JUDGMENT Hrishikesh Roy, J. 1. Heard Mr. S. Deb, learned Senior Counsel appearing for the Appellant. Also heard Mr. K.N. Bhattacharjee, learned Senior Counsel appearing for the Respondent Writ Petitioner. 2. The challenge in the instant appeal is to a Judgment and order dated 09.08.2002 in Civil Rule No. 24 of 1993 where by the learned Single Judge allowed the writ petition filed by the Respondent writ petitioner and directed the Appellant Oil & Natural Gas Corporation Ltd. (ONGC) to consider the case of the Writ Petitioner for up gradation/promotion to Selection Grade Supervisor. 3. The Respondent as Writ Petitioner had filed Civil Rule 24 of 1993 alleging that he has been denied Selection/Up gradation to the Selection Grade Supervisors by the Respondent ONGC on unacceptable grounds and on the basis of such contention, sought a direction for a declaration, declaring the Writ Petitioner to have been upgraded w.e.f. 01.01.1988 on which date the others similarly placed as the Writ Petitioner, have been upgraded. It was averred in the Writ Petition that the Writ Petitioner joined service with the ONGC on 19.10.1964 as a Driver and when he had rendered nearly 22 years of service and working as Supervisor, an one time scheme was introduced by the Respondent ONGC for up gradation of eligible personnel to the Selection Grade of Supervisors. Accordingly, a circular dated 19.05.1996 was issued by the ONGC indicating that the Corporation proposes to consider Supervisors/Operators of Transport discipline who have completed 22 years of service with the ONGC as on 01.01.1986, for up gradation to selection Grade/Supervisor Grade from the existing grade, provided they have completed one year service in the existing grade. It was further indicated that the designation of the selected incumbent will remain unchanged and they will continue to perform the same duties. Accordingly, applications were invited from Supervisors and Operators of Transport Discipline who had completed 22 years of service as on 01.01.1986. It was averred in the Writ Petition that the Petitioner had a consistently good service record and was hopeful of being allowed up gradation on the strength of the aforesaid circular dated 19.05.1986. However, while the Writ Petitioner was denied up gradation, others were recommended for such up gradation w.e.f. 01.01.1988. Being aggrieved, the Writ Petition came to be filed challenging the denial of up gradation to the Writ Petitioner. However, while the Writ Petitioner was denied up gradation, others were recommended for such up gradation w.e.f. 01.01.1988. Being aggrieved, the Writ Petition came to be filed challenging the denial of up gradation to the Writ Petitioner. It was stated in the Writ Petition that ACRs for three years (1983-1986) were considered at the time of consideration of cases for up gradation and because of certain negative entry in the ACR of 1985-1986, the Petitioner was not found suitable for up gradation, and the said negative entry of the ACR of 1985-1986 was not communicated to the Petitioner. The denial of up gradation to the Petitioner on the basis of such un-communicated ACR entry for the 1985-1986 was challenged. 4. The Respondent, ONGC filed counter affidavit wherein it was stated that the Writ Petitioner as on 01.01.1986 had not completed 22 years of service as he had joined service only on 19.10.1964 and accordingly, he does not have a right to claim up gradation as a matter of right. It was indicated in the counter affidavit that the criteria adopted by the DPC was that the employees who had ACRs with their remarks up to 'good' and above would be promoted to the upgraded scale and employees having remark in the ACR below 'good' would not be taken into consideration for up gradation to the next higher scale. It was further averred that the prescribed criterion for upgradation was I) pass in Trade test and II) ACRs for the three years 1983-1986 must be minimum 'good' and above. It was stated that the Petitioner had passed the Trade test but his ACR for period of 1985-1986 was 'Fair' and accordingly the Committee did not recommend his case for up gradation. It was also specifically indicated that none was given the benefit of up gradation to the next higher scale who had either 'Fair' or a 'Poor' recorded in their ACR for the three years in question and only those who had better service record then the Petitioner were upgraded by the ONGC. 5. It was further averred in the counter affidavit that the recording of 'Fair' in the ACR grading is not to be considered as an adverse remark and accordingly, it was not obligatory on the part of the employer to communicate the 'Fair' rating in the ACR of the Writ Petitioner. 6. 