JUDGMENT The Hon'ble Mr Justice S.C. Das 1. Heard Mr H.R. Nath, the learned counsel for the Petitioner and Mr K Khan, the learned State counsel appearing for the State Respondents. 2. The Respondents did not submit any affidavit-in-opposition. 3. The Petitioner joined Public Health Engineering Department, Govt. of Meghalaya in the year 1981. In the year 1995, the Petitioner was in the zone of consideration for promotion to the post of Executive Engineer and the Departmental Promotion Committee ("in short DPC") did not consider his promotion for some adverse entry in the ACR of the years 1993 and 1994. On same grounds his promotion was denied in the years 1996 and 1998. He knocked the door of the superior authority for consideration of his promotion and for expunging the adverse remarks in the ACR of the years 1993 and 1994, but could not avail any positive response. Ultimately, he filed a Writ Petition (C) No. 229 (SH) 2004 and the writ petition was disposed of by an order dated 02.09.2009 and for ready reference, I would like to reproduce herein the observations and directions in the judgment and Order in Paragraphs 16, 17, 18, 19 & 20 which run thus: 16. It has been held by the Supreme Court that the right to be considered for promotion is a Fundamental Right and since the Petitioner was not considered for promotion in the year 1996 and was not recommended for promotion in 1995 and 1998 on the basis of adverse entries which could not have been taken into account, the impugned exercises leading to denial of promotion to the writ Petitioner and promotions of his juniors in the year 1995, 1996 and 1998 are found to be unjustified in law. 17. Having reached the above conclusion, the Court has to now consider the appropriate order that should be passed in the instant case. Since the promotion to the juniors were given as far back as in the years 1995 to 1998, obviously it would not be right to disturb the said promotion at this stage since it is submitted that some of the promotees have been given further promotion to the higher cadre of Superintendent Engineer. But the injustice done to the Petitioner himself has to be corrected. 18. But the injustice done to the Petitioner himself has to be corrected. 18. Therefore, I consider it appropriate to direct the Respondent authorities to first consider the reply dated 02.08.1995 given by the Petitioner with regard to the adverse entries recorded in his ACRs for the years 1993 and 1994. The competent authority would thereafter pass an appropriate order with regard to the said adverse entries, taking note of the Petitioner's explanation and also his contention that the said entries were recorded by the Reporting Officer without any objective consideration, at the behest of the then Chief Engineer of the Department. 19. Once the adverse entry issued is resolved by appropriate consideration, the Respondents would constitute a review DPC as on June 1995 to consider the Petitioner for promotion. If the Petitioner is not recommended for the year 1995, his case should again be considered as on 04.09.96 and 16.6.97, respectively, when the earlier DPC considered promotion given in the year 1996, 1998. In the event of positive recommendation of the DPC the State would take the requisite steps so that the Petitioner is able to get consequential service benefits such as promotion from an earlier date. But having regard to the fact that the Petitioner would not have served in the promoted post for the earlier years, the consequential promotion should be only on notional basis and there should not be any salary benefits for the Petitioner, if he is recommended by the Review DPC for retrospective promotion. 20. The Respondents would take necessary steps to comply with the above order expeditiously and preferably within six months from today. 4. In view of the above directions, the Respondent authorities considered the Petitioner's representation dated 02.08.1995 and expunged adverse remarks in the Petitioner's ACR of the years 1993 and 1994 vide Office Order dated 18.02.2010 (Annexure-VI). 5. The Respondent authorities, consequent to the directions in the judgment and Order of this Court, constituted a Review D.P.C. and on the recommendation of the said Review D.P.C., the Respondent authorities considered the promotion of the writ Petitioner to the post of Executive Engineer w.e.f. 04.02.1997 vide Notification dated 03.06.2010 (Annexure-VII). 6. The contention of the writ Petitioner, now, is that he was supposed to be promoted w.e.f. the year 1995 while his promotion was refused in view of the adverse remarks in the ACR of the years 1993 and 1994. 