JUDGMENT : R.N. Misra, J. - Petitioner and opposite party No. 3 were initially appointed as Gallery Assistants in the State Museum at Bhubaneswar, Petitioner having been appointed on 19-4-1963 and opposite party No. 3 on 21-6-1963. The post of Gallery Assistant is borne in Class III Service of the State. Petitioner was promoted to the post of Curator in the Orissa State Museum in Class-II Service on 2-6-1964, while Opposite party No. 3 was so promoted on 14-1-1965. In the post of Curator, Petitioner was confirmed on 2-6-1966 while opposite party No. 3 was so confirmed on 14-1-1967. Opposite party No. 3 was promoted as Superintendent of Orissa State Archaeology on ad hoc basis on 1-4-1971 and on 7-10-1971 that appointment was regularised on the basis of the recommendation of the State Public Service Commission. Petitioner challenged the said appointment by filing a writ application in this Court O.J.C. No. 244 of 1972 contending that the post of Superintendent was promotional, Petitioner was senior to opposite party No. 3 and without any justification his claim had been overlooked. He further contended that certain adverse entries in his Confidential Character Roll bad been relied upon for overlooking his claim though the same bad not been communicated to him by the time such character roll entries were sent to the Public Service Commission and it was further alleged that only on the basis of such character roll entries, Petitioner's claim had been overlooked. Petitioner had by then represented against the adverse entries and the representation was pending consideration. Therefore, a Bench of this Court by order dated 14-6-1974, following the ratio in the Full Bench decision in the case of S.S.S. Venkatrao v. State of Orissa and Ors. ILR 1974 Cutt. 227, called upon the State Government to dispose of the representation and directed that if the representation succeeded, Government should review the position and mete out such measure of justice as the Petitioner deserved. The representation of the Petitioner was rejected. Thereupon, Petitioner filed the present writ application for quashing the entries as also the appointment of opposite party No. 3 and to give him appropriate service benefits retrospectively from the date opposite party No. 3 had been promoted. The representation of the Petitioner was rejected. Thereupon, Petitioner filed the present writ application for quashing the entries as also the appointment of opposite party No. 3 and to give him appropriate service benefits retrospectively from the date opposite party No. 3 had been promoted. On behalf of the Petitioner it was contended that uncommunicated adverse entries in the Confidential Character Rolls were not available to be utilised and since such entries had been utilised by the Public Service Commission for ignoring the Petitioner's claim the advice given by the Commission was vitiated and Government went wrong in appointing opposite party No. 3 to the promotional post of Superintendent. When the writ application came up for hearing before a Division Bench, counsel for the Petitioner canvassed that the ratio in the earlier Full Bench case of the Court S.S.S. Venkatrao v. State of Orissa and Ors. ILR 1974 Cutt. 227, ran counter to the decision of the Supreme Court and therefore, required review. On 27-4-1977, the Division Bench passed the following order: Admit. This case is to be heard by a larger Bench consisting of five Judges In view of the Fun Bench decision In ILR 1974 227 S.S.S. Venkatrao v. State, This will not prejudice the contention of opposite party No. 3 that the judgment in O.J.C. No. 244/72 operates as res judicata. That is why this larger Bench has been constituted. On 8-9-1971, the Petitioner was allowed to cross the efficiency bar at Rs. 400/- In the scale of pay of Rs. 260-20-300-25-400-EB-30-520-EB-35-660-40-780/-. On that basis, It has been contended that the adverse entries recorded prior to that date must be taken to have been wiped out and did not survive for consideration against the Petitioner when claim of promotion to the higher post was considered on regular basis. 2. Three questions arise for consideration in this case: (i) Are the adverse entries in the Confidential Character Rolls of the Petitioner liable to be quashed? (ii) Did not allowing the Petitioner to cross the efficiency bar on 8-9-1971 have the effect of wiping out the adverse duties already made in the Confidential Character Rolls? and (iii) Whether the decision of the Full Bench of this Court in S.S.S. Venkatrao v. State of Orissa and Ors. ILR 1974 Cutt. (ii) Did not allowing the Petitioner to cross the efficiency bar on 8-9-1971 have the effect of wiping out the adverse duties already made in the Confidential Character Rolls? and (iii) Whether the decision of the Full Bench of this Court in S.S.S. Venkatrao v. State of Orissa and Ors. ILR 1974 Cutt. 227, so far as it indicates that uncommunicated adverse entries can be utilised and crossing of efficiency bar does not wipe out previous adverse entries is correct or requires review? Though the whole case has been referred to the larger Bench, counsel for all the parties have agreed that we may confine our examination to the second and third questions and leave the first aspect to be dealt with by a Division Bench on the basis of the law as may be determined by us. In view of this submission, which we accept, we confine our consideration to the second and the third aspects as indicated above. 3. Petitioner alleged that his claim for promotion was considered on the basis of the entries in the Confidential Character Rolls for the three years, namely 1968-69, 1969-70 and 1970-71, and for this submission reliance has been placed on a letter written by the Secretary to Government in the Department of Cultural Affairs to the Secretary of the. Commission (vide Annexure-A/I) where the Secretary requested the Political & Services Department to furnish the entries for the three years including 1970-71 to the Commission. According to the State, the entries of /the three years which were actually sent were of 1967-68. 1968-69 and 1969-70 as the entries for the year 1970-71 had not yet been made by them. The particulars of the entries are as hereunder: Date of entry Relevant year Text of the entries 9-8-1968 1967-68 A good officer. But his technical knowledge is average. Trying to develop his knowledge. 2-1-1971 1969-70 Good knowledge in his branch of work. His performance was, however, average. Had real in work but it was misutilised in party faction in that small office. Not dependable to manage the establishment with fairness and equity. 