5. It was further averred in the counter affidavit that the recording of 'Fair' in the ACR grading is not to be considered as an adverse remark and accordingly, it was not obligatory on the part of the employer to communicate the 'Fair' rating in the ACR of the Writ Petitioner. 6. The learned Single Judge while considering the contentions raised by the Writ Petitioner and the Appellant Respondent referred to the Supreme Court decision reported in [1996] 1 SCR 1118 U.P. Jal Nigam v. Prabhas Chandra Jain and took the view that the making of 'Fair' in the ACR, although may not be an adverse making but it has adverse consequence with regard to the eligibility criteria of the incumbent for the purpose of up gradation/promotion. Since, the bench marks stipulated as 'Good' has been down graded by the reviewing authority to 'Fair', the incumbent was required to be communicated with the said down grading of entry in the ACR and since the same was not communicated, it cannot be acted upon to deprive the Writ Petitioner from his right to be considered for up gradation. By applying the Supreme Court decision in Jal Nigam (supra) and having regard to the bench mark fixed by the ONGC as 'Good' for promotion to the higher selective grade the learned Single Judge held that un-communicated down grading ACR cannot be acted upon by the ONGC unless it is communicated to the incumbent concerned. 7. Being aggrieved by, the learned Single Judge's direction for consideration of the case of the Writ Petitioner, the Present appeal has been filed. Mr. S. Deb, learned Senior Counsel appearing for the Appellant/Respondent submits that the ratio of U.P. Jal Nigam case has been wrongly applied to the facts of the instant case by the learned Single Judge. It is contended that the Supreme Court in U.P. Jal Nigam had indicated that if the graded entry of an incumbent is going a step down like falling from 'Very Good' to 'Good' that may not ordinarily be an adverse entry since both are positive grading. All that is required by the authority recording confidential in the situation is to record reasons for such down grading on the personal file of the officer concerned, and inform him of the change in the form of an advise. All that is required by the authority recording confidential in the situation is to record reasons for such down grading on the personal file of the officer concerned, and inform him of the change in the form of an advise. The apex court interfered in the facts of the U.P. Jal Nigam case as it found that no reason have been recorded for down grading of the ACR of the incumbent concerned and accordingly, the Supreme Court interfered in the matter. However the learned Counsel contends that in the instant case, the down grading of the petitioner's ACR from 'Good' to 'Fair' have been done by the Reviewing Authority by recording appropriate reasoning for such down grading and accordingly, the facts of the U.P. Jal Nigam case could not apply in the instant case and accordingly, the learned Single Judge was not correct in applying the ratio of the said case to give relief to the Writ Petitioner. 8. It is also contended on behalf of the Writ Appellant that when entries in the ACR are not adverse, there may not be any requirement to communicate such non-adverse entry. In case of down gradation from 'Good' to 'Fair as in the instant case, the recorded entry is not an adverse entry and accordingly, there was no need for communicating the same to the incumbent. However, it is submitted that as an advisory even if the said would have been communicated, and the Petitioner could have improved his performance for subsequent years but he could not have got the benefit of up gradation made w.e.f. 01.01.1988 as the improvement, if any, on the performance could have been reflected only in subsequent ACRs. 9. As regards the circular of the ONGC inviting applications from those who have completed 22 years of service as on 01.01.1986, it is submitted that the Writ Petitioner had not completed the requisite service of 22 years as on 01.01.1986 but despite not fulfilling the experience criteria, his case for up gradation was considered by the ONGC authorities and recording of 'Fair' in the ACR for the year 1985-1986 has not resulted in non-consideration of the Writ Petitioner. What is contended is that the case of the Writ Petitioner was considered but he was not found suitable for up gradation. 10. Mr. What is contended is that the case of the Writ Petitioner was considered but he was not found suitable for up gradation. 