Meghalaya High Court
Nb Sub Karan Singh vs The Union Of India And Ors on 10 April, 2014
Author: T Nandakumar Singh
Bench: T Nandakumar Singh
THE HIGH COURT OF MEGHALAYA
WP(C) No. 104/2013
No. 3800054 Nb Sub Karan Singh
Son of Shri. N.S. Mehra,
Permanent resident of Village Saylde,
District Almora, Uttarakhand
Presently residing at Headquarters,
DGAR, Laitkor, Shillong, Meghalaya. :::: Petitioner
-Vs-
1. The Union of India represented by the
Secretary to the Government of India,
Ministry of Home Affairs, Shillong.
2. The Director General,
Assam Rifles,
HQ, DGAR,
Laitkor, Shillong.
3. The Additional Director General,
Assam Rifles,
HQ, DGAR,
Laitkor, Shillong.
4. The Commandant,
38, Assam Rifles,
C/o 99 APO.
5. The Col (Records)
HQ, DGAR, Laitkor, Shillong.
6. No. 3800040 Sub Jaibir Singh,
38 Assam Rifles,
C/o 99 APO.
7. No. 3800055 Sub Kishore Kumar Rana,
38 Assam Rifles,
C/o 99 APO.
8. No. 3800065 Sub Dhrub Singh Rana,
38 Assam Rifles,
C/o 99 APO.
9. No. 3800066 Sub Ratan Singh,
38 Assam Rifles,
C/o 99 APO.
Page 1 of 12
10. No. 3800067 Sub Ramesh Chander Singh,
38 Assam Rifles,
C/o 99 APO.
11. No. 3800071 Sub Kabindra Prasad,
38 Assam Rifles,
C/o 99 APO.
12. No. 3800073 Sub Laxman Lal,
38 Assam Rifles,
C/o 99 APO.
13. No. 3800074 Sub Mahendra Singh Rana,
38 Assam Rifles,
C/o 99 AP. :::: Respondents
BEFORE THE HON‟BLE MR JUSTICE T NANDAKUMAR SINGH For the Petitioner : Mr. N. Mozika, Mr. P Nongbri, Advs For the Respondent : Mr. A. Khan, CGC.
Date of hearing : 10.04.2014
Date of Judgment & Order : 10.04.2014
JUDGMENT AND ORDER(ORAL)
In this writ petition, non-recommendation of the petitioner for promotion to the post of Subedar (GD) by the Departmental Promotion Committee (for short „DPC‟) held in the year 2012 for the vacancy year 2012 is challenged on the inter-alia grounds:- (i) the petitioner had fulfilled all eligible criteria for promotion to the post of Subedar (GD) as on 01.01.2012 and also on the date of holding the DPC for the vacancy year 2012 (ii) the concerned authority had wrongly made the recording or grading i.e. "Not Recommended for promotion" in the ACR for the year 2010 inasmuch as, that recording is in violation of the Record Office Instruction of the Directorate General, Assam Rifles i.e. (No.4/97) and (iii) adverse entry in the ACR "Not Recommended for promotion" for the year 2010 was also not communicated to the writ petitioner and prayed for a direction to the Page 2 of 12 respondents to consider his case for promotion to the post of Subedar (GD) for the vacancy year 2012 by holding review DPC basing on the relevant requirement prevailing at that time w.e.f. his juniors i.e. respondents No.6-13 were promoted to the posts of Subedar (GD).
2. Heard Mr. N Mozika, learned counsel for the petitioner and Mr. A Khan, learned CGC appearing for the respondents No.1-5. None appears for the respondents No.6-13 without showing any reasons inspite of proper service of notice of the present writ petition to them.
