Judgment ( 1. ) THE order passed in this petition shall also govern the disposal of W. P. No. 2684/2002 (Devendra Kumar Khare v. Chairman) and W. P. No. 2682 of 2002 (Rajendra Prasad Sharma v. Chairman ). ( 2. ) THIS writ petition has been filed under Articles 226 and 227 of the Constitution of India by the petitioner praying therein that respondent be directed to promote the petitioner to Scale-II post with effect from 1. 4. 2002 together with all consequential benefits and accordingly place the petitioner in the seniority list. ( 3. ) IN brief the case of petitioner is that he was appointed on the post of Officer in the Kshetriya Gramin Bank (hereinafter referred to as the Bank) on 11. 3. 1983 and his services were confirmed on 30. 3. 1986. According to the petitioner, he was eligible for consideration to the post of Scale-II in the Bank. ( 4. ) IN exercise of the powers conferred under Section 29 of the "regional Rural Banks Act, 1976" (for brevity the Act) read with Section 17 thereof the Central Government after consultation with the National Bank and the Sponsor Bank i. e. Central Bank of India has formulated the Rules, namely, "regional Rural Banks (Appointment and Promotion of Officers and other Employees) Rules, 1998" (in short the Rules" ). The Third Schedule of the said rules, inter alia, provides appointment to different categories of officers and the eligibility and the mode of selection in respect thereof. As regards the Scale II officers, it is specifically provided that the source of appointment shall be 100% by promotion and the criteria for promotion shall be on the basis of seniority-cum-merit. According to the petitioner, it further provides that the officers holding the post for eight years as officer on regular basis in the Bank shall be considered for promotion in Scale-II post in the Bank. The mode of selection as provided under the Rules is to select the suitable candidate by the Committee formed under the Rules on the basis of written test, interview and the assessment of performance appraisal of last 5 years. Under the Rules, it is also provided that the reports for the preceding five years as officer in Scale-I/field Officer shall be considered. Under the Rules, it is also provided that the reports for the preceding five years as officer in Scale-I/field Officer shall be considered. The petitioner has filed the extract of the Rules as Annexure P/1, however, during the course of argument, learned senior counsel appearing for respondent provided the entire booklet of the Rules. ( 5. ) AS per petitioner, the Bank decided to promote Scale-I Officers to the available 17 posts of Scale-II offices and accordingly issued the guidelines in this regard, a copy of which has been placed on record as Annexure P/2. According to the learned Counsel, these guidelines provide in detail the entire procedure that is to be followed in order to promote the officers on 17 posts of Scale-II under the Rules. The criteria for promotion is seniority-cum-merit and shall be as under: Total General category SC/st category marks 1. Written Test 60 The candidate to succeed The candidate to succeed (in two parts in the written test is in the written test is required to secure 40% marks required to secure 35% in each section i. e. 24 marks marks in each section which is 40% of 60 marks. i. e. 21 marks which is 35% of 60 marks 2. Interview 20 Minimum not required Minimum not required 3. Appraisal for 20 Minimum not required Minimum not required the last five years service ( 6. ) IN the present case the petitioner is of general category. On going through annexure P/2 it is revealed that no minimum marks are required in the interview and appraisal and a candidate of general category is required to secure minimum 34 marks in the written test. The remarks which would be given to him in the interview and appraisal would be added in the total. According to the Guidelines (Annexure P/2) the candidates who are declared successful only shall be called for interview. It was mandatory in order to appear in the interview for a candidate to clear and pass the written test. The Bank decided to call candidates in the ratio of 1:4 i. e. for 17 posts. In total 68 candidates/officers were found to be eligible to appear in the written test. The petitioner since he was eligible under the Rules for consideration for promotion to Scale II post appeared in the written test as well as in the interview. The Bank decided to call candidates in the ratio of 1:4 i. e. for 17 posts. In total 68 candidates/officers were found to be eligible to appear in the written test. The petitioner since he was eligible under the Rules for consideration for promotion to Scale II post appeared in the written test as well as in the interview. The petitioner was at serial No. 43 in the seniority list and was accordingly asked to appear in the written test vide letter dated 23. 11. 2001 (Annexure P/3 ). All 68 Scale-I Officers appeared in the written test and out of them only 16 could succeed against 17 vacant posts of Scale-II Officers. The petitioner was found successful in the written test and thereafter vide memo dated 25. 2. 2002 (Annexure P/4) he was asked to appear in the interview which was scheduled to be held on 13. 3. 2002. ( 7. ) THE petitioner submitted appraisal form as annexure P/5. The contention of learned Counsel for the petitioner is that during the year 1998- 99 the petitioner was posted at Diwanganj Branch as Branch Manager where he worked excellently and as regard deposit his Branch was declared as the first Branch in the Bank in Raisen district and accordingly a certificate Annexure P/6 was awarded to the petitioner. Thereafter, the petitioner was posted from 1999 onwards for 9 months at Obedullaganj Branch of the Bank as Assistant Manager. According to the learned Counsel when petitioner joined at Obedullaganj Branch, the said Branch was in loss and because of the efficient efforts made by the petitioner, the Branch became a profit earning Branch. Thereafter the petitioner was transferred to Mandideep Branch as Assistant Manager where he is discharging his duties. On 17. 