22-4-1971 1968-69 I am pleased to record that Sri Ramesh Prasad Mahapatra who was a student in the School of Archaeology during 1968-69 was quite studious, sincere and bard-working. His work both in the field and class was consistently good and meritorious. Not dependable to manage the establishment with fairness and equity. 22-4-1971 1968-69 I am pleased to record that Sri Ramesh Prasad Mahapatra who was a student in the School of Archaeology during 1968-69 was quite studious, sincere and bard-working. His work both in the field and class was consistently good and meritorious. (It may be pointed out that this entry was on the basis of the report of the Director of School of Archaeology, New Delhi, where the Petitioner was a student during the year and the delay in recording the same was on account of delayed receipt of the report). The adverse entry against the Petitioner is, therefore, for the year 1969-70 only and was made on 2-1-1971. Admittedly, it was communicated on 21-9-1971 (See Annexure-4). but it had been taken into account by the Commission while dealing with the question of appointment to the post of Superintendent. Some amount of dispute was raised at the Bar as to whether the post of Superintendent was promotional. Admittedly, the scales of pay of Curator and Superintendent appear to be same though responsibilities attached to the post of Superintendent are higher. We do not intend to deal with the controversy as to whether the post of Superintendent is promotional and we have chosen to proceed on the footing that It is a promotional one as for determining the two questions indicated above a decision on that question is not material. 4. On 8-9-1971, Petitioner has been allowed to cross the efficiency bar at Rs. 400/- in his pay scale. According to Mr. Dora for the Petitioner, the decision to permit the Petitioner to cross the efficiency bar must have been reached on the basis of the service records which are intended to reflect Petitioner's performance in service. Once the appropriate authority has considered the Petitioner suitable for crossing the efficiency bar, the adverse entry must be taken to have been wiped out. Since the entry was made on 2-1-1971, i.e. eight months prior to the crossing of the efficiency bar, the same must be taken to have lost its existence and after the crossing of the efficiency bar, the entry could not have been utilised against the Petitioner On 7-10-1971 the regular appointment of opposite party No. 3 to the post of Superintendent was made which is about a month after the event of crossing of the efficiency bar. The State Government was duty bound to consider the claim of the Petitioner without adverting to the adverse entry which must be deemed to have been already wiped out. Simultaneously, it has been contended that an uncommunicated adverse entry could not be relied upon so as to prejudice the promotional prospect. Since until 21-9-1971. the adverse entry had not been communicated, the same should not have been utllised by the Commission for determining the comparative suitability between the Petitioner and opposite party No. 3 for the post of Superintendent. 5. The Full Bench in S.S.S. Venkatrao v. State of Orissa and Ors. ILR 1974 Cutt. 227, referred to several authorities including many of the Supreme Court and summarized its conclusions in regard to adverse entries in paragraph 24 of the Judgment. The relevant conclusions are: (viii) Time prescribed in the circular cation of the adverse entry is not directory. If the adverse entry is not communicated in time, it is not wiped out. (x) Character roll can be acted upon before final disposal of the representation. There is no provision in the administrative instructions that action would await the final disposal of the representation Such a view would militate against exigencies of public service. (xii) If on representation, the adverse entry is set aside or substantially modified, the case is to be reconsidered and earlier action taken on such adverse entry is to be quashed if a different view is taken on reconsideration and retrospective benefits are to be conferred. Dealing with the effect of the crossing of the efficiency bar on existing adverse entries, the Full Bench recorded the following conclusion: The scales for allowing the crossing of efficiency bar and for giving promotion are different. What is sufficient for the former may be wholly insufficient for the latter. Adverse character roll not construed as a deterrent for crossing efficiency bar is not obliterated. It can be taken into consideration for negativing a claim of promotion. Thus the Fun Bench decision has recorded positive conclusions against the present submissions of Mr. Dora for the Petitioner. 6. The Full Bench had taken into account two decisions of the Supreme Court and a host of decisions of different High Courts relevant to the question of utilisation of an uncommunicated adverse entry. We may first deal with the question as to whether an uncommunicated adverse entry can be utilsed. Dora for the Petitioner. 6. The Full Bench had taken into account two decisions of the Supreme Court and a host of decisions of different High Courts relevant to the question of utilisation of an uncommunicated adverse entry. We may first deal with the question as to whether an uncommunicated adverse entry can be utilsed. This question arose for consideration before a Constitution Bench of the Supreme Court in the case of Prakash Chand Sharma v. The Oil and Natural Gas Commission and Ors. 1970 S.L.R. 116. The judgment was delivered on 22-8-1967. There was a clear violation of the instructions regard 109 confidential remarks. The Court observed: It was not disputed that the instructions as to confidential reports have not been properly observed in this case. It is not suggested that the departmental promotion Committee acted mala fide. If the adverse remarks were there in the confidential reports it was the duty at the departmental promotion Committee to take note of them and come to a decision on a consideration of them. The Committee could not be expected to make investigation about the confidential reports. It appears to us that in this case there was no discrimination, purposeful or otherwise, and at the best, the Committee's taking into consideration confidential reports with respect to which the Petitioner had been given no chance to make a representation was merely fortuitous. In such a state of affairs, we are not satisfied that any interference is called for and the rule will therefore be discharged.... The next one is the cased R.L. Butah Vs. Union of India (UOI) and