The right to be considered for promotion is a Fundamental Right, and adverse entries in a confidential roll cannot be acted upon to deny promotional opportunities unless they are communicated to the person concerned and their explanation is considered.

Hrishikesh Roy, J.

1. Heard Mr. B.N. Dutta, learned senior counsel assisted by Mr. B.K. Das, learned Counsel appearing for the petitioner. Also heard Mr. A.S. Siddique, learned Counsel appearing for the respondent Nos. 1, 2 and 3. The private respondents although served have chosen not to participate in the proceeding.

2. The petitioner complaints of denial of promotion to the post of Executive Engineer in the Public Health Engineering (PHE) Department at the appropriate time and his supersession by his juniors in the cadre of Assistant Engineers (AE). The supersession is alleged to have been made on three occasions in the years 1995, 1996 and 1998 and all the juniors alleged to have superseded the writ petitioner, have been arrayed as respondents in the instant case.

3. The petitioner joined service in the PHE Department as an Assistant Engineer in August, 1981. The promotions to the post of Executive Engineer is to be given on the basis of the recommendation of the DPC on the criteria of seniority-cum-merit by considering service records of the previous five years of the eligible incumbents in the feeder cadre.

3.1 In 1995, the first supersession was made when six juniors of the petitioner were promoted to the posts of Executive Engineer on the basis of the recommendation made by the DPC which sat on 16.8.1995 and 2.9.1995. On this occasion, although the name of the petitioner was also considered by the DPC, he was denied promotion because of adverse remarks recorded in his service book for the years 1991, 1993 and 1994. The petitioner contends that the adverse entries recorded for the later 2 years (1993 and 1994) were not objectively recorded but was recorded by the Reporting Officer (R. 17) at the dictate of the then Chief Engineer of the PHE Department who is arrayed herein as respondent No. 4.

3.2 During the promotions made in the year 1996 three juniors superseded the writ petitioner. On this occasion, the petitioner's case was never considered by the DPC in its sitting on 4.9.1996.

3.3 On the third occasion, in the year 1998 three more juniors were promoted on the basis of the recommendation of the DPC which sat on 16.6.1997 and 27.6.1997. On this occasion, the petitioner was not recommended because of the same averse entries for the years 1993 and 1994. It is pointed out by Mr. Dutta that the adverse entries recorded for the year 1997, (communicated on 17.9.1998), was wrongly taken into account by the DPC when it sat in June 1997, although the ACR of that year (1997) could not have been taken into account by the DPC, and promotion was to be considered on ACRs of the previous 5 years.

4. Significantly, while the petitioner was overlooked for promotion on three different occasions in the years 1995, 1996 and 1998, while the respondent No. 4 was the Chief Engineer of the department, soon after the retirement of respondent No. 4, when consideration was again made in the year 2000, the writ petitioner was recommended for promotion by the DPC and the instant petition has been filed for getting retrospective benefit of promotion, from the date the petitioner's juniors were given promotion to the cadre of Executive Engineer.

4.1 The petitioner alleges that due to illegal intervention of the then Chief Engineer (R-4) he was denied promotions in the days, when respondent No. 4 was heading the department.

5. Mr. B.N. Dutta, learned senior counsel submits that declaration has been given by the then Executive Engineer (R-17) on 17.8.1998 (Annexure-2) that as the Reporting Officer he recorded negative entries in the petitioner's ACRs of 1993 and 1994 at the dictate of the Chief Engineer and accordingly Mr. Dutta contends that the said adverse entries were wrongfully made the basis for denying promotion to the writ petitioner.

5.1 The learned Counsel further submits that the reply given by the petitioner on 2.8.1995 against the communicated adverse entries for the years 1993 and 1994, was never considered by the respondent authoritie