3. The only facts sufficient for deciding the matter in issue in the present writ petition are briefly noted. The petitioner initially joined in the Assam Rifles on 11.11.1978 as Recruit (GD). Taking into consideration of his sincere service as Recruit (GD), the petitioner was promoted to the rank of L/Nk w.e.f. 05.09.1992 and to the rank of Nk w.e.f. 01.04.1997. The petitioner was further promoted to the rank of Havildar (GD) w.e.f. 01.10.1998. In consideration of his dedicated service as a Havildar (GD), the petitioner was again promoted to the rank of Nb.Subedar w.e.f. 01.09.2005. It is also stated that the petitioner was one of the first persons to hold the post of Battalion Havildar Major (BHM) for continuously 3(three) years from 2002-05 after raising of the Battalion in the year 2002. The next higher promotion is to the post of Subedar. Under the Assam Rifles, Record Office Instruction No.4/2002, promotion policy of the Assam Rifles personnel, ACR criteria for promotion to the post of Subedar are as follows:-
"RESTRICTED Appendix „B‟ to ROI 04/2002 EDUCATIONAL AND ACR CRITERIA FOR VARIOUS PROMOTION GD PERSONNEL Ser Promotional Educational criteria Length of ACR criteria last five No. from Service years
(a) (b) (c) (d) (e)
1. Rfn/Lnk to Hav ACE - II 8 Years ACR criteria is not MR - II applicable Page 3 of 12 TT - II Promotion Cdre N 1 & N2 Pass
2. Hav to Nb Sub ACE - II 5 yrs(a) Three (3) out of MR - I service as last five (5) reports TT - I Hav/GD should not be below Promotion Cadre „S‟ pass with total "High Average."
length 18 (b) Remaining two (2) years of reports should not be service below „Average.‟
(c) Out of last five (5) reports, two reports must be from Bn/ARTC & S/NSG (Not applicable to GD pers forming part of any AR team of any discipline att to AR/Army fmn).
(d) Should have been
recommended for
promotion in the last
three (3) reports.
3. Nb Sub to Sub ACE - II 3 Yrs (a) Three (3) out of
MR - I service as last five (5) reports
TT - I Nb Sub should not be below
(GD) "High Average."
(b) Remaining two (2)
reports should not be
below „Average.‟
(c) Out of last five (5)
reports, two reports
must be from
Bn/ARTC & S/NSG
(Not applicable to GD
pers forming part of
any AR team of any
discipline att to
AR/Army fmn).
(d) Should have been
recommended for
promotion in the last
three (3) reports.
4. Under the said criteria for promotion to the post of Subedar, only Nb.Subedar having three years service as Nb.Subedar/GD (a) Three (3) out of last five (5) reports should not be below "High Average"; (b) remaining two (2) reports should not be below "Average"; (c) out of last five (5) reports, two reports must be from Bn/ARTC & S/NSG (not applicable to GD pers forming part of any AR team of any discipline att to AR/Army fmn) and ; (d) should have been recommended for promotion in the last three (3) reports. It is the case of the petitioner that he had Page 4 of 12 fulfilled all eligible criteria mentioned above for promotion to the higher post of Subedar (GD). Inspite of having all essential criteria, the petitioner was not considered for promotion to the post of Subedar (GD) by the DPC held on 01.12.2012 for the vacancy year 2012. The said DPC for the year 2012 had recommended his juniors i.e. respondents No.6-13 to the higher post of Subedar by Office Order No.I.119012/38AR/120/2012/Admn-I(A)/342 dated 01.10.2012. The petitioner being aggrieved by the said order dated 01.10.2012 for promoting his juniors i.e. respondents No.6-13 to the higher post of Subedar, the petitioner under his letter dated 07.02.2013 requested for a personal interview with the Director General, Assam Rifles and accordingly, permission was granted for personal interview with the Director General, Assam Rifles on 02.03.2013. However, on the said day, the Director General, Assam Rifles (respondent No.2) was out of station and as such, the petitioner was given an opportunity of personal interview with the Additional Director General, Assam Rifles (respondent No.3). It is stated that in that interview, the petitioner was verbally informed that he was superseded due to not meeting the ACR criteria. Further the petitioner was informed that he had 2(two) ACRs "Above Average" and 3(three) ACRs "High Average". The petitioner was further informed by the Additional Director General, Assam Rifles in the said personal interview on 02.03.2013 that as per revised criteria of promotion from Nb.Subedar to Subedar, three out of last five ACRs should not be below "Above Average" and the two remaining ACRs should not be below "High Average"
5. After that personal interview, the petitioner had been informed by a letter dated 04.03.2013 that he was superseded for promotion to the rank of Subedar (GD) due to lacking of ACR criteria and the same was explained to him during open forum on 02.03.2013 (Annexure-6 to the writ petition). It is the further case of the petitioner that the criteria for promotion to the post of Subedar (GD) under the said Assam Rifles, Record Office Instruction No.4/2002, had been amended by an amendment which had been circulated under letter dated Page 5 of 12 29.06.2012 (Annexure-3 to the writ petition). The new amended criteria for promotion to the post of Subedar read as follows:-
"Appx (Refers to para 2 of HQ DGAR (Records Branch) Letter No. 1.17033/ACR-SEC/2011-12/620 dated 25 Jun 2012) ACR CRETERIA FOR PROMOTION Ser Rank ACR Creteria for last 5 years Remarks No. From To