Others which is also a decision of a Constitution Bench of the Supreme Court. Though the main attack was against an order of compulsory retirement, the question of overlooking of promotion on the basis of adverse entries was also mooted. One of the contentions as indicated in paragraph 8 of the judgment was that adverse entries had been placed before the departmental promotion Committee as also the Public Service Commission before they were communicated to the Petitioner and therefore, the action was challenged as vitiated. One of the contentions as indicated in paragraph 8 of the judgment was that adverse entries had been placed before the departmental promotion Committee as also the Public Service Commission before they were communicated to the Petitioner and therefore, the action was challenged as vitiated. The Court observed: These rules abundantly show that a confidential report is intended to be a general assessment of work performed by a Government servant subordinate to the reporting authority, that such reports ate maintained for the purpose of serving as data of comparative merit when questions of promotion, confirmation, etc. arise. They also show that such reports are not ordinarily to contain specific incidents upon which assessments are made except in cases where as a result of any specific incident a censure or a warning is issued and when such warning is by an order to be kept in the personal file of the Government servant.... Further, the rules do not provide for nor require an opportunity to be heard before any adverse entry is made.... But then, whenever a Government servant is aggrieved by an adverse entry he has an opportunity of making a representation. Such a representation would be considered by a higher authority, who, if satisfied, would either amend, correct or even expunge a wrong entry, so that it is not as if an aggrieved Government servant is without remedy. Making of an adverse entry is thus not equivalent to imposition of a penalty which would necessitate an enquiry or the giving of a reasonable opportunity of being heard to the concerned Government servant. This part of the Appellant's grievance, therefore, has to be rejected. The Court then proceeded to say: ...In this connection the Appellant's allegations were two. The first was that the adverse confidential reports for 1964 and 1965 were placed before the Departmental Promotion Committee and the Commission long before they were communicated to him and therefore before he could make any representation against them. Consequently, the two bodies had no opportunity of knowing his side of the case and relying on the said reports only overlooked his right to promotion. Further, the refusal to recommend him for the higher post amounted to withholding of promotion, a penalty which could not be inflicted on him without a departmental inquiry.... In paragraph 17 of the judgment the Court further stated: The confidential report for 1965 was prepared in 1966. Further, the refusal to recommend him for the higher post amounted to withholding of promotion, a penalty which could not be inflicted on him without a departmental inquiry.... In paragraph 17 of the judgment the Court further stated: The confidential report for 1965 was prepared in 1966. Therefore, the report for 1965 would not be before that Committee when it declined to recommend the Appellant in 1965. This time the report for 1964 would be before it and that too without his representation against It as that report had been conveyed to the Appellant in September, 1965. That fact, however, cannot make any deference. The representation made by the Appellant, though made subsequently, was actually rejected with the result that the confidential report for 1964 remained unchanged. The practice followed by the Promotion Committee was that if in such a case a representation were to be accepted and in consequence the confidential report was altered or expunged, the Promotion Committee would have to review its recommendation in the light of such a result. In the present case, however, no question of such a review I arose as reports for 1964 and 1965 were, in spite of representations by the Appellant, neither altered nor set aside. There was, therefore, no question of any injustice having been done to the Appellant despite the fact that the Committee had before it the confidential report without there being along with it any representation made by the Appellant. Nor did the question of a breach of natural justice arise in view of the aforesaid practice followed by the Promotion Committee. The statement of the law relevant to the point in the Full Bench decision receives support from both these judgments. 7. A recent Division Bench decision of the Supreme Court has been placed before us being Gurdial Singh Fijji Vs. State of Punjab and Others. The Court was dealing with a case of a Punjab Civil Servant and dispute arose when while preparing the Select List under the Indian Administrative Service (Requirement) Rules, 1954, Fijji was excluded from the List mainly on the ground that the Chief Secretary of the State had not issued an Integrity Certificate in his favour. It was clear that the Chief Secretary had not granted the Certificate because of an adverse report in the confidential character roll for the year 1966-67. It was clear that the Chief Secretary had not granted the Certificate because of an adverse report in the confidential character roll for the year 1966-67. The Court found that the non-inclusion of Fijji's name in the Select List was closely linked with the non-issuance of the Integrity Certificate and, therefore, proceeded to examine the circumstances surrounding the adverse entry. Fijji had represented against the entry asking for expunging the same. As the entry had been made by a District Judge when Fijji was serving under him, the State Government referred the matter to the High Court. The High Court did not express any opinion though requested by Government on several occasions. As Fijji's representation was not disposed of on account of the aforesaid difficulties, he represented again in December, 1971, and the State Government ultimately decided that as the comments of the reporting officer under the High Court on the representation were not available, a suitable note may be placed in his character roll along with the confidential report for the year 1966-67 In this background the Court observed: The principle is were settled that in accordance with the rules of natural justice, an adverse report in a confidential roll cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned so that he