR.

8. On the contention of the respondents that the petitioner is very

much aware of the adverse entry in his ACR for the year 2015-16, since he

has signed the ACR in the Figurative Assessment and Pen Picture, the

learned counsel for the petitioner has submitted that it is a settled position

of law that the ACR must be communicated to the Ratee and mere signing

of the ACR does not amount to communication, in fact, the petitioner was

made to sign in some blank papers which turned out to be the said ACRs

upon which the adverse entry for the year 2015-16 was entered.

9. The fact that the petitioner was denied promotion to the post of

Commandant due to lack of ACR criteria for the year 2015-16, which ACR

was not communicated to him, therefore the un-communicated adverse

entry in the ACR should have been ignored while considering the case of

promotion of the petitioner as aforesaid. In support of his case, the

petitioner has cited the following decisions: -

(i) Dev Dutt v. Union of India: (2008) 8 SCC 725, paras 12,

15, 16, 17, 26, 33 & 36;

(ii) Abhijit Ghosh Dastidar v. Union of India & Ors: (2009)

16 SCC 146, paras 5, 8 & 10;

(iii) State of Gujarat & Anr. v. Suryakant Chunilal Shah:

(1999) 1 SCC 529, para 25;

(iv) Sukhdev Singh v. Union of India & Ors: (2013) 9 SCC

573, paras 4 to 8;

(v) Nb Sub Karan Singh v. Union of India: 2015 (2) GLT

(ML) 100, paras 10 to 17;

(vi) Union of India v. K.S. Joseph: 2022 SCC Online Megh

68, paras 43 to 45;

(vii) State of Haryana v. P.C. Wadhwa, IPS, Inspector

General of Police & Anr: (1987) 2 SCC 602, para 14.

(viii) Baidyanath Mahapatra v. State of Orissa & Anr: (1989)

4 SCC 664, para 6.

(ix) Sanjeev Ranjan & Ors v. Union of India & Ors: (2018)

4 GLR 405, para 15 & 16.

10. Mr. R. Debnath, learned CGC contradicting the submission and

contention of the learned counsel for the petitioner has submitted that there

is a procedure followed by the Assam Rifles for initiation of ACRs where

the Initiating Officer would call the Ratee to his office and make him read

out his ACR which includes the Figurative Assessment and Pen Picture.

The Ratee would then sign his ACR in front of the Initiating Officer. In

case the Ratee or the Initiating Officer are not physically present, then the

extracts of the Figurative Assessment and Pen Picture are communicated

to the Ratee by post.

11. According to the learned CGC, the petitioner herein as Ratee has

signed his ACR in the presence of the Initiating Officer as could be seen

from the Annexure-A of the affidavit-in-opposition. As to the remarks or

comments about him in the ACR for the year 2015-16, the petitioner was

very much aware and has seen the said comments, inasmuch as, he himself

has signed the same on 01.04.2016 and as such, it cannot be said that he

was never communicated such adverse remarks, in fact, the petitioner was

also aware that a warning letter was issued upon him vide communication

No. 59503/RSD/Pers/2015/141 dated 08.04.2015 which is annexed as

Annexure-N of the affidavit-in-opposition, but inspite of the same, his

conduct did not improve leading to the said comments in his ACR for the

year 2015-16, submits the learned CGC.

12. The learned CGC has again submitted that it was only when the

instructions came from the Ministry of Home Affairs being letter No.

21011/1/2005-Estt(A)(Pt-II) dated 14.05.2009 (Annexure-E) which was

received by the Assam Rifles on 21.11.2017 vide MHA letter No I-

45020/22/2015-Pers-II dated 16.10.2017 (Annexure-F), was the decision

taken by the Assam Rifles that copy of the ACRs/ICRs pertaining to the

years 2009 to 2017 are to be communicated to all personnel, which was

done so in one lot.

13. Due consideration is given to the submission and contention of

the parties. The facts of the case may not be reiterated since the same have

been gathered from the submission of the parties above.

14. The grievance of the petitioner is that he was not promoted to the

post of Commandant allegedly on the respondent/Authority taking into

account the gradings of his ACR for the year 2015-16 in which he was

graded average, having secured a rating of 4 points. The remarks of the

Initiating Officer for the year 2016 as regard the performance of the

petitioner has also indicated that he is an average officer with lot of scope

for improvement and that the work assigned to him needs to be monitored

closely to achieve the desired result. However, the above adverse remarks

and grading were never communicated to the petitioner.

