1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, APPELLATE SIDE NAGPUR BENCH, NAGPUR Writ Petition No. 2099 of 2007 Union of India & Ors. Vs. C. A. T. Mumbai & Ano. Office Notes, Office Memoranda of Coram, appearances, Court orders or directions and Registrar's orders Court's or Judge's orders Shri S. k. Mishra ASG for petitioners. Shri Sudame Adv. for respondents. CORAM: ANOOP V. MOHTA & C. L. PANGARKAR JJ. Dated: 14 th August, 2008. This is a writ petition whereby challenge is made by the respondents to order dated 27.04.2006 passed in Original Application no. 2134 of 2003. The original applicant has also challenged the said order on restricted grounds. 2. After considering and hearing both the parties we see no reason to interfere with the order and basically the reasoning 2 as reproduced in paras 8, 9 and 10: 8. “It is certain from the ratio laid down in Devinder Tewani's case that the promotion to the post of CMO (NFSG) has to be considered on the basis of DOPT instructions dated 9.10.1989 that the Committee should satisfy itself that the overall performance of the officer was 'Good' and that he has at least two 'Very Good' grading in the last five years ACRs. The applicant's ACR which were considered by the DPC are made available by the respondents which reads as follows: Period Remarks of the Reporting Officer Remarks of the Reviewing Officer 1999-2000 Good Very Good 1998-1999 Very Good Very Good 1997-1998 Outstanding Very Good 1996-1997 Good Very Good 1995-1996 Good Good 1994-1995 Good Good 1993-1994 Good Good 1992-1993 CRs not written CR not written 1991-1992 CRs not written CR not written 1990-1991 Very Good Very Good 1989-1990 Good Good 1988-1989 Average Good 1987-1988 Adverse remarks ..... communicated 3 9. The DPC meeting was held on 15.3.2002 and assessed the applicant as fit for the post of CMO with effect from 17.3.1988 and assessed as unfit with effect from 1.3.1990 and 1.7.1991, 1.1.1992, 1.1.1993, 1.1.1994, 1.1.1995, 1.1.1996, 1.1.1997 NS 1.1.1998. The DPC recommended the applicant fit as CMO (NFSG) with effect from 1.1.1999. It is apparent that the applicant's CRs of 1991-1992 and 1992-1993 were not written by the reporting officer and reviewing officer. It is mentioned that there is nothing adverse on record. It appears that DPC did not consider any grading for the year 1991-1992 and 1992-1993. The grading achieved by the applicant for immediately preceeding two years is required to be considered for the year 1991-1992 and 1992-1993 for which it is not recorded by authorities. Not recording the grading for 1991-1992 and 1992- 1993 is not a fault on the part of applicant. The applicant is required to be treated to have achieved the grading for these two years which he actually achieved for immediately preceeding two years. We have mentioned that promotion to the post of CMO (NFSG) is based on overall performance of officer 'Good' and considered at least two 'Very Good' during the last five years. 10. DPC erred in not considering the grading for 1991- 1992 and 1992-1993. The assessment made by it in respect of applicant for promotion to CMO (NFSG) is required to be quashed. Accordingly the assessment made by the DPC met on 15.3.2002 in respect of the applicant for promotion to CMO (NFSG) is hereby quashed and set aside. In the result the orders dated 13.2.2003 and 14.7.2003 are hereby quashed and set aside. The respondents are directed to convey the review DPC for re-considering the claim of the applicant for promotion to the post of CMO (NFSG) and for the post of SAG as per above observations within a period of three months from the date of communication of the order. If the applicant is found fit he shall be entitled for consequential benefits. No order as to costs.” 4 3. There is no doubt that it is an obligation on the part of the Enquiry Officer to write Confidential Remarks regularly within stipulated time and period. Apparently, in the present petition there is no justification what-so-ever made and available on record that resulted into not writing of the confidential remarks for the year 1991-92 and 1992-93. Thus non writing of the remarks definitely as recorded, would affect the right of the applicant/original claimant. The reasoning so given and as recorded therefore needs no interference basically in the facts and circumstances of the case itself. 4. It is settled that the adverse remarks should be communicated to the employee promptly. Non writing of confidential remarks is more serious than non communication of adverse remarks. It goes to the root and affect the career of the employee in a situation like this and even otherwise also. Therefore, taking all this into account there is no case made out. The petition is dismissed. 5 5. The learned counsel appearing for the petitioner in Writ Petition No. 2650 of 2007, in view of the above is not pressing his Writ Petition. JUDGE JUDGE svk