JUDGMENT U.B. Saha, J. 1. The Petitioner, a lady medical officer, appointed in the year 1983 in the Executive Grade-1 under the Respondent No. 1, Hindustan Paper Corporation Ltd. ('HPC') who was subsequently promoted to Executive Grade-3, filed the instant writ petition for setting aside the order of promotion of the Respondent No. 4 to the post of Executive Grade-4, who was junior to her in the Executive Grade-3 on merit basis in view of the promotion policy, namely. Career Planning for Supervisors and Executives and Rules for promotions to Senior Supervisors and Executive Posts as approved by the Board of Directors of the Respondent No. 1 and notified by Circular No. 21/92 dated 11.5.1992 framed by the Respondent No. 1 ('Promotion Policy') and also for a direction to the Respondent Nos. 1 to 3 to consider her case for promotion to the post of Executive Grade-4 under the stagnation scheme on personal basis in terms of the provisions of Clause 14 of the aforesaid promotion policy. 2. Heard Mr. S. Dutta, learned Counsel for the Petitioner and Mr. S.N. Sarma, learned senior counsel assisted by Mr. J. Roy, learned Counsel for the Respondent Nos. l to 3. None appears for the Respondent Nos. 4 and 5 even after receipt of notice. 3. Pleaded case of the Petitioner in short is as follows: - The Petitioner was appointed as lady medical officer in the year 1983 in the Executive Grade-1 (E-1 Grade) and subsequently promoted to the post of Sr. Medical Officer, i.e. in the Grade E-3 vide office order dated 1.7.1990 and on satisfactory completion of her probationary period, she was affirmed in the said post of Sr. Medical Officer in Kachar Paper Project. As per the promotion policy, the Petitioner on completion of four years of regular service in Grade-3 Scale is eligible for regular promotion to the next higher grade Executive Grade-4. The Promotion Policy prescribes two modes of promotion, one is on merit and the other is on stagnation in a particular post for a particular period as per Clause 14 of the aforementioned promotion policy wherein it is specifically stated that an Executive is entitled to be considered for promotion in the next higher post if he/she has completed six years of service in the post of Deputy Manager with very good performance and is stagnant therein which will be personal to the executive. Being Senior Medical Officer in Grade-3 is equivalent to Deputy Manager, the Petitioner was eligible to be considered for promotion in the next higher post Grade E-4 way back in 1994 either on merit basis or for stagnation in the same post as she completed four years and six years respectively in the year 1994 as required by promotion policy but she could not be promoted due to non-availability of vacancy. It is also contended by the Petitioner in her petition that though she was selected for the E-4 Grade in the year 2004 on merit basis but none was promoted in that year. Subsequently, in the year 2005 the name of the Petitioner was again considered by the appropriate Departmental Promotion Committee CDPC) for promotion along with others, but denying her rights the Respondent No. 4 was promoted against the only available vacant post. More so, though she was eligible for promotion under the stagnation scheme to the next higher grade but she was not considered for promotion under the said scheme. Being aggrieved, the Petitioner filed the present writ petition for invoking the writ jurisdiction of this Court. 4. The Respondent Nos. 1 to 3 by way of filing affidavit in opposition denied the allegations made by the Petitioner and contended that the regular promotion on merit or promotion by way of stagnation is regulated on the basis of the prescribed parameter contained in the Promotion Policy and Rules of the Respondent HPC and the case of the Petitioner was considered and recommended for inclusion in the Select Panel by the DPC in the year 2004 but she could not be promoted as in the said year there was no functional need and her case for stagnation promotion was not considered as she constantly failed to achieve the requisite criteria as prescribed in the Promotion Policy and Rules and also failed to obtain the required parameters in her confidential report. It is also contended that as the Petitioner failed to cope up with the prescribed parameters as required under the provisions of Promotion Policy and Rules, the Petitioner could not be promoted. 5. In response to the affidavit in opposition filed by the Respondent Nos. It is also contended that as the Petitioner failed to cope up with the prescribed parameters as required under the provisions of Promotion Policy and Rules, the Petitioner could not be promoted. 5. In response to the affidavit in opposition filed by the Respondent Nos. 1 to 3, the Petitioner has filed one additional affidavit wherein she stated that though the authority considered the parameters as required under the promotion policy but they did not communicate the rating of adverse Benchmark to her and due to non-communication of the adverse entries she was deprived of her right to file representation to the authority concerned for up gradation of such adverse Benchmark. 6. The Respondent HPC in response to the said additional affidavit filed another affidavit contending that the DPC in its meeting dated 26th June, 2004 considered the case of the Petitioner and she was placed at Sl. No. 2 in order of merit and the DPC also considered stagnation promotion only to those who are at E-3 Grade and who could not get promotion in the last ten years or more due to vacancy constraints or qualification bar and who have eight "very good" performance ratings with last three being "very good". However, as the writ Petitioner could not be considered for even stagnation promotion as she could not qualify the grading as set forth in Clause 14(b)(i) of the (Amended) Promotion Policy. 