Meghalaya High Court
Mohammed Affan Farooqui vs . Union Of India & 2 Ors. on 2 August, 2022
Author: W. Diengdoh
Bench: W. Diengdoh
Serial No. 01
Supplementary
List
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 1 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 2 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.
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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;
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(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 5 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 6 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 7 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 8 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 9 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"
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