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Meghalaya High Court · body

2019 DIGILAW 116 (MEG)

Rajib Kumar Sarkar v. Union of India

2019-04-24

MOHAMMAD YAQOOB MIR

body2019
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”. 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 percent eligible to the rank of Subedar (Cipher) w.e.f. 01.01.2013 with all consequential benefits including pay and seniority. In response whereof, impugned letter dated 11.12.2015 has been issued wherein, applicability of revised ACRs for promotion has been made mention of. Furthermore, it has been mentioned that the case of the petitioner along with his batch mates came up for screening by DPC 2013 held in January 2013, petitioner was not empanelled for promotion for not fulfilling the ACR”s criteria, his juniors Chaman Lal and Sunil Kumar have been promoted as they were qualified in all respects for promotion as per laid down procedure (ACR criteria). 11. 11. Petitioner in his representation had not objected to the ratings, therefore, purpose of communicating ACRs has been achieved. After communication when there is no objection to the ACR ratings, same has to be acted upon. 12. Contention of learned counsel for the petitioner is that the petitioner had completed five years of service as Naib Subedar on 31.12.2012 his promotion case was required to be considered by applying the ACR criteria as was in vogue up to 31.12.2012. Supporting this contention would submit that one of the principles of service is that amended rule is not to work to the prejudice of an employee who was in service prior to that date, placed reliance on the judgment rendered by Hon”ble Apex Court in the case of State of Uttar Pradesh & ors v. Mahesh Narain & ors: (2013) 4 SCC 169 . Paras 11 and 14 of the said judgment are relevant to be quoted:- “11. We, however, have no hesitation in holding that this contention is fit to be rejected outright as the rules cannot be held to be made effective from the date of their preparation but will attain legal sanctity and hence be capable of enforcement only when the rules are made effective and the date on which they are to be made effective would obviously be the date when the rules are published vide the gazette notification. In that view of the matter, we find no infirmity in the respondents’ plea that they possessed the requisite experience of five years on the post of Scientific Officer as they had already put in five years of service from the publication of the amended Rules of 1990 and, therefore, they were rightly held eligible for consideration of promotion to the next post of Assistant Director. We are thus pleased to approve and uphold the view taken by the High Court on this count. 14. The learned counsel for the respondents in support of this position has also cited the authority of this Court in Nirmal Chandra Bhattacharjee v. Union of India: [1991 Supp (2) SCC 363: 1992 SCC (L&S) 236: (1992) 19 ATC 302] wherein this Court observed as under: (SCC p.366, para 3) “3. ..... 14. The learned counsel for the respondents in support of this position has also cited the authority of this Court in Nirmal Chandra Bhattacharjee v. Union of India: [1991 Supp (2) SCC 363: 1992 SCC (L&S) 236: (1992) 19 ATC 302] wherein this Court observed as under: (SCC p.366, para 3) “3. ..... No rule or order which is meant to benefit employees should normally be construed in such a manner as to work hardship and injustice specially when its operation is automatic and if any injustice arises then the primary duty of the courts is to resolve it in such a manner that it may avoid any loss to one without giving undue advantage to other.” (Emphasis supplied) 13. In the reported judgment, amended rules were notified and made effective only after the employee had become eligible for promotion. 14. Amendment to the ACR criteria had been prepared on 25.06.2012 as quoted hereinabove, however, made effective from 01.01.2013 i.e. from the DPC of the year 2013. Petitioner in effect on completing five years of service on 31.12.2012 was eligible. 15. Now a moot question which arises for consideration is as to whether promotion case of the petitioner was required to be considered as per pre-revised ACR criteria or as per revised ACR criteria. 16. The question is as to whether position acquired by the petitioner on the basis of pre-revised ACR criteria can be ignored when it is a settled principle of service that amended rule shall not work to the prejudice of an employee. In para 14 of the judgment reported in (2013) 4 SCC 169 what has been held in Nirmal Chandra Bhattacharjee v. Union of India: 1991 Supp (2) SCC 363 as quoted hereinabove clearly enjoin that “no rule or order which is meant to benefit employees should normally be construed in such a manner as to work hardship and injustice specially when its operation is automatic and if any injustice arises then the primary duty of the courts is to resolve it in such a manner that it may avoid any loss to one without giving undue advantage to other”. 17. ACR ratings of the petitioner for five years as referred to above is not abnormal nor there is any adverse remark against the petitioner. 17. ACR ratings of the petitioner for five years as referred to above is not abnormal nor there is any adverse remark against the petitioner. Revised ACR criteria order though issued on 25.06.2012 but has been made effective from 01.01.2013, petitioner on 31.12.2012 on the basis of pre-revised ACR criteria as was in vogue qualified for being promoted to the rank of Subedar therefore, applying the principle of law as evolved it would be a travesty of justice to operate it against the petitioner so as to negate the benefit of his ratings earned for the relevant period of five years. Revised ACR criteria may be applicable vis-à-vis the employee who complete the requisite five years after 01.01.2013. 18. Two juniors to the petitioner have been promoted definitely to the disadvantage of the petitioner when his ACR ratings for the relevant period make him eligible for promotion and otherwise nothing adverse against him has been brought to the notice of the Court to persuade the Court to take a different view. 19. For ratings recorded in the ACR, award of point is as under:- “1. Outstanding 09 2. Above Average 07 3. High Average 05 4. Average 04 5. Low Average 03 6. Below Average 02” 20. Petitioner admittedly out of the relevant five years from 2008 to 2012 has been rated for four years as “High Average” and one year as “Above Average”. On such ratings coupled with the fact that nothing adverse exists against him, benefit of promotion cannot be denied. 21. The order dated 15.06.2012 providing for amendment of ACR criteria to take effect from 01.01.2013 has not to be construed in a manner so as to deny the accrued right otherwise it may have impact of demoralizing the petitioner who to the best of his ability has worked and rated which ratings satisfy the ACR criteria as was in vogue prior to 31.12.2012 for promotion to the post of Subedar. 22. To sum up, the respondents are required to consider the case of the petitioner for promotion to the post of Subedar on the basis of pre-revised ACR criteria as was in vogue up to 31.12.2012 when the petitioner became eligible for promotion to the post of Subedar. Therefore, this petition is allowed the impugned communication denying promotion to the petitioner is quashed. Therefore, this petition is allowed the impugned communication denying promotion to the petitioner is quashed. Respondents are directed to accord consideration to the representation of the petitioner a fresh for promoting him to the post of Subedar and also to consider all consequential benefits including seniority. 23. Petition succeeds shall stand disposed of as above.