ORDER G.L. Oza, J. 1. This is a petition filed by the petitioner contending that the petitioner being senior to respondents No. 3 to 28 was not promoted and the respondents have been promoted, and therefore, the petitioner by this petition seeks a direction for quashing the promotions of respondents No. 3 to 28 and consideration of promotion afresh including the petitioner. 2. The petitioner was appointed in the service of the Madhya Pradesh State in the Police Department on the post of Deputy Superintendent of Police on 31st. October 1955, and as was confirmed on 31st, October 1957 and in the Gradation List published on 1st January 1967, his name is placed at serial No. 36. A copy of this List was sent to him by the Inspector General of Police along with a letter dated 7th July 1967. This Gradation List has been placed by the petitioner along with this petition and marked as Annexure 'A'. 3. It is further alleged by the petitioner that the respondents B.L. Shrivastava, S.K. Ghosh and others are placed in this Gradation List after him, some of them were confirmed after him. It is also alleged that some of the respondents are not even shown in this gradation List. 4. The petitioner received another letter from the Inspector General of Police, dated 20th September 1971 sending him a copy of the Gradation List as on 1st January 1971, and a copy of this Gradation List also is placed on record of this petition by the petitioner and marked as Annexures 'C' and 'D'. In this Gradation List the petitioner is shown at serial No. 20. 5. The petitioner has also placed along with this petition copies of number of letters wherein the Inspector General of Police and the Home Secretary appreciated the goods services rendered by the petitioner in the ante-dacoit operations and also has alleged that his services were appreciated and was awarded commendation letters. 6. It is also stated by the petitioner that the petitioner was prosecuted with regard to one of his such ante-dacoity operation along with other police officers under Sec. 302, 307 read with Sec. 149 of the Indian Penal Code in Sessions Trial No. 33/70. 6. It is also stated by the petitioner that the petitioner was prosecuted with regard to one of his such ante-dacoity operation along with other police officers under Sec. 302, 307 read with Sec. 149 of the Indian Penal Code in Sessions Trial No. 33/70. But, this Sessions Trial which was decided on 28th, May 1971 and ended in acquittal of the petitioner and other Police officers and the learned Sessions Judge in his Judgment found the case to be false and concocted against the Police Officers and it is also alleged that this Judgment has become final. It is further alleged by the petitioner that during the pendency of this trial the petitioner was put under suspension, but after the judgment he was not reinstated and the petitioner had to serve a notice to the State Government under section 80 of the Code of Civil Procedure. One of such notices was served on 10th. December 1971 and although he had served earlier notice on 4th. October 1971 and ultimately on 10th. December 1971, he was informed that he has been reinstated as Assistants Commandant 10th Battalion, S.A.F., which is equivalent to the post of D.S.P. on which he was working since the beginning. It is alleged by the petitioner that respondents No. 3 to 28 who were junior to the petitioner were made senior and promoted to the higher ranks without considering the case of the petitioner and in substance, he has challenged the promotions of these respondents No. 3 to 28 in supersession of the petitioner. 7. In the return filed by the State on 13-9-72 some of the facts are not in dispute, the date of appointment, the two Gradation Lists and the position of the petitioner is not disputed. What was stated in this return was that the respondents no doubt were promoted, but it was stated that the petitioner's case was also considered and he was not found fit as there were adverse remarks against him. It was also admitted that appreciation of service rendered by the petitioner and the documents filed by him are admitted, but it was stated that there were adverse remarks which were communicated to the petitioner and which were considered. It was also admitted that appreciation of service rendered by the petitioner and the documents filed by him are admitted, but it was stated that there were adverse remarks which were communicated to the petitioner and which were considered. These adverse remarks were filed along with the return marked as Annexures R-1 to R-6 and it was stated that on the basis of these remarks the petitioner was not found fit. Further it was stated in the return that the promotions were done either by the Department or by a committee and in these promotions the cases of the persons entitled to promotion were considered. It was also staled that the petitioner's case was considered but he was not found fit. It was further stated that the proceedings of this Promotion Committee are confidential but will be kept ready before the Court at the time of hearing for perusal. After this return was filed, the petitioner with the leave of the Court filed a re-joinder supported by an affidavit. In this rejoinder, he has alleged that it is wrong that the petitioner was considered and not found fit. It was also asserted that the case of the petitioner was neither considered by the Board nor by the respondents No. 1 and 2. It was also asserted that Annexure R-1 to R-6 were never communicated to the petitioner and the petitioner was never afforded an opportunity to make any representation against these adverse remarks. After this rejoinder was filed by the petitioner, an additional return has been filed by the State in the year 1974. In this additional return it has now been categorically stated that in the year 1971 a Selection Committee was constituted consisting of the Chief Secretary, the Additional Chief Secretary, the Inspector General of Police and the Deputy Inspector General of Police (Administration) and this Committee considered the cases of all the incumbents including the