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  IN THE SUPREME COURT OF INDIA    CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6532   OF 2015

(Arising out of S.L.P. (C) NO. 1640 of 2014)

DALJIT SINGH GREWAL     ………… APPELLANT

Vs.

STATE OF PUNJAB & ORS.             ………… RESPONDENTS

J U D G M E N T

V. GOPALA GOWDA, J.

     Leave granted.

2. This appeal is directed against the impugned

judgment and order dated 27.08.2013 passed by the

High  Court  of  Punjab  &  Haryana  at  Chandigarh  in

Review Application No. 208 of 2013 (O&M) in Civil

Writ  Petition  No.  5643  of  2004  whereby  the  High

REPORTABLE

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Court did not find any merit in the application and

dismissed the same.

3. The  brief  facts  of  the  case  are  mentioned

below :-  

The  appellant  joined  the  Punjab  Home  Guards

Department as District Commander in the year 1993

after being selected through Punjab Public Service

Commission  under  the  Punjab  Home  Guard  Class-II

Rules,  1988. The  work  of  the  appellant  was appreciated  by  the  ADGP,  Railways  when  a  big

tragedy  on  the  railway  tracks  was  averted  as  a

result  of  his  efforts.  His  work  and  conduct  was

considered as excellent. The dispute in the instant

case  arose  when  he  received  a  letter  dated

28.06.2000, wherein the Annual Confidential Report

(ACR) for the period 1.07.1999 to 31.03.2000 rated

his  performance  as  ‘average’.  The

D.G.P-cum-Commandant  General  had  written  the

following remarks: “An  mediocre  officer,  whose  performance  was barely  satisfactory.  His  own  officers  intrigue and  directly  make  unfounded  allegations.  This

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work  environment,  he  has  not  been  able  to change.”  

4. The said assessment of his performance by the

Deputy  Commandant  General-cum-Deputy  Director,

Civil  Defence  and  the  D.G.P-cum-  Commandant

General, Home Guards & Director Civil Defence led

the  appellant  to  place  a  representation  dated

07.07.2000  before  the  DGP-cum-Commandant  General,

Home  Guards  and  Director  Civil  Defence,  Punjab-

respondent No.5, requesting the supply of documents

on the basis of which his conduct and diligence was

graded as ‘average’. But no satisfactory response

was received by the appellant despite having been

made reminder representations dated 18.08.2000 and

25.08.2000  for  supply  of  the  said  documents. On 29.12.2000,  Instructions  were  issued  by  the

Department of Personnel, State Government, Punjab

whereby  a  ‘benchmark  system’  was  introduced  for

promotion to Group-A and Group-B posts.

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5. On  15.03.2001,  the  appellant  submitted  a

detailed  representation  to  the  Secretary,

Personnel,  Punjab,  Civil  Secretariat-respondent

No.3 herein, requesting him to re-consider the said

Instructions  on  the  ground  that  the  same  were

violative of principles of natural justice. He also

stated in the representation that the recording of

adverse entries in the ACR must be conveyed to the

concerned officers so as to enable them to improve

their  work  accordingly.  On  07.05.2001,  the

appellant  received  a  letter  from  the  Under

Secretary, Department of Home Affairs and Justice,

informing  him  that  his  representations  dated

18.08.2000  and  25.08.2000  to  the  Government  had

been considered and rejected.   6. The appellant again made a representation on

31.05.2001  to  the  then  Principal  Secretary,

Department of Home and Justice, requesting that the

adverse  remarks  made  in  his  ACR  for  the  year

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1999-2000 be expunged so that he could be promoted

to the post of Battalion Commander.

7. On 30.06.2001, the appellant became eligible

for promotion to the post of Battalion Commander

after  completion  of  8  years  of  service  as  per

Punjab Home Guard Class-I Rules, 1988. Rule 8(2) of

the  Rules  provides  that  the  District  Commanders

having  8  years  of  experience  are  entitled  to

promotion to the post of Battalion Commander on the

basis  of  seniority-cum-merit  and  that  no  person

could  claim  promotion  on  the  basis  of  seniority

alone.

8. Ultimately,  having  received  no  satisfactory

response from the respondent Nos. 3 to 5 despite

making several representations, the appellant filed

Civil Suit No. 70 of 2001 before the Civil Judge

(Sr. Div.), challenging the adverse entries made in

his ACR for the year 1999-2000.