has an opportunity to improve his work and conduct or to explain the circumstances leading to the report. Such an opportunity is not an empty formality, its object, partially, being to enable the superior authorities to decide on a consideration of the explanation offered by the person concerned, whether the adverse report is justified. Unfortunately, for unreason or another not arising out of any fault on the part of the Appellant, though the adverse report was communicated to him, the Government has not been able to consider his explanation and decide whether the report was justified. In these circumstances, it is difficult to support the non-issuance of the integrity certificate to the Appellant, The chain of reaction began with the adverse report and the infirmity in the link of causation is that no one has yet decided whether that report was justified.... The ratio in paragraph 17 of the judgment in Gurdial Singh Fijji Vs. State of Punjab and Others, extracted above, must be confined to its own facts. The ratio in paragraph 17 of the judgment in Gurdial Singh Fijji Vs. State of Punjab and Others, extracted above, must be confined to its own facts. The adverse entry had been communicated and a representation had already been made. It remained undisposed of for more than 6 years and on the basis of the adverse entry, the requisite certificate had not been granted. Gurdial Singh Fijji Vs. State of Punjab and Others was, therefore, not one of uncommunicated adverse entry and the Court was obviously impressed by the feature that while Fijji had already represented against the adverse entry justice was not being meted out to him by disposing it of appropriately. In that background the observations, extracted above, had been made by the Court. In Quinn v. Leathem (1901) A.C. 495. Lord Chancellor Halsbury spoke for the Board thus: ...every judgment must be read as applicable to the particular facts proved, or assumed to be proved since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically rem it. Such a mode of reasoning assumes that the law is necessarily a logical code whereas every lawyer must acknowledge that the law is not always logical at all.... The rule in Leathem's case (1901) A.C. 495 has been followed by' the Supreme Court in the case of The State of Orissa Vs. Sudhansu Sekhar Misra and Others, . The Constitution Bench decisions already referred were not noticed in Gurdial Singh Fijji Vs. State of Punjab and Others, and therefore, we are not prepared to accept the submission of Mr. Dora that the learned Judges intended to lay down the law in a strain different from the rule in the earlier two cases. 8. Mr. Dora relied upon certain decisions of the High Courts in support of his submission that uncommunicated adverse entries cannot be utilised. Dora that the learned Judges intended to lay down the law in a strain different from the rule in the earlier two cases. 8. Mr. Dora relied upon certain decisions of the High Courts in support of his submission that uncommunicated adverse entries cannot be utilised. In view of the two clear Constitution Bench judgments of the Supreme Court and the decision of the Full Bench of this Court where the view of some of the High Courts had been considered and not accepted, it is really not necessary that we should refer to the dissenting view obtaining in other High Courts on the point. We may, however, point out that the dissenting note came from two learned Single Judges one in the Punjab High Court in the case of Shri Shadi Lal v. The Deputy Commissioner, Gurgaon and Ors. 1974 (1) S.L.R. 217, and the other in the Allahabad High Court in the case of Satish Chandra Mittal v. State of U.P. and Ors. 1975 (1) S.L.R. 65. The Single Judge judgment in the Punjab case has been reversed in the case of Ran Singh Kalson, Deputy Superintendent of Police v. The State of Haryana and Ors. 1978 (1) S.L.R. 450, and therefore ultimately the only decision on which Mr. Dora relies is the discordant note of the learned Single Judge in the Allahabad High Court. 9. The propositions formulated by the Fun Bench clearly indicate that rules of natural justice had to be satisfied even in the matter of making of adverse entries and utilisation thereof against the employee. While stating that uncommunicated adverse entries could be relied upon, the Court indicated that the right of representation, consideration thereof and upon representation being successful, review of the position amounted to compliance of natural justice. In R.L. Butah Vs. Union of India (UOI) and Others the Supreme Court in clear terms referring to the practice of the Promotion Committee indicated that rules of natural justice were satisfied by that process. There is no force, therefore, in the submission that uncommunicated adverse entries or adverse entries against which representation has been made but the same has not been disposed of cannot be taken into account as that would affect compliance with natural justice. The conclusion of the Full Bench on this score, therefore, represents the correct position of law and does not require review. The conclusion of the Full Bench on this score, therefore, represents the correct position of law and does not require review. The Full Bench itself has indicated that if the adverse entry is not communicated at all for an unusually long period and action is taken on the basis of such adverse entry, a Government servant can ask for an appropriate writ directing Government to communicate the adverse entry and to dispose of the representation, if any. In appropriate cases depending on facts and circumstances, adverse action taken against the Government servant may become liable to be quashed. That appears to be an appropriate safeguard against an uncommunicated adverse entry for years being utilised to the prejudice of the public officer. 