Sunday, 17 April 2016

Whether govt officer can be denied promotion on the basis of uncommunicated annual confidential report?

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.
REPORTABLE
 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
Citation; AIR 2016  SC1260

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

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
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, Punjabrespondent
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. 
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
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.
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 
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
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
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
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
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 746Page 12

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
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
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
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
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
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
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 thePage 19
C.A. @ SLP (C) No.1640 of 2014 19
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 CourtPage 20
C.A. @ SLP (C) No.1640 of 2014 20
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 Page 21
C.A. @ SLP (C) No.1640 of 2014 21
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 considerPage 22
C.A. @ SLP (C) No.1640 of 2014 22
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, thePage 23
C.A. @ SLP (C) No.1640 of 2014 23
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:Page 24
C.A. @ SLP (C) No.1640 of 2014 24
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 ApplicablePage 25
C.A. @ SLP (C) No.1640 of 2014 25
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 thePage 26
C.A. @ SLP (C) No.1640 of 2014 26
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 veryPage 27
C.A. @ SLP (C) No.1640 of 2014 27
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.
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-cumCommandant
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
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
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
‘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
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
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
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