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9. Meanwhile, the representation of the appellant

was  rejected  by  respondent  No.  4  by  way  of  a

non-speaking order on 08.08.2001.

10. By  letter  No.4/6/2000-3PPI/13720  dated

06.09.2001,  the  government  modified  its  earlier

Instructions  dated  29.12.2000,  whereby  the

benchmark  system  was  introduced  for  promotion  to

the Group-A and Group-B posts which was approved

and  published  by  the  Government  of  Punjab  on

18.12.2001. A conscious policy decision was taken

to  set up  Departmental  Promotion  Committees  for

considering  cases  of  eligible  officers  for

promotion to Class-I and Class-II (Group ‘A’ and

Group ‘B’) posts,  which inter alia reads thus:-  “……a…  ……b…

NO.  OF  VACA NCIE S

NORMAL ZONE

ZONE FOR CONSID ERATIO N SC/ST

1 5 5 2 8 10 3 10 15 4 12 20

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Twice the number of vacanci es plus 4

5 times number of vacanc ies

              xxx         xxx          xxx

(c) It has been decided to retain the numbering system of evaluation of ACRs as contained in the instructions dated 29.12.2000 which is as under:-

Outstanding 4 MARKS Very good 3 MARKS Good 2 MARKS Average 1 MARK

ACRs  for  the  last  5  years  are  to  be  taken  into consideration for promotion. The criteria for promotions will be as under:-

1….

2. For promotion to posts falling in Group ‘A’ other than Head of Department, the minimum bench mark will be Very Good with at least 12 marks. Amongst those meeting this criteria, there would be supersession.

3. In the case of promotion to posts falling in Group ‘B’ the minimum bench mark will be “Good” and there would be no supersession i.e. promotions would be made strictly on seniority-cum-merit.

    XXX             XXX                XXX..”   

11. By the judgment and order dated 15.03.2002,

the Civil Judge, (Sr. Div.), Patiala in Civil Suit

No. 70 of 2001 decreed the suit in favour of the

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appellant. The adverse remarks recorded against the

appellant in the ACR for the period 01.04.1999 to

31.03.2000  were  expunged  and  all  consequential

benefits were granted to the appellant.

12. Since no appeal was filed by the respondents

against the said judgment and decree of the Civil

Judge  (Sr.  Divn.),  the  appellant  requested  the

respondents vide representation dated 08.05.2002 to

consider him for promotion to the post of Battalion

Commander.  Thereafter,  despite  having  submitted

representations dated 10.05.2002 and 20.06.2002 to

the  respondent  No.  4,  no  action  was  taken  to

implement  the  decree  passed  in  favour  of  the

appellant.

13. In the meanwhile, the Division Bench of High

Court passed an order on 14.01.2003 in CWP No. 4491

of 2001 and CWP No. 11011 of 2001 (filed by some

other  petitioners,  who  had  also  challenged

Instructions dated 29.12.2000)  issuing direction

to the State Government for considering the case of

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petitioners therein, by ignoring the Instructions

dated 29.12.2000.

14. Two  more  representations  were  made  by  the

appellant  on  31.03.2003  and  09.04.2003  to

respondent No. 4, but no action was taken.

15. Once again, having found that his performance

was shown as ‘average’ in the ACR for the period

01.04.2001 to 31.03.2002 which was graded by the

respondent  No.4,  the  appellant  submitted  another

representation on 16.04.2003 for upgrading his ACR

for  the  period  1999-2000  and  2001-2002  as  his

controlling  officer  i.e.  Division  Commander  has

awarded  him  “A”  Grade  and  Review  Authority  i.e.

Deputy  Commandant  General  also  awarded  him  “+A”

which entries were accepted by the final authority

i.e. Commandant General, Home Guard-respondent No.

5. He also mentioned in the representation that he

was shocked to find that his ACR for the period

2001-2002  was  downgraded  by  respondent  No.  4

without  assigning  any  reason  or  affording  an

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opportunity of being heard. As per the departmental

procedure,  Rules  and  Instructions,  the  then

Principal Secretary, Home who has not seen the work

and  conduct  of  the  appellant,  could  not  have

downgraded  his  performance  by  making  an  adverse

entry in his ACR. However, no action was taken on

this representation made by him.