1. Nb Sub (a) Three (3) out of last five (5) reports should Sub not be below "Above Average".
(b) Remaining two (2) reports should not be below "High Average".
(c) Out of last five (5) reports, three reports must be from bn/ARTC & S/NSG(Not applicable to GD Pers forming part of any AR team of any discipline att to AR/Army/fmn) (Applicable to GD pers only)
(d) Should have been recommended for promotion in the last five (5) reports.
2 Sub Sub (a) Four (4) out of last five (5) reports should Maj not be below "Above Average".
(b) Remaining one (1) report should not be below "High Average".
(c) Out of last five (5) reports, three reports must be from bn/ARTC & S/NSG (Not applicable to GD Pers forming part of any AR team of any discipline att to AR/Army/fmn).
(Applicable to GD pers only)
(d) Should have been recommended for promotion in the last five (5) reports.
6. It appears that under the new amended criteria, the requirement for promotion from the post of Nb.Subedar to Subedar had been slightly upgraded. It is admitted case of both the parties that the new amended criteria for promotion to the post of Subedar came into effect from 01.01.2013 and the DPC for the year 2013 is to be held basing on the said new criteria, which came into force w.e.f. 01.01.2013. It is also stated in the writ petition that the petitioner had never been informed of any Page 6 of 12 adverse entry in the ACRs of five years i.e. ACRs before the date of holding the DPC for the vacancy year 2012 i.e. 01.01.2012 and as such, the petitioner is eligible and qualified for promotion to the rank of Subedar, as there is no weak points in his ACR.
7. The official respondents had filed joint affidavit-in-opposition wherein, it is stated that the petitioner was screened by the DPC for the year 2012 for promotion to the rank of Subedar alongwith his counter parts and his last ACRs for the year 2007 to 2012 were also considered and grading obtained in the last five years are also mentioned in Para 8 of the affidavit-in-opposition. For easy reference, Para 8 of the affidavit-in-opposition filed by the official respondents is quoted hereunder:-
"8. That the answering respondent with regard to the statement made in paragraphs 10 begs to state that the petitioner was screened by the Departmental Promotion Committee (DPC) for the year 2012 for promotion to the rank of Subedar alongwith his counterparts. His last five Annual Confidential Reports (ACRs) for the year 2007 to 2011 were considered and the grading obtained are as under:-
S/No Year Points/Grading Recommendation
(a) 2007 7 (Above Average) Recommended for promotion
(b) 2008 5 (High Average) Recommended for promotion
(c) 2009 5 (High Average) Recommended for promotion
(d) 2010 5 (High Average) Not recommended for promotion
(e) 2011 7 (Above Average) Recommended for promotion
The petitioner‟s contention that he was 'Recommended' in all last five Annual Confidential Reports (ACRs) is not correct. It is evident from the above that he was 'Not Recommended' (NR) for promotion in the Annual Confidential Report (ACR) for the year 2010. Thus the petitioner did not meet the requisite qualitative requirements (QR) for promotion. As per qualitative requirements (QR) he ought to have recommended for promotion in last three reports."
