R. I. REBELLO, J.

( 1 ) RULE. Heard forthwith.

( 2 ) THE petitioner is working as a Bailiff in the subordinate Court. He was appointed vide office order No. 114 dated 17th April, 1989. He was confkmed by office order No. 384. It is the case of the petitioner that since then he is working satisfactorily as a Bailiff and is discharging his duties and responsibilities to the satisfaction of all concerned. Till date he has not received promotion. It is his further case that on completion of 12 years of service in terms of G. R. he would be entitled for assured promotional scale or time bound promotion scale. The petitioner, however, was not given the benefit of the said G. R. It is the case of the petitioner that he is not aware of the reasons as to why he was not given the benefit. On 30th October, 2003 he was intimated by communication of the adverse remarks in the confidential report from 1st April, 2002 to 31st March, 2003 which are as follows :- 1. Relations with colleagues and Public : Unfriendly 2. Fitness for Promotion. : Unfit the record does not show whether the petitioner has represented against the adverse C. R. It is, however, the petitioners case that on retirement of Head bailiff in his place he shouldered the responsibilities for the months of April and may, 2004. The petitioners grievance is that by communication of 15th May, 2004 he was held ineligible for the benefit of promotional pay scale with effect from 1st April, 2001 in accordance with the G. R. dated 28th July, 2001. It is this order which is the subject matter of the present petition.

( 3 ) THE petitioner was employed on 17th April, 1989 and in these circumstances he would ordinarily be eligible to be considered on completion of 12 years after 1st April, 2001. The adverse remark which is communicated is from 1st April, 2002 to 31st March, 2003. It is the case of the petitioner, therefore, that the adverse remark should not be considered. It is further submitted that what the respondents have to consider was whether he was eligible for promotion and should have been considered for promotion. The mere fact that for one year he may have been marked average by itself cannot result in denying to the petitioner the benefit of the time bound promotion scale.

( 4 ) ON behalf of the respondent a reply has been filed by the Registrar, legal, High Court, Appellate Side. It is pointed out that no employee is entitled to promotion as of right after completion of 12 years in service. It is then pointed out that the benefit of assured promotional pay scale is given as per criteria laid down in para 2 (5) of the G. R. dated 20th July, 2001 and the criteria mentioned in para, 580 (ii) of the Civil Manual 1986. It is set out that the petitioner has not been granted benefit of the scheme since he does not fulfil the criteria. The benefit of the scheme is given only if the entire service record and confidential report for the last 5 years are found satisfactory by the members of the Advisory committee. As the record was not satisfactory he was not considered. The adverse remarks though were communicated, the petitioner did not represent against the same for expunging the same. It is denied that the order passed by the respondent No. 1 suffers from any non-application of mind.

( 5 ) BY the order of this Court dated 4th March, 2005 we had asked the respondents to file additional affidavit as to why average has been treated as adverse. Pursuant to that an Additional reply has been filed in which it is set out that pursuant to the Government Resolution dated 1st February, 1996 which has been adopted by this Court the manner of writing annual confidential reports has been set out. In terms of the said G. R. average is treated as adverse and hence is to be communicated. Rules have been framed in the matter of promotion of employees in the subordinate services. Rule " (c)" reads as under :- (c) While selecting an employee for promotion, the District Judge shall take into