Non-communication of adverse performance assessment entries denies fundamental right to a fair opportunity in promotion, violating principles of natural justice.

JUDGMENT

T. Amarnath Goud, J. - Heard Mr. Somik Deb, learned senior counsel assisted by Mrs. R. Chakraborty, learned counsel appearing for the petitioner. Also heard Mr. B. Majumder, learned Asst. S.G. appearing for the respondents.

2. This present petition has been filed under Article-226 of the Constitution of India for rendering substantive and conscionable justice to the petitioner and for quashing/setting aside the impugned letter dated 20.02.2019 and the impugned order of promotion and the impugned order dated 03.02.2020 and also forthwith revoke the impugned letter dated 20.02.2019 and the impugned order of promotion and the impugned order dated 03.02.2020 to promote the petitioner to the post of Assistant Commandant, BSF with effect from the date of promotion of his juniors.

3. The brief facts of the present are that on 12.01.2004, the petitioner was appointed to the post of Sub-Inspector in the BSF. Thereafter, in the year 2009, the petitioner was promoted to the post of Inspector, BSF. On 12.08.2012, the APAR of the petitioner was issued. On 01.12.2015, the said APAR was furnished to the petitioner without however intimating as to whether the entries recorded therein were adverse or advisory in nature. On 20.02.2019, the Deputy Commandant, 133 Bn, BSF for and on behalf of the Commandant, directed the petitioner to submit his representation the adverse/advisory remarks. In response thereto, the petitioner had submitted a representation on 25.02.2019. On 30.03.2019, the various authorities, who issued the APAR, were asked to offer their comments in the case of the petitioner. On 09.05.2019 and 23.05.2019 the said authorities informed that they could recollect anything but, opined to maintain the said entries against the petitioner. Consequent thereto, the petitioner was not considered for promotion to the post of Assistant Commandant; per contra, his juniors were promoted. Disposing the representation of the petitioner, the Deputy Inspector General (Confd.), Director Border Security Force, issued an order dated 03.02.2020 thereby, rejecting the prayer of the petitioner, for upgradation of the APAR. Hence, this petition has been preferred by the present petitioner.

4. Mr. Somik Deb, learned senior counsel assisted by Mrs. R. Chakraborty, learned counsel appearing for the petitioner has submitted that the petitioner initially on 12.01.2004 was appointed to the post of Sub-Inspector, BSF and thereafter, in the year 2009, the petitioner was promoted to the post of Inspector, BSF. Presently, the petitioner is discharging his duties as Inspector in the 145 Bn. BSF, Salbagan, Agartala. With regard to the annual performance assessment of the petitioner for the period of stretching from April, 2011 to March, 2012 an Annual Performance Assessment Report (APAR, for short) was issued on 12.08.2012.

5. He has submitted that the said APAR dated 12.08.2012 was issued in the year 2012, but the same was not communicated to the petitioner at that stage. Only on 01.12.2015 the said APAR dated 12.08.2012 was furnished to the petitioner without however intimating as to whether the entries recorded therein were adverse or advisory in nature. At a later stage, the Deputy Commandant, 133Bn. BSF for and on behalf of the Commandant, 133Bn, BSF issued a letter dated 20.02.2019, thereby enclosing a copy of the APAR dated 12.08.2012 and further informed the petitioner that the entries recorded therein as adverse/advisory in nature.

6. Mr. Deb, learned senior counsel has further contended that by the said letter dated 20.02.2019 the petitioner was direct