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3. To appreciate the nuances of the legal point urged by the Union of India we would have to transpose ourselves back to the year 1996, where we find ourselves in the company of the decision of the Supreme Court reported as (1996) 2 SCC 363 U.P.Jal Nigam Vs. Prabhat Chandra Jain. The ratio wherein is that only such comments in the ACR record which are adverse to the appraisee need to be communicated to the appraisee. Meaning thereby, a below benchmark ACR grading which is 'Good' need not be communicated to the appraisee. This was also the ethos of the view taken by the Supreme Court the next year in the decision reported as (1997) 4 SCC 7 State of U.P. Vs. Yamuna Shanker Mishra. Then came along the decision of the Supreme Court in Dev Dutt's case (supra), wherein it was opined that over the decade the law has marched far ahead on the subject of reasonableness and adverse consequences of material against a person being used against him by not even communicating the same to the person concerned for his response. Opining that the effect of a below benchmark grading was prejudicial to the interest of the appraise, inasmuch as right to be promoted was adversely affected, the Supreme Court opined that keeping in view the march of times, as recorded in the history of jurisprudence, below benchmark ACR gradings, such as 'Good', though by themselves would not be derogatory of the performance of the appraisee, would require the same to be communicated to the appraisee with an opportunity to respond and the obligation to consider the response, for the reason such ACR grading adversely affects the appraisee in the onward march of the appraisee in his career with the employer.

6. Suffice would it be to state that the Supreme Court categorically held that the below benchmark ACR gradings have to be considered by an authority superior to the authority recording the ACR grading for otherwise there would be a likelihood that the representation would be summarily rejected since it would be an appeal from Caesar to Caesar.

7. Some confusion came into being when the Supreme Court pronounced its short opinion, in the form of an order and not a judgment, reported as (2009) 16 SCC 146 Abhijit Ghosh Dastidar Vs. UOI & Ors. Noting that Abhijit Ghosh Dastidar was facing a problem in his promotion at the DPC held on December 15, 1999 as also on August 08, 1998 with respect to two entries in his ACR gradings, one on September 22, 1997 and the other on February 08, 1999. Said two entries resulted in Abhijit Ghosh Dastidar being graded 'Good'. The benchmark for promotion was 'Very Good'. The ACR grading 'Good' were never communicated to Abhijit Ghosh Dastidar. Noting that Abhijit Ghosh Dastidar had retired, the direction issued was to promote Abhijit Ghosh Dastidar with effect from August 28, 2000 when person immediately junior to him was promoted. And we simply highlight that the Supreme Court never considered what needs to be done if in the interregnum the Reviewing or the Accepting Authority have retired. The reason why Supreme Court never considered the same is simple. Said issue was never raised.

14. We note that the Division Bench which has authored the opinion in V.S.Arora's case has overlooked para 37 of the opinion of the Supreme Court in Dev Dutt's case. The Division Bench has overlooked that there is not conscious reasoning in Abhijit Ghosh Dastidar's case as to what should happen when the Reporting and the Reviewing as also the Accepting Authority have retired. In fact, the decision in Abhijit Ghosh Dastidar's case does not even record the fact that the Reporting, Reviewing or Accepting Authority had retired. Noting, in the brief order, which forms the decision in Abhijit Ghosh Dastidar's case, that as per Dev Dutt's case below benchmark ACR gradings were required to be communicated, noting further that Abhijit Ghosh Dastidar had superannuated from service, the Supreme Court directed his notional promotion from the date the person junior to him was promoted. Thus, to read into the decision of the Supreme Court in Abhijit Ghosh Dastidar's case a reasoning that if the Reviewing and/or Accepting Officers have retired, the below benchmark ACR gradings have to be ignored, would be to read something into the decision which does not exist. And said imaginary reasoning would then result in an apparent head on conflict of the law declared in para 37 of the opinion in Dev Dutt's case (supra) and the decision in Abhijit Ghosh Dastidar's case (supra).

15. We note a presumptive reasoning read by the Division Bench while reflecting upon the law declared by the Supreme Court in Abhijit Ghosh Dastidar's case and on said presumptive reasoning, read an opinion expressed contrary to the view expressed by a Division Bench in Krishna Mohan Dixit's case as to the reading of the two decisions in Dev Dutt's case (supra) and Abhijit Ghosh Dastidar's case (supra).

16. Under the circumstances we allow the writ petition and quash the direction issued by the Tribunal that review DPC be held at which the offending ACRs should be ignored. We substitute the direction. The below benchmark ACR would be conveyed to the respondent within four weeks from today granting respondent eight weeks time to file a response thereto. The Superior Authority above the Reviewing Authority shall consider the representation and pass appropriate orders and needless to state if the below benchmark ACRs gradings are enhanced to 'Very Good' a review DPC be held and if respondent is found fit for promotion he would be promoted on notional basis with effect from the date he became entitled to be promoted. Back wages need not be paid but pension be re-fixed and arrears paid by determining the salary which the respondent would have received in normal course.