petitioner and after considering the record of service including the adverse remarks prepared a list for promotion and this Committee having considered the case of the petitioner no grievance could be made. In this additional return also it was stated that the list that was finally prepared, the proceedings of this Committee and the list of confidential documents which were considered are confidential papers and will be kept present at the time of hearing for perusal of this Court. In this additional return also it was stated that the list that was finally prepared, the proceedings of this Committee and the list of confidential documents which were considered are confidential papers and will be kept present at the time of hearing for perusal of this Court. It is also asserted in this return that the petitioner was not found fit. 8. Later this petition came up for hearing on number of occasions and it appears that these papers showing the consideration of the case of the petitioner and demonstrating the adverse remarks which were communicated to the petitioner and considered by the Committee at the time of promotions were not produced and time was taken by the Government Advocate on number of occasions. 9. It was contended by the petitioner that in view of the two returns, it is now not in dispute that the petitioner was senior to all the respondents No. 3 to 28 as shown in the Gradation List published on 1st January 1971. It was contended that it, therefore, could not be said that juniors of the petitioner could be promoted without consideration of the case of the petitioner and it was contended that the petitioner's case could not be considered on the basis of the adverse remarks which were not communicated to him and without placing for consideration the good commendation certificates issued to the petitioner, it was, therefore, contended that the respondents had to demonstrate before this Court that the case of the petitioner was considered on the basis of adverse remarks communicated to him and also the fact that the commendation certificates were also placed before the authority who considered the cases for promotions of these respondents, according to the learned counsel, is not being demonstrated and with the record have not been produced. It was contended by the learned counsel for the petitioner, therefore, that the story that the case of the petitioner was considered and he was not found fit is not correct as no material to demonstrate it has been produced inspite of repeated opportunities were given to the respondents, and, therefore, the promotions of the respondents could not be maintained. It was contended by the learned counsel for the petitioner, therefore, that the story that the case of the petitioner was considered and he was not found fit is not correct as no material to demonstrate it has been produced inspite of repeated opportunities were given to the respondents, and, therefore, the promotions of the respondents could not be maintained. The learned counsel for the petitioner placed reliance on a decision of a Division Bench of this Court in P.C. Pradhan v. Union of India and others 1981 JLJ 128 and in Gurdial Singh Fijji v. State of Punjab and others AIR 1979 SC 1622 as also on a recent decision of their Lordships of the Supreme Court in Brij Behari Lal v. High Court of M.P. and others AIR 1981 SC 594 . 10. The learned Government Advocate appearing for the State contended that according to the return filed by the State the petitioner's case was considered and he was net found fit for promotion. According to the additional return in the year 1971 a Committee was constituted and that Committee considered the cases of all the officers including the case of the petitioner on the basis of adverse remarks and the remarks in their favour and confidential files and after consideration did not find the petitioner fit, it, therefore, could not be contended that there was any unfair treatment given to the petitioner. He, however, frankly conceded that the records of this Committee and the confidential remarks which were communicated to the petitioner are the confidential records and it was stated in the return that it shall be filed at the time of hearing so that the Court could peruse them, but unfortunately it is not being traced. But, he contends that as the petitioner was considered and as he was not found fit, the petition could not be entertained. 11. But, he contends that as the petitioner was considered and as he was not found fit, the petition could not be entertained. 11. The question of promotion and consideration of civil servant at the time of promotion on the basis of his adverse remarks and the remarks made in his favour came up for consideration before their Lordships of the Supreme Court in Gurdial Singh v. State of Punjab and others AIR 1979 SC 1622 and in this decision their Lordships held :- 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 promotal 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. 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. We cannot speculate, in the absence of a proper pleading, whether the appellant was not found suitable otherwise, that is to say, for reasons other than those connected with the non-issuance of an integrity certificate to him. We cannot speculate, in the absence of a proper pleading, whether the appellant was not found suitable otherwise, that is to say, for reasons other than those connected with the non-issuance of an integrity certificate to him. A Similar question in the context of compulsory retirement was considered by their Lordships in Brij Beharilal v. High Court of M.P. AIR 1981 SC 594 The importance of communication of the adverse remarks was considered in this case and their Lordships reaffiming what was observed in Gurdial Singh Fijj's case (supra) held as under:- The circumstances in which it is necessary to communicate adverse entries made in confident reports to the Government servant concerned have been considered in R.L. Butail v. Union of India, (1971) 2 SCR 55 , in Gurdial Singh Fijji v. State of Punjab, AIR 1979 SC 1622 and more recently in Union of India v. M.E. Reddy, AIR 1980 SC 563 What we would like to add is that when considering the question of compulsory retirement, while it is no doubt desirable to make an overall assessment of the Government servant's record, more than ordinary value should be attached to the confidential reports pertaining to the years immediately preceding such consideration. It is possible that a Government servant may possess a somewhat erratic record in the early years of service but with the passage of time he may have so greatly improved that it would be of advantage to continue him in service upto the statutory age of superannuation. Whatever value the confidential reports of earlier years may possess, those pertaining to the later years are not only of direct relevance but also of utmost importance. 