JUDGMENT

Gita Mittal, J (Oral)

1. By this writ petition, the petitioner assails an order dated 9th November, 2009 passed by the respondents rejecting the petitioner's representation dated 13th May, 2009 against the adverse entries in his ACR for the period 1993-94 as well as the communication dated 7th December, 2009 whereby the respondents communicated the reasons on which the previous rejection was based.

2. The facts giving rise to the instant petition are within the narrow compass and to the extent necessary, are briefly noted hereafter.

3. The petitioner was in the service of the Border Roads Engineering Service which was governed by the Border Roads Engineering Service Group `A' Rules as amended. The admitted position is that on 22nd February, 1988, the appellant was promoted as an Executive Engineer and became eligible for consideration for promotion to the post of Superintending Engineer on 21st February, 1993 on completion of five years in the grade of Executive Engineer. The name of the petitioner was included in the list of candidates who were considered eligible for promotion.

4. Unfortunately, in the Departmental Promotion Committee meeting held on 16th December, 1994, the appellant was found not eligible for promotion while his juniors were considered and promoted to the rank of Superintending Engineering. The petitioner assailed the action of the respondents before the Guwahati High Court by way of a petition being Civil Rule No.5307/1995 which was rejected by an order passed on 21st August, 2001. The petitioner's challenge against this judgment before the Division Bench was also rejected. The petitioner assailed the action of the respondents against him, by way of a special leave petition which was registered as Civil Appeal Case No.7631/2002 before the Supreme Court of India.

5. We may note the primary ground of challenge of the petitioner. It was pointed out by the respondents that the petitioner did not meet the bench mark grade of `very good' for the last five years before the Departmental Promotion Committee and, therefore, could not be considered for promotion to the post of Superintending Engineer. The petitioner made a grievance that the `good' entry in his ACR for the year 1993-94 was not communicated to him and if the same had been communicated, he would have had the opportunity of making a representation for upgrading that entry to `very good'. If that representation was allowed, the petitioner would have become eligible for consideration for promotion to the post of Superintending Engineer. The appeal of the petitioner before the Supreme Court was allowed by a landmark judgment dated 12th May, 2008 whereby the Supreme Court held as follows:

"xxx fairness and transparency in the public administration requires that all entries (whether poor, fair, average, good or very good) in the Annual Confidential Report of a public servant, whether in civil, judicial, police or any other state service (except the military), must be communicated to him within a reasonable period so that he can make a representation for its upgradation".

It was further held as follows:

"40. We further hold that when the entry is communicated to him the public servant should have a right to make a representation against the entry to the concerned authority, and the concerned authority must decide the representation in a fair manner and within a reasonable period. We also hold that the representation must be decided by an authority higher than the one who gave the entry, otherwise the likelihood is that the representation will be summarily rejected without adequate consideration as it would be an appeal from Caesar to Caesar."

6. After clear enunciation of the applicable legal principles, so far as the present petitioner was concerned, the court issued the following directions:

"46. In view of the above, we are of the opinion that both the learned Single Judge as well as the learned Division Bench erred in law. Hence, we