J. N. BHATT, J. ( 1 ) THE controversy in the present petition under Article 226 of the Constitution of India has shrunk down to a very narrow dimension. The question with which this Court is confronted is whether the claim of the petitioner who claims to have been promoted when his junior got promotion is justified ? In other words the question which falls for consideration and adjudication is as to whether the respondent-government should be directed to grant deemed date of promotion as and when his junior came to be promoted from the cadre of Section Officer (SO for short) to the cadre of Under Secretary (US for short) in the Sachivalaya set up? ( 2 ) IN order to appreciate the merits of the aforesaid contention and the challenge against it it would be necessary to have a resume of material facts. ( 3 ) THE petitioner has inter alia contended that he was working as US in the Subordinate Secretariat Service on being promoted to the said post on 29-12-1979 when the petition was filed. ( 4 ) THE petition arose because the request of the petitioner for assigning him deemed date of promotion from the cadre of SO was refused by the respondent-State from May 1978. The supersession of the petitioner in the cadre of US is alleged to be an unauthorised one and also in violation of the provisions of Articles 14 and 16 of the Constitution of India. The petitioner was conveyed the letter dated 9-10-1980 that his representation with regard to the grant of deemed date of promotion to the post of US was not accepted. The order passed by the respondent-State dated 9 is produced at Annexure A. Petitioner was recruited as a direct recruit in the cadre of Section Officer on 29-9-1966 through Public Service Commission and was continuously officiating since that date as per the seniority list dated 29-3-1978. The petitioner has further contended that the seniority list was provisional and was published for the first time after lapse of about 12 years. A list of the direct recruits covered in the said list is produced at Annexure 13 ( 5 ) THE petitioner was served with a memorandum on 8 1977 which contained adverse remarks in his confidential record for the years 1971 1974 and 1975-76. A list of the direct recruits covered in the said list is produced at Annexure 13 ( 5 ) THE petitioner was served with a memorandum on 8 1977 which contained adverse remarks in his confidential record for the years 1971 1974 and 1975-76. The contention of the petitioner is that the communication of adverse entries in his confidential record had been inordinately delayed depriving him of the opportunity to make an effective representations against them. On receipt of the communication of the said adverse entries the petitioner filed his representation objecting against the so-called adverse remarks on 29 However since the confidential record file was with the General Administration Department the Revenue Department could not consider his representation against the said adverse remarks. The petitioner apprehending that he might be excluded from the select list only because of those invalid remarks in the confidential record he had personally met the Special Secretary General Administration Department on 29-9-1978 and requested him to send his dossier of confidential records to the Revenue Department so as to enable the Revenue Department to consider and decide the representation made by him ( 6 ) ON receipt of the file and on verification of the record of the petitioner by the Revenue Department to which the petitioner belonged to at that time the adverse remarks pertaining to the years 1974-75 and 1975-76 were found to be unsustainable and therefore the said adverse remarks were ordered to be expunged by the Revenue Department by passing an order on 4-10-1978. A copy of the said order was also addressed to the General Administration Department of the Government of Gujarat Obviously the idea was to see that the Selection Committee may not act upon the said obliterated or expunged remarks at its next meeting. ( 7 ) IT is the case of the petitioner that the papers did not reach in time for consideration of the Selection Committee before they prepared the select list of SO to be promoted as US and the petitioner though eligible was not included in the select list prepared by the Selection Committee for the purpose of promotion in the cadre of US Consequently his juniors were considered and were appointed to that posts in the month of May 1978. It is the case of the petitioner that had the expunged remarks and relevant papers reached to the Selection Committee in time the petitioner would not have been excluded from being empanelled in the select list prepared by the Section Committee which met on 28 ( 8 ) THERE is no dispute about the fact that the petitioner was found fit and as such he was appointed as US from the cadre of SO with effect from 29-12-1979. There is also no dispute about the fact that the petitioner was subsequently promoted in the higher cadre of Deputy Secretary with effect from 4-4-1985. The petitioner has retired on attaining the age of superannuation with effect from 31-3-1988 after office hours. ( 9 ) ACCORDING to the case of the petitioner his immediate junior shown at Sr. No. 120 one Mr. M. R. Pujara came to be promoted in the month of May 1978 after his name came to be included in the select list