Page No.# 1/4 GAHC010160102023 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/4316/2023 NO. JC- 361873A NAIB SUBEDAR CLERK MD. MUNNA S/O- LATE MD. BIRBAL, PRESENTLY SERVING AS NAIB SUBEDAR CLERK AT ASSAM RIFLES DOG TRAINING CENTRE, JORHAT, ASSAM, PIN- 932401. VERSUS UNION OF INDIA AND 2 ORS. REPRESENTED BY THE SECRETARY THE GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS NEW DELHI- 110001. 2:THE DIRECTOR GENERAL ASSAM RIFLES HEAD QUARTER DIRECTORATE GENERAL ASSAM RIFLES SHILLONG-11. 3:THE COMMANDANT ASSAM RIFLES DOG TRAINING CENTRE JORHAT ASSAM PIN- 932401 Advocate for the Petitioner : MR V KUMAR, MS M TIWARI,MR B HAZARIKA,MR B PATHAK Advocate for the Respondent : DY.S.G.I., MR. B CHAKRAVARTY Page No.# 2/4 BEFORE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA ORDER 06.03 .2025 Heard Mr. V. Kumar, learned counsel for the petitioner. Also heard Mr. B. Chakraborty, learned CGC. 2. The writ petitioner is presently serving as Naib Subedar Clerk in the Assam Rifles and by the promotion order dated 08th April, 2022, whereby his promotion was denied and his juniors were promoted to the rank of Subedar Clerk. The petitioner represented against the same and the respondent authority vide W.T. message dated 10th May, 2022 and order dated 26th May, 2023 informed the petitioner that his promotion to Subedar Clerk was not recommended/considered due to lack of ACR benchmark. However, According to the petitioner, those adverse entries in the ACR was never communicated to him and, therefore, the authorities could not have relied on the un-communicated adverse entry in the ACR, so as to deny him the promotion to the rank of Subedar Clerk. 3. Mr. Kumar submits that after promotion to the rank of Naib Subedar/Clerk the next higher promotional rank is Subedar/Clerk. He further submits that the petitioner has completed the Qualitative Requirements (QR) for the promotion to the rank of Subedar Clerk and being a senior Naib Subedar Clerk he was due to be promoted to the post of Subedar Clerk in the year 2022, to which he was entitled to under the law. By relying upon the law laid down by the Hon’ble Supreme Court rendered in the case of Dev Dutt Vs. Union of India and others reported in (2008) 8 SCC 725, Mr. Kumar submits that the recourse taken by the Page No.# 3/4 authorities in this case is arbitrary and illegal and, therefore, calls for interference by this Court. 4. In the affidavit filed on behalf of the respondents, it is admitted that the gradings in the form of “High Average” in the ACR of the petitioner for the year 2018-19 was taken into consideration so as to deny him for promotion to the rank of Subedar (Clerk) in the DPC for the year 2022 and 2023, but such entry was not communicated to him as according to the respondents, such entry cannot be treated to be an adverse remark. From the averments made in the affidavit, it is seen that for the years 2018-19, the petitioner was graded as “High Average”. And because of his grading as “High Average” for the year 2018-19, he was superseded for promotion to the rank of Subedar (Clerk) in the DPC for the year 2022 and 2023. The grading of “high average” would be considered as adverse entry in the ACR. If that be so, there can be no doubt about the fact that in view of the law laid down by the Hon’ble Supreme Court in the case of Dev Dutt (Supra) as well as Sukhdev Singh Vs. Union of India and others reported in (2013) 9 SCC 566, for the year 2018-19 the petitioner was downgraded to “High Average” when compared to the gradings for the years 2017-18. Such downgrading will be considered to be an “adverse entry” and cannot be taken into account for the purpose of assessment of ACRs unless communicated to the petitioner. Therefore, un-communicated adverse entries in the ACR could not have been relied upon by the respondents so as to deny the promotion to the rank of Subedar (Clerk) to the petitioner. It is not the stand of the respondents’ counsel that there was any other ground for which the promotion was denied to the petitioner. 5. In view of the above, this Court is of the opinion that the petitioner has Page No.# 4/4 made out a good case for interference by this Court. As such, the writ petition stands allowed. 6. The respondents are directed to ignore the un-communicated adverse entries in the ACR of the petitioner for the relevant years and there-after reconsider his application for promotion to the rank of Subedar (Clerk) and pass appropriate order therein, in the light of the observations made herein above, within 3 (three) months from the date of receipt of a certified copy of this order. 7. Whatever be the decision, the same be communicated to the petitioner in writing, within the aforesaid time period. 8. Writ petition stands disposed of. JUDGE Comparing Assistant