16. As per the Instructions dated 06.09.2001, at

least 12 marks were required for promotion to the

post of Battalion Commander. The appellant was not

considered for promotion even after having a decree

passed in his favour by the Civil Court which was

deliberately  not  placed  before  the  Departmental

Promotion Committee (hereinafter “the DPC”) for its

consideration. Due to the adverse remarks in the

ACR  for  the  year  2001-2002,  the  appellant  fell

short of this benchmark.  

17. The appellant again made representations dated

10.09.2003 and 15.09.2003 to the respondent No. 4

for implementing the judgment and decree passed by

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the  Civil  Judge  (Sr.  Div.)  in  his  favour  and

requested  them  to  promote  him  to  the  post  of

Battalion  Commander.  He  also  got  a  legal  notice

issued  to  the  respondents  on  06.10.2003.  The

respondents deliberately ignored the request of the

appellant by placing reliance on the Instructions

referred to supra and the non-upgraded ACRs for the

year 1999-2000, 2000-2001 and 2001-2002, though the

suit was decreed in his favour.  

18. On 16.02.2004, the appellant issued a legal

notice to the respondent Nos. 4 and 5 for upgrading

the ACR for the period 2001-2002 from ‘Average’ to

‘Excellent’.

19. A  similar  issue  arose  for  consideration  of

promotion  and  quashing  of  Instructions  regarding

the  benchmark  method  introduced  by  the  State

Government, Department of Personnel in the case of

Balbir  Singh  Bedi  v.  State  of  Punjab  &  Ors.1,

wherein  this  Court  upheld  the  validity  of  the

1  (2013) 11 SCC 746

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executive  Instructions  dated  29.12.2000  and

06.09.2001,  holding  that  these  Instructions  are

nothing but a codification of directions issued by

this Court regarding promotions and the criteria of

seniority-cum-merit in a catena cases.

20. The appellant made a complaint on 11.03.2004

to the respondent no.4 seeking that action be taken

against  the  persons  who  were  tampering  with  the

ACR’s to harm the service career of the appellant.

21. Ultimately, the appellant filed CWP No. 5643

of  2004  before  the  High  Court  challenging  the

legality  and  validity  of  the  Instructions  and

orders  dated  02.05.2003  and  30.01.2004.  The  said

petition was dismissed by the Division Bench of the

High Court on 02.04.2004.   

22. Meanwhile, the appellant was supplied certain

documents  under  the  RTI  Act  which  had  material

effect  on  the  merits  of  his  case.  The  appellant

filed SLP (C) No. 14964 of 2004 against the order

of  the  High  Court  dated  02.04.2004.  This  Court

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granted  leave  in  the  said  SLP  and  the  same  was

converted into Civil Appeal No. 5192 of 2004 and

was directed to be heard along with the case of

Balbir Singh Bedi  referred to supra. The case was

dismissed, but the appellant was granted liberty by

this  Court  to  file  a  Review  Petition  before  the

High Court.   23. The appellant approached the High Court after

being granted liberty by this Court in the above

referred case and a Review Application No. 208 of

2013  was  filed  for  recall  of  order  dated

02.04.2004. The High Court having found no merit in

the Review Application dismissed the same vide its

order  dated  27.08.2013.  On  the  issue  of  the

performance  of  the  appellant  being  graded  as

‘average’, the High Court observed that though it

was not clear as to whether the adverse entries in

the ACR for the period of 01.04.2001 to 31.03.2002

were conveyed to the appellant, yet it was clear

from his representations that the contents of the

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reports  were  in  his  knowledge  and  he  had

specifically  represented  against  its  downgrading.

The  High  Court  further  held  that  the  appellant

could not contend that the adverse ACR’s were made

behind his back. Hence, the present appeal is filed

questioning the correctness of the action of the

respondents  in  not  giving  promotion  to  the

appellant to the post of Battalion Commander though

he was entitled for the same and also challenged

the judgment and orders passed in writ petition and

also review petition.

