JUDGMENT M.L. Bhat, J. 1. The petitioner has not been selected to the post of Additional Superintendent of Police whereas, according to the petitioner, his juniors have been promoted to the said post by superseding him. Those, who have allegedly superseded the petitioner, are arrayed as respondents no. 3 to 21 to the writ petition. 2. The petitioner's case, as set up in the writ petition, was that he was shown at serial no. 19 in the seniority list, which was accorded sanction on 12-7-1985 and a copy whereof is Annexure 1 to the writ petition. Vide order dated 29-8-1986 promotion to the next rank of Additional Superintendent of Police with respect to 38 officers, belonging to the direct and promotee Dy. Superintendent of Police was made with effect from 23-4-1986. The petitioner should have been figured at serial no. 20 but he was not promoted. A copy of this order is Annexure 2 to the writ petition. Amongst 38 promotees 50% are from direct recruits and 50 per cent are from promotee officers the petitioner was entitled to be promoted amongst the promotee officers because in the list of promotee officers he was at the top. Aggrieved against the said promotion order the petitioner is said to have filed a representation on 6-9-1986 to the Home Secretary to the U. P. Government. A copy of the said representation is Annexure 3 to the writ petition. The petitioner has stated that his service career is excellent and he has been discharging his duties with devotion and responsibility. To explain his devotion he has cited one or two examples with regard to his duties. The representation was not decided. Therefore, he submitted another representation on 31-7-1987, a copy whereof is Annexure 4 to the writ petition. The said representations were not considered at all, therefore, he submitted last representation on 30-11-1987 for consideration of his earlier representations and for granting him promotion with effect from 23-4-1986. The petitioner submits that he was at the fag end of his career and he was arbitrarily deprived of promotion which has resulted in great financial loss to him. In their counter affidavit the respondents have admitted that the petitioner was promoted to the rank of Dy. Superintendent of Police on 2-8-1970 and was confirmed on the said post with effect from 1st August, 1976 vide Government order dated 26-3-1987. In their counter affidavit the respondents have admitted that the petitioner was promoted to the rank of Dy. Superintendent of Police on 2-8-1970 and was confirmed on the said post with effect from 1st August, 1976 vide Government order dated 26-3-1987. It is however, stated that the petitioner's service record was not unblemished and clean, as asserted by him. He is said to have been given adverse entries for the years 1981-82 and 984-85. The adverse portion of the annual remark of 1984-85, of course, was expunged by Government Order dated 22-7-1986 but his conduct was found not desirable by the Inspector General of Police, Gorakhpur. Range Gorakhpur, as revealed from the letter dated 30-5-1985, a copy whereof is Annexure CA- 1 to the counter-affidavit. It is also stated that certain enquiries are still pending against the petitioner with the, Anti-Corruption Organisation, C. I. D. U. P. The petitioner was found not fit to be given promotion hence his name was not included amongst 38 officers who were promoted vide order dated 29-8-1986 to the post of Additional Superintendent "of Police. The plea regarding the petitioner having made representations is admitted. The contents of the letter, which is contained in Annexure CA-1 to the counter- affidavit and the petitioner having earned some bad remarks from the Inspector General of Police, Gorakhpur Range are not recorded in his character roll. However, the contents of the said letter show that the allegations against the petitioner were that he allowed one mini-truck to be operated as passenger vehicle in the district of his posting without a permit in the name of his wife and daughter and another mini-truck in the name of his brother-in-law in similar manner and the fact that his brother-in-law stayed with him at Jaunpur in his house shows his personal interest. His conduct therefore, was held to be not desirable, in this regard. This letter is dated 30-5-1985. 3. On being told about the adverse entries and the letter contained in Annexure CA-1 to the counter-affidavit the petitioner applied to amend the writ petition. In the application for amendment he has stated that the adverse entries for the year 1984-85 were expunged vide Government Order dated 22-7-1986 but this fact was not brought on record and the D. P. C. does not seem to be aware of this fact. In the application for amendment he has stated that the adverse entries for the year 1984-85 were expunged vide Government Order dated 22-7-1986 but this fact was not brought on record and the D. P. C. does not seem to be aware of this fact. Therefore, the adverse remark, which is already expunged, seems to have been taken note of and the petitioner was superseded by the Selection on the basis of material which did not exist before it. The petitioner's supersession therefore was vitiated because it is based on non-existent material The petitioner has stated that he had crossed the Efficiency Bar on 8-5-1982 during the course of revision of pay. Therefore, any adverse annual remark in the character roll stands washed away. So far as the contents of the letter contained in Annexure CA-1 