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Since no appeal was filed by the respondents against the said judgment and decree of the Civil Judge (Sr. Divn.), the appellant requested the respondents vide representation dated 08.05.2002 to consider him for promotion to the post of Battalion Commander. Thereafter, despite having submitted representations dated 10.05.2002 and 20.06.2002 to the respondent No. 4, no action was taken to implement the decree passed in favour of the appellant.

In the meanwhile, the Division Bench of High Court passed an order on 14.01.2003 in CWP No. 4491 of 2001 and CWP No. 11011 of 2001 (filed by some other petitioners, who had also challenged Instructions dated 29.12.2000) issuing direction to the State Government for considering the case of petitioners therein, by ignoring the Instructions dated 29.12.2000.

As per the Instructions dated 06.09.2001, at least 12 marks were required for promotion to the post of Battalion Commander. The appellant was not considered for promotion even after having a decree passed in his favour by the Civil Court which was deliberately not placed before the Departmental Promotion Committee (hereinafter “the DPC”) for its consideration. Due to the adverse remarks in the ACR for the year 2001-2002, the appellant fell short of this benchmark.

The appellant again made representations dated 10.09.2003 and 15.09.2003 to the respondent No. 4 for implementing the judgment and decree passed by the Civil Judge (Sr. Div.) in his favour and requested them to promote him to the post of Battalion Commander. He also got a legal notice issued to the respondents on 06.10.2003. The respondents deliberately ignored the request of the appellant by placing reliance on the Instructions referred to supra and the non-upgraded ACRs for the year 1999-2000, 2000-2001 and 2001-2002, though the suit was decreed in his favour.

It is also contended by the learned senior counsel that the High Court failed to consider the representation dated 16.04.2003 submitted by the appellant to the respondent No. 4, wherein he had requested for the implementation of the judgment and decree dated 15.03.2002 passed in the Civil Suit No. 70 of 2001.

It is further contended by the learned senior counsel on behalf of the appellant that the High Court should have taken into consideration the latest judgment of this Court rendered in the case of Sukhdev Singh v. Union of India[2] wherein it was held that all the ACRs whether poor, fair, average, good or very good, must be apprised to the concerned employee/officer within the stipulated time so that he/ she can take suitable action if he/she is aggrieved by the same. While on the one hand, the High Court presumed that the appellant had knowledge of the downgrading in his ACR, at the same time it was also observed that it was not clear whether the downgrading was conveyed to the appellant. It is further contended by the learned senior counsel appearing on behalf of the appellant that the High Court should have considered the law laid down in the case of Gurdial Singh Fiji v. State of Punjab[3], wherein this Court has specifically held that the adverse remarks made in the ACR cannot be acted upon by the Authority to deny promotion to a post unless they have been communicated to the concerned person.

Further, the adverse remarks for the period 1999-2000 were conveyed to appellant vide communication dated 28.06.2000 by the D.G.P-cum- Commandant General. The representations dated 18.08.2000 and 25.08.2000 made by the appellant against the same were submitted to respondent No. 4. The said representation was rejected on 07.05.2001. The appellant had challenged the same by filing Civil Suit No. 70 of 2001, wherein the respondent No. 4 was impleaded as defendant No. 3. The civil suit was decreed on 15.03.2002 in favour of the appellant. The said judgment and decree passed in favour of the appellant has not been implemented by the respondent Nos. 4 and 5, despite having attained finality, which clearly reflects the fact that the respondent No.4 was not fair in considering him for promotion to the post of Battalion Commander as provided under Rule 8(2) of the Rules. According to the Rules, the appointment to the promotional post shall be made on seniority-cum-merit basis. As per the ACRs placed on record, the appellant has fulfilled the aforesaid requirement of seniority-cum-merit by securing 14 marks, as per the Instructions in relation to all aspects entered in the ACR. The strong reliance placed upon the adverse remarks made by the respondent No.4, who has made the same without assigning any reasons, has resulted in the appellant being denied of the promotional benefit, even though the order of the respondent No. 4 was set aside by the judgment and decree in Civil Suit no. 70 of 2001. The action of respondent No. 4 in denying the promotional benefit to the appellant is tainted with malafides. It can further be observed from the record that it was respondent no.7 who had filed the reply on behalf of all the respondents in the writ petition proceedings before the High Court. It is important to note at this stage that respondent No. 7 happens to be an officer junior to the appellant, who was promoted to the post in question. The non-filing of written statement by respondent No. 4 traversing the allegations of malafide against him proves the malafide intention on part of the respondent No. 4. Therefore, there was no justification for the respondent No. 4 in denying the promotional benefit to the post of Battalion Commander to the appellant and. The learned senior counsel on behalf of the appellant has rightly placed reliance on the case of Sukhdev Singh (supra), wherein this Court has lucidly laid down the law pertaining to communication of ACR. It was held that if the ACR of the officer concerned is to be used for the purpose of denying promotion, then all such ACRs were required to be communicated to him, to enable him to make a representation against his adverse entries made in the ACRs.