4. 2000, the petitioner was again awarded with a letter of appreciation issued by the Bank. The minimum deposit target which was fixed by the Bank was exceeded and accordingly the work of petitioner was appreciated by the Bank. In the next year (1999-2000) again a certificate (Annexure P/8) was issued to the petitioner as the Mandideep Branch in which the petitioner was serving as Assistant Manager stood 6th ranking but of 10 Branches. The minimum deposit target which was fixed by the Bank was exceeded and accordingly the work of petitioner was appreciated by the Bank. In the next year (1999-2000) again a certificate (Annexure P/8) was issued to the petitioner as the Mandideep Branch in which the petitioner was serving as Assistant Manager stood 6th ranking but of 10 Branches. According to learned Counsel for the petitioner in this manner the record of past five years service which was to be considered for promotion to promote petitioner on Scale-II post, he was having an excellent service record. ( 8. ) ON these premised submissions it has been vehemently argued by Shri Rajesh Maindiretta, learned Counsel for the petitioner that the Bank has promoted only 13 officers out of 16 officers those who have passed the written test to the Scale II post thereby depriving the petitioner. Vide annexure P/9 dated 23. 3. 2002, 13 officers were promoted excluding the petitioner though 17 posts are available. It has been further submitted by learned Counsel that the selected candidates in the written test were only 16 and they were found eligible to appear in the interview though the posts available were 17 of Scale II officers for which the promotions were required to be made. The contention of learned Counsel is that in the interview and appraisal no minimum marks were required according to the guidelines and since the petitioner obtained more than qualifying marks in the written test he has been denied promotion on the ground that he did not obtain any mark in the appraisal and thus the action of respondent/bank in not promoting the petitioner to the Scale II post is arbitrary and discriminatory. The petitioner also submitted representation Annexure P/10 dated 19. 3. 2002, however, no favourable decision has been taken by the Chairman. Thus, on this ground the petitioner is seeking promotion to the post of Scale -II. ( 9. ) IN the return, it has been submitted by the respondent that the petitioner who is serving on the post of Scale I officer could be promoted to Scale II officer according to Rules of 1998. It has not been disputed that 17 posts of Scale II officers were required to be filled and the procedure of promotion is prescribed under the said Rules. There is a written test comprising of two parts each carrying 30 marks. It has not been disputed that 17 posts of Scale II officers were required to be filled and the procedure of promotion is prescribed under the said Rules. There is a written test comprising of two parts each carrying 30 marks. According to the learned senior counsel for respondent one candidate getting minimum 40% marks in each part will be eligible for interview. 20 marks were allotted for interview, however no minimum qualifying marks were prescribed. 20 marks were allotted on performance appraisal reports of the preceding five years and again no minimum marks were prescribed under the head of appraisal. In this manner there were total 100 marks of written test, interview and performance of appraisal reports. ( 10. ) ACCORDING to the respondent, the Management issued a circular on 23. 1. 2001 before commencing the process of promotion Annexure R/1 which is also filed as annexure P/2 by the petitioner and this circular was sent to all Branches for information to all concerned. This fact is admitted in the return that the promotion was required to be accorded on the basis of seniority-cum-merit. ( 11. ) BY inviting my attention to para 4 of the Return, it has been argued by learned senior counsel that 68 Scale I officers were found eligible for promotion. The written test was scheduled on 20. 12. 2001 and 65 officers in Scale I appeared in the written test out of them only 16 became qualified by obtaining minimum 40% marks according to the rules. All these 16 officers were called for interview including the petitioner. The interview carried 20 marks. Similarly 20 marks were allocated for performance appraisal. There is grading of performance appraisal for the past five years as under: Category Grading Numerical Assessment Excellent a 20 Very Good b 15 Good c 10 Average d 00 11. After assessment was done by the Selection Committee Members, average marks on performance appraisal out of 20 were taken out under this head. ( 12. ) BY inviting my attention to para 6 of the return, it has been submitted by learned senior counsel for the respondent that the petitioner obtained 28 marks in the written test. The minimum marks for qualifying in the written test being 24, he was called for interview. ( 12. ) BY inviting my attention to para 6 of the return, it has been submitted by learned senior counsel for the respondent that the petitioner obtained 28 marks in the written test. The minimum marks for qualifying in the written test being 24, he was called for interview. In the interview he got only 3 marks while in performance appraisal of past 5 years he got zero since he was graded d in all the five years. Thus, he got in all 31 marks whereas the minimum merit fixed was 34 marks and therefore the petitioner was not found fit for promotion as he did not achieve the minimum target. ( 13. ) IN reply to the averments made by the petitioner in para 5. 