Adverse remarks in confidential reports cannot be acted upon to deny promotional opportunities unless they are communicated to the person concerned and the officer who writes the ACR must be competent to do so.

D. J. JAGANNADHA RAJU, J.

( 1 ) THIS writ petition is filed for issuance of a writ of mandamus to direct the respondents to promote the applicant as Sub-inspector from the date his juniors were promoted i. e. , with effect from Force Order 148/84 dated 19-10-1984 with all consequential benefits.

( 2 ) IN this writ petition, Sri K. Laxminarasimham, the learned counsel for the petitioner, contends that the promotion to the petitioner was denied in the year 1984 on the ground that for the years 1982 and 1983, his Annual Confidential reports contained adverse remarks. Mr. Laxminarasimham points out that the adverse remarks of Annual Confidential Report of 1982 were never communicated to the petitioner and hence, they cannot be taken into consideration. The adverse remarks for 1983 were written by an officer, who is not competent to write the remarks, because the petitioner worked under him only for less than six months period. Under the rules, an Officer under whom the incumbent worked for less than six months need not writ the confidentials and if he writes the confidentials, he will have to consult his predecessors and than make the endorsements. Such a thing was not done in this case. He also points out that the adverse remarksof 1983 were communicated to the petitioner subsequently after the promotion exercise was completed and they were actually communicated on 15-1-1985 under Annexure-XIII. On the representations made by the petitioner, all the adverse remarks for the year 1983 excepting the remark integrity very doubtful were set aside by the higher authorities. But none of the higher authorities considered the question whether mr. Kotkar who wrote the ACR for 1983 is competent to writ the ACR for the year 1983 because admittedly, the petitioner served for less than three months under that Officer. Reliance is placed upon Instruction No. 4 to the Annual confidential Reports of the Railway Protection Force. That instruction reads as follows:-"if the Officer has served under the reporting authority for less than six months, the authority under whom he has previously served should be consulted and their opinion incorporated in the report indicating how far the remarks against the relevant columns are based on personal knowledge and how far on reports of other authorities. "

( 3 ) IN the present case, the Officer, who wrote the Annual Confidential Report never followed this instruction. Admittedly, the petitioner served under him for about 45 days or so i. e. , much less than the prescribed period of six months.

( 4 ) THE remarks themselves were communicated much later after the promotion exercise was completed; under letter dated 15-1-1985.

( 5 ) THE crucial question in this case is, whether on the basis of such adverse remarks, the petitioner can be denied promotion in the year 1984?

( 6 ) ON behalf of respondents, the learned standing counsel Mr. C. Ramakrishna contends that 1984 promotions were at one time exercise conducted in departure of the normal procedure for promotions from Asst. Sub-Inspector to Sub-Inspector. He has brought to the notice of the Court the relevant circulars, which govern the procedure to be followed regarding this one time promotion exercise undertaken in April, 1984. The first document dated 3-4-1984 lays down the criteria that are to be observed. The criteria fixed are (1) Five years service should be taken into consideration," (2) to be fit for promotion, a person should have at least three average or above average remarks without any adverse entry during those years, (3) anybody having adverse reflection on his intergrity or having been accused of moral turpitude should be considered unfit and (4) Anybody undergoing punishment as on 1-4-1984 should be similarly considered unfit for promotion.

( 7 ) ONE of the important conditions stipulated is given in the communication dated 23-5-1984. This mentions that in addition to the conditions communicated in the letter dated 3-4-1984, the annual remar

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