to the counter affidavit were concerned it is stated that neither they were communicated to the petitioner nor was he asked to file a representation against the same. Hence they cannot be taken into consideration. In the amendment application the petitioner has produced some annexures showing that the petitioner's service record was excellent but the said record was withheld and has not been considered by the D. P. C. 4. The Respondents no. 1 and 2 have denied the petitioner's plea that he has any excellent service record. It is stated that in the year 1981-82 he was given an adyerse entry. It is further stated that the D. P. C. is not impleaded as a party. The promotion of the candidates was to be made after making over-all assessment of their work and judging their suitability. It is stated that some enquiry is still pending against the petitioner with the Anti-Corruption Organisation relating to corruption. However, no document is filed as to which type of enquiry is pending against the petitioner. It ill submitted that the petitioner has crossed Efficiency Bar but that would hoi entitle the petitioner, according to' the respondent no. I and 2, to get promotion. In his rejoinder affidavit the petitioner has stated the nature of what is called adverse entry by the respondents no. It ill submitted that the petitioner has crossed Efficiency Bar but that would hoi entitle the petitioner, according to' the respondent no. I and 2, to get promotion. In his rejoinder affidavit the petitioner has stated the nature of what is called adverse entry by the respondents no. 1 and 2, which is in the following words,: "He tried to dispose of papers hurriedly and lacks thoroughness." It is stated that this entry cannot be termed as adverse entry and it is a distorted picture of the report because the entry of the year 1981-82 is to be read as a whole. The said entry as contained in Annexure RA-1 to the rejoinder affidavit is with respect to the periods The first entry is for the period 1-4-1981 to 4-7-1981. The other period is 4-10-1981 to 3l-3-1981 It shall be commented upon at the appropriate place in this judgment vide order dated 30-7-1990 the petition has been ordered to be amended; The amendment application is part of the record. The petitioner, therefore challenges the selection list also and prays for a writ of certiorari quashing the same. 5. From the brief narration of facts given hereinabove it appears that selection to the post of Additional Superintendent of Police was made oh 2-8-1986 and the promotion had to take place with effect from April, 1986. 50 per cent officers are direct recruits and 50 per cent are promotee officers. The petitioner is a departmental candidate, who was confirmed as Dy. Superintendent of Police in 1976. Therefore, according to him, he was eligible for promotion to the post of Additional Superintendent of Police along with the respondents no. 3 to 21, who are the departmental candidates. He was not selected by the selection committee to the post of Additional Superintentendent of Police on the basis of the record, which was non-existent and on the basis of considerations which are irrelevant. Therefore, he prays for a writ of mandamus also for promotion to the post of Additional Superintendent of Police with effect from 23-4-1986. 6. I have heard the learned counsel for the parties at length. The learned counsel for the petitioner Mr. Therefore, he prays for a writ of mandamus also for promotion to the post of Additional Superintendent of Police with effect from 23-4-1986. 6. I have heard the learned counsel for the parties at length. The learned counsel for the petitioner Mr. Murlidhar formulated the following points for consideration of the Court: (a) That adverse entries with regard to the year 1984-85 stood expunged when the selection of the officers to the post of Additional Superintendent of police in respect of 38 officers was made. That expunction order was not placed before the Selection committee and, therefore, the selection committee was led to believe that the adverse entry pertaining to the year 1984-85 was in existence, though in fact it was non est. (b) That there was no adverse entry for the year 1981-82. Assuming, but not admitting, that anything was written in the year 1981-82, which could be termed as 'adverse entry* for the year 1981-82 that entry stood washed away because in May 1982 the petitioner had crossed the Efficiency Bar. (c) That the letter written by the Inspector General of Police, Gorakhpur Range, against the petitioner, contained in Annexure CA-1 to the counter affidavit cannot be taken into consideration because the contents of the letter were not communicated to the petitioner and he was not given an opportunity to file representation against the same nor the same were recorded in his character roll. These submissions are required to be decided on the basis of materials which are on record. It is borne out from the record and is admitted in the pleadings of the parties that the adverse entry pertaining to the year 1984-85 was conveyed to the petitioner on 29-10-1985. He filed a representation against the adverse entry pertaining to the year 1984-85. On 22-7-1986 the said adverse entry was expunged. The petitioner was informed that the adverse entry pertaining to the year 1984-85 was expunged on 2-9-1986. The D. P. C. met on 25-81986. They did not consider the expunction of the adverse entry because the respondents no. 1 and 2 do not seem to have placed the order dated 22-7-1986 before the selection committee whereby the adverse entry against the petitioner of the said year was expunged. Therefore, the D. P. C. relied on the adverse entry for the year 1984-85 against the petitioner, which actually did not exist after 22-7-1986. 