Anand Roy vs Union of India and Others

S.R. Sen, J—Heard Mr. R. Jha, learned counsel appearing for and on behalf of the petitioner.

Petitioner''s case in a nut-shell is that;

"This instant writ petitioner is filed challenging and quashing the Impugned Order No. Rec.(Adm-IV)/0113/243 dated 4th October 2012 and for grant of promotion to the petitioner to the rank of Subedar Major Clerk with effect from 18th June 2008, when the juniors were promoted to the said rank along with pay and allowance of the said Rank.

The factual matrix of the instant writ petition is that the petitioner was enrolled in Assam Rifles on 30th January 1969, was promoted till the rank of Subedar on 1st January 2006, after his due performance and without having adverse remark in his service record. Surprisingly, when the petitioner due for his promotion to the rank of Subedar Major Clerk he was not promoted on the ground that one of his annual confidential report i.e. for the year 2005-06 was "Average" resultantly the petitioner approached erstwhile Hon''ble Gauhati High Court, Shillong Branch, by way of writ petition which was registered as writ petition No. 116(SH) of 2009, and after hearing both the parties the said writ petition was disposed off with the following direction;

"In view of the above, the Respondent Authorities are directed that the ''Average'' entry in Annual Confidential Report of petition for the year 2005-06 be communicated to him within a period of one month from the date of receipt of certified copy of this order. On being communicated, the petitioner may make representation, if he so choose again and the said entry, within a period of one month thereafter and the said representation will be decided within a period of two months thereafter. If his entry in Annual Confidential Report is upgraded, the respondent shall consider the case of the petitioner for promotion respectively by holding DPC within a month thereafter and if the petitioner gets selected for promotion, he should be treated to have been promoted on and from the date on which his junior were promoted to the higher rank. The petitioner shall also be entitled to arrear pay for the aforesaid period."

The petitioner as per the direction of the Hon''ble High Court and after receipt of the letter from Respondent Authorities filed appropriate representation for upgradation of the said Annual Confidential Report and grant of promotion but the Respondent Authorities, without application of mind mechanically rejected and passed the Impugned Order No. Rec.(Adm-IV)/0113/243 dated 4th October 2012, which is under challenged in this instant writ petition.

Hence this writ petition."

Learned counsel Mr. R. Jha, submits that after Entry in the ACR petitioner was not informed in time as a result, he could not make any representation to the authority. Subsequently, when he approached this Court vide WP(C) No. 116(SH) 2009, then only he has been provided with the Entry of the ACR of 2005-06. Thereafter he made a representation but it was simply rejected without appropriate checking. Learned counsel also contended that other colleagues of the petitioner had already been promoted but for the reason best known to the respondents, petitioner was not promoted and ultimately he had to retire on 1.8.2010.

On the other hand, Mr. N. Mozika, learned CGC, submits that after getting the order of the High Court, Entry in the ACR was communicated to the petitioner and on the basis of his representation further scrutiny/reconsideration was made over the Entry in the ACR of the petitioner for the year 2005-06 but he obtained the same grading. Hence, his promotion could not be considered.

After hearing the submission advanced by the learned counsel for the parties, I am of the firm view that where a person got ''Average'' or ''Outstanding'' whatever the case may be, authority concerned is bound to communicate the Entry of the ACR of the person concerned immediately. Hon''ble Supreme Court in the case of Sukhdev Singh Vs. Union of India (UOI) and Others, (2013) 4 ABR 1138 : (2014) 1 AD 227 : AIR 2013 SC 2741 : (2013) 137 FLR 907 : (2013) 8 JT 270 : (2013) LabIC 2925 : (2013) 2 LLN 578 : (2013) 171 PLR 823 : (2013) 6 SCALE 490 : (2013) 9 SCC 566 : (2014) 1 SCC(L&S) 279 : (2013) 4 SCT 129 : (2013) AIRSCW 3801 at Para 4 and 8 has held as under:

"4. Then in paragraph 22 at SCC p. 734 of the Report this Court in : Dev Dutt Vs. Union of India (UOI) and Others, (2008) 117 FLR 1024 : (2008) 7 JT 463 : (2008) 7 SCALE 403 : (2008) 8 SCC 725 : (2008) 2 SCC(L&S) 771 : (2008) 3 SLJ 244 made the following weighty observations:

"22. It may be mentioned that communication of entries and giving opportunity to represent against them is particularly important on higher posts which are in a pyramidical structure where often the principle of elimination is followed in selection for promotion, and even a single entry can destroy the career of an officer which has otherwise been outstanding throughout. This often results in grave injustice and heart-burning, and may shatter the morale of many good officers who are superseded due to this arbitrariness, while officers of inferior merit may be promoted."

In our opinion, the view taken in: Dev Dutt Vs. Union of India (UOI) and Others, (2008) 117 FLR 1024 : (2008) 7 JT 463 : (2008) 7 SCALE 403 : (2008) 8 SCC 725 : (2008) 2 SCC(L&S) 771 : (2008) 3 SLJ 244 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. 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".

From the said judgment it is clear that communication of Entry is mandatory and there remain no dispute. In this case it is also a fact that Entry was communicated lately so petitioner did not get opportunity to file his representation in appropriate time. Whatever the case may be, it also remains a fact as to whether scrutiny or recheck of the ACR was done for second time or not is not clear. Generally it should be that when a petitioner challenged his Entry in the ACR the second scrutiny or examination should be by independent person that is a common logic and principle of natural justice. Therefore, I hereby direct the respondent to constitute two members Committee who shall independently without any fear and favour examine the ACR of the year 2005-06 of the petitioner and give their individual marking/entry. Thereafter if petitioner is found that he was fit to get promotion he should be given promotional benefits of Subedar Major from the date when he was due for promotion, since he had already retired from service.

Let this whole exercise be completed within three months from the date of receipt of the certified copy of this Order. The entries and decisions thereafter to be communicated to the petitioner.

With these observations and directions, the instant writ petition is allowed to that extent and disposed of.

Registry is directed to send a copy of the order to the respondents immediately.