24. Mr.  Rakesh  Kumar  Khanna,  learned  senior

counsel appearing on behalf of the appellant has

contended  that  the  High  Court  erred  in  not

complying with the observations made by this Court

in  Civil  Appeal  No.  5192  of  2004,  wherein  this

Court  directed  that  the  additional  documents

obtained by the appellant under the RTI Act were to

be  considered  by  the  High  Court.  Thus,  the

appellant withdrew the Civil Appeal No.5192 of 2004

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and  filed  a  Review  Application  before  the  High

Court in order to produce the documents obtained by

him so that the same could be considered by the

High Court and pass appropriate orders.   25. It is also contended by the learned senior

counsel that the High Court failed to consider the

representation  dated  16.04.2003  submitted  by  the

appellant to the respondent No. 4, wherein he had

requested  for  the  implementation  of  the  judgment

and  decree  dated  15.03.2002  passed  in  the  Civil

Suit No. 70 of 2001.

26. It is further contended by the learned senior

counsel on behalf of the appellant that the High

Court  should  have  taken  into  consideration  the

latest judgment of this Court rendered in the case

of Sukhdev Singh v. Union of India2 wherein it was

held that all the ACRs whether poor, fair, average,

good  or  very  good,  must  be  apprised  to  the

concerned  employee/officer  within  the  stipulated

2  2013 (9) SCC 566

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time so that he/ she can take suitable action if

he/she is aggrieved by the same. While on the one

hand, the High Court presumed that the appellant

had knowledge of the downgrading in his ACR, at the

same  time  it  was  also  observed  that  it  was  not

clear whether the downgrading was conveyed to the

appellant. 27. It is further contended by the learned senior

counsel appearing on behalf of the appellant that

the High Court should have considered the law laid

down in the case of Gurdial Singh Fiji v. State of

Punjab3,  wherein this Court has specifically held

that the adverse remarks made in the ACR cannot be

acted upon by the Authority to deny promotion to a

post  unless  they  have  been  communicated  to  the

concerned person.  

28. It is further contended by the learned senior

counsel that the respondent No. 4 could not have

downgraded his ACR and that too without conveying

the same to him, as he had not personally seen the

3  AIR 1979 SC 1622

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work of the appellant. There should have been some

reason for the respondents to make adverse entries

in his ACR’s for the relevant periods by changing

the  original  entries  made  by  the  Reporting

Authority-respondent  No.  5.  The  adverse  entries

made in the ACR’s of the appellant for the relevant

periods were not communicated to him. If there were

any adverse entries in the ACR’s, the same should

have been communicated to the appellant to enable

him  to  improve  his  shortcomings  or  submit  a

representation against the adverse entries. It was

further  contended  by  the  learned  senior  counsel

that the favourable entries recorded in the ACR’s

for  the  relevant  periods  were  deliberately  not

produced before the Selection Committee or DPC by

the respondents so that the appellant would not be

considered  for  promotion  and  promoted  to  the

promotional post, which aspect of the matter should

have  been  taken  into  consideration  by  the  High

Court while passing the impugned judgment and order

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in the writ petition and also in the order passed

in the review application.   

29. On  the  other  hand,  Mr.  Nikhil  Nayyar,  the

learned  Additional  Advocate  General  appearing  on

behalf of the respondent Nos. 1 to 5, has sought to

justify the impugned judgment and order contending

that the same is legal and justifiable on facts and

also in law. Therefore, the High Court has rightly

dismissed the Writ Petition and Review Application

of the appellant. Hence, the same does not warrant

interference by this Court.

30. It  is  further  contended  by  the  learned

Additional Advocate General that the DPC considered

the ACRs of the past five years of the appellant

and on the basis of final marks obtained by him for

the relevant ACRs, his claim was not considered by

the  DPC  for  promotion  as  he  failed  to  meet  the

benchmark  criteria  laid  down  as  per  Instructions

dated  29.12.2000  and  06.09.2001  issued  by  the

respondent  No.  3.  Further,  even  the  Head  of  the

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Department  did  not  issue  the  requisite  integrity

certificate in favour of the appellant.  

31. It  was  further  contended  by  the  learned

Additional  Advocate  General  that  in  an  earlier

round of litigation before this Court in a similar

matter i.e.  Balbir Singh Bedi  (supra), this Court

upheld the validity of benchmark Instructions dated

29.12.2000 and 06.09.2001 issued for consideration

of eligible officers for promotion to the posts of

Class  I  and  II  viz.  Group  A  and  Group  B  and

therefore, the same cannot be ignored. Thus, the

appellant  cannot  be  promoted  to  the  post  of

Battalion Commander.  