in March 1978 The petitioner was selected and promoted as US in December 1978 and therefore he made a detailed representation to the Chief Secretary on 15-5-1980 requesting the State Government to grant deemed date of promotion to him on the post of US from 1-5-1978 when his immediate junior one Mr. Pujara came to be promoted and appointed as US However the respondent-State on considering the said representation of the petitioner expressed its regrets and inability to subscribe to the request made by the petitioner in the said representation by writing a letter dated 9-10-1980 as per Annexure A. ( 10 ) THE petitioner has also contended that the Gujarat Public Service Commission had in fact recommended the case of the petitioner for the purpose of promotion in June 1978 alongwith the cases of two other SOs i. e. Mr. M. C. Trivedi and Mr. K. P. Shukla and though the said two officers were reconsidered and promoted the petitioner was not promoted presumably because the said adverse remarks were not expunged at that time. It is therefore contended that if the order expunging the adverse remarks had been conveyed in time to the concerned department and his representation had been disposed of earlier the petitioner would not have been left out from being included in the select list prepared by the Selection Committee which met in March 1978. It is therefore contended that if the order expunging the adverse remarks had been conveyed in time to the concerned department and his representation had been disposed of earlier the petitioner would not have been left out from being included in the select list prepared by the Selection Committee which met in March 1978. It is also the petitioners case that the case of his colleague Mr. M. C. Trivedi was identical and his case was reconsidered and he was promoted in the cadre of US. Thus in short the main plank of the petitioners case is that he ought to have been included in the select list prepared by the Selection Committee in its meeting on 28-3-1978 and he should have been promoted in the higher cadre of US when his immediate junior Mr. Pujara came to be promoted and appointed in the said cadre. Therefore supersession of the petitioner in the matter of grant of promotion in higher cadre of US from the post of so is complained of and is therefore the substratum of the present petition. ( 11 ) IT is an admitted fact that the communication of adverse entries in the Annual Confidential Reports (ACRs for short hereinafter) pertaining to the period of 1971 1974 and 1975-76 came to be made to the petitioner for the first time in a lot on 8-12-1977 Admittedly till then no any such communication was made by the respondent-State to the petitioner. It is also an admitted fact that such a communication is required to be made as far as possible within a period of six weeks from the date of the completion of the ACR of a relevant financial year. Therefore admittedly the communication of adverse remarks made in the relevant years in the ACRs of the petitioner had not been communicated to him in the prescribed time Apart from that it is apparent that the communication pertaining to the adverse entry of 1971 was late by more than six years. In so far as adverse entries pertaining to the periods of 1974-75 and 1975-76 were concerned they were also communicated very late Unfortunately no reason is assigned and no explanation whatsoever is given as to why the communication of adverse entries was made so late In absence of any reasonable explanation such a delay would obviously operate a fatal blow on the adverse entries. It is not the contention of the respondent-State that such adverse entries could not be communicated for the reasons beyond their control. ( 12 ) AGAIN it may be noted that the adverse entries of the relevant years of 1974-75 and 1975 were expunged by the respondent-State pursuant to the representation made by the petitioner. The representation was directed against the advance entries of three periods i. e. 1971 1974 and 1975-76. The representation was partly accepted With the result the adverse entries in the ACRs of 1974-75 and 1975-76 came to be deleted and the adverse entry pertaining to the relevant year of 1971 was not altered Representation made against the adverse entries by the petitioner was disposed of on 4-10-1978 The net effect of the part acceptance of the representation would be the entries pertaining to the said periods of 1974-75 and 1975-76 which were obliterated and therefore operated as non est. The fact that they were wrongly made in the ACRs would go to show that such entries could not have been considered by the respondent-State for any purpose on the doctrine of nonest. Only one adverse entry in the entire ACRs then would remain in the field for the period of 1971. That adverse entry in fact would also operate as an invalid one on the ground of delay in communication of the same to the petitioner. The said adverse entry which came to be passed by the competent authority as early as in 1971 came to be communicated to the petitioner as late as in December 1977 ipso facto would lead to an inference that the petitioner was deprived of his right to make an effective representation against such an adverse entry on account of delayed communication. With the result such an entry can never be utilised or seen for any purpose. It