ORDER : 1. The petitioner has filed this petition under Article 226 of the Constitution of India against the order dated 23.12.2010 (Annexure P/1), whereby the compulsory retirement of the petitioner was commuted to punishment of 30 days force detention and office memo dated 26.04.2011 along with the APAR report (Annexure P/1), wherein adverse entry has been entered/recorded by the reporting authority. 2. Brief facts of the case, as projected by the petitioner, are as under :- (i) The petitioner was appointed as Constable in the Force and accordingly joined his duties on 05.10.1987. The petitioner during his service period rendered his services at different places viz. Himachal Pradesh, Bareilly, Panchkula, Leh & Ladakh, Uttar kashi, North East Arunachal Pradesh, Raipur and at present posted at Raibareily and promoted to the post of Head Constable on his original seniority. (ii) During the service period, vide order dated 03.08.2010, charges of rude behavious was imposed and Departmental Enquiry was conducted through Summary Trial Court against the petitioner. Out of the five charges levelled against the petitioner, one charge of using un-parliamentary language was dropped and enquiry was continued for the rest of the charges and, after conclusion of enquiry and found the charges to be proved, vide order dated 20.08.2010 (Annexure P/3), awarded the sentence of compulsory retirement to the petitioner. (iii) Being aggrieved by the compulsorily retirement order dated 20.08.2010, an appeal dated 20.11.2010 (Annexure P/4) was preferred by the petitioner before the Appellate Authority. The Appellate Authority considered the appeal filed by the petitioner and vide order dated 23.12.2010, re-instated the petitioner in the service to the extent that the compulsory retirement of service was commuted into 30 days force detention under Section 51 (e) of the ITBP Act, 1992. (iv) In compliance of the order dated 23.12.2010 of re-reinstatement, the petitioner joined his duties on 11.01.2011 as per conditions laid down in the order and thus re-instated in the service. Though the petitioner was re-instated, however, vide order dated 12.01.2011 (Annexure P/5), the intervening period from 20.08.2010 to 11.01.2011 (145 days) was adjusted in earned leave by the competent authority. (v) According to the petitioner, after his re-reinstatement, the concerned reporting officer rendered adverse ACR report (Annexure P/1) taking the period w.e.f. 01.01.2010 to 31.12.2010 ignoring the fact that the petitioner was not physically present within such period due to compulsory retirement order enforced against him. (v) According to the petitioner, after his re-reinstatement, the concerned reporting officer rendered adverse ACR report (Annexure P/1) taking the period w.e.f. 01.01.2010 to 31.12.2010 ignoring the fact that the petitioner was not physically present within such period due to compulsory retirement order enforced against him. (vi) Being aggrieved by the Annual Progress Assessment Report (for short “the APAR”) dated 26.04.2011 (Annexure P/1), on 30.07.2011, the petitioner filed review petition (Annexure P/6) under Section 14(2) read with Rule 3 of ITBT Act, 1992 R/w the ITBP rules, 1994, seeking quashment of adverse report made against the petitioner retrospectively and to discharge the petitioner from all the consequences and reconsider the case of the petitioner by constituting a fresh review DPC and consider the petitioner for next higher promotion in his original seniority. (vii) According to the petitioner, the review petition was examined by the competent authority but instead of deciding the same on merit, in accordance with law, the authority concerned merely stated the reply to the counsel for the petitioner repeating same facts in illustrative manner without justifying the same as per law. The authority on every occasion has repeated the same events as to how the petitioner was compulsorily retired from the service which was commuted to reinstatement by the appellate authority. There is no provision under ITBP Act, 1992, which empower the Inspector General to commute the sentence. Hence, this petition by the petitioner seeking following relief(s) :- “10.1 That this Hon’ble Court may kindly be pleased to direct the respondent authorities to call the entire records pertaining to this case. 10.2 That the Hon’ble Court may kindly be pleased to issue writ in the nature of certiorari, prohibition and mandamus to quash the impugned order dated 23.12.2010 to the extent it relates to the imposing force detention of 30 days to the petitioner and further to quash the adverse report and endorsement entered by the concerned reporting officer in APAR report for the period 01.01.2010 to 31.12.2010 served on petitioner vide order dated 25.04.2011 (Annexure P/1). 