1 and 2 do not seem to have placed the order dated 22-7-1986 before the selection committee whereby the adverse entry against the petitioner of the said year was expunged. Therefore, the D. P. C. relied on the adverse entry for the year 1984-85 against the petitioner, which actually did not exist after 22-7-1986. So the D. P. C; seems to have taken into consideration the non-existent record and if their attention was drawn to this record, they would not have taken into consideration such material, which was non est on the day they considered the petitioner's case along with others i.e. 25-8-1986. 7. So far as the adverse entries for the year 1984-85 are concerned;" they were expangned and could not be taken into consideration against the petitioner. If the D. P. C. had taken those entries into consideration against the petitioner it will be a case of relying on non est material and ignoring the relevant material. In law it will not be termed as 'consideration on the basis of record.' Non-consideration of the expunction order dated 22-7-1986 by which adverse entries were expunged will make it a case of non-consideration of relevant material on the part of the D. P. C. 8. The contention of the respondents no. 1 and 2 with regard to the entry pertaining to the year 1981-82 does not appear to be sound. As already noted, the said entry is written in two parts. The first part pertains to the period 1-4-1981 to 4-7-1981 reads as under : "Sri Mahesh Chandra Gupta worked under me opto 4-7-1981 during the year under review. He was Circle officer consisting Police Stations Sadabad, Sahpan, Baldeo and Farah. He was also C. O. I/c SIS. An experienced officer who took adequate interest in his job and his control over his circle was found to be satisfactory. His over-all performance as Circle officer has been rated satisfactory. He took adequate action to maintain communal harmony in his circle He did not have occasion to fill up the quota of scheduled cast in various services. He shouldered responsibility effectively with regard to prevention of misbehaviour and atrocities on the neglected and weaker sections of society. Conduct remained satisfactory. Nothing adverse has come to notice, which casts any reflection on the integrity of Sri Gupta. He shouldered responsibility effectively with regard to prevention of misbehaviour and atrocities on the neglected and weaker sections of society. Conduct remained satisfactory. Nothing adverse has come to notice, which casts any reflection on the integrity of Sri Gupta. I certify his integrity." For the period 8-8-1981 to 31-3-1982 the following entry was made in his character roll ; "He remained posted as Circle Officer, Bansi. He is a promoted officer from the Reserve Branch. He toured his circle sufficiently and exercised satisfactory supervision over crime. He tried to dispose of papers hurriedly lacks thoroughness. His relations with brother officers and public in general have been satisfactory. He took adequate interest in maintaining communal harmony and safeguarding the interest of weaker sections of society. Nothing adverse has come to my notice against his integrity and I certify the same." From a perusal of the aforesaid adverse entries it appears that the officer's integrity is not doubted. His effectiveness, efficiency and capacity of work also are not in doubt. The entry as a whole is in praise of the officer. So by picking out one line from the two entries this entry cannot be termed as bad. Assuming, but not admitting or deciding, that the entry pertaining to the year 1981-82 was bad the same will be deemed to have been washed away because the officer concerned had crossed the Efficiency Bar in May, 1985 itself when revision of pay was made. Therefore, the isolated portion of this entry which was held adverse is no more in existence and cannot be taken note of in 1986 when the petitioner's promotion was under consideration because in 1986 this isolated portion of the entry, which was termed as adverse, was non est. 9. The letter dated May 30, 1985 written by the Inspector General of Police, Gorakhpur Range, about the petitioner's conduct cannot be taken into consideration at all because the contents thereof were never conveyed to the petitioner nor was he asked to file representation against the said letter. It is not even reflected in his annual, remarks. This letter is also, therefore, to be treated as non est in the eye of law. If the un-communicated adverse remark is made the foundation for doing any benefit to a petitioner and a benefit is granted to his juniors, that will be bad and against the principles of fair play. It is not even reflected in his annual, remarks. This letter is also, therefore, to be treated as non est in the eye of law. If the un-communicated adverse remark is made the foundation for doing any benefit to a petitioner and a benefit is granted to his juniors, that will be bad and against the principles of fair play. The petitioner's right cannot be taken away on the basis of un-communicated remarks made against him in the letter dated May 30, 1985 by one Inspector General of Police. This will be against the service rules and the constitutional guarantee. Therefore, the respondents no. 1 and 2 cannot rely on this letter for the purpose ' of exclusion of the petitioner from selection. 