S. A. SHAH, J. ( 1 ) THE petitioner who is an Executive Engineer is challenging his super-session for promotion to the post of Superintending Engineer by an order dated June 16 1977 produced at Annexure-B by which his juniors were promoted. ( 2 ) THE petitioner was recruited as overseer and promoted as Deputy Engineer in October 1975 by the erstwhile State of Saurashtra. Petitioner was thereafter allocated to the bilingual State of Bombay and thereafter to the State of Gujarat as Deputy Engineer. The petitioner was promoted in November 1965 to the post of Executive Engineer which post he still occupies. Promotional post for the Executive Engineer is that of Superintending Engineer. Though admittedly the petitioner was the senior most Executive Engineer he was superseded on 16th June 1977 and his juniors-respondents No. 2 3 and 4 were promoted to the post of Superintending Engineer. Thereafter also several of his juniors have been promoted again superseding the petitioner. The petitioner has stated that he had not received any punishment not even warning and no adverse remarks were communicated to him except the one which was communicated to him by a letter dated March 9 1977 pertaining to the period from June 3 1971 to December 31 1973 which rated his work as `fair. The said remarks have been communicated to him in a bunch after five to seven years and according to him the said remarks being `fair cannot be said to be adverse remarks. ( 3 ) THE contention of the petitioner is that those uncommunicaited remarks are the sole basis of consideration for refusing promotion to him though the petitioners other service records are unblemished and commendable. Having come to know about this supersession the petitioner made a representation but no reply was given. In para 14 of his petition the petitioner states that according to the rules the adverse remarks should be communicated within six months after the completion of he relevant year and the communication of the adverse remarks after a lapse of five to six years is clearly mala fide and an extraneous consideration in judging the suitability of the petitioner. ( 4 ) THE petitioner has averred in para 2 as well as para 8 of the petition that promotions were based upon seniority-cum-merit. Unfortunately in the affidavit filed by Mr. ( 4 ) THE petitioner has averred in para 2 as well as para 8 of the petition that promotions were based upon seniority-cum-merit. Unfortunately in the affidavit filed by Mr. M. D. Dave Deputy Secretary to Government Health and Family Welfare Department on 3rd March 1978 he admits that promotions are granted on the basis of seniority-cum-merit though in a previous affidavit filed on 21st November 1977 para 2 thereof-he has stated that the criteria of proved merit and efficiency was applied by the duly constituted Committee and the petitioner was not found possessing such positive merits. I therefore asked the learned counsel for the State to clear this inconsistent position by filing an affidavit and by producing the relevant rules. One Mr. H. T. Jagtiani Under Secretary to Government has filed an affidavit on 6th October 1983 along with copy of notification dated June 27 1976 ( 5 ) MR. H. B. Shah learned counsel for the petitioner raised the following contentions: (I) That the assessment of merits of an officer is based upon the confidential record and the State Government having taken into consideration the uncommunicated adverse remarks and denial of promotion to the petitioner is solely based upon the said remarks the supersession of petitioner is illegal; (II) that the communication of adverse remarks after five to six years does not cure the defect and therefore in considering the merits of the petitioner the Committee ought to have ignored it and (III) that the Department has not produced any other material to show that the petitioner does not possess the criteria of proved merit and efficiency. ( 6 ) SINCE the petitioner has been superseded first we will examine the affidavit of the State Government. Mr. M. D. Dave Deputy Secretary to Government in para 4 of his first affidavit stated as under:i say that the petitioner has earned two fair reports in the years 1972 and 1973; ut of six years reports considered from 1970 to 1976. I say that the Confidential Reports of the petitioner appear to show that he is an average worker and lacks positive merits required for promotion. I say that as against respondent No. 2 K. N. Mehta has three very good reports and three good reports. I say the Confidential Reports of the respondent No. 2 go to show that he is considered to be a good officer. I say that as against respondent No. 2 K. N. Mehta has three very good reports and three good reports. I say the Confidential Reports of the respondent No. 2 go to show that he is considered to be a good officer. So far as respondent No. 3-Shri M. S. Tripathi is concerned he has earned one very good report four good reports and one fair report. I say that his confidential reports reflect positive merits. So far as the reports of the respondent No. 4-Shri A. T. Upadhyay are concerned I say that he has earned three very good reports and two good reports. THE aforesaid reply shows three things: (i) that the assessment of merits has been made by considering the confidential reports of last six years; (ii) that according to the guidelines at least `good and not `just fair or `average is considered as merits for promotion; and (iii) that the petitioner had earned two `fair reports for the year 1972-73 though out of six years remarks for four years have not been disclosed. It is therefore clear that assessment of merits has been solely made on the consideration of the Confidential Reports of last six years. There is no