Judgment ( 1. ) BY this petition under Articles 226 and 227 of the Constitution of India the petitioner is challenging the action of respondents by downgrading him in the ACR of the year 1995. ( 2. ) THE contention of learned Counsel for the petitioner is that though in the petition, the petitioner has claimed relief to promote him to the post of Naib Subedar with effect from 1st September, 1997 when his juniors were promoted, however, since the law is well settled that an employee is required to be considered for promotion and as a matter of right he cannot claim promotion he is moulding his relief and praying that the case of petitioner may be considered for promotion to the post of Naib Subedar with effect from 1st September, 1997 when his juniors were promoted. ( 3. ) THE facts are not disputed. By inviting my attention to para 1 of the return, it has been contended by learned Counsel for the petitioner that the initiating officer gave grading of 03r, however, the Reviewing Officer down graded it to 02r and if this thorn is taken out from the palm of the petitioner, his case would definitely require consideration for promotion to the post of Naib Subedar. In support of his contention, learned Counsel has placed reliance on the decisions of U. P. Jal Nigam and Ors. v. Prabhat Chandra Jain and Ors. 1996 I AD (SC )885 , AIR1996 SC 1661 , JT1996 (1 )SC 641 , 1996 (1 )SCALE624 , (1996 )2 SCC363 , [1996 ]1 SCR1118 , 1996 (1 )UJ636 (SC ) and Major General R. S. Taragi, Dy. Commandant, College of Combat, Mhow v. Union of India and Ors. 1994 MPLJ 986 . ( 4. ) THE factual averments are not disputed. The contention of learned senior counsel for respondents is that even if the case of the petitioner is taken into consideration in toto, merely the reviewing officer down graded the petitioner from 03r to 02r, under the law this down grading was not required to be communicated to the petitioner and if that is the position since the petitioner was not found fit for promotion, therefore he has not been promoted and hence this petition sans substance and the same be dismissed. By distinguishing the decision of U. P. Jal Nigam (supra) it has been contended by learned senior counsel that the dictum laid down by the Apex Court in the said case would be applicable prospectively and not retrospectively. In support of his contention he has placed reliance on Harsh Dhingra v. State of Haryana and Ors. AIR2001 SC 3795 , JT2001 (8 )SC 296 , 2001 (6 )SCALE500 , (2001 )9 SCC550 , [2001 ]124 STC586 (SC ). ( 5. ) THERE is no dispute that the DPC was commenced on 1. 9. 1997 and the ACR with effect from 1991 to 30th September, 1996 were taken into consideration. The petitioner was graded in the following manner: Year Initiated by Initiating Reviewing Officer Officer -------------------------------------------------------------------------1991 2/497 Int and FS Unit 02r 03r 1992 2/497 Int and FS Unit 02r 02r 1993 497 Int and FS Unit 03r 04r 1994 497 Int and FS Unit 04r 04r 1995 Army HQ Liaison Unit 03r 02r 1996 Army HQ Liaison Unit 04r 04r The only impugned entry is of the year 1995. On bare perusal of the return, it is gathered that the Initiating Officer graded the petitioner with 03r while the Reviewing Officer downgraded him to 02r. The question for the determination if Reviewing Officer is downgrading an employee, whether an opportunity of hearing ought to have been provided to the employee or not. The complete answer has been given by the Supreme Court in the case of U. P. Jal Nigam (supra) wherein in para 3 the Apex Court has held as under : 3. We need to explain these observations of the High Court. The Nigam has rules, whereunder an adverse entry is required to be communicated to the employee concerned, but not downgrading of an entry. It has been urged on behalf of the Nigam that when the nature of the entry does not reflect any adverseness that is not required to be communicated. As we view it the extreme illustration given by the High Court may reflect an adverse element compulsorily communicable, but if the graded entry is of going a step down, like falling from very good to good that may not ordinarily be an adverse entry since both are a positive grading. As we view it the extreme illustration given by the High Court may reflect an adverse element compulsorily communicable, but if the graded entry is of going a step down, like falling from very good to good that may not ordinarily be an adverse entry since both are a positive grading. All that is required by the authority recording confidential in the situation is to record reasons for such downgrading on the personal file of the officer concerned, and inform him of the change in the form of an advice. If the variation warranted be not permissible, then the very purpose of writing annual confidential reports would be frustrated. Having achieved an optimum level the employee on his part may slacken in his work, relaxing secure by his one-time achievement. This would be an undesirable situation. All the same the sting of adverseness must, in all events, not be reflected in such variations, as otherwise they shall be communicated as such. It may be emphasized that even a positive confidential entry in a given case can perilously be adverse and to say that an adverse entry should always be qualitatively damaging may not be true. In the instant case we have seen the service record of the first respondent. No reason for the change is mentioned. The downgrading is reflected by comparison. This cannot sustain. Having explained in this manner the case of the first respondent and the system that should prevail in the Jal Nigam, we do not find any difficulty in accepting the ultimate result arrived at by the High Court. ( 6. ) ON going through the aforesaid decision nowhere it is gathered that the said decision is made applicable only prospectively. The law has been laid down by the Apex Court which is to be tested on the anvil of the facts and circumstances of the each case. The decision of Harsh Dhingra (supra) placed reliance by learned senior counsel for respondent is tangentially off the point because in that case the earlier settled issues of law were somersaulted by the Apex Court and therefore it was held that the decision would be applicable prospectively and not retrospectively. Further, looking to the larger public interest, since several petitions were filed in that situation the said dictum was laid down. Hence the decision of Harsh Dhingra (supra) is not applicable in the present case. Further, looking to the larger public interest, since several petitions were filed in that situation the said dictum was laid down. Hence the decision of Harsh Dhingra (supra) is not applicable in the present case. Apart from this in similar facts and circumstances, the Division Bench of this Court in the case of Shiva Nand Prasad v. Chief of Army Staff and Ors. 1993 Madhya Pradesh Service times 344 has held that if entry takes away the case of an officer out of consideration for promotion and renders him unfit, such an entry must be treated as adverse necessitating its communication and opportunity of representation against the same. Thus this decision squarely covers the fate of the present case for the simple reason that in the present case also in the year 1995 the Reviewing Officer downgraded the petitioner without affording him opportunity of hearing and without communicating the same to him. ( 7. ) FOR the reasons stated hereinabove, I have no hesitation to hold that the petitioner has been wrongly downgraded and the action of respondents down grading him in the year 1995 is hereby held to be arbitrary. In this view of the matter, the respondents are directed to consider the case of petitioner for his promotion to the post of Naib Subedar with effect from 1st September, 1997 when his juniors were promoted ignoring the endorsement of downgrading the petitioner made by respondent No. 4. Needless to emphasize if the petitioner is found fit for promotion necessary order in that regard may be passed. The respondents are directed to convene a review DPC on or before 31st May, 2006. If the review DPC finds petitioner fit for promotion, necessary order in that regard may be passed with all consequential benefits. 7. In the result, this petition succeeds and is hereby allowed. However, looking to the facts and circumstances, the parties are directed to bear their own costs.