Page No.# 1/8 GAHC010262482023 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/6915/2023 JATINDRA NATH DAS S/O LATE BIMAL CHANDRA DAS, PRESENTLY SERVING AS NO. 3700306 X HAVILDAR GD (GENERAL DUTY) IN THE 37TH ASSAM RIFLES C/O 99 APO, PIN-932037 VERSUS UNION OF INDIA AND 2 ORS REPRESENTED BY THE SECRETARY THE GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIR NEW DELHI-110001 2:THE DIRECTOR GENERAL ASSAM RIFLES HEAD QUARTER DIRECTORATE GENERAL ASSAM RIFLES SHILLONG-11 3:THE COMMANDANT 3T7TH ASSAM RIFLES C/O 99 APO PIN 93203 Advocate for the Petitioner : MS. S BORA, MR. P BORAH Advocate for the Respondent : DY.S.G.I., MR H GUPTA Page No.# 2/8 BEFORE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA ORDER 19.03.2025 Heard Ms. S. Bora, learned counsel for the petitioner. Also heard Mr. H. Gupta, learned CGC appearing for the respondents. 2. The petitioner was enrolled in the Assam Rifles on 07.07.1988 as a Rifleman/General Duty. After his basic training he was posted to 11th Assam Rifles in the year 1989. Since the date of enrollment he has been serving in the Assam Rifles with all sincerity and dedication. The petitioner was transferred to 37th Assam Rifles and he was promoted to rank of Havildar/General Duty in the month of September, 2003 as per his seniority. In July, 2017 while the petitioner was posted as Engineer SKT (Store Keeper Technical), he requested for leave in order to accompany his elder son for appearing in the CA examination which was held in New Delhi. The prayer for leave was rejected. The petitioner however, went to New Delhi along with his son. After his son appeared in the examination and was selected, the petitioner returned and joined his unit within the stipulated time. 3. The petitioner completed 30 years of service i.e. with effect from 01 September, 2018 and was entitled to be granted the 3rd financial benefit of MACP-III. However, such benefit due to the petitioner was rejected. He approached the higher authorities who however, despite assurances to look into the matter and resolve the issue, did not consider his case were any appropriate orders passed for Page No.# 3/8 the grant of the benefit under MACP-III. The petitioner issued a legal notice dated 24.07.2023 to the respondent no. 2 as his case was not considered for grant of the benefit of MACP-III on completion of 30 years of service with effect from 07.07.2018. The legal notice came to be replied to on 31.08.2023 when for the first time the petitioner came to be aware that because of “Severe Reprimand” as is revealed in his service records and also as he was graded “average” in the ACR for the year 2016-17, his case for 3rd financial upgradation under MACP-III Scheme was rejected. 4. The petitioner is aggrieved that his case for 3rd financial upgradation under MACP Scheme came to be rejected because of adverse remarks in his service records which were never communicated to the petitioner as is required under the Rules and Procedure. 5. The learned counsel for the petitioner submits that in terms of the office instructions no. 5/1997 issued by the Director General Assam Rifles, in so far as adverse remarks in ACRs are concerned there is a detailed procedure laid down in clause 44 of the said notification as to how the adverse remarks are to be considered and in respect of Non-Commissioned Officers (NCOs). It is submitted that the respondent authorities did not follow the procedure prescribed and therefore, the petitioner was unduly deprived of his claim of 3rd financial upgradation in the MACP-III Scheme. Page No.# 4/8 6. Notice in the matter was issued as far back as 01.12.2023 permitting the learned CGC to complete his instructions and filed necessary affidavit. On subsequent dates also on prayers made by the learned counsel for the respondents the matter was adjourned on the submission of the learned CGC that the affidavit will be filed within a short date. Subsequently, the matter came up before this Court on 19.03.2025, on which date the matter stood adjourned on the prayer for further time made by the learned CGC. 7. Considering that no affidavit was filed inspite of opportunities being granted and also that the learned CGC is not in a position to appraise the Court on the issues raised before this Court, this Court considers it necessary to pass appropriate order at this stage. 8. The instructions enclosed to the writ petition indicate that a procedure is laid down in respect of inter-alia “Adverse Reports”. Clause nos. 44 to 48 of the Director General Assam Rifles record office instruction no. 5/1997 reads as under :- 44. Adverse report on a NCO is initiated in the following circumstances:- (a) When a NCO's service is considered unsatisfactory. (b) When a NCO's removal from an appointment or employment for reasons of professional inefficiency is considered necessary. (c) When it is necessary to record inherent traits of character of a NCO which make utility to service doubtful. 