32. Further,  it  was  contended  by  the  learned

Additional  Advocate  General  that  there  were  no

adverse remarks in the ACRs of the appellant for

the  year  2000-2001  and  2001-2002,  which  were

required  to  be  apprised  to  him  and  he  was  also

aware of his adverse ACRs for the years 1999-2000.

Therefore, it was rightly held by the High Court

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that the contents of those reports were within his

knowledge.  Therefore,  there  is  no  error  of  law

committed by the High Court.

33. It  is  further  contended  by  the  learned

Additional Advocate General that it was not right

on  the  part  of  the  appellant  to  request  the

respondent  No.  4  to  upgrade  his  ACRs  and

consequently to promote him to the promotional post

retrospectively, which is impermissible in law. In

support of his submission he placed reliance on the

case of Dev Dutt v. Union of India & Ors.4, wherein

this Court had directed the appellant therein to

make  a  representation  before  the  concerned

authorities  to  consider  his  claim  for  promotion

retrospectively.

34. After hearing the learned counsel for both the

parties and considering the facts and rival legal

contentions  urged  by  them  including  the  written

submissions  submitted  by  the  learned  counsel  for

4 (2008) 8 SCC 725

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the parties and on perusal of record, we pass the

following  order  in  this  appeal  on  merits  by

assigning the reasons as mentioned herein below.

35. The promotion of the appellant to the post of

Battalion  Commander  from  the  post  of  District

Commandant is governed by Rule 8(1)(2)(i) of the

Rules. The aforesaid rule contemplates that 75% of

the promotional posts of the Battalion Commander be

filled up by promotion amongst the Battalion second

in command. The legal requirement for promotion to

the  post  of  Battalion  Commander  is  that  the

claimant  should  have  been  working  as  a  District

Commandant  for  a  period  of  8  years  and  the

appointment to the said promotional post shall be

made  by  the  Competent  Authority  on

seniority-cum-merit  basis.  No  person  shall  be

entitled  to  claim  promotion  on  the  basis  of

seniority alone. As per the Punjab State Government

Instructions  issued  on  06.09.2001,  certain

guidelines have been laid down for DPC to consider

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the cases of promotion to the post of Class-I and

Class-II namely, group ‘A’ and ‘B’ posts. As per

the  said  guidelines,  an  eligible  candidate  is

promoted  on  the  basis  of  the  seniority-cum-merit

criteria, where merit is determined on the basis of

benchmark awarded to the various aspects contained

in  the  ACR  of  the  officer,  wherein  marks  are

awarded against such entries made in the ACRs of

the officers concerned for the relevant period.

36. Further, as per the records obtained by the

appellant from the respondents under the RTI Act at

the time of his claim for promotion to the post of

Battalion Commander was first considered, his ACRs

from  year  1996  were  considered.  The  Instructions

dated 29.12.2000 would be applicable prospectively

to the ACRs of the appellant for relevant periods

which were prepared after those Instructions were

issued.  According  to  the  Instructions,  officers

obtaining 0-14 marks out of a total of 20 marks

would  be  graded  over  all  ‘Good’.  Thus,  the

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appellant was entitled to promotion as he had been

awarded 10 marks as per the proceedings of DPC.  

37. The  High  Court  in  the  impugned  judgment

further observed that the final reporting authority

had  downgraded  the  appellant  as  an  ‘average’

officer for the above relevant period. As per the

executive Instructions dated 10.01.1985 issued by

the State Government, the Commandant General is the

final  Authority  for  the  rank  of  the  District

Commander.  That  being  the  factual  position,  the

downgrading of the performance of the appellant in

his  ACR  for  the  above  relevant  period  by  the

respondent No. 4 was not valid as the same was done

without any authority and competence. The adverse

entries in the ACR have deprived the appellant of

his right of promotion to the post in question and

therefore,  the  said  adverse  entries  in  the  ACRs

against the appellant are not legal and valid. The

ACR  for  the  period  2000-2001  is  extracted

hereunder:

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1. Integrity Correct 2. Conduct Very Good 3. Health and Activeness Very Good 4. Personality and Initiative Very Good 5. Knowledge and Intelligence Very Good 6. Dependability/ reliability Fully Dependable 7. Power to Command Very Good 8. Efficiency in Parade Correct 9. Moral  courage  and efficiency  to  expose  corrupt subordinates

Very Good

10. Impartiality Impartial 11. Knowledge of English Very Good 12. Knowledge  of  Punjabi  and Hindi  and  to  make  drafts  in these languages

Very Good

13. Knowledge  of  Civil  rules and  regulations,  Home  Guard Act,  administration instructions and circulars

Very Good

14. Behaviour and to work with each other

Very Good

15. Defect,  if  any,  whether brought to his notice

Not Applicable

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16. Whether fit for promotion At his own term 17. Whether  he  disposes  his work in Punjabi

Yes

18. General Remarks He is very good  and responsible officer

    A perusal of the ACR for the period 2000-2001

reveals that though the general remarks stated that

“He  is  very  good  and  responsible  officer”

respondent No. 4 had given a grade which read,  “I

agree. An average officer”. The said entry shows

that he had agreed to all the remarks of the ACR

given in respect of columns 1 to 18 for that year

by  the  Competent  Accepting  Authority,  but  he

further  stated  assessed  the  officer  to  be  an

‘average’  officer  without  assigning  any  reason

whatsoever apart from his competence to make such

adverse entries. The overall grading of the ACR is

based upon the observations made by the Reporting

Authority, Reviewing Authority and final Accepting

Authority.  As  per  the  entries  made  by  the

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respondent  No.  4,  he  had  agreed  to  the  overall

grading  as  given  by  the  Accepting  Authority.  In

such  a  case,  he  could  not  have  downgraded  the

overall grading in the ACR by using the words “an

average officer”. Further, if the comments made on

20.05.2004 by the respondent No. 4 on the ACR for

the year 2000-2001 are being sought to justify the

stand of denial of promotion to the appellant to

the post in question, then the clarification needs

to take effect from that date, i.e 20.05.2004. In

such a case, the appellant was to be assigned 3

marks as per the instructions for the year 2003,

when he was ignored for the promotion for the first

time.

38. A  perusal  of  the  copy  of  the  ACR  for  the

period  2003-2004  reflects  a  true  picture  of  the

injustice  that  has  been  perpetrated  against  the

appellant. The ACR has been written by Mr. Tejinder

Singh,  respondent  No.  4  who  was  the  Reporting

Authority  as  the  Divisional  Commandant.  The  very

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same officer was also the Reviewing Authority as

Deputy  Commandant  General.  Further,  the  same

officer  also  happened  to  be  the  Final  Accepting

Authority as the Commandant General, as is evident

from his comment dated 30.09.2004. The fact that in

the said year also the performance of the appellant

had been graded as ‘average’ clearly reveals the

malafide  intention  of  the  respondent  nos.1-4  in

deliberately denying the promotion to the appellant

to  the  post  in  question.  According  to  the

respondents themselves, the executive Instructions

dated 06.09.2001 have not been superseded by any

other Instructions or rules framed by the competent

authority. If these illegal downgrading entries in

the ACR for the relevant period are ignored, then

the  appellant  would  attain  14  marks.  As  per  the

Instructions  dated  06.09.2001,  12  marks  were

required  for  promotion  to  the  post  as  per  the

benchmark fixed.

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39. Further, the adverse remarks for the period

1999-2000  were  conveyed  to  appellant  vide

communication  dated  28.06.2000  by  the  D.G.P-cum-

Commandant  General.  The  representations  dated

18.08.2000  and  25.08.2000  made  by  the  appellant

against the same were submitted to respondent No.

4.  The  said  representation  was  rejected  on

07.05.2001. The appellant had challenged the same

by filing Civil Suit No. 70 of 2001, wherein the

respondent No. 4 was impleaded as defendant No. 3.