10. We shall now proceed to the consideration of the other question namely whether allowing the crossing of efficiency bar has the effect of wiping out adverse entries existing by the time of the crossing of the efficiency bar. The Full Bench did not accept the proposition. Mr. Dora contends that the decision of the Supreme Court in the case of The State of Punjab Vs. Dewan Chuni Lal has not been properly appreciated and the ratio in The State of Punjab Vs. Dewan Chuni Lal is a direct authority for the proposition that permitting the crossing of efficiency bar necessarily wipes out existing adverse entries. Strong reliance is placed on what was stated in paragraph 14 of the Judgment. Mitter, J., spoke for the Court thus: In our view reports earlier than 1944 should not have been considered at all inasmuch as he was allowed to cross the efficiency bar in that year. It is unthinkable that if the authorities took any serious view of the charge of dishonesty and inefficiency contained in the confidential reports of 1941 and 1942 they could have overlooked the same and recommended the case of the officer as one fit for crossing the efficiency bar in 1944.... Chunilal was a Police Sub-Inspector serving under the Province of Punjab. There was an adverse entry for the year 1941 to the following effect: Lazy and ineffective and that be had been warned for dishonesty, laziness and lack of control For the year 1942, there was no definite complaint, but the officer bad not shown any outstanding ability or energy. Chunilal was a Police Sub-Inspector serving under the Province of Punjab. There was an adverse entry for the year 1941 to the following effect: Lazy and ineffective and that be had been warned for dishonesty, laziness and lack of control For the year 1942, there was no definite complaint, but the officer bad not shown any outstanding ability or energy. Though crossing of the efficiency bar was due, it bad not been granted that year in view of past reports. For subsequent years there were adverse reports touching the integrity of the officer. Ultimately, there was a disciplinary proceeding on the basis of these entries which ended in his dismissal from service. Chunilal filed a suit and pleaded that he had been allowed to cross the efficiency bar in December, 1944, and, therefore, the adverse entries upto then must be taken to have been wiped out. In para-l0 of the reported decision, it has been stated: It was urged before us that the crossing of the efficiency bar must be regarded as giving him a clean bill up to that date and in view of this the reports of 1941 and 1942 should not have been taken into consideration against him. It is in this background that the Court observed that the reports earlier than 1944 should not have been considered. As we have already indicated, crossing of the efficiency bar was due in 1942 as stated in paragraph-5 of the judgment and the same had not been permitted in view of the adverse report in the character roll. When in 1944, he was allowed to cross the efficiency bar, the Court assumed that the entries in the service record had been perused and on the basis of the subsequent performance of the officer he had been allowed to cross the efficiency bar. This according to the Supreme Court had the effect of wiping out the adverse entry. We may point out that the Court was dealing with a disciplinary action resulting in dismissal from service and in that connection examining the particular facts held that the previous adverse entries were no more available to be looked into. This according to the Supreme Court had the effect of wiping out the adverse entry. We may point out that the Court was dealing with a disciplinary action resulting in dismissal from service and in that connection examining the particular facts held that the previous adverse entries were no more available to be looked into. On the facts it assumed that the charge of dishonesty and inefficiency contained in the confidential reports of 1941 and 1942 could not have been overlooked unless, when the question of crossing of efficiency bar came for consideration, subsequent performance had impressed the appropriate authority that those charges were no more to stand 10 the way of allowing crossing the bar. Reliance was also placed on a recent' decision of the Supreme Court in the case of Swami Saran Saksena Vs. State of Uttar Pradesh Saksena was a Judicial Officer of Uttar Pradesh and when he had reached the age of 54, he was compulsorily retired from service with three months' pay in lieu of notice. Before the Supreme Court it was contended that the order of compulsory retirement was arbitrary as he had been allowed to cross the second efficiency bar in June, 1973 which could only have been if his work showed distinct ability and his integrity was beyond doubt. The Court observed: Several contentions have been raised in this appeal by the Appellant, who appears in person. In our judgment, one of them suffices to dispose of the appeal. The contention which has found favour with us is that on a perusal of the material on the record and having regard to the entries in the personal file and character roll of the Appellant, it is not possible reasonably to come to the conclusion that the compulsory retirement of the Appellant was called for. This conclusion follows inevitably from the particular circumstances, among others that the Appellant was found worthy of being permitted to cross the second Efficiency Bar only a few months before. Ordinarily, the Court does not interfere with the judgment of the relevant authority on the point whether it is in the public interest to compulsorily retire a Government servant. And we would have been even more reluctant to reach the conclusion we have, when the impugned order of compulsory retirement was made on the recommendation of the High Court itself. Ordinarily, the Court does not interfere with the judgment of the relevant authority on the point whether it is in the public interest to compulsorily retire a Government servant. And we would have been even more reluctant to reach the conclusion we have, when the impugned order of compulsory retirement was made on the recommendation of the High Court itself. But on the material before us we are unable to reconcile the apparent contradiction that although for the purpose of crossing the second Efficiency Bar the Appellant was considered to have worked with distinct ability and with integrity beyond question, yet within a few months thereafter he was found so unfit as to deserve compulsory retirement. The entries in between in the records pertaining to the Appellant need to be examined and appraised in that context. There is no evidence to show that suddenly there was such deterioration in the quality of the Appellant's work or integrity that he deserved to be compulsorily retired.... Reliance has been placed on the underlined sentence and Mr. Dora has contended that the Court obviously meant to indicate that the previous entries stood wiped out as a result of crossing of the second efficiency bar and entries in the service record after the crossing of the efficiency bar till the order of compulsory retirement only were, therefore, to be taken into account. As we have already indicated, the Court was dealing with a case of compulsory retirement which meant removal from the service. The Court had the benefit of seeing the en tire