JUDGMENT

B.N. MAHAPATRA, J. : In this writ petition, the peti¬tioner prays for quashing of Annexures-2 & 3, whereby he was informed about the adverse remarks recorded in his Annual Confi¬dential Report (for short ‘The ACR’) for the year 1993 and Annex¬ures-5 and 6 by which he was intimated about rejection of his representation made for expunction of the said adverse remarks. The further prayer of the petitioner is for a direction to the opp. parties to place him in the Selection Grade with effect from 01.12.1994 the date on which his juniors were placed in such grade and to grant him all consequential service benefits includ¬ing the arrears of differential salary.

2. Bereft of unnecessary details, the facts and circumstances giving rise to the present writ petition are that the petitioner joined the services of Food Corporation of India on 27.06.1973 as Assistant Grade-3 (General) in the District Office, Balasore. During the year 1994, some of the juniors of the petitioner got promotion superseding him and were placed in Selection Grade with effect from 01.12.1994. The petitioner made a representation to the higher authorities for consideration of his case for promotion and placement in the selection grade with effect from 01.12.1994, i.e., the date on which his juniors were placed in the Selection Grade. In the year 1996, vide Annexures 2 & 3 the petitioner was informed about the adverse entries made in his ACR. The petitioner made a representation (Annexure-4) with detailed explanation to the Zonal Manager for expunction of the said adverse remarks in his ACR, 1993. The said representation was rejected and communicated to the petitioner vide letters dated 14.07.1999 and 24.07.1999 (Annexures-5 and 6). Hence, this writ petition.

3. Mr. D.K. Mohapatra, learned counsel appearing on behalf of the petitioner vehemently argued that un-communicated adverse ACR cannot be utilized against the petitioner to deny him promo¬tion/placement in the Selection Grade. The petitioner was denied placement in the Selection Grade before communication of the adverse entries made in the ACR for the year 1993. Rule 8 of Chapter 14 of Swamy’s Manual of Disciplinary Proceeding for Central Government servants clearly speaks that adverse remarks should immediately be communicated to the person concerned. A combined reading of Rules 3,4,5,6 and 7 reveals that the adverse remarks must be communicated immediately and the ACR must be written by the Reporting Officer on the basis of materials avail¬able and due care and caution should be taken while writing adverse ACR. But in petitioner’s case, neither the adverse ACR was communicated immediately nor there was any adverse remarks by the Reporting Officer. The petitioner worked as Grade-3 Assistant from 1988 to 1995 and the ACR of the petitioner was excellent all through except for the year 1993. The representation of the petitioner for expunction of the adverse remarks from the ACR for the year 1993 has been rejected by the Deputy Manager, PBRS without assigning any reason therefor. As per rule, the confidential report must be countersigned by the counter signing officer to give effect to the adverse remarks, which has not been followed in the present case. An adverse remarks in ACR report cannot be utilized against an employee unless it is duly counter¬signed by the competent authority.

4. Mr. S. Das, learned counsel appearing on behalf of the opp. parties vehemently argued that the promotion to the Selection Grade was being given by the Zonal Office, FCI, Calcut¬ta after considering the seniority and confidential report. The performance of the petitioner for the year 1993 having not found to be satisfactory certain adverse remarks were made in the ACR for the said year. The same was communicated to the petitioner. Against the said adverse remarks, the petitioner represented to the higher authorities for expunction of the same vide represen¬tation dated 25.10.1996. After careful consideration of the same,