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13. He stated that the very purpose of writing APARs is to ensure that the concerned officers‟ performance remain upto the mark and in case the officer is found lacking, the same is duly communicated to the officer for improvement. He stated that, in the case of petitioner, the APAR has been used as a weapon to deny him promotion and the same is evident from the fact that the below benchmark of „Good‟ grading was communicated after delay of 21 months, 24 days from the date of DPC and after 4 years from the date of writing of APAR. He contended that, in view of aforesaid delay, the said APAR was required to be declared as invalid. He has relied upon the DoP&T instructions contained in OM dated May 14, 2009, that below benchmark grading is required to be communicated within 15 days of recording of the same.

21. The case of the respondent is that, DPC has not found the petitioner „fit‟ as he did not meet the benchmark for promotion. It is also their case as contended by Mr. Kumar that, unless grading is upgraded, he cannot be found fit to be promoted.

22. It is also a conceded case that, before the DPC held its proceedings, the below benchmark grading in APAR of second half of 2013-2014, was not communicated to the petitioner. It was communicated only on November 24, 2017. We find that the Tribunal has not considered the effect of non-communication of the below benchmark grading of APAR of the second half of 2013-2014. The Tribunal dismissed the OA by stating in paragraph 5 as under:

26. Whereas, Mr. Kumar would submit that non-communication of the below benchmark grading or for that matter rejection of the representation against below benchmark grading of APAR would not make the APAR invalid, rather the officers non-promotion is liable to be upheld. In support of his submission, he has relied upon the judgment in the case of Saroj Kumar (supra).

27. Before we consider the judgments referred to by the counsels, it must be stated that the initial judgment on the issue of below benchmark grading in ACR / APAR, as was answered / decided by the Supreme Court in the case of Dev Dutt (supra). In Dev Dutt (supra), the Supreme Court has held, the non-communication of below benchmark grading in ACR is arbitrary and is violative of Article 14 of the Constitution of India. It was also held that, such entries which are not communicated should not be taken into consideration for the purpose of promotion to the higher grade. The judgment of Dev Dutt (supra) has been reiterated and followed by the Supreme Court in Abhijit Ghosh Dastidar (supra).