Tinlianthang Vaiphei, J.

1. In this writ petition, the petitioner is seeking directions from this Court for expunging the adverse remarks, namely, "Average" gradings in his ACRs for the period 1.4.2005 to 31.3.2006, from 1.4.2006 to 3.7.2006 and from 1.4.2008 to 31.3.2009, which were recorded without any performance enhancing counselling or communication, and for promoting him to the post of Executive Engineer with effect from 5.10.2011 when his juniors were promoted to that post. The material facts of the case may be briefly noticed at the outset. The petitioner was appointed on 27.10.2004 as Assistant Executive Engineer under the Border Roads Development Board under the Ministry of Road Transport and Highways and is presently working under the Commandant, 42, Border Road Task Force (BRTF). In compliance with the new Office Memorandum dated 6.10.2010, the petitioner was vide the letter dated 12.10.2010 communicated his ACRs for the said periods in question whereupon he for the first time came to learn those adverse entries against him. He had never been informed of such entries earlier nor was he given an opportunity to improve his ACRs by way of giving advice/instructions or warnings. It is the contention of the petitioner that since the grading "Average" is considered to be adverse and below the benchmark for promotion to the next higher post of Executive Engineer, he should have been communicated to him by the respondents. Aggrieved by this, he filed the representation dated 28.7.2011 before the respondent authorities for reviewing his case by upgrading the impugned ACRs. However, the respondent authority by the letter dated 11.10.2011 (Annexure-12) rejected the representation. It is against this rejection that this writ petition is now filed by the petitioner for appropriate relief.

2. The writ petition is opposed by the respondents by filing their affidavit-in-opposition. The averments made in the affidavit have been carefully perused by me. The main contentions of the respondents are that prior to Dev Dutt's case, there was no requirement to communicate the downgrading of ACR to an employee as long as the grading is at the level of above average, and it was after 13.4.2010 that a new guidelines of the Department of Personnel and Training came to be issued requiring that even below benchmark grading contained in the ACR should be communicated. According to the answering respondent, the Office memorandum dated 14.5.2009 requiring communication of the full APR (earlier known as ACR) including the overall grading and assessment of integrity to the concerned officer after the report is complete with the remarks of the Reviewing and Accepting Officer, etc. has been made with prospectively i.e. with effect from 1.4.2009. The ACR was not communicated to him earlier as there was no provision or guidelines in the government department to communicate below benchmark grading in the ACR to the officer concerned: the petitioner was, however, appropriately counseled from time to time and necessary endorsements were accordingly made in the relevant ACRs. It is asserted by the answering respondent that the ACRs of the petitioner for the following period was communicated to him vide the letter dated 12.10.10:

(a) ACR for the period from 1.4.05 to 31.3.06

Assessment 'average' made by the Reviewing Officer (RO) in the ACR was upgraded by the Reviewing Officer in the ACR was upgraded by the Accepting Officer (AO) to box grading 7 i.e. Good which Benchmark for his next promotion.

(b) ACR for the period from 1.4.06 to 3.7.06

Assessment 'average' made by the Reviewing officer was further corroborated by the Accepting Officer. Adverse marks were communicated to the officer vide letter dated -- as referred to in para. 31 of the ACR(?).

(c) ACR for the period from 1.4.08 to 31.3.09

Assessment 'average' made by the Initiating Officer (IO) was corroborated by the Reviewing officer and further accepted by the Accepting officer. Adverse remarks were