7. Mr. Dutta while supporting the case of the Petitioner would contend that promotion is not the right of an employee but obviously an employee has the right to be considered for promotion subject to his fulfillment of eligibility criteria and in the instant case the Petitioner was eligible to be considered for promotion to the next higher grade in the year 1994 but due to non-availability of vacancy the authority could not consider her case. In the year 2004 admittedly she was selected and her name was shown in the select list at Sl. No. 2 but the authority did not promote anybody in that year, on flimsy grounds that there was no functional need for promotion. In the year 2004 admittedly she was selected and her name was shown in the select list at Sl. No. 2 but the authority did not promote anybody in that year, on flimsy grounds that there was no functional need for promotion. In the year 2005, along with Respondent No. 4 the Petitioner's case was considered but she was not given promotion on the ground that her position in the select list was below the Respondent No. 4 and stagnation promotion was not considered for not reaching of requisite parameter as laid down in the promotion policy. He also urges that the adverse entries in the ACR of the Petitioner were never communicated to her. It appears from the additional affidavit of the Respondent HPC that the Petitioner acquired the benchmark "very good" in the year 1999-2000 and was provided with the benchmark "good" continuously from 2001 to 2004 and the benchmark of these four years is nothing but a down grading of the earlier benchmark which is adverse in the nature and affected the interest of the Petitioner and which was also not communicated to her in time and as a result she was deprived from submitting any representation to the authority concerned for upgrading the rating in the ACR and also develop herself to avail chances of promotion in the subsequent years. According to Mr. Dutta, ratings in the ACR, benchmark 'good' may not be adverse so far as the Respondent HPC is concerned but so far as the Petitioner is concerned obviously the same is adverse as that affects the career advancement of the Petitioner, particularly, the promotional avenue and non-communication of those adverse entries in the ACR is not only unfair on the part of the Respondents but also unreasonable and arbitrary and hits the principle of natural justice as well as violates the provisions of Article 14 of the Constitution. 8. He further contended that every employee has the right to know regarding the entries in their AC Rs and the authority is bound to communicate the same whether it is 'satisfactory', 'average', 'good' or 'very good' and unless those entries are communicated to the concerned employee, the employee would not be in a position to develop himself for the required rating in the ACR in the subsequent year. The object of rating the confidential report and making entries in them is to give an opportunity to an employee improve his performance. In support of his aforesaid contention he relied on a decision of the Apex Court in the case of Dev Dutt v. Union of India and Ors., (2008) 8 SCC 725 wherein the Apex Court also took note of the case of U.P Jal Nigam v. Prabhat Chandra Jain, (1996) 2 SCC 363 and observed that every entry in the ACR of a public servant must be communicated to him within a reasonable period, whether it is a poor, fair, average, good or very good entry and for non-communication of such an entry may adversely affect the employee in two ways: (1) had the entry been communicated to him he would know about the assessment of his work and conduct by his superiors, which would enable him to improve his work in future; (2) he would have an opportunity of making a representation against the entry if he feels it is unjustified, and pray for its upgradation. The Apex Court also took note of the case of Menaka Gandhi v. Union of India, (1978) 1 SCC 248 for holding that non-communication of an entry in the confidential report is arbitrary as arbitrariness violates Article 14 of the Constitution. 9. He also placed reliance on the decision of the Apex Court in Abhijit Ghosh Dastidar v. Union of India and Ors., SLP (Civil) No(s).265561 2004 wherein the Apex Court while approving its earlier decision in Dev Dutt (supra) noted, inter alia, that "though the benchmark "very good" is required for being considered for promotion admittedly the entry of "good" was not communicated to the Appellant. The entry of "good" should have been communicated to him as he was having "very good" in the previous year. In those circumstances, in our opinion, non-communication of entries in the ACR of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances for promotion or get other benefits. Hence, such non-communication would be arbitrary and as such violative of Article14 of the Constitution". 10. Hence, such non-communication would be arbitrary and as such violative of Article14 of the Constitution". 