6 of the petition, where the petitioner has pleaded about his appraisal by filing certificates Annexure P/6 to P/8 it has been submitted by the respondent that these certificates were issued to the Branch and not to the individual. There is collective effort of other staff members including the petitioner. Thus it has been submitted that since the petitioner was not found fit for promotion he was not promoted. ( 14. ) SHRI Rajesh Maindiretta, learned Counsel appearing for he petitioner submits that if any ACR entry takes away the case of an officer out of consideration for promotion and renders him unfit, such an ACR entry must be treated as adverse necessitating its communication and opportunity of representation against the same. Therefore, merely because the petitioner was graded "d" which was not communicated to him cannot be made a pivot not to promote him because those grading were not communicated to the petitioner. Apart from this, it has been argued by learned Counsel for the petitioner that the Committee was not authorized to dissect the head of appraisal and to grade "average" zero marks. By inviting my attention to para 4 of the rejoinder it has been argued that the Management can bifurcate the remarks but the gradation provided in the para 4 of the return as regard to the performance, appraisal is concerned is incorrect. By inviting my attention to para 4 of the rejoinder it has been argued that the Management can bifurcate the remarks but the gradation provided in the para 4 of the return as regard to the performance, appraisal is concerned is incorrect. There cannot be four categories as has been stated in the return, The petitioner filed copy of appraisal form Annexure P/5 and the perusal of the same itself shows that the self-appraisal is categorized into 5 category i. e. excellent, very good, good, average and below average. Below the said categorization the remarks in respect of the said categorization is also provided. As regard the "below Average" the remarks provided are faulty and less and therefore deliberately the respondents has categorized the performance appraisal for the past five years into four category instead of 5. It has been vehemently argued by learned Counsel on the basis of the certificates Annexure P/6 to P/8 that at least there must be some marking of appraisal. ( 15. ) HEARD learned Counsel for the parties. I am of the view that this petition deserves to be allowed. ( 16. ) LEARNED senior counsel for the respondent has also produced the Minutes of the 157th meeting of the Board wherein the matter of recommendation of DPC to promote Officers on Scale II was taken into consideration and the same was accepted. ( 17. ) ON going through the recommendation of the DPC, it is gathered that 16 persons including the present petitioner was called for the interview but they were not found fit for promotion and were failed. On going through the result sheet of the DPC, it is gathered that the petitioner obtained zero mark in the appraisal out of 20. The Board in its 155th meeting which was held on 22. 11. 2001 framed certain norms which are mentioned in it and these norms are not disputed by the respondent. The Board specifically held that in written examination a candidate should obtain at least 24 marks. Undisputedly the petitioner has obtained more than qualifying marks as he obtained 28 marks. The Board further fixed the criteria that the interview shall carry 20 marks and it is not necessary to obtain minimum marks. The Board specifically held that in written examination a candidate should obtain at least 24 marks. Undisputedly the petitioner has obtained more than qualifying marks as he obtained 28 marks. The Board further fixed the criteria that the interview shall carry 20 marks and it is not necessary to obtain minimum marks. Similarly, for the appraisal of last 5 years, 20 marks have been allotted and it has been further directed by the Board that there is no necessity to obtain minimum marks. On going through the record submitted by the respondent during the course of arguments, it is found that the petitioner was given zero mark in the appraisal. On going through the Rules of 1998 (Third Schedule) it is gathered that the promotion is to be accorded on the basis of performance in the written test, interview and performance appraisal reports. For preceding 5 years the division of marks as under: (a) Written test - 60 marks (b) Interview - 20 marks (c) Performance Appraisal Reports - 20 marks For interview it has been specifically mentioned under the Rules that there shall be no minimum qualifying marks. Similarly, performance appraisal reports for the preceding 5 years shall be considered for the purpose of awarding marks for promotion. The petitioner has not been given any marks for performance appraisal reports as he was awarded "d" as it appears from the final result sheets produced by the respondent during the course of argument. 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, Justice D. M. Dharmadhikari as His Lordship then was, specifically held in para 4 that where the 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, "d- Average" under which the petitioner has been graded throughout last 5 preceding years may not be for other reason be constituted as an adverse entry, but, if the same is made pivot not to promote an employee, as per the Division Bench decision of this Court, it should be deemed to be an adverse ACR and it should have been communicated to the employee so that he may represent against the same. It is not the case of respondent that the ACRs of preceding 5 years grading petitioner "d" was ever communicated to him. Therefore, I am of the view that by taking into consideration those ACRs of he petitioner and marking Nil to him so far as. performance appraisal reports of his are concerned, cannot be permitted to be allowed. ( 18. ) ON the basis of the Division Bench decision of Shiva Nand Prasad (supra) the assessment of the DPC is found to be faulty. ( 19. ) ACCORDINGLY, this petition succeeds and is hereby allowed. Respondent is hereby directed to re-consider the case of petitioner for his promotion to the post of Scale II on the basis of what I have decided hereinabove and if the petitioner is found fit, he be promoted with all consequential benefit from the date when other 13 candidates were promoted. Let the decision be taken within 6 months.