doubt that the confidential reports for the four years are acceptable for the purpose of assessing the merits. It is also clear that the confidential reports for the year 1972-73 have been considered and the petitioner has been assessed as `fair and his name has been rejected solely on the ground of the report of these two years. Therefore we have to consider whether the committee which assessed the petitioners merits for the purpose of his promotion to higher cadre of Superintending Engineer was justified in taking into consideration the confidential reports for the year 1972-73 which according to them is `fair. Though the petitioner has stated that `fair is not an adverse remark and should not have been considered by the Committee Mr. M. D. Dave in his second affidavit dated 3rd March 1978 in para 13 has stated as under:with reference to paragraph 13 of the petition I do not admit that `fair is not an adverse remark. Though the petitioner has stated that `fair is not an adverse remark and should not have been considered by the Committee Mr. M. D. Dave in his second affidavit dated 3rd March 1978 in para 13 has stated as under:with reference to paragraph 13 of the petition I do not admit that `fair is not an adverse remark. I say that under Government Resolution G. A. D. No. GHD 1168/71-K dated 25-9-1971 it is directed that the grade `fair or `average should also be communicated to the Government Servants concerned in order to afford them an opportunity to improve their standard of work in good time in order to earn increment beyond the Efficiency Bar. I say that in view of this the grading `fair was communicated to the present petitioner Shri N. K. Mehta under this Department Confidential letter No. EST-1377/1418-F dated 9-3-1977. I say that communication of the adverse remarks in the Confidential Reports was not with a view to spoil the career of the petitioner and to deprive him of the post of Superintending Engineer as the Confidential Records were already there but the communication of adverse remarks was late due to administrative reasons. I say that a later communication of adverse remarks cannot efface the factum of existence of the remarks in the Confidential Records and mere late communication cannot be termed as subsequent brication/formulation in order to mar the interest of promotion of the petitioner to the post of Superintending Engineer. IN para 15 thereof he has further stated that: i say that the representation made by Shri N. K. Mehta against communication of the adverse remarks has been made under his letter dated 2-4-1977 which is still under consideration of the Department. I say that the adverse remarks were as per the Confidential Reports and hence they cannot be said to be mala fide. ( 7 ) THE question that arises for my consideration is whether the adverse remarks which are communicated after lapse of five to six years can form the basis of assessing the merits and can the authorities take into consideration such remarks when the representation against the same is pending. In a given case it is possible that the representation may be allowed and the remarks may be expunged. In a given case it is possible that the representation may be allowed and the remarks may be expunged. It has been stated time and again that the purpose of communicating the adverse remarks is two-fold namely (1) to give an opportunity to the concerned officers to improve his work and efficiency and (2) to assess the merits of the officer for the purpose of granting promotion. Now if the remarks are communicated late the first purpose for which it is communicated is lost. He does not get a chance to improve. Secondly after lapse of considerable time he will not be able to point out in his representation that the allegations against him or the materials on which assessment was based was wrong because in the mean time the evidence might have been destroyed or the persons might have forgotten the events and he might not be in possession of the relevant record and therefore his right to effective representation and proof will be lost. Both these points have been considered by the various courts including the Supreme Court and this Court has also had occasion to consider both these points. P. D. Desai J. in the case of Dr. B. R. Kulkarni v. Government of Gujarat and Others 19 GLR p. 1821 in para 21 of his judgment observed as under; after referring to the judgment delivered by B. K. Mehta J. in Special Civil Application No. 1506 of 1972:it was found in that case that those adverse remarks were the sole basis on which the petitioners names were excluded from the Select List. It was held that great prejudice had resulted to the petitioners when they were served at a time with adverse remarks in respect of a number of previous years which were never communicated to them within a reasonable period as required by the relevant administrative directions and when the representation made by one of the petitioners against such adverse remarks was not even disposed of and that under those circumstances the excusion of the petitioners on the sole basis of such confidential adverse entries was illegal and ultra vires. P. D. Desai J. has observed as under: the ratio of this decision is that adverse remarks which are not communicated within a reasonable time to the affected Government servant and against which no opportunity of representation has been afforded or if afforded such representation has not been disposed of could not validly enter into consideration for the purposes of considering the claim for promotion. The principle underlying this decision will apply with still greater force in a case like the present where adverse remarks covering a period of number of years were not at all