Gauhati High Court
Pranab Mazumdar vs The Union Of India And 3 Ors on 16 August, 2023
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/7
GAHC010319582019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/170/2020
PRANAB MAZUMDAR
S/O- LT. SUDHIR MAZUMDAR, PRESENTLY WORKING AS NO. S/358272K
HAV/ORL (OPERATOR RADIO LINE) AT COMMUNICATION PLATOON,
ASSAM RIFLES TRAINING CENTRE AND SCHOOL, DIMAPUR, NAGALAND,
PIN- 787115.
VERSUS
THE UNION OF INDIA AND 3 ORS.
REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF HOME
AFFAIRS, NORTH BLOCK, NEW DELHI- 110001.
2:THE DIRECTOR GENERAL OF ASSAM RIFLES
MAHANIDESHALAYA
(THE DIRECTORATE GENERAL OF ASSAM RIFLES) SHILLONG
MEGHALAYA- 793011.
3:THE COMMANDANT
ASSAM RIFLES TRAINING CENTRE AND SCHOOL
DIMAPUR
NAGALAND
PIN- 797115.
4:THE COMMANDANT
4TH ASSAM RIFLES
C/O 99 APO. PIN- 932004
Advocate for the Petitioner : MS. S BORA
Advocate for the Respondent : ASSTT.S.G.I.
Page No.# 2/7
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 16.08.2023 Heard Mr. S. Bora, learned counsel for the petitioner as well as Ms. B. Sarma, learned CGC appearing for all the respondents.
2. Aggrieved by non-consideration of the candidature of the petitioner for being granted the benefit of 3rd MACP, the present writ petition has been filed under Article 226 of the Constitution of India.
3. In brief, the case of the petitioner is that he was initially enrolled in the Assam Rifles as Rifleman/ORL (Operator Radio Line) on 10.12.1995. On 10.10.1997, the petitioner was promoted to the rank of Havildar/ORL (Operator Radio Line). On 29.11.2018, persons junior to the petitioner got the benefit of MACP-III by superseding him. The petitioner claims that as per the length of service, the petitioner also should have been considered for the benefit of 3 rd MACP. Accordingly, the petitioner submitted a representation dated 05.03.2019 to the Mahanideshalaya, Assam Rifles, Directorate General Assam Rifles (Record Branch) with the prayer to consider that he had fulfilled all criteria for the benefit and to grant benefit of MACP-III to him as per the seniority and/or length of service. The respondent authorities vide W.T. Message dated 31.05.2019, informed the petitioner that he lacked Annual Confidential Report (ACR) criteria and therefore the petitioner could not be granted the benefit of MACP-III. The specific stand has been taken in the writ petition that any remark contained in the ACR which was adverse to his interest was never communicated to him.
4. Per contra, the learned CGC has relied on the affidavit-in-opposition Page No.# 3/7 filed by the respondent nos. 1 - 4 and it is submitted that the benchmark enforced on grant of promotion and 'Modified Assured Career Progression Scheme' benefits has been enhanced from 'Good' to Very Good' on implementation of the 7th Central Pay Commission Recommendations which was done w.e.f. 01.01.2016 vide O.M. dated 27/28th September, 2016 issued by the Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pensions, Government of India. It is submitted that the said AGC criteria from 'Good' to 'Very Good' has been implemented in Assam Rifles vide Directorate General, Assam Rifles letter dated 23.11.2016 and 29.12.2016 which are annexed to the affidavit-in-opposition. It is submitted that as per the letter dated 23.06.2011 by the Directorate General, Assam Rifles, on securing 1 point in the ACR, the grading will be 'Below Average', equivalent to 'Zero', on securing 2 points in the ACR, the grading would be 'Average', equivalent to 'Good', on securing 3 points in the ACR, the grading would be 'High Average', equivalent to 'Very Good' and on securing 4 points, the grading would be 'Above Average', equivalent to 'Very Good'.
5. It is submitted that the petitioner was graded 'Average (02 points)' by his Initiating Officer and Reviewing Officer in the ACR for the year 2016-2017 which was below the prescribed benchmark of 'Above Average (04 points)' or 'High Average (03 points)' i.e. 'Very Good'. Accordingly, the petitioner became disentitled for consideration of promotion.
6. The learned CGC has also submitted that as the petitioner was graded 'Average (02 points)' in the ACR for the year 2016-2017 and was recommended for promotion, the said entry in the ACR cannot be considered to be an adverse report and was required to be communicated to him. Accordingly it is submitted that the denial of benefit of MACP-III to the petitioner was in Page No.# 4/7 accordance with the Government policy.
7. The learned CGC has also submitted after the petitioner has submitted his representation dated 05.03.2019, the same was duly considered and rejected and therefore there cannot be a fresh review of the candidature of the petitioner for the benefit of MACP-III.
