High Court of Meghalaya

Ex-No 113643 Hav/Gd Milap Chand vs Union Of India & Ors. on 26 October, 2022

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                    HIGH COURT OF MEGHALAYA
                        AT SHILLONG
WP(C) No. 159 of 2016
                                           Date of Decision: 26.10.2022
Ex-No 113643 Hav/GD Milap Chand            Vs      Union of India & Ors.

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

Appearance:
For the Petitioner/Appellant(s) :Mr. B. Pathak, Adv.
For the Respondent(s)           :Dr. N. Mozika, DSG. with

Ms. S. Rumthao, Adv.

_________________________________________________________

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

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

JUDGMENT AND ORDER

1. The petitioner has filed this writ petition with a prayer for issue

of a writ of certiorari to set aside and quash the impugned order No.

1.11011/A-2012/714, dated 26.05.2012 and order No. 113643/11

AR/PGC-2013/1196, dated 23.10.2013 as well as order No. I.1555/Milap

Chand (11 AR)/A/2015/682, dated 12.09.2015 and also for issue of a writ

in the nature of Mandamus directing the respondent authorities to

grant/extend 2nd Financial up-gradation under Modified Assured Career

Progression Scheme from the grade pay of ₹ 2400/- to ₹ 2800/- w.e.f.

01/09/2008 and consequential benefits (3rd MACPs).

2. On going through this petition, it is understood that the

petitioner as stated by him was enrolled in the Assam Rifles as a

Rifleman (GD) on 15.03.1980 and he was eventually promoted to the

rank of Hav(GD) w.e.f. 01.12.2000. As per Record Office Instruction

(ROI) No. 4/99, on completion of 30 years qualifying service, the

Directorate General Assam Rifles (DGAR) discharged him on retiring

pension on 01.04.2010 (FN).

3. In the month of May 2012, the petitioner filed an application

before the DGAR for grant of financial up-gradation under the Modified

Assured Career Progression Scheme (MACP) on the ground that he had

completed 30 years of continuous service and was supposed to get the

financial up-gradation under the MACP which was not given to him, as

a result of which his grade pay at the time of retirement was ₹ 2400/-

when it should have been ₹ 2800/- if the MACP scheme was made

applicable to him.

4. According to the petitioner, the MACP scheme was introduced

by the Government of India on the recommendation of the Sixth Central

Pay Commission, which became operational w.e.f. 01.09.2008. The

scheme provides for financial up-gradation to a Government employee

at intervals of 10, 20 and 30 years of service whenever an incumbent has

spent continuously for 10 years in the same grade pay.

5. In response to his application dated 11.05.2012, the

Commandant, 11 Assam Rifles by the impugned order No. 1.11011/A-

2012/714 dated 26.05.2012 (Annexure-II of the writ petition) has

informed the petitioner that his application was not considered although

his name figures under the MACP scheme, but the same could not be

extended to him due to ACR criteria. Another application, dated

01.10.2013 filed by the petitioner met with the same reply vide letter

dated 23.10.2013 by the Record Officer who has informed the petitioner

that he was not eligible for grant of MACP due to lack of ACR criteria,

which was already informed to him on 12.10.2011.

6. Contending that he was never in receipt of the said

communication dated 12.10.2011 and as such, was not aware of the

negative ACR and the alleged adverse remarks against him which has

affected his promotional prospects, the petitioner moved this Court by

way of a writ petition numbered as writ petition No. WP(C) No. 27 of

2014 and this Court after hearing the parties has, vide order dated

04.12.2014 disposed of the same with a direction to the respondent No.

2 therein to communicate the adverse entries in the service book of the

petitioner which was used for determining the benchmark of the

petitioner for extending the financial benefits under MACPS to the

petitioner within a period of one month to enable the petitioner to file

representation and the petitioner is also to file the representation within

two weeks of being intimated of the said adverse entries and the

authorities to dispose of the same within a period of one month.

7. In compliance with this Court's order, the petitioner filed a

representation dated 24.01.2015 to which the respondent authority vide

order dated 12.09.2015(supra) rejected the said representation, primarily

on the ground that that there is no policy to upgrade the ACR of an

individual and as such, the ACR grading of the petitioner for the year

2006 and 2007 cannot be upgraded and hence, he is not eligible for grant

of financial up-gradation under the MACP scheme.

8. Mr. B. Pathak, learned counsel for the petitioner has submitted

that for the respondent authority to say that there is no policy to upgrade

ACR of an individual personnel of the Assam Rifles is not correct, as in

their own affidavit-in-opposition, dated 20.07.2016, the respondents

have annexed the copy of the 'Record of Instruction' No 5/97 in which

the details of Annual Confidential Report (ACR) for NCOs is laid down.