10. He again contended that it is evident from the appraisal report placed by the Respondent HPC before this Court in view of the direction of this Court, that the authority obtained the signature of the apraisee-Petitioner before the preparation of the report by the Reporting Officer as well as agreed on the report by the Reviewing Officer, particularly in the year 2002-03. Not only that, it cannot be ruled out that the authority might have obtained the signature of the Petitioner prior to preparation of the performance report by the reporting officer. 11. He also placed reliance on the decision of a coordinate Bench of this Court in the case of Sapan Kr. Dey v. Union of India and Ors. 2008 (2) GUT 535 wherein under the similar circumstances the court directed the Respondent HPC to have a review discussion on the appraisal of 'good' made by the Reporting Officer with regard to the performance of the writ Petitioner of that case. Therefore, it would be proper for this Court to direct the Respondents HPC to have a review discussion on the appraisal of 'good' made by the Reporting Officer with regard to the performance of the writ Petitioner for the year 2000-04 and also allow the Petitioner to file a representation regarding the adverse rating of the benchmark. 12. On the other hand, Mr. S.N. Sarma, learned senior counsel while resisting the contentions of Mr. Dutta would contend that the rating of benchmark 'good' cannot be considered as adverse entries in the ACR and unless the entries in the ACR are adverse it is not necessary on the part of the employer to communicate the same to the employee concerned in view of the decision of the Apex Court in Union of India v. S.K. Goel, (2007) 14 SCC 641 . He further contended that unless an employee fulfills the parameter as laid down in the promotion policy for consideration for promotion to the higher grade, the authority is not bound to consider his case. He again contended that even if a person is selected for promotion to a particular post that does not create any right on his part to be promoted as the authority is the best Judge whether they will fill up an existing vacancy or not. He again contended that even if a person is selected for promotion to a particular post that does not create any right on his part to be promoted as the authority is the best Judge whether they will fill up an existing vacancy or not. In the instant case, the Respondent No. 4, who was given promotion, was selected for the E-4 grade and his position was higher than the Petitioner. Therefore, the Petitioner has no right to ask for quashing the promotion order of Respondent No. 4 who has been selected by a proper selection committee and the selection, which is valid in the eye of law. He finally to contended that the case of U.P. Jal Nigam (supra) has no universal application in view of the decision in Union of India and Anr. v. Major Bahadur Singh, (2006) 1 SCC 368 and according to him the said judgment is still covering the field as that was not either overruled or diluted by the Apex Court in the case of Dev Dutt (supra). He finally contended that it would not be proper on the part of the court to take any adverse view against the Respondent HPC regarding the appraisal reports, as submitted, as the Petitioner appraisee is neither a rustic lady nor was unaware of her own rights, being highly educationally qualified, put her signature on the appraisal reports as recorded by the Reporting Officer, knowing the contentions therein and appraisal itself is a communication. In the instant case, the Petitioner did not make any allegation either against the Reporting Officer or against the Reviewing Officer. 13. Before discussing on the submission of the learned Counsel for the parties it would be proper for this Court to reproduce Clause 8 of the Promotion Policy wherein the system of promotion is discussed. Accordingly, the Clause 8 of the Promotion Policy is reproduced herein under: - 8. PROMOTION SYSTEM (i) All Promotions made in accordance with this Promotion Policy will be from one scale of pay to the next without skipping any scale of pay. For all promotions merit will be the primary consideration with due weightage to seniority, qualification and performance. The promotion will be governed by the norms and other conditions specified in these rules as applicable in each case. For all promotions merit will be the primary consideration with due weightage to seniority, qualification and performance. The promotion will be governed by the norms and other conditions specified in these rules as applicable in each case. (ii) Subject to organizational need and availability of suitable personnel meeting promotion norms specified at para 9 of this policy, not more than 50% of the E-1 posts vacant during the year ending 30th June, will be filled in by promotion from amongst the senior supervisory staff. (iii) Subject to organizational need, ordinarily there will be no vacancy constraint for promotions within Group I, Group III and Group IV for Supervisors and executives fulfilling the prescribed promotion norms specified at para 9 of this policy. However, the assessed manning requirement, and career growth rate will be taken into account by the DPC while recommending promotion in order of merit. (iv) Promotion between the groups, i.e., S-2 to E-1, E-1 to E-2, E-3 to E-4, E-5 to E-6 as well as within the group V, shall be made in accordance with the prescribed promotion norms at para 9 and subject to availability of vacancies and the organizational need to fill up such vacancies. (v) Only those who fulfill the eligibility criteria at Annexure-I and minimum qualification criteria at Annexure-II will be considered for