record and on that basis it came to the conclusion that the order of compulsory retirement was not sustainable. We think it pertinent to refer to a decision of the Supreme Court at this stage in the case of Mir Ghulam Hussan and Others Vs. The Union of India (UOI) and Others where it has been pointed out: ...In para 26 of the petition there is an averment that there was no adverse remark against the Petitioners. The suggestion obviously sought to be made out at that stage was this that since there was nothing adverse against them, the Petitioners were entitled to be selected. This claim is; of course, completely misconceived for the simple reason that promotion is not made on the basis of absence of complaint but on the basis of positive merit. The suggestion obviously sought to be made out at that stage was this that since there was nothing adverse against them, the Petitioners were entitled to be selected. This claim is; of course, completely misconceived for the simple reason that promotion is not made on the basis of absence of complaint but on the basis of positive merit. Absence of adverse remarks is no criterion of the quality of an officer.... The question for consideration in the instant case is when the claim for promotion of several officers is under consideration, whether an adverse entry prior to crossing of the efficiency bar could or could not be taken into account for judging the relative merit. When the question of dismissal or compulsory retirement is mooted, there is no question of comparative consideration. The sole aspect for consideration then is whether the officer should be retained or removed in public interest. Therefore, improvement reflected in service record is considered to have taken away the effect of earlier adverse entries and weeding out is not done. When the question of promotion arises, the consideration becomes very different. The totality of the service record is taken into account for judging comparative merit and for that purpose the total effect of service is taken into account. No reasoning is necessary to support the proposition that between an officer with a dean record throughout and another with a bad record in the beginning for several years and equal record with the other officer for the subsequent period, that officer who has a clean record throughout would stand a better chance of promotion. The Full Bench had indeed adopted that reasoning when it indicated that adverse entries would not be wiped out in the matter of consideration of pronation. In paragraph 26 of the judgment of the Full Bench, reliance was placed on the very decision of the Supreme Court we have just referred to and the conclusion had been drawn. A Bench of the Bombay High Court in the case of Govind Sadasiv Aprajit v. State of Maharashtra and Ors. In paragraph 26 of the judgment of the Full Bench, reliance was placed on the very decision of the Supreme Court we have just referred to and the conclusion had been drawn. A Bench of the Bombay High Court in the case of Govind Sadasiv Aprajit v. State of Maharashtra and Ors. 1979 S.L.J. 132, accepted the ratio of the Full Bench decision and stated: Once it is held that the promotion is to be made on the basis of positive merit, in our opinion, it would be extremely untenable to say that merely because an officer has been allowed to cross the efficiency bar, all adverse entries upto that stage cannot be taken into consideration for the purposes of promotion. It is no doubt true that no general rule in this behalf can be laid down and everything must depend on the facts and circumstances of each case. Further the fact that a person was permitted to cross the efficiency bar is also relevant while considering his service record. In this view of the matter, it is not possible to accept the broad proposition made by the learned Counsel for the Petitioner that all the prior service record of the Petitioner is wholly washed out in view of the order passed by the Government dated 15-9-1971 permitting him to cross the efficiency bar with effect from 1-4-1968.... We have been referred to certain other decisions of different High Courts. We do not think, there is any necessity to refer to them, as in our opinion, the ratio of the Full Bench decision on this score is also unassailable. Lord Delvin pointed out in his book "Samples of Law-making": 'precedents keep the law predictable and so more or less ascertainable. The Full Bench decision has been followed in this Court in several disputes thereafter and It has also received confirmation in some other High Courts. We have not been shown any justification for taking a view different from what has been laid down in the Full Bench decision. We would accordingly hold that the rule indicated in paragraph 26 of the Full Bench decision represents the correct state of law and does not require review. 11. Mr. Dora advanced a contention that the ratio in the Full Bench decision is distinguishable in its application to the facts of the case. We would accordingly hold that the rule indicated in paragraph 26 of the Full Bench decision represents the correct state of law and does not require review. 11. Mr. Dora advanced a contention that the ratio in the Full Bench decision is distinguishable in its application to the facts of the case. That is an exercise which can be undertaken before the Division Bench and in case Petitioner's counsel is able to persuade the learned Judges hearing the matter, the writ application may have to be disposed of without application of the rule in the Full Bench case. Now that we have come to the conclusion that the Full Bench decision correctly represents the law, the writ application must go back to a Division Bench for disposal in accordance with law. S.K. Ray, C.J. 12. I have had the previlege and benefit of reading the judgment of Hon'ble Justice R. N. Misra, The questions which have been considered by him have been set out in paragraph 2 of his judgment. Questions (ii) and (iii) alone have been determined, whereas question (i) has been left to be decided by a Division Bench to which this case has been remitted. 