would be therefore necessary to examine the purposes and the reasons why the ACRs are maintained. The ACRs and the character rolls are designed and maintained. The ACRs and the character rolls are maintained primarily for the benefit of the administrative and individual interest. They being the masters have to lake assessment of the abilities and caliber of the employee and exploit the talent and expertise of the employee for their benefit. The ACRs and the character rolls are designed and maintained. The ACRs and the character rolls are maintained primarily for the benefit of the administrative and individual interest. They being the masters have to lake assessment of the abilities and caliber of the employee and exploit the talent and expertise of the employee for their benefit. At the time of making adverse entries the employees may not be entitled to a hearing but thereafter when the said entries are made in the ACRs and when they are going to be relied upon or some steps are required to be taken prejudicial to the interest of the employee or the right of the government servant on the basis of such adverse entries then in that case the employee concerned must be communicated such entries well in advance so that he can avail the opportunity of making an effective representation in time. So this is inherent in the relationship of master and servant. If such adverse entries are not communicated in time they are required to be ignored. The character rolls cannot be acted upon before the final disposal of the representation if any made by the employee concerned. In maintaining the character rolls the authorities would be acting in exercise of their administrative capacity and function but even then they will have to act justly and fairly by communicating the material and substance of the adverse entries to the employee concerned. ( 13 ) ACRS are recorded with a view to judge the performance and efficiency of the officers or the employees in the public service. The object of maintaining character roll is to put an officer in proper line by pointing out the defect and the adverse entries are to be communicated to him in time to enable him to rectify the defect. Unless and until timely communication of adverse entries are made and communicated no useful purpose would be served. One of the objects of writing ACRs is to inform the concerned employee about the defects deficiency indiscretion or any other lapse or wrong so that he could try to improve and rectify and try to justify the assignment and duties entrusted to him. If no communication is made in time it would not subserve the purpose for which they are intended to be made. If no communication is made in time it would not subserve the purpose for which they are intended to be made. Therefore it has been consistently held and decided that the adverse entries as far as possible should be early communicated to the concerned employee or government servant within a period of six weeks after completion of the ACR in a financial year concerned. Adverse remark if any is communicated and representation if any is to be made within the prescribed time the authorities have -to take timely action on the representation so made against the said adverse remark. The authorities have to take timely action so that the character rolls containing adverse entry are not acted upon until communication thereof is made to the employee concerned and representation if any is disposed of finally. ( 14 ) THIS court had an occasion to high-light the importance of writing ACRs and its resultant effect in the case of Dr. R. B. Kulkarni v. Government of Gujarat reported in 19 GLR 1021. This court has specifically held that ACRs should be drawn i. e. reported reviewed and communicated in time. Even the ACRs are required to be maintained regularly by the Reporting Officer. If the adverse remarks are not communicated to the employee concerned in time his right to make representation will be adversely affected. In such a situation adverse remarks in the ACRs would stand vitiated. This court had given detailed guidelines. Some of the guidelines enumerated are not followed in the present case. With the result the aforesaid adverse entries are required to be ignored as they would stand vitiated from the record. ( 15 ) THE case of the petitioner was considered by the Selection Committee consisted of the Chief Secretary GAD Additional Chief Secretary (Home) and Secretary (Finance) which met on 29-3-1978. The Selection Committee found the petitioner unfit for being included in the select list of the SOs prepared for the purpose of promotion to the post of US. The Gujarat Public Service Commission recommended to the Government to reconsider four cases including the case of the petitioner for being empanelled in the said select list. Therefore a review meeting was convened of the said Selection Committee on 8-9-1978. In the said meeting the Selection Committee reiterated its earlier decision in so far as the petitioner was concerned. The Gujarat Public Service Commission recommended to the Government to reconsider four cases including the case of the petitioner for being empanelled in the said select list. Therefore a review meeting was convened of the said Selection Committee on 8-9-1978. In the said meeting the Selection Committee reiterated its earlier decision in so far