Uncommunicated adverse remarks in ACRs cannot be acted upon for determining eligibility for promotion or financial benefits under the MACP Scheme.

JUDGMENT :

KARDAK ETE, J.

1.Heard Mr. B. Pathak, learned counsel for the petitioner. Also heard Mr. R. K. D. Choudhury, learned Deputy Solicitor General of India 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 the benefit of MACP-III on completion of 30 years service, i.e. with effect from 24.10.2022, 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 brief, is that he was enrolled in the Assam Rifles on 24.10.1992 as a Rifleman/GD and was posted to the 4th Assam Rifles in the year 1993. He was promoted to the rank of Havildar/GD in the year 2007.

4. It is the contention of the petitioner that after promotion to Havildar/GD, his next higher promotional rank is Warrant Officer/GD. The petitioner was due to considered for granting the benefit of MACP-III on completion of 30 years of service, i.e. with effect from 24.10.2022. Despite his eligibility, the petitioner has been deprived of granting financial upgradations under MACP Scheme. Aggrieved by the said action, the petitioner approached the respondent authorities for the grant of MACP-III. Despite requesting the respondents to communicate the reason, his grievance was ignored. Thereafter, the petitioner served a legal notice dated 24.01.2025 seeking benefit of MACP-III on completion of 30 years of service with effect from the year 24.10.2022.

5. It is contended that the respondent authorities, vide letter dated 28.02.2025, informed the petitioner that his case had been considered by the Departmental Promotion Committee (DPC) held in the year 2022, wherein, his last five Annual Confidential Reports/Annual Performance Assessment Reports (ACRs/APARs) for 2019-20, 2020-21 to 2021-22 were examined and he was graded “Average” (02 points) in 2020-21, below the prescribed benchmark of “Good” or “Very Good” (03/04 points). Consequently, the name of the petitioner was not recommended for the benefit of MACP-III, being ineligible under the ACR criteria.

6. It is contended that 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 28.02.2025. 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 impermissible. Since the petitioner’s ACR for the year 2021 was not communicated to him, it could not lawfully be taken into account for denying his benefit of MACP-III with effect from 24.10.2022.

7. Mr. B. Pathak, learned counsel for the petitioner, submits that the petitioner has rendered more than 32 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 the benefit of MACP-III, the petitioner fulfills all the requirements. The entries/remarks in the petitioner’s ACR have never been communicated to him, thereby depriving him of the opportunity to raise his grievance by way of a representation in terms of the relevant provisions, which the respondents have expressly violated.

8. Mr. Pathak, learned counsel, while referring to the judgments of the Hon’ble Supreme Court in the cases of Dev Dutt vs. Union of India & Ors. reported in (2008) 8 SCC 725 and Sukhdev Singh vs. Union of India & Ors., reported in (2013) 9 SCC 566 , which have been reiterated in the subsequent cases, submits that law relating to recording of Annual Confidential Report (ACR) and its communication, has been settled by the Hon’ble Supreme Court, wherein it has held that uncommunicated remarks in the ACRs cannot be acted upon and are directed to be expunged. Therefore, he submits that a direction may be issued to the respondent authorities to grant the benefit of MACP-III to the petitioner