L.S. Jamir, J.

By this writ petition, the petitioner is challenging the validity of the impugned adverse remarks given by the Accepting Officer in his Interim Confidential Report (ICR) for the period 01-04-2005 to 30-09-2005 whereby, the remarks given by the Initiating Officer (IO) and the Reviewing Officer (RO) was reduced to below the benchmark level. A further prayer is also made by the petitioner for promoting him to the post of Executive Engineer (Civil) with effect from 24-06-2011 by holding a Review DPC after expunging the adverse remarks.

1. Heard Mr. I.H. Saikia, learned counsel for the petitioner. Also heard Mr. S.C. Keyal, learned ASGI appearing for the respondents.

2. Mr. I.H. Saikia, learned counsel for the petitioner submits that the petitioner joined the General Reserve Engineering Force (GREF) Wing of the Border Roads Organization after being duly selected by the Union Public Service Commission. The petitioner reported for his duty on 24-06-2002 in the grade of Assistant Executive Engineer (Civil). He submits that while the case of the petitioner was due for promotion to the post of Executive Engineer, the petitioner received a communication dated 28-09-2010 whereby, the impugned ICR was communicated which was graded as " Average" and which is also below the benchmark level. By the same communication, the petitioner was asked to submit his representation within 15 days. Accordingly, the petitioner responded by a representation dated 27-10-2010 for upgradation of his ICR upto the benchmark level i.e. "Good". However, the representation of the petitioner was rejected by the respondents by Memorandum dated 28-02-2011. He submits that the benchmark in the ACR/ICR for promotion to the post of Executive Engineer is "Good".

3. Learned counsel for the petitioner submits that for promotion to the post of Executive Engineer, the respondents held a DPC on 12-06-2011. In the said DPC, though the name of the petitioner was considered, he was declared "unfit" on the basis of the ICR in terms of the DoP&T guidelines which provides that a candidate can be considered fit only if the reckonable ACRs/ICRs are found to be above the benchmark level. As a result, the batch-mates of the petitioner and some of his juniors were promoted to the post of Executive Engineer by the order dated 24-06-2011 by ignoring the case of the petitioner. As the representation dated 27-10-2010 made by the petitioner was rejected by the respondents, the petitioner approached the High Court of Uttarkhand at Nainital by filing W.P (C) No. 305 (S/B) of 2011. The said writ petition was disposed of by order dated 20-10-2011 by directing the respondents to dispose of the representation made by the petitioner by passing a speaking order. In compliance thereto, the respondents passed an order dated 30-12-2011 by holding that the representation of the petitioner has already been disposed of and there is no substance in existence for issuing of separate reasoned and speaking order on the representation.

4. It is also submitted that in the meantime, the petitioner was promoted to the post of Executive Engineer with effect from 25-02-2013. However, the petitioner approached the Delhi High Court by way of W.P (C) No. 2358/2013 on the ground that in terms of the DoP&T guidelines, out of 5 reckonable ACRs/ICRs, if 4 are above the benchmark level, he is entitled for promotion to the next higher post. However, the said writ petition was dismissed by an order dated 04-01-2016 by holding that out of 5 reckonable ACRs/ICRs, all the 5 ACRs/ICRs should be above the benchmark level for promotion and therefore, there was no merit in the writ petition. Learned counsel for the petitioner submits that it is a settled principle of law that if an ACR is not communicated, the same cannot be taken into consideration by the DPC while considering the case for promotion. However, in the instant case, though the impugned ICR was not communicated on time, the DPC considered the same