10. Mr. K.N. Bhattacharjee, learned Senior Counsel representing the Writ Petitioner, on the other hand, contends that all the incumbents who have been considered for up gradation by the Appellant ONGC have not completed 22 years of service as on 01.01.1986 and yet they were upgraded to the Selection Grade 'Supervisor' w.e.f. 1988 and since, the Writ Petitioner has been denied such up gradation, the argument put forward that he had not completed 22 years of service as on 01.01.1986, should not be accepted as a ground for interfering with the impugned order of the learned Single Judge. It is also contended on behalf of the Writ Petitioner that by the time, the up gradation was actually allowed w.e.f. 01.01.1988, the Writ Petitioner had completed 22 years of service and accordingly, he should have been considered to have satisfy the criteria prescribed in the Circular dated 19.05.1986 inviting applications for eligible candidates for consideration of their cases for up gradation. 11. The learned Senior Counsel has further argued that although 'Fair' may not be considered to be an adverse entry requiring communication but as the said entry has led to very adverse consequence against the Writ Petitioner, the said entry of 'Fair' recorded in the ACR, could not have been acted upon without communication, to deny up gradation to the Writ Petitioner. 12. It is seen from the impugned Judgment dated 09.08.2002 that the learned Single Judge has accepted the power and jurisdiction of the authority of the ONGC to prescribe the minimum bench mark in the ACR for the purpose of ascertaining the eligibility for the higher post. The learned Single Judge also found that down grading in the ACR of the Writ Petitioner from 'Good' to 'Fair' has been supported by appropriate reasoning by the Reviewing Authority of the ONGC. But the learned Single Judge found that the ratio in U.P. Jal Nigam (supra) applies to the facts of the present case and accordingly, ordered that since the down grading in respect of the Writ Petitioner has an adverse consequence, the said down graded entry cannot be applied for denying up gradation to the Petitioner and accordingly, directed fresh consideration of his case. 13. 13. Having regard to the reasoning given by the learned Single Judge while allowing the Writ Petition, it would be appropriate to carefully examine the Supreme Court decision in U.P. Jal Nigam. The Supreme Court in that case was examining the case of an incumbent in the Nigam as per the Rules applicable where under an adverse entry is required to be communicated to the employee concerned, but such communication is not required for the down grading of entry. The Supreme Court held that in case of down grading, all that is required is to record reasons for such down grading on the personal file of the officer concerned and inform him of the change in the form of an advise. In the facts of that case, no reason for downward change in the ACR was reflected and accordingly, the Supreme Court supported grant of relief to the incumbent concerned. 14. But in the instant case, what we find is that the learned Single Judge himself has recorded that the down grading of the Writ Petitioner from 'Good' to 'Fair' is supported by recorded reasoning and it is not a case where the down grading has been made without appropriate justification for such recording. 15. Under the circumstances noted above, the reference to the facts in U.P. Jal Nigam case cannot be made the basis for deciding the case in hand in as much as in the present case, the down grading is supported by adequate reasons as is already noticed by the learned Single Judge. Therefore, the direction given by the learned Single Judge by relying upon the U.P. Jal Nigam case appears to be unjustified. 16. Now to deal with the specific contention raised by the learned Counsel on behalf of the Writ Petitioner that others who have not yet completed 22 years of service as on 01.01.1986 has been considered for up gradation by the ONGC authorities, it can be seen here that the Writ Petitioner has been denied up gradation not on the ground he had not completed 22 years of service as on 01.01.1986. In fact, notwithstanding the lack of prescribed 22 years of service as on 01.01.1986, the writ petitioner has been considered for up gradation. In fact, notwithstanding the lack of prescribed 22 years of service as on 01.01.1986, the writ petitioner has been considered for up gradation. But only because of the recording of 'Fair' in the ACR of one of the years in the proceeding three years, the Writ Petitioner has not been recommended for up gradation. 