1. Heard Mr. N K Kalita, the learned Counsel for the petitioner. The Food Corporation of India (FCI) and their offices are represented by the learned Counsel Mr. P K Roy.

2. The grievance of the petitioner relates to his non-promotion to the cadre of AG-II (D) in the FCI w.e.f. the date of promotion of his juniors. During pendency of this case, the petitioner has superannuated from service on 30.11.2011.

3. The learned Counsel Mr. N K Kalita refers to the communication dated 24.8.2009 (Page-73) of the employer to project that the petitioner was not considered for promotion on account of the low grading in his ACRs and therefore, the concerned entries recorded in the ACRs, should have been communicated to the employee, as those impacted his opportunity for promotion.

4. The petitioner contends that if a benchmark is stipulated on the kinds of grades to be secured by an employee in his previous ACRs, for being promoted to the next higher rank, any grading below the benchmark should have been communicated but in the instant case, the 3 “fair” grading for the petitioner, were never communicated and therefore, it is argued that the same cannot be made the basis for denying promotion to the employee.

5.1 On the other hand, the learned Counsel Mr. P K Roy for the FCI submits that promotion under Regulation 10(1) of the FCI (Staff) Regulation 1971 (hereinafter referred to as “the Regulation”) is to be considered on the basis of seniority, subject to fitness and here the petitioner was found to be unfit for promotion by the Departmental Promotion Committee (DPC).

5.2 The respondents lawyer refers to the OM dated 10.3.1989 issued by the Department of Personnel & Training to project that the benchmark in the ACR of the concerned years should be “good” and since the petitioner failed to secure the benchmark grading in his ACRs, he was rightly declared to be unfit for promotion.

6. The DPC which declared the petitioner to unfit took into account the petitioner’s grading in the ACR for 6 years starting from the year 1998 to 2003 and since the grading has relevance in the present litigation, the same are extracted herein below for ready reference :-     

7. On account of the stipulated benchmark of “good” grading in the ACRs of the concerned years and the lower gradings (FAIR) in the petitioner’s ACR in the year 1999, 2000 and 2001, the DPC declared that the petitioner is unfit for promotion. But it is admitted that those gradings were never communicated to the petitioner, as under the applicable norms in the FCI, “average/fair gradings are not considered adverse.

8. For those gradings, which are not considered adverse in nature and yet they result in elimination of the candidate from being considered for promotion, the Supreme Court in Dev Dutta vs. Union of India reported in (2008) 8 SCC 725 observed as follows :-

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9. In the present case the benchmark (i.e. the essential requirement) laid down by the authorities for promotion to the post of Superintending Engineer was that the candidate should have “very good” entry for the last five years. Thus in this situation the “good” entry in fact is an adverse entry because it eliminates the candidate from being considered for promotion. Thus, nomenclature is not relevant, it is the effect which the entry is having which determines whether it is an adverse entry or not. It is thus the rigours of the entry which is important, not the phraseology. The grant of a “good” entry is of no satisfaction to the incumbent if it in fact makes him ineligible for promotion or has an adverse effect on his chances.

10. Hence, in our opinion, the “good” entry should have been communicated to the appellant so as to enable him to make a representation praying that the said entry for th