13. Question (ii) should, in my opinion, be answered partly in the affirmative and partly in the negative. Allowing the Petitioner to cross the efficiency bar on 8-9-1971 will not have the effect of wiping out the adverse entries made in his confidential character roll while considering his case for promotion, but it will have the effect of wiping out such entries for another purpose, namely, for the purpose of considering his case for crossing of the second or subsequent efficiency bars. 14. As regards question (iii) it should be answered in the light of the following dictum in the Full Bench case under review: ...The considerations for crossing of efficiency bar and the consideration in a question of inter se promotion are altogether different. There may not be anything adverse against an officer in particular but on a comparison of merits the officer below him may be superior to him in performance. It would thus be unreasonable to say that once an officer has been allowed to cross the efficiency bar all adverse entries prior to that stage cannot be taken into consideration for other purposes. It would thus be unreasonable to say that once an officer has been allowed to cross the efficiency bar all adverse entries prior to that stage cannot be taken into consideration for other purposes. Adverse character roll not construed as a deterrent for crossing efficiency bar can be taken into consideration for negativing a claim for promotion. I am in full agreement with this exposition of law. 15. The various administrative instructions issued by the Government from time to time regarding the method of preparation and communication of confidential reports on officers have been set out in paragraph 4 of the Full Bench decision under review. These rules provide for communication of adverse entries to the officer concerned and vest in him a right to represent against such adverse entries. Such opportunity, as has been held, in Gurdial Singh Fijji Vs. State of Punjab and Others, is not an empty formality, its object, partially, being to enable the superior authorities to decide on a consideration of the explanation offered by the person concerned, whether the adverse report is justified. These rules embody principles of natural justice and must be complied with and cannot be ignored to the permanent prejudice of the officer. The only question is the stage at which these principles have to be complied with. This stage may vary depending upon the occasion and facts of a case. Failure to comply in some cases at one stage may be remedied by complying with its requirement as a later stage. In a case of filling up of a promotional post a situation may arise where the adverse remarks have not been communicated or have been communicated and a representation is pending disposal when the need for promotion has arisen. In such a case, the filling up of the promotional post cannot be deferred until the representation is disposed of. The exigency of public service requires that a vacuum should not be kept unfulfilled until the future event of the representation having been disposed of in one way or another has occurred. At that point of time the adverse entries have to be taken into consideration in adjudging whether the promotional prospects should be afforded to the concerned officer or not. At that point of time the adverse entries have to be taken into consideration in adjudging whether the promotional prospects should be afforded to the concerned officer or not. If ultimately, his representation is allowed, the promotional prospects of the officer concerned is to be reviewed and all the benefits which he should have been entitled to if the adverse remarks had not been there should be afforded to him. As has been said by the Supreme Court in Mir Ghulam Hussan and Others Vs. The Union of India (UOI) and Others promotion is not made on the basis of absence of complaint but on the basis of positive merit. Until the adverse entries are wiped out by successful representation those entries can be taken into consideration when question of promotion arises or when comparative merits of persons eligible for promotion are considered. This is the view of the Supreme Court in R.L. Butah Vs. Union of India (UOI) and Others. Thus, all actions taken on the basis of adverse entries are defeasible when those entries are modified or obliterated by successful representation. This is in accord to my mind, with the principle of public policy that a private interest must yield temporarily to public need in the exigency of public service. 16. I am, therefore, in full agreement with the conclusion of Hon'ble Justice Misra in paragraph 9 of his judgment. The rules of natural justice are not ultimately violated; their compliance is merely postponed to a later date or to a later stage. 17. Whether the adverse entries recorded in the character roll of an officer are to be taken into consideration or to be left out of consideration must depend on the facts and circumstances of each case on each occasion, depending on its nature. In the career of a Government servant the need to look into his character roll arises on various occasions. Such occasions are crossing of efficiency bar, promotion to a higher post, dismissal from service, compulsory retirement or reversion. On all such occasions the entries in character roll are to be considered. But the question in each case would be as to what extent those entries can be taken into account, if at all. Such occasions are crossing of efficiency bar, promotion to a higher post, dismissal from service, compulsory retirement or reversion. On all such occasions the entries in character roll are to be considered. But the question in each case would be as to what extent those entries can be taken into account, if at all. If a Government servant has been allowed to cross efficiency bar after such adverse remarks have been entered in his character roll, those entries must be deemed to have been wiped out for the only purpose of considering his case for crossing of second or subsequent efficiency bars. In case of consideration for promotion, positive comparative merits of candidates fall to be considered. At that point of time the total career of all candidates is to be reviewed and officer who has an unblemished record in those circumstances compares favourably with an officer who has had some adverse remarks against him at some time in his career, but, subsequently, has been allowed to cross efficiency bar. For such purpose, the adverse remarks must necessarily be taken into account and cannot be treated as non est. Whether adverse remarks which may be deemed to have been wiped out for purpose of crossing subsequent efficiency bar may still be taken into account while considering cases of compulsory retirement or dismissal or reversion do not require categorical answer in this case. 18. I agree that the dictum laid down in paragraph 26 of the Full Bench decision is correct and to that extent it does not require review. Whether any other part of that decision requires review does not arise before us. 19. I would like to say a few words regarding