Non-communication of ACR entries is arbitrary and violates Article 14, but does not invalidate subsequent promotion if criteria are met.

JUDGMENT : 

W.DIENGDOH, J.

1. The petitioner herein being aggrieved by the Speaking Order No. LS Singh/UPAO-Legal/1126/2019/2454 dated 29.01.2020 by which the representation dated 30.09.2019 filed by him for upgradation of his ACR grading and/or to ignore the weak points found therein was rejected as devoid of merit, has now approached this Court with this petition under Article 226 of the Constitution of India with a prayer for issuance of a writ in the nature of mandamus and/or certiorari by setting aside the said impugned Speaking Order and for grant of promotion with all consequential benefits thereof.

2. Background facts as is seen from the petition and the materials on record is that the petitioner was enrolled in the Assam Rifles on 21.05.1986 as Rifleman (GD). In due course he was promoted to the rank of Naik w.e.f. 02.04.1995 and again, he was further promoted to the rank of Havildar/GD w.e.f. 10.10.1997. On 01.09.2007 he was finally promoted to the rank of Nb Subedar.

3. It is an admitted fact of the petitioner that for promotion from the rank of Nb Subedar to the rank of Subedar the relevant recruitment rules under the Assam Rifles is based on seniority-cum-merit subject to the fulfilment of the following criteria:

a. Should have three years’ service in the rank of Naib Subedar (GD).

b. Should be in medical category SHAPE-I.

c. Should have passed Map Reading standard I.

4. The petitioner has further stated that for promotion to the rank of Naib Subedar the ACR criteria framed by the Director General, Assam Rifles/respondent No. 2 as found in Record Office Instructions (ROI) 4 of 1997 is based on a 9 point basis beginning with 1 point for “Below Average” in ascending order to 9 point for “Outstanding”.

5. As per the relevant communication dated 25.06.2012 the ACR criteria for promotion inter alia from the rank of Naib Subedar to Subedar w.e.f. 01.01.2013 are as follows:

a. Three out of Five ACRs should not be below “Above Average” (i.e. minimum 7 points).

b. Remaining Two ACRs should not be below “High Average” (i.e. minimum 5 points).

c. Out of last Five reports, Three 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.

6. Again, the petitioner has averred that it has come to his knowledge that in the year 2018 a vacancy arose for the post of Subedar and a DPC was held by the respondent authorities wherein Shri. Hirendra Pathak/respondent No. 7 who was junior to the petitioner was granted promotion thereby rendering the petitioner to be superseded.

7. Being aggrieved by such supersession, the petitioner had preferred a writ petition before this Court registered as WP(C) No. 309 of 2018 and this Court vide order dated 30.07.2019 had inter alia directed the respondents to communicate the entries made in the relevant ACRs to enable the petitioner to file a representation.

8. The petitioner accordingly filed a representation dated 05.08.2019 with a prayer to the respondent authority to upgrade the entries of his ACRs and to consider him for promotion with retrospective effect. However, the said representation was rejected vide order dated 03.09.2019.

9. The petitioner then preferred another representation dated 30.09.2019 with a prayer for upgradation of his ACR grading and/or to ignore the weak points in his ACR and consequently to grant him promotion to the rank of Subedar/GD retrospectively w.e.f. 16.07.2018. This too, was rejected vide the order dated 29.01.2020. Hence this petition.

10. It is however admitted by the petitioner that in course of these proceedings the petitioner was granted promotion to the rank of Subedar (GD) vide promotion order dated 28.03.2022 w.e.f. 16.04.2022.

11. Heard Mr. P. Nongbri, learned counsel for the petitioner who has submitted that with reference to the DPC held in the year 2018 wherein his junior colleague had been considered for