10. The object of recording remarks in the Character roll of an employee of the State is not to punish him. In, case any adverse remark is made against an employee it is to be communicated to him, the purpose being that deficiency or short-coming of such employee, if found is recorded the same is conveyed to the employee to apprise him of his deficiency or short-coming and he is allowed to file representation with a view to improve himself. So an adverse entry cannot be said to have any purpose other than affording an opportunity to the employee to improve himself. After the adverse entry is expunged on representation, the same becomes non est and cannot be used against the employee. After crossing of Efficiency Bat any adverse remarks against the petitioner prior to that is also non est. Un-communicated adverse remarks cannot at all be taken into consideration because it is the right of the employee to know what is adverse against him and he has a statutory right to file a representation against what is recorded adverse against him. if that has not been done, the adverse entry cannot be taken into consideration to bis detriment. . So the contention of the respondents that the petitioner was found not suitable on the basis of non est adverse entries of 1984-85 and 1981-82 is not correct. The respondents no. 1 and 2 cannot rely on the letter dated May 30, 1985 contained in Annexure CA 1 to the counter-affidavit. As regards 1984-85 entry, that has been expunged before the selection was made. The respondents no. 1 and 2 cannot rely on the letter dated May 30, 1985 contained in Annexure CA 1 to the counter-affidavit. As regards 1984-85 entry, that has been expunged before the selection was made. As regards the entry of 1981-82 (if read as a whole) it does not appear to be adverse to the petitioner. . If a line or so is picked up by the respondents no. 1 and 2 and termed as adverse against the petitioner, then it has been washed away because the petitioner has crossed the Efficiency Bar after recording of the said entry and that remark is no longer in existence against the petitioner. In fact in 1986, if any thing is found adverse in the entry of 1981-82, it had already been quashed in 198L-82, itself. The contents of letter dated 30-5-1985 contained in Annexure CA 1 to the counter affidavit is to be ignored because they were not communicated to the petitioner nor are they recorded in his character roll. He was not granted any opportunity to file representation against the remarks made against him. Therefore, the petitioner could not be found unsuitable on the basis of the aforesaid material by the selection committee. If at all the selection committee bad taken that into consideration then it will be case of error of material fact which is now a ground of judicial, review. Mis-understanding or ignorance of an established and relevant fact or acting upon incorrect facts is a ground for judicial review. Prof. H.W.R. Wade in his Treatise on Administrative Law, V Edition says that if a Tribunal acts On misunderstanding or ignorance of an established and relevant fact or upon an incorrect basis of facts, Court can intervene with such finding of the Tribunal. Prof. H.W.R. Wade in his Treatise on Administrative Law, V Edition says that if a Tribunal acts On misunderstanding or ignorance of an established and relevant fact or upon an incorrect basis of facts, Court can intervene with such finding of the Tribunal. He proceeds to say that in a case where the Secretary of State had power to give directions if he was satisfied that the local education authority were acting unreasonably, Lord Wilber force, in explaining that such powers were to some extent subject to judicial review, said ; "If a judgment requires, before it can be made, the existence of some facts then, although the evaluation of those facts is for the Secretary of State alone, the Court must inquire whether those facts exist, and have been taken into account, whether the judgment has been upon a proper self direction as to those facts, whether the judgment has not been made upon other facts which ought not to have been taken into account. If those requirements are not met, then the exercise of judgment, however, bonafide it may be, becomes capable of challenge. Lord Wilber force approved a remark by Lord Denning M. R. in another case that the Court could intervene if a minister plainly misdirects himself in fact or in law. The author says "This ground of review has long been familiar in French Law and might equally well be adopted in this country. If it should be established, it would apparently be a new branch of the ultra vires doctrine, analogous to finding facts based upon no evidence or acting upon a mis-apprehension of law. A minister, for example, would have to show not only that he decided reasonably on the material before him, but that he had the relevant material before him, in correct form. This would tighten still further the court's control over administrative findings of fact. It would make judicial review into comprehensive system able to correct serious errors of all kinds." 11. This would tighten still further the court's control over administrative findings of fact. It would make judicial review into comprehensive system able to correct serious errors of all kinds." 