The civil suit was decreed on 15.03.2002 in favour

of  the  appellant.  The  said  judgment  and  decree

passed  in  favour  of  the  appellant  has  not  been

implemented by the respondent Nos. 4 and 5, despite

having  attained  finality,  which  clearly  reflects

the fact that the respondent No.4 was not fair in

considering  him  for  promotion  to  the  post  of

Battalion Commander as provided under Rule 8(2) of

the Rules. According to the Rules, the appointment

to  the  promotional  post  shall  be  made  on

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seniority-cum-merit basis. As per the ACRs placed

on  record,  the  appellant  has  fulfilled  the

aforesaid  requirement  of  seniority-cum-merit  by

securing  14  marks,  as  per  the  Instructions  in

relation  to  all  aspects  entered  in  the  ACR.  The

strong  reliance  placed  upon  the  adverse  remarks

made by the respondent No.4, who has made the same

without assigning any reasons, has resulted in the

appellant being denied of the promotional benefit,

even though the order of the respondent No. 4 was

set aside by the judgment and decree in Civil Suit

no. 70 of 2001. The action of respondent No. 4 in

denying the promotional benefit to the appellant is

tainted with malafides. It can further be observed

from the record that it was respondent no.7 who had

filed the reply on behalf of all the respondents in

the  writ  petition  proceedings  before  the  High

Court. It is important to note at this stage that

respondent No. 7 happens to be an officer junior to

the  appellant,  who  was  promoted  to  the  post  in

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question.  The  non-filing  of  written  statement  by

respondent  No.  4  traversing  the  allegations  of

malafide  against him proves the malafide  intention

on part of the respondent No. 4. Therefore, there

was no justification for the respondent No. 4 in

denying  the  promotional  benefit  to  the  post  of

Battalion  Commander  to  the  appellant  and.  The

learned senior counsel on behalf of the appellant

has rightly placed reliance on the case of Sukhdev

Singh (supra), wherein this Court has lucidly laid

down the law pertaining to communication of ACR. It

was held that if the ACR of the officer concerned

is to be used for the purpose of denying promotion,

then all such ACRs were required to be communicated

to  him,  to  enable  him  to  make  a  representation

against his adverse entries made in the ACRs.  

40. As  per  the  record  submitted  by  the

respondents, the appellant was given grade ‘A+’ for

the year 2001-2002, but only 1 mark was assigned.

According to the executive Instructions, the grade

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‘A+’ is to be assigned 4 marks. Accordingly, if 4

marks are assigned for the ACR of the appellant for

the period 2001-2002, then he would have scored 12

marks at the time of consideration for promotion in

the  year  2003,  whereas  admittedly,  the  appellant

was required to achieve only 10 marks in order to

be promoted to the post of Battallion Commander.

Hence,  if  the  calculation  of  marks  made  by  the

respondents on the various aspects in the ACR of

the appellant is believed to be true, then also he

has achieved the required benchmark. The action of

the respondent No. 4 in deliberately ignoring the

claim of the appellant is vitiated in law as the

same is contrary to the Rules and records of ACR

for the relevant period and Instructions issued by

the  State  Government  laying  down  certain  guiding

principles.   41. Therefore, the order of denial of promotion to

the appellant, which has been affirmed by the High

Court in its judgment and order passed in the Writ

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Petition and Review Application is liable to be set

aside.

42.  For the reasons stated supra, we pass the

following order:-

(1) We set aside the impugned judgment and order passed by the High Court in both the Civil Writ Petition and the Review Application  and  also  the  order  of denying the promotional benefit by the respondents-Department  to  the  post  of the  Battalion  Commander  from  the  year 2001-2002;

(2) Further, we direct  the respondent Nos. 1 to 5  to reconsider the claim of the appellant in the light of our findings and reasons recorded on the contentious factual  and  legal  aspects  so  that  he could  get  higher  post  of  Battalion Commander notionally to get pensionary benefits  as  he   has  been  prematurely retired from service on 31.7.2007; and  

(3) The  said  direction  shall  be  complied with within 8 weeks from the date of the receipt of the copy of this order and extend  all  the  consequential  benefits

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for the purpose of fixing his pensionary benefits and other monetary benefits for which  he  is  legally  entitled  to  and submit the  compliance report to this Court.  

43.  The appeal is allowed in the above said terms

with cost of Rs.10,000/- payable to the appellant

by respondent Nos. 1 to 4.

      ……………………………………………………………………J.                         [V.GOPALA GOWDA]

  ……………………………………………………………………J.                         [S.A. BOBDE] New Delhi, August 21, 2015