Uncommunicated adverse remarks in Annual Confidential Reports cannot be considered for promotion eligibility, reaffirming the principle of fair administrative action under Article 14.

JUDGEMENT :

KARDAK ETE, J.

Heard Mr. B. Pathak, 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 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 brief, is that he was enrolled in the Assam Rifles on 07.03.1987 as a Rifleman/GD and was posted to the 19th Assam Rifles in the year 1988. He was promoted to the rank of Havildar/GD in the year 1998 and subsequently to the rank of Naib Subedar/GD in the year 2007.

4. It is the contention of the petitioner that after promotion to Naib Subedar/GD, his next higher promotional rank is Subedar/GD. The petitioner has completed the qualitative requirements for promotion and being the senior-most Naib Subedar in his category, was due to be considered for promotion in the year 2020. 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 23.12.2024 seeking promotion as per his seniority.

5. It is contended that the respondent authorities, vide letter dated 26.02.2025, informed the petitioner that his case had been considered by the Departmental Promotion Committee (DPC) held in the year 2020, wherein, his last five Annual Confidential Reports/Annual Performance Assessment Reports (ACRs/APARs) for 2015-2019 were examined and he was graded “High Average” (05 points) in 2018, below the prescribed benchmark of “Above Average” (07 points) i.e. “Very Good” required for promotion. Consequently, the name of the petitioner was not recommended for promotion to Subedar/GD, 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 26.02.2025. 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 years 2018-2020 was not communicated to him, it could not lawfully be taken into account for denying his promotion to the rank of Subedar/GD with effect from the year 2020.

7. Mr. B. Pathak, learned counsel for the petitioner, submits that the petitioner has rendered more than 38 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 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 o