IMPORTANT POINT
Uncommunicated adverse remarks in ACRs can be considered for compulsory retirement under Rule 48(1)(b) of the Central Civil Service (Pension) Rules, 1972.

JUDGMENT :

(N. Unni Krishnan Nair, J.)

Heard Mr. B. Pathak, learned counsel for the appellant. Also heard Ms. B. Sarma, learned CGC, appearing on behalf of all the respondents.

2. The present intra-Court appeal has been so instituted by the appellant, herein, presenting a challenge to an order, dated 25.07.2022, passed by the learned single Judge in WP(c)6257/2017.

3. As projected in the writ appeal; the appellant, herein, was recruited as a Rifleman/GD on 20.12.1987, in the Assam Rifles. Thereafter, he was promoted to the Havildar/GD w.e.f. 16.12.2009. While he was so working as Havildar/GD and he having completed a period of 30 years of service; a review was undertaken by the authorities of the Assam Rifles to ascertain as to whether the appellant is fit to be retained in the Force beyond 30 years of qualifying service and/or unfit for further retention.

4. The Service Review Board(SRB) so constituted in the matter, proceeded to consider the entire service records of the appellant with special reference to the last 5(five) Annual Confidential Reports(ACRs) of the appellant, herein, and on such consideration, in view of the provisions of the Record Office Instruction(ROI) 01/2004; the said Service Review Board(SRB) proceeded to recommend that the further retention of the appellant, herein, beyond 30 years of qualifying service was not mandated.

5. Accordingly, vide communication, dated 08.08.2017; the Commandant, 33 Assam Rifles, by holding that the appellant, herein, would be proceeding on retiring pension w.e.f. 01.01.2018; had required the production of the documents so mentioned therein. Thereafter, the Commandant, 33 Assam Rifles, vide order, dated 11.08.2017, proceeded to issue notice to the appellant, herein, under the provisions of Rule 48(1)(b) of the Central Civil Service(Pension) Rules, 1972, to the effect that he would retire from his service on the forenoon on 01.01.2018, on completion of 30 years of qualifying service for pension on 20.12.2017.

6. Being aggrieved; the appellant, herein, as petitioner, had assailed the said order, dated 11.08.2017, issued by the Commandant, 33 Assam Rifles, on various grounds by way of instituting a writ petition being WP(c)6256/2017 before this Court. The learned Single Judge on consideration of the matter and after hearing the learned counsels appearing for the parties and also on perusal of the materials coming on record, proceeded vide judgment & order, dated 25.07.2022, to dismiss the said writ petition so instituted by the appellant and thereby, upheld the order, dated 11.08.2017.

7. Being aggrieved, the appellant has instituted the present proceeding before this Court.

8. Mr. Pathak, learned counsel for the appellant, by referring to the affidavit-in-opposition so filed before the writ Court by the respondents, has contended that the consideration so made by the Service Review Board(SRB) pertained only to the 5(five) Annual Confidential Reports (ACRs) preceding the date on which the appellant was decided to be released from service on compulsory retirement and the entire service records of the appellant, herein, as mandated, was not considered.

9. Mr. Pathak, learned counsel for the appellant, has further contended that the consideration so made and the opinion formed that out of the last 5(five) Annual Confidential Reports(ACRs) of the appellant, herein; remarks of 3(three) Annual Confidential Reports(ACRs) were adverse in-as-much as the same had “Average” reports, would be of no consequence in-as-much as the said Annual Confidential Reports(ACRs) were never communicated to the appellant, herein, and as such, the adverse entries/gradings so contained therein, could not have been so considered by the respondent authorities for the purpose of arriving at a satisfaction that the further retention of the appellant, herein, on completion of 30 years of qualifying service for pension, was not mandated.

10. Mr. Pathak, learned counsel, by referring to the decisions of the Hon'ble Supreme C