IMPORTANT POINT
The importance of timely representation against adverse entries and remarks in the ACR, and the acknowledgment of ACR contents by the petitioner through signature were central legal points established in the judgment.

JUDGMENT

1. On being denied promotion to the post of Commandant in the Assam Rifles, the petitioner has approached this Court with this petition under Article 226 with a prayer for issue of a writ in the nature of mandamus to direct the respondents herein to grant the said promotion with all consequential benefits including seniority with retrospective effect from 31.03.2020.

2. According to the petitioner, he is serving as Second-in- Command (2IC) in Assam Rifles since 31.03.2014 and is due for promotion to the post of Commandant having completed the minimum eligibility length of service. One of the criteria for promotion from the post of 2IC to Commandant as per the provisions of the Assam Rifles Group 'A' Combatised Posts Recruitment Rules, 2001 is by promotion from amongst the Second-In-Command of Assam Rifles who have minimum eligible service of 4 years as Second-in-Command and a total of 15 years Group 'A' service provided they are following acceptable medical category of SHAPE-1 or relaxation given by the Government to certain categories from time to time.

3. The procedure to be observed by the Departmental Promotion Committee (DPC) while considering promotion of personnel of the Assam Rifles is by noting the Confidential Report (CR) of the incumbent for the preceding five years, which CR was graded on a nine points system with 9 points awarded to those who are graded 'Outstanding', 8 or 7 points for 'Above Average', 6 or 5 points for 'High Average', 4 points for 'Average', 3 or 2 points for 'Low Average' and 1 point for 'Below Average'.

4. According to the petitioner, on 14.10.2019, the Assam Rifles convened a DPC for promotion of 2ICs to 8 vacant posts of Commandant. Vide letter No. Unclass A 1716 dated 31.03.2020, 6 (six) 2ICs have been granted promotion while the petitioner whose name was also under consideration was denied promotion apparently due to a shortfall in the ACR criteria for the year 2015-16.

5. The petitioner has also averred that immediately after the DPC was held, the ICR/ACR for the period from 01.04.2009 to 31.03.2016 spanning a period of seven years was received by him on 13.01.2020 from the respondents issued vide letter No. MS/V-R/9-2019/236, dated 29.11.2019. In this regard, it is said that the last ACR pertaining to the period from 01.04.2015 to 31.03.2016 was communicated to the petitioner in the year 2019 after three and a half years (42 months) and as such, for the said delayed communication of the ACR, the ACR for 2015-16 has lost its purpose and cannot be used to the prejudice of the petitioner.

6. Mr. P. Nongbri, learned counsel for the petitioner while pointing out the above to this Court, has submitted that the petitioner was prejudiced when his case for promotion was not considered, firstly, on the basis of the alleged adverse entries in his ACR pertaining to the year 2015-16 for which no opportunity was given to him to rebut the same or to be allowed to improve on his performance, conduct or character as the case may be and secondly, since on the basis of the un-communicated ACR which contained the alleged adverse entry, his case for promotion has been denied.

7. The learned counsel also submits that the delay in communication of the ACR is a violation of the ACR guidelines which mandates that the same should be communicated to the concerned officer or employee within a reasonable period so that he can make any representation if so required. The delay of non-communication of the ACR is also a violation of the principles of natural justice, particularly when in a case such as the petitioner's, promotion was denied on the basis of adverse entry on an un-communicated ACR.

8. On the contention of the respondents that the petitioner is very much aware of the adverse entry in his ACR for the year 2015-16, since he has signed the ACR in the Figurative Assessment and Pen Picture, the learned counsel for the petitioner has submitted that it is a settled position of law that the ACR must be communicate