THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE G.CHANDRAIAH W.P.No.4073 of 2004 Date of Order: 16-11-2009 Between: 1. The Director, Intelligence Bureau, New Delhi and another. ..Petitioners and Subbiti Dhanapathi Rao ..Respondents The Court made the following Order: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE G.CHANDRAIAH W.P.No.4073 of 2004 Oral Order: (Per Honourable Sri Justice A.Gopal Reddy) 1. This is an application under Article 226 of the Constitution of India for issuing a writ of Certiorari to quash the order of the Central Administrative Tribunal in O.A.No.297 of 2003, dated 24-12-2003 in allowing O.A. filed by the respondent/applicant. 2. The respondent—applicant filed the above O.A. to consider and promote him as Assistant Director (Executive), Central Intelligence Officer vide I.B. Head Quarters Order issued under endorsement dated 31-07-2001 in the Intelligence Bureau on regular basis and grant him the seniority over and above his juniors, who are promoted prior to his promotion and pass appropriate orders. 3. The case of the applicant is that while he was working as Deputy Central Intelligence Officer, his case for promotion as Assistant Director (Executive) came up for consideration in the panel years of 2001-2002 and 2002-2003. For the purpose of the said promotion, the Bench marks fixed as ‘Good’. Apart from this, the said post is to be filled up by selection. For the said promotion the Departmental Promotion Committee (DPC) considered the cases of all the eligible persons including the applicant for the panel years 2001-2002 and 2002-2003. Since in both occasions the applicant’s case was found ‘unfit’ by the DPC, he was not promoted as Assistant Director (Executive). Just 10 days before retirement the applicant filed the above O.A. on 20-03-2003 seeking the relief, as aforementioned, contending that he is fully qualified and eligible for promotion and figured at serial No.55 in the promotion panel prepared by the department in the year 2001. However, several persons who are juniors to him were promoted through Office Order No.16/C-III/2001(05)- 2038, dated 31-07-2001 ignoring the claim of the applicant for such promotion. He got several commendations and he belongs to Scheduled Caste community. Though there are no adverse remarks against him and no communication of adverse remarks, he was denied promotion. Therefore, the action of the petitioners herein in not promoting him along with his juniors is arbitrary and violative of Articles 14 and 16 of the Constitution. 4. The claim of the applicant was contested by the respondents (petitioners herein) by filing a counter stating that Bench mark for such promotion is ‘Good’ and officers based on the said Bench mark would be graded as ‘fit’ or ‘unfit’ by the DPC and they will be arranged in the selection panel in the order of inter se seniority in the feeder grade. The respondents (petitioners herein) further submitted that as the applicant was found unfit for promotion based on his service record, no illegality can be attributed to the department, as the Rules regarding promotion have been strictly followed. 5. The Tribunal by the impugned order held after going through the records including the Annual Confidential Reports (ACRs) of the applicant for the years 1996-97 upto 2001-2002 it do not find any adverse remarks in any of the ACR of the application; out of seven ACRs gone through by them, four ACRs of the applicant were graded as ‘Good’; one ACR was graded as ‘very good’; one ACR was graded as ‘satisfactory’; and for the year 1999-2000 two ACRs were written for part of the year and one ACR was graded as ‘Good’ and the other ACR was graded as ‘average’. From the above record, the Tribunal could not find any adverse remarks recorded in the ACRs, which were communicated to him at any point of time. The records produced by the respondents (petitioners herein) also contain various commendations for the work done by the applicant. After enumerating the same in para-11, the Tribunal further held un-communicated adverse remark/comment in the ACR of the employee cannot be acted upon to deny him promotional opportunities because unless the same is communicated to the employee concerned he will not be in a position to improve his work or conduct or explain the circumstances leading to the report and accordingly allowed the O.A. Questioning the correctness of the same the present writ petition has been filed. 6. We have heard the learned Assistant Solicitor General of India for the petitioners. None appeared for the respondent (applicant) on the previous date of hearing i.e. 13-11-2009; therefore, the matter was directed to be posted for judgment on 16-11-2009. Accordingly, the matter was posted under the caption “for judgment” today. Even today also both in the morning and evening sessions there is no representation on behalf of the respondent—applicant. In view of the same, we proceeded to dispose of the writ petition on the material available on record. 7. The Supreme Court in DEV DUTT v. UNION OF INDIA[1] held that the correct legal position even though there may be no Rule/G.O. requiring communication of the entry, or even if there is a Rule/G.O. prohibiting it, because the principle of non-arbitrariness in State action as envisaged under Article 14 of the Constitution in our opinion requires such communication and accordingly directed the respondents therein that the 'Good' entry of 1993-94 be communicated to the appellant forthwith and he should be permitted to make a representation against the same praying for its upgradation. If the upgradation is allowed, the appellant should be considered forthwith for promotion as Superintending Engineer retrospectively and if he is promoted he will get the benefit of higher pension and the balance of arrears of pay along with 8% per annum interest. 8. Following the same, we direct the petitioners herein to communicate the adverse remarks about below ‘Good’ for the years 1999-2000 and 2000- 2001 to the respondent/applicant within a period of two months from the date of receipt of a copy of the order and on communicating the same the respondent is at liberty to make a representation within four weeks from the date of such communication and on such representation is being made the same will be decided within a period of two months thereafter. If his entry is upgraded the applicant shall be considered for promotion retrospectively by the DPC within three months thereafter and if the applicant gets selected for promotion retrospectively, he should be given higher pension with arrears of pay and interest at the rate of 8% per annum till the date of payment. 9. With the directions as above, the writ petition is allowed. No costs. _________________ A.GOPAL REDDY, J. _______________ G.CHANDRAIAH,J. 16-11-2009 Murthy [1](2008) 8 SCC 725 = 2008 (4) Supreme 462