AJIT KUMAR SINHA, J. - (1.) THE present writ petition has been preferred for issuance of an appropriate writ, order or direction commanding upon the respondents for the following reliefs: i) To dispose of petitioner's representation dated 26.6.97 and 21.10.99 against the adverse remarks in the A.C.R. for the period 1.4.96 and 6.8.96 and adversary memorandum dated 9.6.99 respectively. ii) To hold and declare that the adverse remarks and adversary memorandum are highly vague and non -specific and non -sustainable in law. iii) To quash the promotion list dated 30.10.99 whereby and whereunder the respondent No. 6 P.N. Thakur and respondent No. 5 Bhagwan Sahai, both Junior to the petitioner, have been granted promotion superseding the petitioner. iv) To hold and declare that the adverse A.C.Rs and the adversary memorandum against which the representation of the petitioner is pending due to the latches of the respondents, cannot be taken into account by the Departmental promotion Committee for considering and subsequent denial of promotion to the petitioner.
(2.) THE main contention raised by the learned Counsel for the petitioner is as to whether the adverse remark for the period 1996 as well as adversary memorandum for the year 1999 are illegal, unsustainable and against the well settled cardinal principle of natural justice. He has further submitted that since his representation against it was pending for disposal and unless the same was decided the Departmental Promotion Committee was duty bound to consider the petitioner for promotion. His further grievance is that his juniors have been promoted ignoring the rightful claim of the petitioner only on the ground of adverse A.C.Rs without even disposing of his pending representation and the same has resulted in denial of his promotion which was illegal and punitive in nature. The petitioner has referred to and relied upon 2000 (2) PLJR pg. 289 and (1995) 3 SCC pg. 383 to support his contention that without the disposal of pending representation the adverse remark cannot be taken into account. The learned Counsel for the petitioner has also filed a written notes of argument and has referred to and relied upon two more judgments in the written notes i.e. 2006 (1) SCC pg. 368 and 2008 (8) SCC pg. 725 to support his contention that the grading as average amounted to an adverse entry and required communication. There is no dispute with regard to the proposition of law in this regard that if there is an adverse entry the same should be communicated. However, on perusal of Judgment reported in 2006 (1) SCC pg. 368 I find that the same does not apply to the facts of the present case since there it was a case primarily on the issue of interpretation of Article 141 of the Constitution of India with regard to interpretation of Judgments. The second issue related to adverse remarks which was not communicated and the procedure to be adopted for recording of A.C.Rs. It also dealt with the modality provided for recording and communication of adverse entry for getting the desired improvement when there is an adverse/advisory remarks included in the Confidential Report. It further held that negligence has been taken as a weakness while planning the future placement and thus, the aforesaid Judgment does not apply to the facts of the present case. However, there is no dispute about the fact that the adverse entry was communicated to the petitioner herein.
(3.) THE respondents in their counter affidavit have submitted that the adverse remark was communicated to the petitioner vide letter dated 28.5.1997 and he made a representation on 26.6.1997 and the same has been examined by I.G. (SWS) Mumbai who was pleased to reject the same being devoid of any merit vide its order No. E -15017/SWS/LBR/97/515 dated 28.1.2000. It has further been submitted by the learned Counsel for the respondents that the petitioner was superceded based on his service record, overall assessment and the adverse remark in his A.C.Rs and also in view of the fact that even his representation was rejected being devoid of merit. It has further been pointed out that there were serious latches on the part of the petitioner apart from being inefficient and irresponsible. During the period under report, a well planned theft of 49 Ms plates worth Rs. 8 lakhs had occurred in the stock yard of SAIL, Vizag on 2/3.5.96 and the petitioner due to lack of constant vigil of area under his responsibility was also held responsible for the same.;