6. The contention of the writ Petitioner, now, is that he was supposed to be promoted w.e.f. the year 1995 while his promotion was refused in view of the adverse remarks in the ACR of the years 1993 and 1994. Since the adverse remarks were expunged, he was entitled to be promoted w.e.f. the year1995. It is submitted by the Learned Counsel that no reason is assigned by the Respondents in Annexure-VII as to why the Petitioner was not given promotion w.e.f. the year 1995, the year in which he was due to be promoted and that his juniors were promoted. The DPC proceeding has not been produced to justify the stand of the Respondent authorities. It is abundantly clear that the Respondent authorities without any basis refused the promotion of the Petitioner w.e.f. the year 1995 though the adverse remarks in his ACR of the years 1993 and 1994 were expunged. The Learned Counsel referring to Annexure-X,a seniority list published by the Respondents on 26.02.2010 has submitted that, had the Petitioner was promoted in the year 1995 his name would have found place in the cadre of Additional Chief Engineer (PHE) in Sl. No. 5 above the name of Shri Manbha Allya. 7. The Learned Counsel Mr K Khan, appearing for the State Respondents has submitted that the Petitioner has no cause of action to prefer the present writ petition and that the present writ petition is liable to be rejected in view of the fact that it is barred by constructive res judicata. He also submitted that the Petitioner would prefer a review petition or a contempt petition in view of the reliefs claimed by him for noncompliance of the earlier order passed by this Court, and on that ground alone the writ petition is liable to be rejected. The Respondents did not file any affidavit-in-opposition to resist the contentions of the Petitioner. It was the duty of the Respondent authorities to justify their stand as to why the Petitioner was not given promotion w.e.f. the year 1995 though the adverse remarks in his ACR of the years 1993 and 1994 were expunged. The Respondents did not file any affidavit-in-opposition to resist the contentions of the Petitioner. It was the duty of the Respondent authorities to justify their stand as to why the Petitioner was not given promotion w.e.f. the year 1995 though the adverse remarks in his ACR of the years 1993 and 1994 were expunged. In the event of the adverse remarks were expunged and in view of the directions of this Court, the Petitioner was entitled to be considered for promotion w.e.f. the year 1995 and denial of the same has accrued the right of the Petitioner to approach this Court afresh. I find no merit in the submissions of the learned State counsel that the writ petition is barred by constructive res judicata and that the Petitioner has no cause of action in filing the present writ petition. 8. After due consideration of the factual and legal aspects placed before this Court, I find that the Petitioner has got a good case to be considered by this Court and a further direction on the Respondent authorities is called for to give promotion to the Petitioner w.e.f. the year 1995 in view of the expunction of the adverse remarks from his ACR. 9. The Hon'ble Apex Court in the case of U.P. Jal Nigam v. S.C. Atri and Anr reported in (1999) 1 SCC 241 has held thus: 4. On the date on which the Respondent was considered along with other Executive Engineers for promotion to the post of Superintending Engineer, there was an adverse entry for the year 1974-75 in his character roll on account of which he was not promoted although a representation against the adverse entry was pending. This adverse entry was subsequently expunged as his representation was allowed. The effect of the order allowing the expunction of the adverse entry would be that on the date on which he was considered for promotion to the post of Superintending Engineer, there existed no adverse entry in his character roll. Subsequently, it cannot be said that the Respondent was not promoted on account of his unsuitability. That being so, the High Court was justified in ordering that the Respondent on being promoted, though subsequently, shall be entitled to reckon his seniority with effect from the date on which a person junior to him was promoted to the post of Superintending Engineer. That being so, the High Court was justified in ordering that the Respondent on being promoted, though subsequently, shall be entitled to reckon his seniority with effect from the date on which a person junior to him was promoted to the post of Superintending Engineer. We are also informed that the Respondent has since retired from service. We do not, therefore, see any reason to interfere in the matter. The appeal is dismissed. No order as to costs. In the case of Brij Nath Pandey v. State of U.P. and Ors reported in (2001) 9 SCC 398 , the Hon'ble Apex Court in almost a similar case has held that: So far as the adverse remarks of 1993-94 are concerned at the time of the selection in 1995 the said adverse remarks were there on record but they were subsequently deleted on 6-7-1996. Therefore, the Appellant is entitled to a fresh consideration for his promotion in 1995. The Respondents are therefore directed to consider the case of the Appellant afresh with reference to the selection of 1995 when his junior was promoted. 10. In view of the factual and legal positions explained above, the Petitioner is entitled to be promoted to the post of Executive Engineer w.e.f. the year 1995 and also to the consequential promotions thereafter on notional basis without salary benefits. The Respondent authorities are directed to complete the process within a period of six months from the date of this Judgment. The writ petition is accordingly allowed to the extent as indicated above. Petition allowed