Lt. Col. S.S. Nishan, Deputy Director (Retd.), Survey of India v. Mr. Anil Rathee, Central Government Counsel

Grade). He prays for dismissal of the writ petition. C.W.P. No. 3229 of 1996. -7- I have heard counsel for the parties and have gone through the records of the case. The judgments relied upon by counsel for respondents will not be applicable to the facts of the present case as instructions dated 10.04.1989 and instructions dated 19.09.1969 were not considered by the Courts in the said judgments and, therefore, no benefit can be claimed by respondents of the said judgments. The records relevant to the claim of the petitioner as also the annual confidential reports of the petitioner were summoned by this Court, vide order dated 23.02.2010. The same was produced by respondents in sealed cover in the Court on 03.03.2010, which was perused and returned to respondents. The petitioner, as the ACR stands, does not make the benchmark as provided under instructions dated 10.04.1989 for promotion to the post of Non-Functional Selection Grade-Deputy Director (Selection Grade). The instructions dated 19.09.1969 as referred to above by counsel for the petitioner have not been disputed by respondents nor the application thereof. It is also admitted by counsel for respondents that the ACRs, which were required to be communicated to the petitioner as per para-8.3(c) of the instructions dated 19.09.1969 were not communicated to him. That being so, the case of the petitioner is fully covered on all force by the judgment of Hon'ble the Supreme Court in the case of Dev Dutt (supra). It has been held by Hon'ble the Supreme Court in paras- 9 and 10, which read as follows :- “9. In the present case the benchmark (i.e. the essential requirement) laid down by the authorities for promotion to the post of Superintending Engineer was that the candidate should have “very good” entry for the last five years. Thus in this situation the “good” entry in fact is an adverse entry because it eliminates the candidate from being considered for promotion. Thus, nomenclature is not relevant, it is the effect which the entry C.W.P. No. 3229 of 1996. -8- is having which determines whether it is an adverse entry or not. It is thus the records of the entry which is important, not the phraseology. The grant of a “good” entry is of no satisfaction to the incumbent if it in fact makes him ineligible for promotion or has an adverse effect on his chances.

10. Hence, in our opinion, the “good” entry should have been communicated to the appellant so as to enable him to make a representation praying that the said entry for the year 1993-1994 should be upgraded from “good” to “very good”. Of course, after considering such a representation it was open to the authority concerned to reject the representation and confirm the “good” entry (though of course in a fair manner), but at least an opportunity of making such a representation should have been given to the appellant, and that would only have been possible had the appellant been communicated the “good” entry, which was not done in this case. Hence, we are of the opinion that the non-communication of the “good” entry was arbitrary and hence illegal, and the decisions relied upon by the learned counsel for the respondent are distinguishable.” In the light of the law settled by Hon'ble the Supreme Court, while dealing with the instructions on which the counsel for the petitioner has relied upon, it would be just and equitable in the light of the fact that the petitioner who has already retired from service, a direction is issued to respondents to communicate the ACRs, which would be hit by clause (c) of para-8.3 of instructions dated 19.09.1969, to the petitioner within a period of one month from the date of receipt of certified copy of this order. On ACRs being communicated, the petitioner may make a representation, if he so chooses, against the said entry, within a period of one month thereof and the said representation be decided by respondents within a period of two months from the date of receipt of such representation. In case, the annual confidential report entry is upgraded, the claim of the petitioner shall be considered for promotion retrospectively by the Departmental Promotion C.W.P. No. 3229 of 1996. -9- Committee within a period of two months thereof and if the petitioner is selected for promotion retrospectively, i.e., 13.06.1991, the date from which his juniors were promoted, he shall be given higher pension with arrears of pay and interest @ 8% per annum from the date of accrual till the date of payment and the same shall be disbursed within further two months. Disposed of accordingly. (AUGUSTINE GEORGE MASIH) JUDGE April 22, 2010. sjks.