as the petitioner was concerned. When the aforesaid review meeting was convened admittedly the representation against the adverse entries was pending with the Government. This aspect was not considered by the Selection Committee. Probably it might not have been brought to its notice. That is the reason why the Selection Committee relied on old adverse entries. It is an admitted fact that the Selection Committee takes into consideration the entire ACRs dossier while considering the names to be empanelled in the select list. What weighed with the Committee on both these occasions i. e. in the meeting I held on 29-3-1978 and also on 6-9-1978 was the adverse remarks in the ACRs of the petitioner. It appears that it was also not brought to the notice of the Selection Committee that the adverse entries were not communicated in time and that after communication of the same at a stretch in a lot for three periods the representation received from the petitioner was receiving attention and was not finalised. It was incumbent upon the Selection Committee to take into consideration this factual aspect which had material bearing on the merits of preparation of select list of SOs for promotion to the post of US. ( 16 ) THE third Selection Committee meeting was held on 19-10-1978. The Committee had simply observed in its minutes that the performance of Mr. S. R. Bhatt (petitioner herein) in his subsequent ACRs was not efficient enough to clear him for promotion to the post of US. This Court had an occasion to examine and peruse the original Minutes and the ACRs files of the petitioner. In the minutes of the Meeting of the Selection Committee convened on 19-10-1976 there was nothing even to remotely indicate in that the fact that on the representation made by the petitioner the adverse entries for the periods of 1974-75 and 1975 were expunged was ever brought to the notice of the members of the Selection Committee. In the minutes of the Meeting of the Selection Committee convened on 19-10-1976 there was nothing even to remotely indicate in that the fact that on the representation made by the petitioner the adverse entries for the periods of 1974-75 and 1975 were expunged was ever brought to the notice of the members of the Selection Committee. Thus the allegation of the petitioner that the decision to expunge the adverse remarks related to the said periods of 1974-75 and 1975-76 had not been brought to the notice of the Selection Committee through the CAD cannot be slightly ruled out. It appears that the Selection Committee even on 19-10-1978 had not considered the factum of adverse entries having been expunged for the relevant periods of 1974-75 and 1975-76. The contention of the respondent-State that even after the adverse remarks were expunged in subsequent two meetings held on 19-10-1978 and 18 the case of the petitioner was considered and he was not found fit for being promoted in the cadre of US from the post of SO is not substantiated by the material on record except the mere denial by the respondent-State. In the affidavit-in-reply there is no material worth the candle on record to show that in the last two meetings of the Selection Committee which met on 19 and 18-7-1979 the decision of the Department to expunge the adverse entries was considered. ( 17 ) AS observed hereinbefore the respondent-State considered adverse entries in the ACRs of the petitioner while refusing promotion to him. Earlier on four occasions when the Selection Committee meeting was held on 29-3-1978 2 19 and 18-10-1979 on all the relevant dates the adverse entries of the periods of 1971 1974 and 1975-76 were considered by the respondent-State against the petitioner and he was denied his rightful claim of promotion on that basis on that ground. In reality as found hereinbefore the adverse entries relating to the periods of 1974-75 and 1975-76 came to be expunged and the net result would be that the said entries would be non est i. e. invalid for all purposes. Therefore the said entries should not have been considered being wrongly made in the ACRs. That left only one adverse entry of the year 1971 which also should not form basis for any decision adverse to the petitioner as it was not communicated in time. Therefore the said entries should not have been considered being wrongly made in the ACRs. That left only one adverse entry of the year 1971 which also should not form basis for any decision adverse to the petitioner as it was not communicated in time. The net effect would be that the said so-called adverse entries which came to be recorded in the ACRs of the petitioner should not have operated as an impediment in the way of getting rightful promotion to the petitioner on that ground. It is an admitted fact that in the meeting of the Selection Committee held on 21 the petitioner was found fit for being promoted to the cadre of US. The petitioner was denied promotion of the same cadre only four months before. In the last meeting of the Selection Committee denying the claim of the petitioner for promotion was held on 18-7-1979 and immediately within a spell of four months in the next meeting held on 21-11-1979 the respondent-State found the petitioner fit for the promotion. It is also an admitted fact that the petitioner came to be confirmed in the cadre of US and he got further promotion in the high cadre of