10.3 Further Hon’ble Court may kindly be pleased to quash the order dated 30.09.2011 (Annexure P/7) passed by respondent no.2 being illegal and contrary to the principle of law. 10.3 Further Hon’ble Court may kindly be pleased to quash the order dated 30.09.2011 (Annexure P/7) passed by respondent no.2 being illegal and contrary to the principle of law. 10.4 Further after quashing/setting aside above order Hon’ble Court may further be pleased to issue suitable orders and direction against the respondent authorities to decide the review petition of the petitioner in accordance with law on merit. 10.5 That the Hon’ble Court may further be pleased to direct the respondents authorities to give him promotion on his original seniority that has been awarded to similar situated person after holding fresh DPC treating as no such action as mentioned above was taken against him and to give the other connected benefit arising out of such and any other order may be passed that is deemed fit along with the cost of the petition in the interest of justice.” 3. Learned counsel for the petitioner submits that acts and omission of respondent authorities is unconstitutional, illegal, arbitrary and against the principles of natural justice. The impugned order dated 23.12.2010 (Annexure P/1) passed by the Appellate Authority to the extent of converting the sentence to 30 days force detention is without jurisdiction in terms of Section 51(e) of the ITBP Act. Learned counsel further submits that as the petitioner was holding the rank of substantive post of Havaldar and Section 51 (e), if allowed, would reduce the rank in terms of Section 51 (f) that cannot be done by the Appellate Authority. Learned counsel also submits that the downgrading ACR by taking the same ground of the summary punishment or the trial by summary Court and awarding an adverse pen picture on the same set of facts is double jeopardy in the eyes of law that has been settled in the matter of Lt. Governor Delhi & Ors v. HC Narinder Singh (2004) 13 SCC 342 . 4. Learned counsel also submits that the reviewing authority instead of deciding the review petition of the petitioner merely replied to the counsel for the petitioner reiterating same facts mentioned in the reinstatement order and without any speaking order, dismissed the review petition. The representation dated 03.07.2011 (Annexure P/8) was filed by the petitioner seeking to expunge the adverse entry made against the petitioner but same has not been considered in accordance with law. The representation dated 03.07.2011 (Annexure P/8) was filed by the petitioner seeking to expunge the adverse entry made against the petitioner but same has not been considered in accordance with law. Learned counsel further submits that the impugned adverse ACR report is full of mala fides and biased due to reason that same has been prepared on the back of the petitioner for the period in which he was physically not available on duty due to passing of compulsory retirement order against him. Moreover, the reporting officer neither physically examined the presence of the petitioner hence, the assessment in such a bare manner is biased based on subjective interest of concerned authority which is required to be expunged. The petitioner cannot be penalized twice by taking into account the same set of fact which has already been dealt with. Thus, this petition may be allowed. 5. Reliance has been placed on the decision of Hon’ble Supreme Court in the matter of Union of India Vs. G.R. Meghwal reported in AIR 2022 SC 4661 . 6. On the other hand, learned counsel for respondents strongly opposed the prayer of the petitioner and submits that the petitioner was reinstated in service by order dated 23.12.2010 (Annexure P/2). The period of absence is shown as 145 days “Earned Leave” w.e.f. 28.08.2010 to 11.01.2011 instead of absence period which is regularised as per the direction of the competent authority. Since the petitioner was absent w.e.f. 28.08.2010 to 11.01.2011 (consequent upon his compulsory retirement), it had been accordingly mentioned in the APAR. The adverse remark in the APAR was endorsed by the initiating officer who had assessed the petitioner. The petitioner had been assigned with the duty of section commander of the perimeter patrol which was to move at 23:30 hours on dated 27.06.2010 but the petitioner did not turn for duty at the scheduled time. For the above omission, the petitioner had been tried by Summary Force Court on 18.08.2010 and vide order dated 20.08.2010 (Annexure R/1) awarded sentence “to be retired compulsory from the service” under Section 51 (d) of the Indo-Tibetan Border Police Force Act, 1992. 