IMPORTANT POINT
The court established that the non-communication of ACR gradings violates principles of natural justice and fairness, impacting an employee's promotion and benefits.

JUDGMENT :

Sanjay Kumar Medhi, J.

The grievance raised in this petition filed under Article 226 of the Constitution of India is pertaining to denial of promotion and the MACP. The primary contention is that such denial is on the basis of certain gradings in the ACRs which according to the petitioner were not communicated.

2. I have heard Ms. S. Bora, learned counsel for the petitioner. I have also heard Shri A.K. Dutta, learned CGC, who has also filed affidavit-in-opposition on 22.03.2024.

3. Ms. Bora, the learned counsel has submitted that the petitioner was enrolled in the Assam Rifles on 02.11.1989 as a Rifleman General Duty (GD). He was promoted to the rank of Havildar (GD) on 01.06.2009. A promotional exercise was done which culminated in an order dated 31.03.2021 in which the name of the petitioner did not figure. It is the grievance of the petitioner that persons junior to him were given the benefit of promotions leaving out the petitioner.

4. The specific case of the petitioner, as contended by the learned counsel is that the promotions and the MACPs were based on the gradings of the ACRs and such gradings were not communicated. It is submitted that communication of the gradings in ACRs in a mandatory requirement and a legal obligations by which the employee gets an opportunity to file representation for upgrading the gradings as well as to improve his performance. The learned counsel has also submitted that in the affidavit-in-opposition, the aforesaid aspect has been admitted.

5. The learned counsel has relied upon the following decisions on the aspect of the requirement to communicate the gradings of ACRs:-

i. Dev Dutt Vs. Union of India and Ors. reported in (2008) 8 SCC 725

ii. Anil Kumar Vs. Union of India & Ors. reported in 2019 (4) SCC 276.

iii. Sukhdev Singh Vs. Union of India & Ors. reported in (2013) 9 SCC 566.

6. Per contra, Shri Dutta, the learned CGC has submitted that there is no admission in the affidavit-in-opposition and the promotion is not dependent on the ACRs gradings alone. He submits that the gradings of the ACRs of the petitioner were upgraded and therefore the same would not be the sole reason for the impugned action. He submits that the promotions as well as grant of MACPs to the other incumbents were done by following the procedure established in law and in a fair manner and none of the said candidates have been made parties. He has also highlighted the aspect that it is not only the petitioner but even persons senior to him in the gradation list who have been denied promotion and MACPs in the exercise performed.

7. The rival submissions have been duly considered.

8. Promotion and MACPs are dependent on various factors out of which the grading in the ACRs is one of the prominent factors. That brings us to the aspect of the importance of such gradings and the legal obligation of the employer to communicate the gradings in terms of the settled law.

9. The Hon’ble Supreme Court in the case of Anil Kumar (supra), after considering the earlier judgments holding the field, had reiterated the requirement of an opportunity to be granted to an employee to submit representation in respect of the ACRs. For ready reference, the relevant observations are extracted hereinbelow :

“10. In Dev Dutt v. Union of India a two-Judge Bench of this Court held that fairness in public administration and transparency require that all entries in the Annual Confidential Reports of a public servant must be communicated within a reasonable period in order to enable the employee to make a representation for upgradation. The view of the Court was that non-communication of entries in the ACRs has civil consequences since it may affect the chances of the employee for promotion and other benefits. A failure to communicate would be arbitrary. This Court held that these directions would apply to employees of statutory authorities, public sector corporations and other instrumentalities of the State, in addition to government servants.

11. A thre