the case of Gurdial Singh Fijji Vs. State of Punjab and Others, . Violation of principles of natural justice embodied in the executive instructions concerning method of preparation and communication of confidential reports is fraught with dire consequences for the Government servants. It is not impossible to envisage cases where a superior officer may make adverse entries in the character roll maliciously and deliberately refrain from communicating the same to the concerned Government servant and thereby preventing him from representing against the same. It is not impossible to envisage cases where a superior officer may make adverse entries in the character roll maliciously and deliberately refrain from communicating the same to the concerned Government servant and thereby preventing him from representing against the same. If the Government servant is at the fag end of his career and discovers existence of these adverse entries which have married his promotional prospects or other prospects on the eve of his retirement or after retirement, the injury to him is permanent. The only remedy left to him is a protracted and expensive civil proceeding and he may be financially incapable of fighting such a battle. Instances of this nature may be far and few between but the danger is real, more so in the present time. It is evidently in this persective that their Lordships of the Supreme Court made the salutary observations in paragraph 17 of their judgment in that case. There, it must be noticed that without disposing of the explanation of the concerned officer against the adverse report which was pending, integrity certificate was not issued. In these Circumstance, refusal to issue integrity certificate was held to be unjustified and accordingly their Lordships directed the Government to consider the concerned officer's representation and put the whole process back to that stage. That was a case of enlisting a name in a list and not filling up a post which had fallen vacant by promotion. Exigency of public service was not involved. Principles enunciated therein must, therefore, be confined to the peculiar facts of that case and those principles cannot be applied to cases where a public office is vacant and requires to be filled up immediately in the public interest. In result. I essentially agree. S. Acharya, J. 20. Having had the advantage of reading the above views and conclusions of my learned brother Misra. J. and that of the learned Chief Justice, I, in short, state as follows: 21. With regard to the question as to 'whether an uncommunicated adverse entry can be utilised' I agree with the view expressed and conclusion arrived at by Hon'ble Mr. Justice Misra on this point and also those supplemented by the Hon'ble the Chief Justice in paragraphs 15 and 16 of the judgment. 22. With regard to the question as to 'whether an uncommunicated adverse entry can be utilised' I agree with the view expressed and conclusion arrived at by Hon'ble Mr. Justice Misra on this point and also those supplemented by the Hon'ble the Chief Justice in paragraphs 15 and 16 of the judgment. 22. With regard to the question No. (ii) mentioned in paragraphs 2 and 10 of the judgment, namely: 'whether allowing the crossing of efficiency bar has the effect of wiping out adverse entries in the Confidential Character Rolls existing by the time of the crossing of the efficiency bar', which is the moot question for consideration in this judgment, 1 agree with the view taken by the Hon'ble the Chief Justice in paragraphs 13 and 17 of the judgment and the observation made on this aspect in paragraph 26 of the Full Bench decision of this Court in S.S.S. Venkatrao's case ILR 1974 Cutt. 227. 23. With regard to the 3rd question framed in paragraph 2 of the judgment, 1 would state that the said Full Bench decision of this Court, so far as the same conforms with the majority view in this case on the points specifically answered herein, does not require review. Whether the dictum laid down on other points in that judgment requires review does not arise for consideration in this judgment. 24. The 1st, question framed in paragraph 2 above may be disposed of in accordance with law by a Division Bench. P.K. Mohanti, J. 25. I have read the Judgments prepared by my Lord the Chief Justice and my learned brother R.N. Misra, J. and I agree with them. I would, however, add a few words on one aspect. In all the Civil Services there comes a stage when a Civil Servant must prove that be is efficient to work in his post. This stage is called efficiency bar. Where an efficiency bar is prescribed in a time-scale, the increment next above the bar shall not be allowed (without the specific sanction of the competent authority. No right is, however, conferred upon a Government servant because he has crossed the efficiency bar. The crossing of the efficiency bar in a particular rank would at the most prove the Civil Servant's efficiency in that rank. No right is, however, conferred upon a Government servant because he has crossed the efficiency bar. The crossing of the efficiency bar in a particular rank would at the most prove the Civil Servant's efficiency in that rank. But that fact cannot be taken as displaying his merit, ability and efficiency entitling him to promotion to a higher rank. By allowing him to cross the efficiency bar, the conclusion is that he was efficient to yet higher pay in his rank. The considerations for crossing of efficiency bar and for promotion to higher rank are different. Efficiency, sincerity, honesty and reliability are some of the important considerations for promotion to the higher rank. Even if a Civil Servant is allowed to cross the efficiency bar, the adverse remarks in his Confidential Character Roll would be taken into consideration when a question of promotion arises and when comparative merits of persons eligible for promotion are considered. N.K. Das, J. 26. I agree with the Hon'ble brother Judges. Efficiency bar is for movement in the same scale of pay to a higher level incremental in nature. Promotion is movement not only to a higher seat but also to higher responsibility Promotion involves not only consideration of merits of the officer in his existing rank and scale but also with reference to the higher scale of pay as well as the higher post, Additionally, it also involves inter-personal comparison amongst those to be considered for promotion, The criteria of crossing the efficiency bar, no doubt is a relevant consideration of efficiency, but for promotion it does not constitute the total criteria. Judgment delivered in Court today. Final Result : Allowed