7. For the above omission, the petitioner had been tried by Summary Force Court on 18.08.2010 and vide order dated 20.08.2010 (Annexure R/1) awarded sentence “to be retired compulsory from the service” under Section 51 (d) of the Indo-Tibetan Border Police Force Act, 1992. 7. Learned counsel further submits that the petitioner preferred representation against the order dated 20.08.2010, however, considering the representation of the petitioner, the punishment was commuted to imprisonment for 30 days Force Custody and reinstated the petitioner in service & directed to regularise the absent period in “Leave kind due” vide order dated 23.12.2010 (Annexure R/2). The initiating officer endorsed his remark in the APAR after careful observation of the petitioner’s performance, keeping in mind, appears to be just and proper. The petitioner has been served with oral and written warning on many platforms. The APAR of the petitioner is technically valid and justified according to law and has been processed strictly in terms of GOI instruction. Learned counsel also submits that the petitioner is not eligible for promotion since the year 2011 on the ground that the petitioner has been awarded major punishment by Summary Force Court and the petitioner also got adverse remark in APAR. The promotion to the next rank is not given only on the basis of APAR but as per order dated 17.08.2004 (Annexure R/3), other qualifications are also required to be taken in to consideration for promotion. The respondents have taken all possible and sincere steps and also warned the petitioner for his rude behaviour against commandant. As such, this petition is without any merit and may be dismissed. 8. I have heard learned counsel for the parties and perused the material available on record. 9. It is apparent from the record that vide order dated 20.08.2010 (Annexure P/3), the petitioner was awarded major punishment of compulsory retirement and in an appeal against the said order of compulsory retirement, the Appellate Authority allowing the appeal by order dated 23.12.2010 (Annexure P/1), re-instated the petitioner in service to the extent that the compulsory retirement from service was commuted into 30 days force detention under Section 51 (e) of the ITBP Act, 1992, and in compliance of this order, the petitioner joined the duty on 11.01.2011. However, vide order dated 12.01.2011 (Annexure P/5), intervening period of 145 days was adjusted in earned leave by the competent authority. 10. However, vide order dated 12.01.2011 (Annexure P/5), intervening period of 145 days was adjusted in earned leave by the competent authority. 10. According to the petitioner, he represented before the respondent authorities by way of representation dated 03.07.2011 (Annexure P/8) against the adverse ACR but his representation has not been considered by the respondent authorities in accordance with law, hence, the petitioner was not physically present on duty for intervening period from 20.08.2010 to 11.01.2011 (145 days). 11. The Respondent Nos. 2 and 3 did not rebut this fact specially in their reply and they have not filed any order/document showing that any action has been taken on petitioner’s representation or any order has been passed thereon and only one office memorandum dated 13.07.2011 was issued. For ready reference, the contents of the said memorandum is reproduced herein as under :- ^^mijksDr lUnHkZ esa voxr djk;k tkrk gS fd dehZ dh o”kZ 2010 ds lfØ; fM;wVh ds nkSjku ykijokgh cjrus ,oa lR;fu”Bk larks”ktud ugha ik;s tkus ds dkj.k dehZ ds dk;Z fu”iknu ewY;kadu Áfrosnu esa dksbZ dkjokbZ visf{kr ugha gSA rnuqlkj dehZ dks lwfpr djsA** 12. The aforesaid memorandum of the respondents department manifestly clear that the petitioner’s representation has not been considered due to his working/presence during the year 2010 and that the petitioner’s punishment of compulsory retirement was commuted to other punishment (30 days force detention) and he was reinstated in service but the reporting authority again on the basis of performand of work of the petitioner in the same year passed the adverse remark in APAR. 13. Thus, considering the aforesaid facts and circumstances of the case, the instant petition is disposed of with direction to the petitioner to again file a fresh representation raising his grievance of passing adverse remark in ACR during year 2010-11 before the respondent authorities within one month from the order of this Court and the respondent authorities to decide the representation of the petitioner by speaking order within three months from the submission of such representation, in accordance with law.