8. In Para 14 of the affidavit-in-opposition, the official respondents i.e. respondents No.1-5 stated that "non-recommendation for promotion" recorded in the ACR of the petitioner of the year 2010 is not required to be communicated to Page 7 of 12 the petitioner at any rate. But in Para 18 of the affidavit-in-opposition filed by the official respondents No.1-5 , it is stated that through inadvertently, the said adverse entry i.e. "Not Recommended" in the ACR of 2010 was not communicated to the petitioner. Therefore, it appears that the stand of the official respondents No.1-5 in Para 14 of the affidavit-in-opposition is quite contrary to their stand taken in Para 18 of the affidavit-in-opposition. On conjoint reading of Paras 14 & 18 of the affidavit-in-opposition, it is clear that the adverse entry i.e. "Not Recommended"
recorded in the ACR of the petitioner for the year 2010 was not communicated to the petitioner. For easy reference, Paras 14 & 18 of the affidavit-in-opposition filed by the official respondents No.1-5 are also quoted hereunder:-
"14. That the answering respondent in reply to the statement made in paragraphs 17 and 18 begs to state that though, there is an endorsement by the Initiating Officer (IO) in pen picture, but the same do not have adverse effect on promotion as the petitioner has been graded „High Average‟ by initiating Officer and Senior Reviewing Officer (SRO). However, the petitioner has not been recommended for promotion and as such he was found unfit for promotion by the Departmental Promotion Committee (DPC) for the year 2012. Also as per paragraph 41 of the Record Office Instruction (ROI) 4/97 'Non Recommendation' for promotion is not required to be communicated to the rate. Hence, action of respondents is as per the instruction on rendering of Annual Confidential Report (ACR) and promotion.
18. That the answering respondent in response to the statement made in Paragraphs 23 and 24 begs to state that although, Initiating Officer (IO) has endorsed weak point in the pen picture which should have been communicated, but inadvertently the same was not communicated. However, at the time of Departmental Promotion Committee (DPC) 2012, the cognizance of weak point was not taken into account. The petitioner was not empanelled for promotion because he was 'Not Recommended' for promotion in the Annual Confidential Report (ACR) for the year 2010."
9. Further it is admitted case of the parties that the Directorate General, Assam Rifles, Record Office Instruction No.4/97 are followed and binding to the personnel of the Assam Rifles. Under Para 6 of the said Record Office Instruction No.4/97, if a JCO is graded outstanding, Above Average or High Average, he must invariably be recommended for promotion. It is the further case of the petitioner Page 8 of 12 that under Para 6 of the Record Office Instruction No.4/97, the petitioner who had admittedly had 5(five) High Average should have been recommended for promotion while recording his ACR for the year 2010. Again for easy reference, Para 6 of the Record Office Instruction No.4/97 is also quoted hereunder:-
"Recommendation for promotion
6. (a) If a JCO is graded Outstanding, Above Average or High Average he must also invariably be recommended for promotion.
(b) In case the performance adjudged Low or Low Average, Reporting Officers may use their discretion and exercise the option for recommendations as deemed fit.
(c) In the event of performance adjudged Low or Below Average it is obligatory for the Reporting Officer to ensure that periodical counsellings are administrated to the concerned JCO in writing and record of such counseling is kept before grading him Low or Below Average in the ACR.
7. Adverse remarks/weak points, irrespective of grading awarded will be communicated to the retee and his signatures with date of such communication obtained and pasted/recorded in the ACR. Adverse remarks/weak points of RO/SRO where applicable will be communicated through Initiating Officer."
10. On bare perusal of Para 6, which had been quoted above, of the Record Office Instruction No.4/97, it appears that the mistake had been committed by the concerned authority in recording or grading as "Not Recommended" in the ACR of the petitioner for the year 2010, inasmuch as, as per the affidavit-in- opposition filed by the official respondents No.1-5 and also from the pleadings of the petitioner, it is crystal clear that the petitioner had 5 (five) High Average for the year 2010. The recording of the grade or entry "Not Recommended for promotion"
in the ACR of the petitioner for the year 2010 is an adverse entry and there is no doubt about it; now it is well settled law that any adverse entry in the ACR should be communicated to the concerned employee so as to enable the employee to file a representation. The adverse entry which is not communicated to the employee cannot be considered for higher promotion. In the present case, it is admitted case of the parties that the adverse entry "Not Recommended" in the ACR of 2010 was Page 9 of 12 not at all communicated to the petitioner and the said entry i.e. "Not Recommended" in the ACR of the petitioner for the year 2010 was considered by the DPC held in the year 2012 for promotion to the post of Subedar (GD) for the vacancy year 2012. Regarding this position of law, it may not be required to refer to a number of cases, it will be sufficed to refer to the three decisions of the Apex Court in (i) Dev Dutt vs. Union of India & Ors: (2008) 8 SCC 725 (ii) Abhijit Ghosh Dastidar vs. Union of India & Ors: (2009) 16 SCC 146 and (iii) Sukdev Singh vs. Union of India & Ors: (2013) 9 SCC 566.