8. In this regard, the learned counsel for the petitioner has submitted that the grading of 'Average (02 points)' resulted in denial of the benefit of MACP-III to the petitioner which cannot be said to be not an adverse remark against the petitioner.
9. By referring to the case of DevDutta vs. Union of India and others, (2008) 8 SCC 725, the Hon'ble Supreme Court of India had given a verdict to the effect that every entry, not merely a poor or adverse entry, relating to an employee under the State or an instrumentality of the State, whether in civil, judicial, police or other service (except the military) must be communicated to him within a reasonable period of time. Paragraph 13, 15, 17 and 18 of the said judgment is extracted below :-
"13. In our opinion, every entry (and not merely a poor or adverse entry) relating to an employee under the State or an instrumentality of the State, whether in civil, judicial, police or other service (except the military) must be communicated to him, within a reasonable period, and it makes no difference whether there is a benchmark or not. Even if there is no benchmark, non-communication of an entry may adversely affect the employee's chances of promotion (or getting some other benefit), because when comparative merit is being considered for promotion (or some other benefit) a person having a `good' or `average' or `fair' entry certainly has less chances of being selected than a person Page No.# 5/7 having a `very good' or `outstanding' entry.
15. If we hold that only `poor' entry is to be communicated, the consequences may be that persons getting `fair', `average', `good' or `very good' entries will not be able to represent for its upgradation, and this may subsequently adversely affect their chances of promotion (or get some other benefit).
17. In our opinion, every entry in the ACR of a public servant must be communicated to him within a reasonable period, whether it is a poor, fair, average, good or very good entry. This is because non- communication of such an entry may adversely affect the employee in two ways : (1) Had the entry been communicated to him he would know about the assessment of his work and conduct by his superiors, which would enable him to improve his work in future; (2) he would have an opportunity of making a representation against the entry if he feels it is unjustified, and pray for its upgradation. Hence, non-communication of an entry is arbitrary, and it has been held by the Constitution Bench decision of this Court in Maneka Gandhi vs. Union of India that arbitrariness violates Article 14 of the Constitution.
18. Thus, it is not only when there is a benchmark but in all cases that an entry (whether it is poor, fair, average, good or very good) must be communicated to a public servant, otherwise there is violation of the principle of fairness, which is the soul of natural justice. Even an outstanding entry should be communicated since that would boost the morale of the employee and make him work harder."
10. In the considered opinion of the Court, although the petitioner was provided with 'Average (02 points)' in the ACR for the year 2016-2017, resulting Page No.# 6/7 in denial of benefit of MACP-III to the petitioner, the Court is inclined to hold that the said entry of 'Average (02 points)' in the ACR for the year 2016-2017 was an adverse entry so far as the petitioner is concerned and the non- communication of the said remark to the petitioner resulted in losing an opportunity by the petitioner to make a representation against such adverse remark. Accordingly, the Court is further inclined to hold that the non- consideration of the petitioner for the benefit of MACP-III for the adverse remark appearing in the ACR for the year 2016-2017 was without granting an opportunity to the petitioner to submit his representation. This Court is inclined to hold that the non-communication of the said entry was unfair on the part of the respondents and is in violation of the rights of the petitioner to natural justice.
11. The Supreme Court of India in paragraph 36 in the case of DevDutta (supra) had made it clear that all entries, whether poor, fair, average, good or very good must be communicated to the concerned employee. Therefore, in terms of the directions contained in the case of DevDutta (supra), the Court is inclined to direct the respondent authorities to communicate the entries of 'Average (02 points)' in the ACR for the year 2016-2017 should be communicated to the petitioner. On communication of such entry to the petitioner, the petitioner would be allowed to make a representation against the entry before the concerned competent authority. The concerned competent authority is directed to decide the representation of the petitioner in a fair manner preferably within a period of 1 (one) month. In order to assure fairness to the petitioner, this Court is inclined to hold that the representation of the petitioner against the said entry in the ACR for the year 2016-2017 should be considered by an authority whose rank is higher than the one who made the entry which would be conducive to fairness and transparency in public Page No.# 7/7 administration and would also ensure fairness to the petitioner. In terms of the order passed by the Court in the case of DevDutta (supra), this Court is inclined to observe that the observations made in this order would not apply to the military officers.
12. It is provided that if the entry of the petitioner is upgraded, the petitioner shall be considered for benefit of MACP-III retrospectively from the date when he had otherwise become entitled to be given the benefit of MACP- III i.e. by giving regard to the seniority of the petitioner as existed prior to the order no. I.19012/09/MACP/Sig/Adm-I/2018/263 dated 29.11.2018. While considering the representation, the authority shall ignore the W.T. message dated 31.05.2019 issued by the Dy. Commandant, Assam Rifles. In other words, it is provided that the W.T. message dated 31.05.2019 shall not be considered by the authorities when the representation of the petitioner is considered on merit.
13. This writ petition stands allowed to the extent as indicated above, leaving the parties to bear their own cost.
JUDGE Comparing Assistant