15. On the other hand, the respondent/Authority has maintained that

the petitioner was very much aware of the grading and the remarks made

against him in the ACR, particularly for the year 2016 and as submitted,

the petitioner has penned down his signature on the relevant papers and as

such, he cannot claim ignorance and come before this Court saying that the

said adverse remarks and grading was never communicated to him.

16. In the affidavit-in-opposition at Annexure-K, also found at

Annexure 10 of the petition, annexed copy of the contents of the ACR of

the petitioner for the year 2016 shows that under Part-III Demonstrated

Performance (DP) at Serial No. 13 in which the petitioner/ratee was graded

for his performance under various heads including his aptitude for

application of professional knowledge to assign duties, administrative

ability, responsibility for development and training of his command and

also his ability to delegate responsibilities and to motivate his command

effectively to produce the desired result, the petitioner was graded 4 points

on the average. It may be mentioned that the petitioner has appended his

signature on the said Demonstrated Performance (DP) on 01.04.2016.

17. Again, the same ACR for the year 2016 and on the same date i.e.,

1st April 2016, under Part-IV - Brief Comments-the Initiating Officer has

made his remarks as stated above that the petitioner is an average officer

and his professional life needs improvement and, on this page too, the

petitioner has acknowledged the same by putting his signature on the body

thereof.

18. The petitioner was also served with a warning letter dated 8th

April 2015 wherein, in view of his not so smooth personal relation with a

colleague which has adversely affected the functioning of the Battalion, he

was directed to improve his conduct in future or the same may be reflected

in his confidential report.

19. There is nothing on record to show that the petitioner has made

any representation against the adverse entries and remarks made in his

ACR for the year 2016 or even against the warning letter issued upon him.

20. Another aspect of the matter is the contention of the petitioner

that the ACRs for the year 2009 to 2016 was communicated to him at one

go in a lot which was against the norm and established practice of

communication of ACRs which makes it incumbent upon the appropriate

authority to communicate the same on an annual basis and which was not

followed in the case of the petitioner since even the relevant ACR for the

year 2015-16 was received by him only on 13.01.2020.

21. In response to the above, the respondents in the affidavit-in-

opposition has categorically averred that as per procedure laid down for

initiation of ACRs, the Initiating Officer calls the Ratee to his Office and

the Ratee was made to read his ACR which includes the Figurative

Assessment and Pen Picture in front of the Initiating Officer. The Ratee

then signs his ACR there. In case the Ratee or the Initiating Officer is not

present physically, then the extracts of the Figurative Assessment and Pen

Picture are sent by post. Failure to do so will make the whole ACR invalid.

22. From the records, it is seen that the above exercise was duly

undertaken by the petitioner as could be evident from the enclosures at

Annexures-9 and 10 of the petition, where the copies of the ACRs for the

relevant period of 2011 to 2016 clearly shows that the petitioner has signed

under the required box or column to acknowledge the contents thereof.

This, in the opinion of this Court is nothing short than an acknowledgment

by the petitioner of the communication of the ACRs in question

23. On being aware of the adverse entry and adverse remarks made

against him pertaining to the period with effect from 01.04.2015 to

31.03.2016 brought to his knowledge on 01.04.2015, what prevents him

from immediately making a representation against the same. The reference

to the representation dated 09.04.2020 sent to the Commandant 35 Assam

Rifles can be perceived as an attempt made far too late in the day.

24. True, the fact that the respondent/Authority has also

communicated the ACRs for the year 2009 to 2016 in compliance with the

Ministry of Home Affairs directives vide MHA letter No. 21011/1/2005-

Estt(A)(Pt-II) dated 14.05.2009 received by Assam Rifles on 21.11.2017

vide MHA letter No 1-45020/22/2015-Pers-II dated 16.10.2017, after

which a decision was made by the Assam Rifles in the year 2019 to

communicate the said ACRs cannot be denied, yet the fact that the

petitioner was privy to the said ACRs for the relevant period when he was

called before the Initiating Officer and when he has signed on the body of

the same can also not be denied. The excuse that he was made to sign in

blank ACR form cannot be accepted by this Court as it belies expectation

that an officer of the Assam Rifles would be compelled to conduct as such.

25. All the authorities cited by the petitioner in his support speaks of

the consequence of non-communication of ACRs, particularly adverse

ACRs which is not the case here as far as the issue of communication or

rather non-communication of ACRs is concerned.

26. In the light of the above, this Court is constraint to disallow the

prayer of the petitioner in this petition and finds that the same is devoid of

merits.

27. Petition disposed of. No costs.

Judge

Meghalaya 02.08.2022 "Tiprilynti-PS"