Harendra Nath Roy v. Union of India and 5 Ors

ORDER Date : 20.11.2024 Heard Ms. S. Bora, learned counsel for the petitioner. Also, heard Mr. K. Gogoi, learned CGC, for the respondents Union of India.

¶2By way of this petition under Article 226 of the Constitution of India, the petitioner is seeking consideration for promotion to the rank of Naib Subedar/G.D. (General Duty) w.e.f. 01.05.2022 i.e. from the date on which his juniors were promoted with all consequential service benefits. The specific case of the petitioner is that the petitioner who was enrolled as a Rifleman/G.D in the Assam Rifles on 17.07.1989 was subsequently promoted to the rank of Havildar/G.D. in the year 2003 and thereafter to the rank of Warrant Officer/G.D. in the year 2016. Though the petitioner was expecting promotion thereafter to the rank of Naib Subedar/G.D, however, instead of promoting the petitioner, the respondent authorities promoted his juniors to the post of Naib Subedar/G.D. Situated thus, the petitioner filed representation before the Commandant 15th Assam Rifles on 29/06/2022 seeking promotion as per his seniority to the said post of Naib Subedar. However, the respondent by letter dated 03.07.2022 turned down the said representation filed by the petitioner on the ground that due to lack of Annual Confidential Report (ACR) criteria the Page No.# 3/4 petitioner could not be promoted to the said post of Naib Subedar/G.D. Accordingly, the present petition has been filed.

¶3Pertinent that it is admitted at the bar that the entries in the ACR in question was not communicated to the petitioner.

¶4It is submitted at the bar that the issue involved in the present writ petition is squarely covered by the Judgment and Order dated

09.12.2021 passed by this Court in WP(C) no. 9571/2019 in the case of Hav/na Murali Kumar P Vs. The Union of India and 3 others and Judgment and Order dated 27/01/2022 passed in WP(C) no. 4872/2019 in the case of Yogendra Nath Singh Vs The Union of India and 2 Others.

¶5A perusal of the aforesaid cases indicates that this Court by relying on the decision of the Apex Court in Dev Dut Vs Union of India report in 2008 8 SCC 725 specially paragraph 41 held that non communication of entries in the ACR of a Public Servant, whether he is in Civil, Judicial, Police or in other services (other than Military), is arbitrary and violative of Article 14 of the Constitution.

¶6It further appears that that this Court in the aforesaid case i.e. Hav/na Murali Kumar P (supra) after noting that the issue as whether the Assam Rifles is a military organization or is a para military organization is pending adjudication before the Delhi High Court held that the proposition enunciated by the Apex Court in paragraph 41 of Dev Dutt (supra) is applicable to the petitioner in that case, who is an employee of the Assam Rifles and accordingly directed the respondent authorities in the Assam Rifles to provide MACP benefit to the petitioner Page No.# 4/4 from the concerned date. As it is submitted at the bar that the aforesaid issue is still pending before the Delhi High Court, I find no reason to defer from the aforesaid Judgment and Order passed by this Court and accordingly, I am inclined to dispose of this writ petition in similar line as that of Judgment and Order dated 09.12.2021 passed in WP(C) no. 9571 of 2019.

¶7In view of the above the adverse entry in the ACR of the concerned having not been communicated to the petitioner and the same having been relied upon to deny the petitioner for promotion is unsustainable.

¶8In view of the above, the letter dated 03.07.2022 intimating the petitioner that the petitioner is not meeting the ACR criteria for further promotion is set aside and quashed. The respondents are directed to reconsider the case of the petitioner for the promotion to the subject post in accordance with law.

¶9It is needless to be clarified that the entire exercise shall be carried out within a period of 3 (three) months from the date of receipt of certified copy of the Court's order.

¶10Ordered accordingly.

¶11With the aforesaid observations and directions, the writ petition is disposed of. JUDGE Comparing Assistant

PageoNo.#o1/4 GAHC010159902022 ooooooo undefined ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/5452/2022o HARENDRAoNATHoROYo S/O.oLT.oPRANESHWARoRAY,oPRESENTLYoSERVINGoASoNO.G/153824Yo WARRANToOFFICER/GDo(GENERALoDUTY)oATo15THoASSAMoRIFLESoC/O.o99o APO,oPIN-932015. VERSUSo UNIONoOFoINDIAoANDo5oORS.o REP.oBYoTHEoSECRETARYoTHEoGOVT.oOFoINDIA,oMINISTRYoOFoHOMEo AFFAIR,oNEWoDELHI-110001. 2:THEoDIRECTORoGENERAL oASSAMoRIFLES oHEADoQUARTERoDIRECTORATEoGENERAL oASSAMoRIFLESoSHILLONG-11. 3:THEoCOMMANDANTo15THoASSAMoRIFLES oC/O.o99oAPO oPIN-932015. 4:JC-153283oNAIBoSUBEDAR/GENERALoDUTYoMALAoRAMoYADAV oC/O.oTHEoCOMMANDANTo15THoASSAMoRIFLES oC/O.o99oAPO oPIN-932015. 5:JC-153368oNAIBoSUBEDAR/GENERALoDUTYoDILAWARoSINGH oC/O.oTHEoCOMMANDANTo15THoASSAMoRIFLES oC/O.o99oAPO Page No.# 2/4 PIN-932015 Advocate for the Petitioner : MS S BORA, Advocate for the Respondent : ASSTT.S.G.I., MR. K GOGOI BEFORE HONOURABLE MR. JUSTICE KAUSHIK GOSWAMI