Paragraph 48 of the said Instructions under the heading "Representation

Against Annual Confidential Reports" provides for representation and

complaints if any against the weak points adverse assessment which may

be submitted by an NCO. This, according to the learned counsel can only

mean that there is a provision for up-gradation of an adverse entry in the

ACR of a personnel otherwise why would there be a provision for

representation. The case of Dev Dutt v. Union of India: (2008) 8 SCC

725, para 37 was also cited in this regard, which paragraph speaks of the

right of a public servant to make representation to the competent

authority.

9. Mr. Pathak has reiterated that the petitioner is not on the issue

of non-communication of the said ACR for the year 2006 and 2007 which

was duly communicated to him on the strength of this Court's order dated

04.12.2014, but that the representation for up-gradation of the ACRs for

the year 2006 and 2007 should be considered and response given by the

respondent authority.

10. Dr. N. Mozika, learned ASG (now DSG) has submitted that the

representation of the petitioner for the first financial up-gradation under

the MACPS has been considered and since he was found wanting as far

as the ACR grading is concerned, inasmuch as, he was graded only

'average' in the two years under consideration, that is, for the year 2006

and 2007, therefore, his representation was rejected.

11. As far as the representation of the petition that his ACR be

upgraded, the learned DSG has submitted that the respondent authority

has duly considered the same and vide a reasoned order dated

12.09.2015, has rejected the same. The petitioner not being

recommended for promotion for the year 2006 and 2007, he is therefore

not entitled to the 2nd and 3rd MACP.

12. This Court has taken into consideration the submission and

contentions of the learned counsels for the rival parties and facts as stated

above not being necessary to be repeated, the moot issue to be answered

here is whether the petitioner's representation for consideration as far as

review of the adverse remarks in his ACRs for the year 2006 and 2007

has to be considered or whether the assertion of the respondents that there

being no policy to upgrade the ACR is the correct proposition of law.

13. Para 6 of the impugned order dated 12.09.2015 issued by the

Major General, Inspector General, Assam Rifles, reads as follows:

"6. Considering aforesaid facts, the rules and regulations on the subject and representation of the petitioner dated 24 Jan 2015, I hereby direct that in the absence of policy to upgrade the ACR of the individual, the ACR grading for the year 2006 and 2007 of the individual cannot be upgraded and the individual is not eligible for granting financial up gradation under the MACP Scheme."

14. To say that there is no policy to upgrade the ACR is far from

correct and the respondents have not properly interpreted their own

Record of Instruction(ROI) No 5/97(Annexure III) annexed with their

own affidavit-in-opposition dated 14.07.2016, acknowledged on

20.07.2016 as well as the law on the subject.

15. As asserted by the learned counsel for the petitioner, clause No.

48 of the said ROI No. 5/97 provides for representation and complaints

which may be preferred by an aggrieved personnel against weak points

and adverse assessment in the ACR. This presupposes that the said

representation has to be considered and decided one way or the other.

Therefore, to say that there is no policy in this respect is not correct.

16. In the case of Anil Kumar v. Union of India & Ors: (2019) 4

SCC 276, at para 12, the Hon'ble Supreme Court has quoted what was

held in the case of Sukhdev Singh v. Union of India: (2013) 9 SCC 566,

the relevant portion of which reads thus:

"12. The three-Judge Bench in Sukhdev Singh: (2013) 9 SCC 566, held thus: (SCC p. 572, para 8) "8...Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR...."

17. In the same order in Anil Kumar case, at para 18, the Hon'ble

Supreme Court has held as follows:

"18. Hence, we are of the view that the appellant should be granted an opportunity, within a period of four weeks from today to submit his representation in respect of the ACRs for the years concerned where he did not fulfil the benchmark for financial upgradation. Upon the submission of his representation, the respondents shall consider it and communicate the outcome to the appellant within a period of two months thereafter. Based on that decision, the case of the appellant for financial upgradation shall be considered afresh. In the event his ACRs for the relevant period are upgraded, the case for financial upgradation

shall be determined within a period of three months thereafter."

18. This Court on noticing that the case of the petitioner has a

similarity with the case upon which the Hon'ble Supreme Court in the

case of Anil Kumar (supra) has been decided, has no hesitation to hold

that the proposition of the respondents that there is no policy for

upgradation of ACR cannot be accepted.

19. Consequently, the case of the petitioner has to be considered on

merits and duly accepted. The only material direction that could be given

at this point of time is that the petitioner is allowed to once again file a

proper representation for due consideration as far as upgradation of his

ACR for the year 2006 and 2007 is concerned and the respondent

authority is also directed to accept the same and to pass a reasoned order

while disposing of the said representation. This whole exercise is to be