17. The right of the employer to prescribe a Bench Mark for up gradations or promotion is beyond doubt and this view is also accepted by the learned Single Judge in the impugned Judgment. As the authorities in the instant case have prescribed the minimum bench mark of 'Good' for consideration of a case of incumbent for up gradation, and the Writ Petitioner lacks the said Bench Mark qualification, the decision of the authority to deny him up gradation could have been challenged by the Writ Petitioner by challenging the Bench Mark criteria adopted by the ONGC authorities. However, the Writ Petitioner has not challenged the criteria fixed by the ONGC authorities and the Writ Petition was presented to restrain the authorities from acting on un-communicated entry in the ACR of the Writ Petitioner. The ONGC authorities had uniformly followed the Bench Mark prescribed, at the time of consideration of the cases of all the eligible incumbents and accordingly, the said decision based on the uniform criteria followed by the ONGC, is not liable to be interfered with by this Court particularly when no challenge to fixation of Bench Mark has been made. 18. As regards the specific contention made that the Writ Petitioner have attained qualification service of 22 years by 01.01.1988 from which date the up gradation was affected, it is already noticed that the case of the Petitioner, notwithstanding his non-fulfillment of the experience criteria of 22 years was considered by the Respondent authorities while considering cases for up gradation and as such the said contention made on behalf of the Writ Petitioner, could have no bearing on the issue of denial of up gradation as the same has been denied after due consideration, but on the basis of the non-fulfillment of Bench Mark criteria. It may also be noticed that if a Writ Petitioner is aggrieved by up gradation of others, he should have challenged the up gradation of the others by imp leading them as parties but the same was also not done in the instant case. 19. It may also be noticed that if a Writ Petitioner is aggrieved by up gradation of others, he should have challenged the up gradation of the others by imp leading them as parties but the same was also not done in the instant case. 19. It must also be borne in mind that only those who had better service record than the Writ Petitioner have been permitted up gradation under a one time scheme initiated by the ONGC for those with 22 years of service and who have passed the Trade test. The Writ Petitioner had passed the Trade test but was yet to complete 22 years service as on 01.01.1986. But ONGC authorities obviously overlooked the 22 years service requirement for several others including the Writ Petitioner and considered them for up gradation. On such consideration, on assessment of the service records, the Writ Petitioner was not recommended for up gradation whereas others with better service records were upgraded in service. Undoubtedly the service record was the basis for Writ Petitioner being denied up gradation. But the question is whether the entry in ACR of "Fair" was needed to be communicated? There is no dispute in the bar that 'Fair' is not an adverse entry and such entry in the ACR, not being adverse, needn't be communicated. Yet the entry 'Fair' had an adverse consequence for the Writ Petitioner as after comparative evaluation of service records, he was denied up gradation. But such adverse consequences was a natural result of the entry made in the ACR of an incumbent whose service records were found less meritorious as compared to others who too were in field of consideration. Since entries in the ACR are recorded in normal course of a service career, it couldn’t have been conceived at the time of making the entry, that the Writ Petitioner may suffer an adverse consequence by recording of an entry in his ACR, which is not however regarded as an adverse entry. The scheme of up gradation was an one time measure introduced in the ONGC and it couldn't reasonably have been in the contemplation of the Recording and Reviewing authority of the Writ Petitioner's ACR that, recording of "Fair" would entail an adverse consequences against him at a future date. The scheme of up gradation was an one time measure introduced in the ONGC and it couldn't reasonably have been in the contemplation of the Recording and Reviewing authority of the Writ Petitioner's ACR that, recording of "Fair" would entail an adverse consequences against him at a future date. Therefore, it would be difficult to accept in the facts of this case that the entry "Fair" in the ACR should have been communicated and without such communication, couldn't have been relied on, at the time of up gradation consideration. The contrary conclusion reached by the learned Single Judge on the basis of U.P. Jal Nigam (supra), in our view, is erroneous and the same is accordingly held to be unsustainable in law. 20. The down grading of the entry in the ACR of Writ Petitioner has been supported by reasons by the Reviewing Authority and the ratio in U.P. Jal Nigam could not be applied in the instant case. 21. Accordingly, this Writ Appeal is allowed an a Judgment and order dated 09.08.2002 of the learned Single Judge is set aside and the Writ Petition is dismissed. Petition dismissed