12. The consideration of adverse remarks at the time of promotion if they were not communicated to the civil servant concerned also came for consideration before a Division Bench of this Court in P.C. Pradhan v. Union of India and others 1981 JLJ 128 wherein the Division Bench of this Court ruled:- ... ... ... it is clear that the placing of adverse confidential report before the Selection Committee without obtaining the explanation of the petitioner and not placing of the favourable report given by Shri Dube seriously prejudiced the petitioner's case before the Selection Committee. In the circumstances, it cannot be said that the petitioner was fairly dealt with in the matter of his selection. In the circumstances, it cannot be said that the petitioner was fairly dealt with in the matter of his selection. In Gurdial Singh v. State of Punjab AIR 1979 SC 1622 ), the Supreme Court considered the case of non-selection of an officer to the Indian Administrative Service. In that case, the adverse confidential roll was communicated to the officer who had offered his explanation, but the Government did not issue integrity certificate without considering the explanation offered by the officer which resulted in his non-selection. The Supreme Court held the non-selection to be invalid and directed the State Government to consider the explanation offered by the officer and also directed the Selection Committee to reconsider the case of the officer. The position in the instant case is worse. As earlier pointed out by us, the adverse entry in the confidential report was not communicated to the petitioner at all before it was considered by the Selection Committee and the favourable report made by the Deputy Chief Conservator of Forests was withheld. The State Government did not issue the integrity certificate without even communicating the adverse report. In these circumstances, the non-selection of the petitioner cannot be held to be valid. We, however, do not think it proper to quash the select list or to set aside the appointments of the respondents. In our opinion, appropriate directions for reconsideration of the case of the petitioner and amendment of the list, in case the petitioner is selected will meet the ends of justice. It is, therefore, now well settled that when the case of a civil servant is considered for promotion the only those adverse remarks are considered which were communicated to the civil servant so that he had an opportunity of making representation explaining those remarks and it is also necessary to place before the authority the favourable remarks or appreciation of services. It is in this context that the question of consideration of the petitioner has to be looked into. It is in this context that the question of consideration of the petitioner has to be looked into. For this purpose, as stated in the returns, the pipers which were before the Committee appointed in 1971 for consideration of promotion and the proceedings of the Committee showing what the remarks were considered and the documents showing what adverse remarks were communicated are material and that is why in the return as well in the additional return it was stated that these documents being confidential will be kept ready at the time of hearing and placed before the Court for perusal in order to demonstrate that the case of the petitioner was fairly considered and he having not been found fit, now he cannot make a grievance by this petition. 13. An affidavit has been filed on behalf of the State that the confidential record of the Promotion Committee which considered the cases of the petitioner and the respondents for promotion in 1971 is not traceable and, therefore, cannot be produced for perusal. It has been further stated that only a copy of the final list which was available in some other file has been placed on record. It is also stated that adverse remarks which have been filed in this petition were communicated through normal departmental procedure of sending these remarks with D.O. letters, but the acknowledgments are not maintained, and, therefore, it is stated that all these adverse remarks were gent along with D.O. letters and their numbers have been stated on the copies of the adverse remarks so produced. It is also stated that one of such adverse remarks was communicated is also established front the fact that a representation was made by the petitioner against that adverse remark. But the confidential record showing all this also is not traceable and, therefore, it is not produced. In the two returns filed in 1972 & 1974 it was stated that the proceedings and files of the Promotion Committee which considered the cases of promotion in 1971 will be placed before the Court for perusal, but now it is stated that it is not traceable and, therefore, cannot be placed. It is therefore, clear that except the list which has been filed no other material could be locked into to find cut what was considered by the Departmental Promotion Committee. It is therefore, clear that except the list which has been filed no other material could be locked into to find cut what was considered by the Departmental Promotion Committee. It has been stated in the return that the adverse remarks, copies of which have been filed, were considered. But it