Deputy Secretary with effect from 4-4-1985. ( 18 ) THE petitioner was wrongly denied his right to be considered alongwith other cases when his juniors were considered in the first meeting of the Selection Committee on 29-3-1978 on the aforesaid adverse entries which are required to be obliterated and the case of the petitioner ought to have been considered by the respondent-State. It is unfortunate that the representation of the petitioner seeking deemed date came to be rejected. The said order of rejection is produced at Annexure A. No grounds are stated as to why the request for deemed date of promotion came to be rejected. It is one of the grievances of the petitioner in the present petition. ( 19 ) LEARNED Counsel for the petitioner has relied on the decision of this Court in the case of N. K. Mehta v. State of Gujarat reported in 1984 GLH 133 It was held by this Court in the said case that if the adverse remarks are not communicated in time then the employees right to make effective representation is prejudiced. Failure to observe the same renders the decision taken upon void adverse remarks liable to be quashed. Failure to observe the same renders the decision taken upon void adverse remarks liable to be quashed. The said decision is squarely applicable to the facts of the present case. ( 20 ) HAVING regard to the aforesaid facts and circumstances and the relevant case law the said adverse remarks are required to be totally ignored being non est. The action of the respondent-State in not seriously considering and selecting the case of the petitioner in the meeting of the Selection Committee held on 28 and subsequently till 21-11-1979 in connection with the preparation of the select list for the purpose of promotion of SOs to the cadre of US on the said invalid remarks is totally not only erroneous but manifestly illegal. The contention of the petitioner that he ought to have been considered and selected right from the first meeting of Selection Committee when it considered the cases of the juniors of the petitioner appears to be justified. Thus the impugned action of the respondent-State can never be sustained. The claim of the petitioner that he ought to have been considered and included in the select list for the promotion to the post of US alongwith his juniors by the Selection Committee which met on 29 is fully justified particularly in view of his service record and ACRs. The Selection Committee ought not to have relied on those adverse remarks. No other adverse remarks and materials were there in the ACRs for those years. Even there is no allegation that more meritorious junior incumbents (SOs) were available in May 1978 or thereafter. . ( 21 ) IT will therefore bring into the sharp focus the question of relief to be granted to the petitioner. The petitioner has prayed that the respondent-State should be directed to grant him deemed date of promotion on the post of US when his junior Mr. Pujara came to be promoted as US and it is also prayed that it should be declared that the action of the respondent in not granting deemed date of promotion and decision contained in the letter at Annexure A dated 9-10-1980 was illegal and invalid and deserves to be quashed. The learned Counsel for the petitioner has also seriously contended that the petitioner is entitled to the relief as claimed alongwith consequential benefits. The learned Counsel for the petitioner has also seriously contended that the petitioner is entitled to the relief as claimed alongwith consequential benefits. In this connection reliance is also placed on the decision of this court rendered on 21-6-1992 in the case of S. S. Shah v. State of Gujarat and Others in Special Civil Application No. 3698 of 1980. In the said case the petition was allowed and the writ of mandamus was issued directing the respondents to consider the case of the petitioner as if his name was included in the select list prepared on 30 and to give him deemed date of promotion on that basis. It was further directed by this court that for consequential benefits available to the petitioner in that case as if he had been promoted on the date on which his immediate junior came to be promoted. Relying on the aforesaid decision it is contended that similar relief should be granted to the petitioner in the present case. ( 22 ) AS against that Miss Doshit learned Councel appearing for the respondent-State has vehemently contended that it will not be permissible for the court to assume the role of an executive and to direct the respondent-State to straightway grant deemed date of promotion with consequential benefits. In support of her contention she has placed reliance on a decision rendered by the Apex Court of the country in the case of State of Mysore v. P. N. Nanjundiah reported in 1969 SLR 346. Having examined the ratio of the said decision Miss Doshit is right in her submission that this Court cannot direct the respondent State to straightway to promote the petitioner with restrospective effect and that too with grant of consequential benefits. Having examined the ratio of the said decision Miss Doshit is right in her submission that this Court cannot direct the respondent State to straightway to promote the petitioner with restrospective effect and that too with grant of consequential benefits. The ratio of the aforesaid decision on the Apex