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2019 Supreme(Megh) 2
`IN THE HIGH COURT OF MEGHALAYA AT SHILLONG
Mohammad Yaqoob Mir, J.
Shri Rajib Kumar Sarkar - Petitioner
Versus
Union of India & ors. - Respondents
WP (C) No.145 of 2016
Decided On : 24-04-2019
For the Appellant : Mr. B. Deb, Adv
For the Respondent: Mr. K. Paul, CGC
Amended rules should not work to the prejudice of an employee, and the court should resolve any injustice to avoid loss to one without giving undue advantage to others.
Headnote:
ACR Criteria - Promotion to the Post of Subedar - ROI 4/2002, Nirmal Chandra Bhattacharjee v. Union of India, State of Uttar Pradesh & ors v. Mahesh Narain & ors - The court discussed the ACR criteria for promotion to the post of Subedar and the amendment to the ACR criteria, emphasizing the principle that amended rules should not work to the prejudice of an employee. The judgment referenced relevant legal provisions and their interpretations, highlighting the impact of the ACR ratings on the petitioner's eligibility for promotion.
Fact of the Case:
The petitioner sought quashing of a letter denying his promotion to the post of Subedar and requested consideration for promotion based on the ACR criteria. The petitioner had completed five years of service and met the ACR criteria as per the pre-revised rules, but was not promoted due to the amended ACR criteria.
Finding of the Court:
The court found that the petitioner was eligible for promotion based on the pre-revised ACR criteria and that the amended rules should not prejudice the petitioner's rights. The court directed the respondents to reconsider the petitioner's promotion and provide consequential benefits.
Issues: The key issue was whether the petitioner's promotion case should be considered based on the pre-revised ACR criteria or the amended ACR criteria.
Ratio Decidendi: The court held that the petitioner, who had completed five years of service before the effective date of the amended ACR criteria, should be considered for promotion based on the pre-revised ACR criteria, in line with the principle that amended rules should not work to the prejudice of an employee.
Final Decision: The petition was allowed, and the impugned communication denying promotion was quashed. The respondents were directed to reconsider the petitioner's promotion and provide all consequential benefits including seniority.
JUDGMENT :
1. Petitioner by medium of this petition prays for quashing the letter No.I.17033/13/ACR-Sec/2015/290 dated 11.12.2015 issued from Mahanideshalaya Assam Rifles Directorate General Assam Rifles, Shillong-793011 with a further prayer to direct the respondents to consider him for promotion to the post of Subedar (Cipher).
2. Admitted position as emerged from the records is that the petitioner was appointed as Rfn/ORL on 12.05.1989, was remustered as Havildar (Cipher) w.e.f. 24.11.1994 consequently, promoted to the rank of Naib Subedar w.e.f. 01.01.2008.
3. Petitioner as Naib Subedar (Cipher) had completed five years of service on 31.12.2012 which is a requisite period for being eligible for promotion to the rank of Subedar. Annual Confidential Report (ACR) criteria prior to 2012 was that Naib Subedar for five years must have ratings of ACR as under:-
“Three out of last 5 reports should not be below “HIGH AVERAGE”.
Remaining two reports should not be below “AVERAGE”.”
4. Admittedly ACR rating of the petitioner is as under :-
| “(i) | 2008 | High Average |
| (ii) | 2009 | High Average |
| (iii) | 2010 | High Average |
| (iv) | 2011 | Above Average |
| (v) | 2012 | High Average” |
5. As per the ACR criteria as was in vogue up to the year 2012, petitioner was fit to be promoted to the post of Subedar.
6. ACR criteria for promotion has been amended by the respondents on 25.06.2012 vide its letter No.I-17033/08/ACR-SEC/2011-12/620 to be effective from 01.01.2013 same is as under:-
“AMENDMENT TO ACR CRITERIA FOR PROMOTION
1. Ref. ROI 4/2002 and feedback received from the environment in response to this Dte letter No.I.36026 Rec/(Coord)/2012/1150 dated 20 Mar 2012.
2. After the due deliberations it has been decided that ACR criteria for promotion of all the cat from Nd.Sub to Sub and Sub to Sub.Maj will be as per the revised ACR criteria mentioned at Appx.
3. The ACR criteria mentioned at ser No.3 & 4 of Appces B to F and ser No.4 & 5 of Appx H to ROI 4/2002 may please be amended accordingly.
4. The revised ACR criteria will be effective w.e.f. 01 Jan 2013 i.e. from the DPC of the year 2013.
5. Please ack receipt of this letter.”
7. The amended ACR criteria for promotion to the post of Subedar from Naib Subedar is as under:-
| “ACR Criteria for last five years |
| (a) Three (3) out of last five (5) reports should not be below “Above Average”. |
| (b) Remaining two (2) reports should not be below “High Average” |
| (c) Out of last five (5) reports, three reports must be from bn/ARTC&S/NSG (Not applicable to GD Pers forming part of any AR team of any discipline att to AR/Army/fmn) (Applicable to GD pers only) |
| (d) Should have been recommended for promotion in the last five (5) reports.” |
8. Petitioner had completed five years of service as Naib Subedar on 31.12.2012, DPC was held in the month of January 2013 while applying the revised criteria it was observed that the petitioner has not fulfilled the ACR criteria, therefore, not recommended for promotion whereas, his juniors had been recommended because they fulfilled the revised criteria.
9. Petitioner aggrieved by the action of the respondents in not promoting him filed WP (C) No.282 of 2013 which was disposed of by this Court vide judgment dated 01.09.2015. In the said judgment it was noticed that grading of ACR recorded were not communicated to the petitioner, therefore, could not be relied upon, a direction was issued to the respondents to communicate the said grading of ACR to the petitioner so as to enable him to file representation.
10. In compliance to the said judgment, ratings of the ACR”s for the period from 2008 to 2012 were communicated to the petitioner. In response whereof, petitioner had submitted his representation on 07.11.2015 wherein, he had represented that he has been graded “High Average” and “Above Average” therefore, he is hundred p