is not stated nor it is said even today that favourable record or commendation certificates which were issued to the petitioner were also placed before the Promotion Committee It is also not stated that if adverse remarks were communicated and a representation was made by the petitioner as is now stated with regard to one of the adverse remarks what action has been taken and as to whether this representation also was placed before the Departmental Promotion Committee. It is, therefore, clear that before the case of the petitioner was considered by the Committee constituted in 1971, what material was placed before it and what was considered is a fact known to the members of the Committee alone. The records are not traceable. What has been further stated only is that adverse remarks were communicated. But it is not stated nor there is any record to demonstrate that even the favourable records and commendation certificates were also placed before the Committee. 14. It was contended by the learned counsel for the respondents that one of these adverse remarks was communicated to the petitioner and he had made a representation against that remark and it was contended that this proves that the adverse remarks were communicated. But it is significant that it is not stated what action was taken on the representation made by the petitioner against such adverse remarks, and it is also not stated as to whether this representation also was placed before the Committee so that the adverse remarks and the representation made by the petitioner both could be considered by the Committee. After going through these additional affidavits which were filed after hearing what emerges is that there is nothing to indicate that before the case of the petitioner was considered all relevant papers including the commendation certificate, appreciation letters and good record of the petitioner was placed before the Committee. 15. It is also not clear that when the adverse remarks were placed if there were any representations made by the petitioner against these adverse remarks they were also placed before the Committee. 15. It is also not clear that when the adverse remarks were placed if there were any representations made by the petitioner against these adverse remarks they were also placed before the Committee. One of such adverse remarks which is said to have been communicated and on which a representation was made recites:- A good man for any active work. Not too good for any tactful work. A reading of this is enough to come to the conclusion that it could not be said to be an adverse remark but still admittedly a representation was made by the petitioner against this remark also and it is not stated that before the Promotion Committee this representation also was placed. 16. In Gurdial Singh Fijjl v. State of Punjab and others AIR 1979 SC 1622 their Lordships observed:- .......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. This squarely applies to the adverse remark which was communicated and against which a representation was made. It is clear that it is not the case of the respondents that the good record of the petitioner was also placed before the Committee. Unfortunately, as the record is not being produced and is declared to be not traceable, there is noting on the basis of which it could clearly be [stated as to what was considered and what was not considered. It was contended on behalf of the petitioner that this record was declared to be available until 1974 when the additional return was filed. But now it is said to be not traceable and under these circumstances an adverse inference should be drawn. Whereas, the learned Government advocate on the other hand contended that no adverse inference could be drawn as the affidavits now filed disclose that inspite of the best efforts this record could not be traced. But, even if no adverse inference is drawn it is abundantly clear that from the record and the affidavits which have been placed on record, it is not clear as to whether favourable record and commendation certificates were placed before the Promotion Committee. It is also clear that if there were representations against the adverse remarks as about one admittedly there was, was also placed before the Promotion Committee. It is also clear that if there were representations against the adverse remarks as about one admittedly there was, was also placed before the Promotion Committee. Such a situation was considered by a Division Bench of this Court in P.C. Pradhan v. Union of India and others 1981 JLJ 128 quoted above, and under these circumstances, therefore in my opinion, a mere statement that the petitioner's case was considered is not enough apparently the things favourable to the petitioner and his representation against the adverse remark was not placed before the Committee. The list which has been filed does not show anything but a 'x' against the petitioner whereas the word 'yes' against the names of some respondents who have been selected, appears, and therefore, as no other material is placed it could not be said that the petitioner was fairly considered in 1971 when the case of his promotion ought to have been considered. 17. Consequently, the petition is allowed and instead of quashing the promotions of all the respondents it is directed that the case of the petitioner shall now be considered in the light of the observations made earlier and if he is found fit, it is further directed that the question of the petitioner's seniority shall be considered on the assumption that he was promoted in the year 1971 when he was due to promotion and the seniority shall be fixed on that basis. Inspite of the fact that the petitioner's petition is allowed, the promotions of the respondents are not quashed as long time has elapsed and the course suggested in the Division Bench Judgment of this Court quoted above is followed and a direction made. The petitioner shall be entitled to costs of this petition. Counsel fee is fixed at Rs.200/-. The amount of security deposited by the petitioner shall be refunded to the petitioner. Petition allowed