promotion, subject to Rule 21, wherever applicable. (vi) Based on organizational need, the maximum percentage of vacancies to be filled by promotion shall be decided by the Competent Authority from time-to-time. 14. As the Respondent HPC also declared in Clause 14 of the Promotion Policy how to promote an officer who has been stagnant for a long period in a single post without promotion, this Court should also reproduce the aforesaid Clause 14 as that would be more profitable for the court to come to a proper conclusion. Accordingly, the relevant portion of Clause 14 is also reproduced herein under: - 74. MERIT INCREMENT AND STAGNATION (a) Based on merit position and recommendation of DPC if promotion of a Very Good performer, i.e., consistent performance appraisal rating of 180 or more in any Executive Post for 5 years up to the level of Senior Manager, is not possible due to Sack of vacancy, the competent authority may consider grant of one merit increment to him to be absorbed against fitment benefit on regular promotion to the next higher post. (b) If the promotion stagnation persists for those professionally qualified with outstanding performance up to 5th year or very good performance up to 6th year in the post of Deputy Manager, the incumbent will be considered by the Departmental Promotion Committee for the next higher post as personal to him. 15. In U.P Jal Nigam (supra) the Apex Court while examining the down gradation of the Respondent of that case to 'satisfactory' only made an observation, inter alia, 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 and did not consider the matter in details whether the rating of benchmark as 'good' can also be treated as an adverse one as the same virtually deprived and eliminated the employee from the race of promotion when there is a benchmark required 'very good' in the entry for promotion. Not only that, when there is no benchmark, an entry down grading the performance of an incumbent may also have an adverse effect upon the incumbent. Mr. Sarma, learned senior counsel very rightly pointed that the case of U.P. Jal Nigam is not of universal application in view of the judgment of Major Bahadur Singh (supra). 16. The Apex Court also in the case of Dev Dutt (supra) noted that in UP. Jal Nigam's case there is only a stray observation. The Apex Court in the case of Bharat Petroleum Corpn. Ltd. v. N.R. Vairamani, (2004) 8 SCC 579 noted that, "Observations of courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context." 17. The concept of principle of natural justice is going to change day by day depending on the circumstances of a particular case. In the instant case, it is the admitted position that the Petitioner was not informed by the authority while appraising her regarding the entry in the confidential report and regarding her right to making a representation against those entries which adversely affect her. In the instant case, it is the admitted position that the Petitioner was not informed by the authority while appraising her regarding the entry in the confidential report and regarding her right to making a representation against those entries which adversely affect her. More so, even in the appraisal report of 2002-03, admittedly the Reporting Officer as well as the Reviewing Officer signed on the said report after appraisal of the employee as the employee-Petitioner signed on the report on 5.3.2003 whereas the Reporting Officer and Reviewing Officer signed on the said report on 11.4.2003 and 16.4.2003 respectively, and it can be presumed that the appraisal report was prepared after signing by the apraisee which is nothing but an unfair practice. 18. In Dev Dutt (supra) the Apex Court does not lay down any law relating to natural justice but discovered the law relating to provisions of Article 14 of the Constitution and extended the scope of natural justice and nowhere the Apex Court said that the law developed by it would be prospective in nature and the order would be only applicable to the case of the Petitioner of that case. Whether a decision of the court will be operated prospectively or retrospectively depends upon what the court said in its order. In absence of any express finding regarding prospective or retrospective effect of the law laid down in a decision, it will always be operated retrospectively. The aforesaid view of this Court get support from the decision of the Apex Court in M.A. Murthy v. State of Karnataka and Ors., (2003) 7 SCC 517wherein the Apex Court relied on L.C. Golak Nath v. State of Punjab, AIR 1967 SC 1643 . In the case of Dev Dutt (supra) the judgment of a Division Bench of this Court was in question and the Apex Court while negating the findings of the Division Bench of this Court explained the applicability of Article 14 of the Constitution, taking note of the case of Menaka Gandhi (supra) and held that no communication of an entry in the ACR of a public servant is arbitrary because it deprives the employee concerned from making representation and praying for its up gradation. According to their Lordships, every entry relating to an employee under the State or an instrumentality of the State, whether in civil, judicial, police or other service (except the military) must be communicated to him, within a reasonable period, and it makes no difference whether there is a benchmark or not. Even if there is no benchmark, non-communication of an entry may adversely affect the employee's chances of promotion (or getting some other benefit), because when