communicated to the petitioner and and no opportunity whatever was afforded to him to make a representation against the same or to improve his performance by removing the defects pointed out in such adverse remarks. Such adverse remarks would be of no avail and cannot be relied upon for any purpose to the prejudice of the petitioner. The ratio of the said two decisions and the principles that emerge there-from are directly applicable to the facts and circumstances of this case namely that the adverse remarks for two years were communicated after five to six years immediately before consideration for promotion. The representation of the petitioner is not disposed of and the petitioner has been denied promotion solely on the ground of adverse remarks of these two years. ( 8 ) IN the affidavit filed on behalf of the State the deponent has not explained as to what were the administrative difficulties which prevented the State from communicating the remarks. It has long been settled that the guidelines and policy decisions taken by the State Government under which these principles regarding adverse remarks have been prescribed are binding to the Government i. e. the Government resolution dated March 8 1969 regarding the confidential reports is binding to the State Government. Though the State Government has filed as many as three affidavits it has not been able to explain as to why the remarks were not communicated to the petitioner within six months which is considered to be the reasonable time so as to give him an opportunity to improve his work and efficiency and to know his performance. It appears from the petition that the petitioner was all the time under the impression that his performance was satisfactory. It appears from the petition that the petitioner was all the time under the impression that his performance was satisfactory. He has been praised by his superiors; Secretary to Government Shri K. Sivaraj has praised his splendid work; and he being the senior most was hoping for his promotion. On learning that he is going to be superseded he made a representation prior to that date i. e. on 12-6-1977 because he had received the communication of adverse remarks and understood the implication thereof. But no reply was received. ( 9 ) IN the case of Gurdial Singh Fijji v. State of Punjab and Others AIR 1979 SC 1622 while dealing with a similar case of non-communication of adverse entry in the Confidential Report the Supreme Court had observed as under :the principle is well-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 one reason 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. It is therefore clear that the principle of communicating the adverse remarks is based upon the principles of natural justice and if the same is not observed the decision taken upon such void adverse remarks also suffers from the same infirmity and is liable to be quashed. ( 10 ) THE next question is whether the promotion to the higher post of Superintending Engineer was based upon seniority cum merit or proved merit and efficiency. ( 10 ) THE next question is whether the promotion to the higher post of Superintending Engineer was based upon seniority cum merit or proved merit and efficiency. Had it been based upon seniority cum merit as stated by the petitioner and as accepted by the deponent in one affidavit there was no difficulty because if the petitioner has earned four `good (may be very good or outstanding) reports and two fair reports by no stratch of imagination it can be said that he was unfit to hold the post. But as has been explained in the third affidavit promotion at that time was governed by the recruitment rules named as `superintending Engineer (Civil) (Public Health Engineering Services-Class I) Recruitment Rules 1976 Rule 2 being relevant is reproduced below :2 Appointment to the post of Superintending Engineer (Civil) in the Public Health Engineering Department shall be made by promotion of a person of proved merit and efficiency from amongst the persons working on the posts of Executive Engineer (Civil) who have put in about six years service as such in the Public Health Engineering Service Class-I. THE test for promotion is proved merit and efficiency. It is therefor necessary to decide whether the petitioner was an officer of proved merit and efficiency on the date when his juniors were promoted or on subsequent date whenever he has been superseded by his juniors. ( 11 ) IN the circumstances stated above the petition shall have to be allowed. The respondents are directed to reconsider the petitioner for promotion to the higher cadre of Superintending Engineer as and when his juniors were promoted. In considering the petitioner for promotion on the basis of proved merit and efficiency the respondents shall not take into consideration the adverse remarks which were not communicated to the petitioner in time and particularly they will not consider the adverse remarks of 1972 and 1973 in assessing the petitioners merits. As and when the petitioner is found to be a person of proved merit and efficiency the petitioner may be promoted to the higher cadre of Superintending Engineer with deem date of promotion and consequential benefits available to him. In view of the time spent it is directed that the respondents shall complete the assessment and take a final decision within three months from the date of receipt of writ of this court. Writ to be issued forthwith. In view of the time spent it is directed that the respondents shall complete the assessment and take a final decision within three months from the date of receipt of writ of this court. Writ to be issued forthwith. Petition is allowed. Rule made absolute with no order as to costs. Rule made absolute. .