Promotion cannot be denied based on uncommunicated adverse entries in ACRs, violating the principles of fairness and Article 14.

JUDGMENT :

KARDAK ETE, J.

1. Heard Ms. S. Bora, learned counsel for the petitioner. Also heard Mr. B. Chakravarty, learned Central Government Counsel for the respondents.

2. By filing this writ petition, the petitioner has prayed for a direction to the respondent authorities to consider his case for promotion to the rank of Naib Subedar/GD (General Duty) as per his seniority, i.e. with effect from the date when his junior was promoted, by expunging/ignoring any uncommunicated adverse entry in his Annual Confidential Reports (ACRs) and to grant all consequential service benefits.

3. The case of the petitioner, in nutshell, is that he was enrolled in the Assam Rifles on 16.09.1988 as a Rifleman/GD and was posted to the 11th Assam Rifles in the year 1989. He was promoted to the rank of Havildar/GD in the year 2004 and subsequently to the rank of Warrant Officer/GD in the year 2014.

4. It is the contention of the petitioner that after promotion to the rank of Warrant Officer/GD, his next higher promotional rank is Naib Subedar/GD. The petitioner has completed the qualitative requirements for promotion and being the senior-most Warrant Officer/GD in his category, was due to be considered for promotion in the year 2018. Despite his eligibility, the petitioner has been deprived of promotion, while the said benefit has been granted to his juniors. Aggrieved by the said action, the petitioner approached the respondent authorities for the grant of promotion as per his seniority or to communicate the reason for non-consideration of his promotion. Despite requesting the respondents to communicate the reason, his grievance was ignored. Thereafter, the petitioner served a legal notice dated 03.10.2023 seeking promotion as per his seniority.

5. It is contended that the respondent authorities, vide letter dated 22.11.2023, informed the petitioner that his case had been considered by the Departmental Promotion Committee (DPC) held in the year 2018, wherein, his last 5 (five) years Annual Confidential Reports/Annual Performance Assessment Reports (ACRs/APARs) for the years 2013 to 2017 were examined and he was graded “Average (02 points)” in 2016, which is below the prescribed benchmark of “High Average/Above Average (03/04 points)”, i.e. “Very Good” required for promotion. Consequently, the name of the petitioner was not recommended for promotion to the rank of Naib Subedar (GD), being ineligible under the ACR criteria.

6. It is contended that no adverse entry in his ACRs/APARs had ever been communicated to the petitioner and he was unaware of the same until receipt of the reply dated 22.11.2023. It is the settled position of law that every ACR/APAR must be communicated to the concerned employee and consideration of any uncommunicated entry is permissible. Since the petitioner’s ACR for the year 2016 was not communicated to him, it could not lawfully be taken into account for denying his promotion to the rank of Naib Subedar/GD with effect from the year 2018.

7. Ms. S. Bora, learned counsel for the petitioner, submits that the petitioner has rendered more than 39 years of unblemished service to the organization and is now at the fag end of his service career. Except for the grading in the ACR, which was below the prescribed benchmark required for promotion, the petitioner fulfills all the promotional qualitative requirements. The entries/remarks in the petitioner’s ACR have never been communicated to him, thereby depriving him of the opportunity to raise his gri