comparative merit is being considered for promotion (or some other benefit) a person having a "good" or "average" or "fair" entry certainly has less chances of being selected than a person having a "very good" or "outstanding" entry. Upon perusal of the Dev Dutt (supra) the Apex Court not only fixed the liability on the employer for communication of the entry in the confidential report to the employee concerned, but also held that the employer is bound to provide an opportunity to the employee concerned for making representation to the employer for review/ reconsideration of earlier benchmark or entry for upgradation of the benchmark and for other purposes, meaning thereby the denial of the right to making representation to an employee is also unreasonable and arbitrary and being unreasonableness and arbitrariness violates the Article 14 of the Constitution, the non-communicated entries should not be taken into consideration for the purpose of denying the promotion to an employee who is otherwise eligible to be promoted. 19. It is the settled law that the purpose of the adverse entries in the ACR is primarily to forewarn the employee concerned to prepare and improve himself so that he can attain the desired rating in the ACR in his future performance and the same is required to be communicated to the employee concerned so that he gets an opportunity to explain his conduct so as to show that the adverse entry was wholly uncalled for and/or to silently brood over the matter and on being convicted that his previous conduct justified such an entry, to improve his performance. [See State of Gujarat v. Suryakant Chunilal Shah, (1999) 1 SCC 529 . The aforesaid case of Suryakant Chunilal Shah (supra) has also been considered by the Apex Court in the case of Dev Butt (supra). 20. [See State of Gujarat v. Suryakant Chunilal Shah, (1999) 1 SCC 529 . The aforesaid case of Suryakant Chunilal Shah (supra) has also been considered by the Apex Court in the case of Dev Butt (supra). 20. There is no doubt that unless the required parameters are fulfilled by an employee he is not entitled to be considered for promotion to the higher grade. In the instant case, though it appears from the appraisal report that the appraise employee had been appraised about her benchmark or entry in the confidential report but appraisal itself is not enough. The employer is supposed to inform the employee incumbent regarding her right to representation relating to her adverse entry in the confidential report. 21. In view of the aforesaid position, the law is settled by the Apex court in Dev Dutt (supra) and this Court is unable to accept the contention of Mr. Sarma to the extent that the employer is only supposed to communicate the adverse entry to the employee concerned and the entry "good" being not an adverse entry, the Respondent HPC did not commit any wrong for alleged non-communication of the entries in the report. However, the contention of Mr. Sarma, inter alia that appraisal itself is a communication has some force. But this Court has already stated that mere communication of the entry is not enough. While communicating the entries in the ACRs , it is the duty of the employer to inform the employee concerned that he is entitled to making a representation against the said entry, if he is adversely affected and admittedly in the instant case the employer HPC did not inform the Petitioner-employee regarding his right to representation. At the same time, this Court is unable to accept the contention of Mr. Dutta that appraisal report cannot be considered as communication of the entry as according to this Court, the appraisee employee was aware about the benchmark "good" while she signed the same. The purpose of communication is nothing but to inform the employee about the entries and in the instant case the Petitioner was informed through the appraisal report regarding the entries. 22. The purpose of communication is nothing but to inform the employee about the entries and in the instant case the Petitioner was informed through the appraisal report regarding the entries. 22. In view of the aforesaid position of law as discussed, the instant writ petition is disposed of with a direction to the Respondent HPC to have a review discussion on the appraisal of the entry "good" made by the Reporting Officer and as agreed to by the Reviewing Officer to the performance of the writ Petitioner in the consequent four years from 2000-04 and if after completion of the review discussion the authority finds the Petitioner fit for a benchmark from "good" to "very good" for the aforesaid years then the authority may consider the case of the Petitioner for promotion to the next higher grade in accordance with the provisions contained in the Promotion Policy relating to stagnation. Before review discussion of the appraisal report the authority should give the Petitioner an opportunity to make a representation on the aforesaid appraisal report. The entire exercise should be completed within three months from the date of receipt of the representation of the Petitioner. This Court has also considered the prayer of the Petitioner for setting aside the promotion of the Respondent No. 4. According to this Court, the position of the Respondent No. 4 was above the Petitioner in the select list and as such this Court finds no reason to interfere with the said order of promotion of the Respondent No. 4. 23. With the above observations and directions, the instant writ petition stands disposed of. No order as to costs.