JUDGMENT

Suresh Kumar Kait, J.

1. The present petition has been preferred by the petitioner seeking issuance of direction to the respondents to promote the petitioner to the post of Executive Engineer (Civil) w.e.f. October, 2009 with all consequential benefits in view of judgment passed by this Court in the case of Prabhu Dayal Khandelwal Vs. Chairman, U.P.S.C. & Ors., (2015) 14 SCC 427.

2. The facts of the present case are that the petitioner was selected in Engineering Service Exam, 1999 conducted by UPSC and joined on the post of Assistant Executive Engineer (Civil) on 10.09.2001 in Border Road Engineering Service.

3. According to petitioner, in September, 2009, Departmental Promotion Committee (DPC) was constituted to consider promotion of Assistant Executive Engineer (Civil) to the post of Executive Engineer (Civil) and he being eligible, was in the zone of consideration. However, when the list dated 01.10.2009 of successful candidates was published his name was missing. According to petitioner, at that point of time, he had already completed more than five successful years of service in the post of Assistant Executive Engineer (Civil) and he was at seniority position No.20. There was no communication of any adverse entry or any adverse remarks to his credit. Neither any inquiry was held against him nor was pending.

4. Petitioner is aggrieved that despite having position at No.20 on the post of Assistant Executive Engineer (Civil) as on 01.08.2008, he was deprived of his promotion vide list dated 01.10.2009 and his juniors in the inter Seniority List dated 01.08.2008 had been promoted.

5. Aggrieved against the arbitrary and mala fide action on behalf of respondents, vide order dated 01.10.2009, petitioner submitted his representation dated 10.10.2009, which according to him was never decided by the respondents. Being aggrieved, petitioner preferred a writ petition being W.P.(C) 12704/2009 before this Court challenging the promotion order dated 01.10.2009 passed by the respondents. However, petitioner could not succeed and the said petition was dismissed vide order dated 06.07.2015.

6. Thereafter, the petitioner challenged the order dated 06.07.2015 (in W.P.(C) 12704/2009) before the Hon'ble Supreme Court wherein vide order dated 30.08.2017 in Civil Appeal No. 46/2016, the Hon'ble Supreme Court in view of decision in Prabhu Dayal (Supra) directed the respondents to convey the adverse ACRs to the petitioner/appellant and consider the matter in accordance with law.

7. Pursuant to order dated 30.08.2017passed by the Supreme Court, the respondents called upon the petitioner vide letter dated 12.10.2017 to make a representation, if any. Accordingly, the petitioner made a representation dated 15.11.2017 against the ACRs for the periods 2006-07 and 2008-09 stating that his ACRs have not been correctly and fairly assessed by IO, RO and SRO, which was rejected by the respondents vide order dated 02.05.2018.

8. During the course of hearing, learned counsel for petitioner submitted that neither the below benchmark or adverse entries of ACR were verbally or in writing communicated to petitioner prior to convening of DPC in 2009 nor he was ever called for counselling by IO, RO and SRO. Learned counsel further submitted that as per settled principles of law, petitioner should have been given a fair and reasonable opportunity to improve his performance on adverse or below benchmark entry in his ACR. However, his rights have been curtailed by the respondents, which has resulted in denial of promotion to the petitioner in the year 2009.

9. In support of petitioner's case, learned counsel submitted that petitioner has been awarded Commendation Card in the years 2005 and 2007 with the Chief of Army Staff (COAS) and also with the DGBR Commendation Card in the year 2012. Besides he was also given appreciation letter in the year 2017 by Lt. General Suresh Sharma, AVSM, DGBR for COAS awarded in the year 2017. This shows that petition