Court is fully applicable to the facts of the present case In the case before the Supreme Court the petitioner had also come to be promoted during the course of the pendency of the writ petition In the said petition the petitioners were promoted as Overseers after filing of the writ petition and considering the facts and circumstances and the relevant case law the Supreme Court modified the direction of the High Court and substituted its directions directing the Government to consider the case of the petitioner afresh for the purpose of promotion It would be interesting to refer to the relevant discussion of the Supreme Court in Para 4 of the aforesaid decision which reads as under"the argument was stressed on behalf of the appellants that in any event the High Court was not right in issuing a writ of mandamus directing the appellants to promote respondent No. 1 as Overseer with effect from 1/02/1961 and as Supervisor with effect from 1/04/1963 and to give him all consequential benefits In our opinion there is justification for this argument It has been pointed out by this Court in. The State of Mysore v. Syed Mahmood and Others (2) that in matters of this description the High Court ought not to issue writs directing the State Government to promote the aggrieved officers with retrospective effect The correct procedure for the High Court was to issue a writ to the State Government compelling it to perform its duty and to consider whether having regard to his seniority and fitness the 1st respondent should have been promoted on the relevant date and so what consequential benefits should be allowed to him. In the present case we are informed that both respondent No. 1 and respondent No. 2 have been promoted as Overseer after the filing of the writ petition In the circumstances we consider that the proper course is to issue a direction to the appellants to consider whether the respondent No. 1 should have been promoted to the post of Overseer with effect from December 1961 and as a Supervisor with effect from 1/04/1963 what should be the relative seniority as between respondent No. 1 and respondent No. 2 and what consequential benefits should be allowed to respondent No. 1. The ratio of the aforesaid decision is squarely attracted to the facts of the present case In the circumstances of the present case when doctrine of Merit-cum-Seniority applies and in view of said decision of Supreme Court the decision relied upon by the learned Counsel for the petitioner Mr. Hathi does not merit any further consideration. ( 23 ) THE contention of the petitioner that case of his colleague i. e. Mr. M. C. Trivedi being identical was considered by the Selection Committee on being recommended by the Gujarat Public Service Commission and not considering the case of the petitioner for being included in the select list is discriminatory is also required to be seriously considered It is an admitted fact that on review and reconsideration name of Mr. M. C. Trivedi was found fit to be included in the select list. Though there appears to be some substance in this connection this Court is not required to go into greater details and find out as to whether discriminatory treatment was meted out to the petitioner as on the first point which goes to the root of the matter the petitioner succeeds. ( 24 ) IN these circumstances the contention that the petitioner who has retired long before and who is awaiting decision in this matter since more than 10 years will have to undergo a long procedural formalities for getting his legitimate grievance redressed is of no avail to the petitioner in view of the aforesaid decision of the Supreme Court. This Court can only direct the respondent-State to perform its duties. In the present case the respondent-State is required to be directed to consider afresh and de novo the case of the petitioner for being promoted in the cadre of US from the date when his junior Mr. This Court can only direct the respondent-State to perform its duties. In the present case the respondent-State is required to be directed to consider afresh and de novo the case of the petitioner for being promoted in the cadre of US from the date when his junior Mr. Pujara came to be promoted as US in May 1978. The respondent-State is also required to be directed to consider the case of the petitioner regardless of the aforesaid alleged adverse entries in the ACRs for inclusion of his name in the select list from the date when his junior Mr. Pujara came to be included in the select list prepared by the Selection Committee in the meeting held on 28 and also to consider all the consequential monetary and service benefits as if what would have been available to him had his name been included in the select list prepared by the Selection Committee. Since the matter is very old and the petitioner has retired long before and since the question is of grant of deemed date of promotion and also considering the fact that this matter is pending since more than 10 years it would be expedient and desirable to direct the respondent-State to carry out the aforesaid directions of this Court as early as possible but not later than expiry of six weeks from the date of receipt of the writ of this Court. ( 25 ) IN the result the petition is allowed. Rule is made absolute accordingly with no order as to costs. Rule made absolute. .