Paras 26, 33 & 36 of the SCC in Dev Dutt‟s case (Supra) read as follows:-
"26. In our opinion, our natural sense of what is right and wrong tells us that it was wrong on the part of the respondent in not communicating the "good" entry to the appellant since he was thereby deprived of the right to make a representation against it, which if allowed would have entitled him to be considered for promotion to the post of Superintending Engineer. One may not have the right to promotion, but one has the right to be considered for promotion, and this right of the appellant was violated in the present case.
33. In our opinion, fair play required that the respondent should have communicated the "good" entry of 1993-1994 to the appellant so that he could have an opportunity of making a representation praying for upgrading the same so that he could be eligible for promotion. Non- communicating of the said entry, in our opinion, was hence unfair on the part of the respondent and hence violative of natural justice.
36. In the present case, we are developing the principles of natural justice by holding that fairness and transparency in public administration requires that all entries (whether poor, fair, average, good or very good) in the annual confidential report of a public servant, whether in civil, judicial, police or any other State service (except the military), must be communicated to him within a reasonable period so that he can make a representation for its upgradation. This in our opinion is the correct legal position even though there may be no rule/G.O. requiring communication of the entry, or even if there is a rule/G.O. prohibiting it, because the principle of non-arbitrariness in State action as envisaged by Article 14 of the Constitution in our opinion requires such communication. Article 14 will override all rules or government orders."Page 10 of 12
Paras 9 of the SCC in Abhijit Ghosh Dastidar‟s case (Supra) read as follows:-
"9. Learned counsel appearing for the appellant has pointed out that the officer who was immediately junior in service to the appellant was given promotion on 28-8-2000. Therefore, the appellant also be deemed to have been given promotion from 28-8-2000."
Para 8 of the SCC in Sukhdev Singh‟s case (Supra) read as follows:-
"8. In our opinion, the view taken in Dev Dutt:(2008) 2 SCC (L&S) 771 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."
11. It is now well settled law that the right to be considered for promotion is fundamental right of the employee provided that employee has all the essential criteria for promotion to that post. In the present case, it appears that the petitioner had fulfilled all the essential criteria for promotion to the post of Subedar under the said Assam Rifles Record Office Instruction No.4/2002 if there is correct recording of the ACR of the petitioner for the year 2010 in compliance with the said Instruction i.e. Record Office Instruction No.4/97, i.e. Para 6, which had been quoted above in extenso. Regarding this settled position of law, we may refer to the decisions of the Apex Court in (i) Delhi Jal Board vs. Mahinder Singh: (2000) 7 SCC 210 and (ii) Badrinath vs. Government of Tamil Nadu: (2000) 8 SCC
395. Page 11 of 12
12. For the foregoing reasons, this Court is of the considered view that the petitioner had made out sufficient materials for interfering with the DPC proceedings held in the year 2012 for promotion to the post of Subedar for the vacancy year 2012 inasmuch as, the petitioner had not been recommended by the said DPC basing on the said adverse entry which was not communicated to the petitioner and also it appears that had there be correct recording in the ACR of the petitioner for the year 2010 by following the Record Office Instruction No.4/97, the petitioner would have been recommended for promotion to the post of Subedar.
13. In the result, this writ petition is allowed by directing the respondents No.1-5 to consider the petitioner for promotion to the post of Subedar for the vacancy year 2012 by holding review DPC strictly following the procedures indicated above i.e. by writing the ACR or recording the grading of the petitioner for the year 2010 by following the Record Office Instruction No.4/97 and also by communicating the entry in the ACR of the petitioner for the year 2010 to the petitioner so as to enable him to file a representation and it is also made clear, if the petitioner is recommended for promotion to the post of Subedar for the vacancy year 2012, his promotion should be from the date his juniors had been promoted to the posts of Subdear i.e. respondents No.6-13. Further, it is made clear that the whole exercise should be completed within a period of 4(four) months from the date of receipt of a certified copy of this judgment and order.
14. With the above observations and directions, this writ petition is allowed.
JUDGE Lam Page 12 of 12