11. I have no doubt in my mind that on the basis of the expunged adverse entry of 1984-85 and the so called adverse entry of 1981-82, which is washed away or on the basis of un-communicated contents of the letter dated May 30, 1985 contained in Annexure CA 1 to the counter affidavit the petitioner could not be found to be unsuitable for promotion to the post of Additional Superintendent of Police. If that material has influenced the selection committee against the petitioner, his exclusion from promotion is based on no evidence. It will also be a cause of rejection of relevant material. This will entitle this court to pas's appropriate directions in the matter. 12. In Gurdial Singh Fijji v. State of Punjab, AIR. 1979 SC 1622, it is held that Court can direct for fresh consideration by the selection committee of any candidate who has been excluded from selection on the basis of no evidence. Similar view was taken in State > of Mysore v. Syed Mahmood, AIR 1968 SC 1113 . A dispute had arisen before the High Court about promotion of certain officer. The High Court directed the State Government to promote the petitioners from the dates on which juniors to them were promoted. The Supreme Court set aside the direction of the High Court and directed to consider the promotion of the petitioners on the relevant dates. In view of this position in law it is not necessary to set aside the selection list whereby the respondents no. 3 to 21 have been promoted. Such ' an order would be harsh and it may create administrative chaos. Therefore, the only order which can secure the ends of justice and would meet the requirements of the situation shall be to ask the respondents no. 1 and 2 to get the petitioner considered by a duly constituted selection committee by ignoring the adverse entries of 1984-85, 1981-82 and the letter dated May, 30, 1985, contained in Annexure CA 1 to the counter affidavit, and if the petitioner is found suitable, he deserves to be promoted with effect from the date from which the respondents no. 1 and 2 to get the petitioner considered by a duly constituted selection committee by ignoring the adverse entries of 1984-85, 1981-82 and the letter dated May, 30, 1985, contained in Annexure CA 1 to the counter affidavit, and if the petitioner is found suitable, he deserves to be promoted with effect from the date from which the respondents no. 3 to 21 have been promoted to the post of Additional Superintendent of Police. In case he is found suitable, his promotion with effect from April 1986 to the date) of actual promotion will be only notional and will be for the purpose of reckoning his seniority and he will not be entitled to draw salary from April 1986. However, he will be paid his salary in the promoted grade only from the date of his actual promotion. Such a consideration is to be accorded to the petitioner expeditiously so that he may reap the fruits of promotion, if found suitable for selection by the selection committee, during his tenure of service. 13. The learned Standing Counsel has referred to some Supreme Court judgment in the case according to which the Supreme Court had issued guidelines as to how seniority of promotees and direct recruits is to be fixed in respect of Additional Superintendent of Police cadre. These guidelines have to be observed by the State Government after the promotions are made. Admittedly the petitioner is senior to the respondents no. 3 to 21 as Dy. Superintendent of Police Therefore, he was necessarily to be considered for by the selection committee is held to be based on no evidence. Therefore, his promotion is to be considered on the basis of relevant material. The State Government is bound by the directions issued by the Supreme Court but that is a matter between the promotees and the direct recruits. The petitioner's case is that he has not been treated equally with his equals who are respondents no. 3 to 21. The petitioner is required to be treated similarly with his equals. 14. Accordingly, the writ petition succeeds and is allowed to the extent indicated thereunder : (a) A command is issued to the respondent no. The petitioner's case is that he has not been treated equally with his equals who are respondents no. 3 to 21. The petitioner is required to be treated similarly with his equals. 14. Accordingly, the writ petition succeeds and is allowed to the extent indicated thereunder : (a) A command is issued to the respondent no. 1 and 2 to constitute a selection committee within two months from the date of communication of this order which will consider the case of the petitioner for promotion by ignoring adverse entries of 1984-85, 1981-82 and the contents of the letter of the Inspector General of Police, Gorakhpur Range dated May 30, 1985, contained in Annexure CA 1 to the counter affidavit. – (b) If the petitioner is found suitable by the selection committee for promotion on consideration of relevant material, be may be given promotion from April 1986 to the post of Additional Superintendent of Police, which will be only notional for the purpose of reckoning his seniority in the grade but he will draw his salarly in the promoted grade from the date of actual promotion. As a result of this direction he will not be entitled to back salary from April, 1986; and (c) The select list of respondents no. 3 to 21 is not disturbed but the petitioner is to rank senior to those respondents in the promoted grade also, if found suitable for promotion. In the circumstances of the case, there shall be no order as to costs.