45. Before an 'Adverse Reports' is initiated on a NCO, he will be informed in writing of his shortcomings and warned. He will be given Page No.# 5/8 fair opportunity and due guidance to show improvement. The officer initiating an Adverse Report will mention in the report the date (s) on which warning (s) was/were administered and the steps taken by him to help the NCO to improve. The following aspects will be strictly kept in view:- (a) Justice and fair play are ensured in all cases and at all times. (b) Action whether to place a NCO on Adverse Report or NOT is taken only after administering suitable warnings and giving him due guidance an adequate time to show the desired improvement. (c) A Period of minimum 60 days is provided to the NCO to show Improvement before he is placed on Adverse Report. (d) The performance of the NCO is kept under close observation. 46. If the NCO show desired improvement, he will not be placed on Adverse Report. However, if he does not show improvement he may be placed on Adverse Report on expiry of a clear period of minimum 60 days (excluding the date on which he was administered the warning and the date on which he is finally placed on Adverse Report). 47. Adverse Report will be rendered on the revised ACR form given at Appendix to this ROI and will be marked 'Adverse Report on the top in Red ink. Adverse report may be initiated at any time. Representation Against Annual Confidential Reports. 48. Representation and complaints if any against the weak points and adverse assessment may be submitted by the NCO within 60 days after the date of communication of the remarks to him. Such representation will be routed through the same channel as the one through which the Annual Confidential Reports are submitted. A representation/ complaint submitted more than 60 days after the communication of the weak points/ adverse assessment should be accompanied by reasons for delay. Page No.# 6/8 9. A perusal of the clauses as extracted above reveals that a detailed procedure has been prescribed to be followed at the time of recording adverse remarks in the Annual Confidential Reports (ACRs). The clause also provides for the filing of a representation against such adverse remarks within a period of 60 days from the date of communication of the said remarks to the concerned officer. 10. The law regarding the consideration of adverse remarks without due communication to the concerned officer has been long settled by the Hon’ble Apex Court in Dev Dutt vs. Union of India, reported in (2008) 8 SCC 725, and Sukhdev Singh vs. Union of India and Others, reported in (2013) 9 SCC 573. The legal position, as laid down by the Apex Court, clearly stipulates that adverse remarks against an officer cannot be taken into account unless the same are duly communicated to the said officer. This procedural requirement is also reflected in the Director General, Assam Rifles Record Office Instruction No. 5/1997, specifically under Clauses 44 to 48, which have been extracted hereinabove. 11. From the averments made in the writ petition, including the reply to the legal notice issued by the respondent authorities, it is not clear whether the adverse remarks were ever communicated to the writ petitioner, and if so, whether any representation was preferred by the petitioner and whether any subsequent orders were passed on such representations, if filed. The reply dated 31.08.2023 to the legal notice does not shed light on these aspects. Owing to this ambiguity, Page No.# 7/8 an opportunity was granted to the learned Central Government Counsel (CGC) to obtain complete instructions in this regard and appraise the Court accordingly. However, since no instructions from the respondents are forthcoming and no affidavit has been filed, this Court considers it appropriate to dispose of the writ petition at this stage by directing the respondent authorities, more particularly respondents no. 2 and 3, to examine the claim of the writ petitioner, including his service records. If it is found that the adverse remarks were not communicated to the petitioner, the same shall be communicated forthwith, and an opportunity, as prescribed under Clause 48 of the relevant instructions, for filing representations shall also be provided. Furthermore, if the procedure as prescribed under the relevant instructions no. 5/1997 read with the Judgment rendered by the Hon’ble Apex Court has already been complied with or faulted, a speaking order to that effect may also be passed by the concerned authority. 12. The petitioner shall produce a certified copy of this order before respondents no. 2 and 3, whereupon the directions contained in this order shall be duly carried out by the said respondents. The respondent no. 3 shall also forward a copy of the same to respondent no. 2 for necessary compliance. The entire exercise, as directed above, shall be completed within a period of 90 days from the date of receipt of the certified copy of this order. 13. Writ petition stands disposed of in terms of the above, no order Page No.# 8/8 as to cost. JUDGE Comparing Assistant