JUDGMENT S.C. Das, J. 1. By this writ petition, the petitioner challenged the impugned judgment and order dated 30.03.2010, passed by Central Administrative Tribunal, Gauhati Bench, in O.A. No. 38 of 2009, whereby and whereunder the Tribunal dismissed the prayer of the petitioner for promotion to the post of Hindi Officer. The petitioner also challenged letters No. 1.14017/Rec (Adm-IV)/NSR/2008/161 dated 17.12.2008 and No. 1.14017/C/ Rec(Adm-IV)NSR/08/170 dated 30.12.2008(Annexure 9 and Annexure-10 to the writ petition), issued by the respondent No. 2, refusing the prayer of the petitioner for his promotion to the post of Hindi Officer and the petitioner sought the following relief: In the premises aforesaid, the petitioner prays (C) A Writ of Mandamus should not issue directing and/or commanding the respondents to grant the legitimate promotion due to the petitioner to the post of Hindi Officer in the Assam Rifles, from his present post of Hindi Translator Grade-I even since it was due since 1992, in terms of the 'Assam Rifles Hindi Officer and Hindi Translator Grade-I, Recruitment Rules, 2002, notified on 08.05.2002 which statutory rules framed under Article 309 of the Constitution of India still hold, the field and has neither been repealed, amended and/or modified till date, and governs the service conditions of the petitioners, with all consequential benefits including arrear pay, seniority in the cadre and other service benefits as admissible under the Rules of 2002 in force; (D) A Writ of Mandamus should not issue directing and/or commanding the respondents to hold a review D.P.C. for 2003-04 to consider the promotion of the petitioner to the promotional post of Hindi Officer and promote the petitioner with all consequential benefits including back pay, arrears, protection of seniority in the cadre of Hindi Officer. (E) A Writ of Mandamus should not issue directing and/or commanding the respondents to hold DPC to consider the promotion of the petitioner to the post of Hindi Officer with retrospective effect, if necessary, by preparing year wise panel for the recruitment years 2004-05, 2005-06, 2007-08, 2008-09 and further consider the promotion of the petitioner to the post of senior Hindi Officer, for which the petitioner is otherwise eligible and qualified in terms of the extant Rules of 2002 in force. The petitioner, inter alia, stated that he joined the Assam Rifles as LNK/Writer on 30.12.1979, and thereafter, was appointed as Hindi Teacher on 01.06.1985. The petitioner, inter alia, stated that he joined the Assam Rifles as LNK/Writer on 30.12.1979, and thereafter, was appointed as Hindi Teacher on 01.06.1985. He was promoted to the post of Hindi Translator Grade-II w.e.f. 07.07.1988, and thereafter, promoted to the post of Hindi Translator Grade-I on 29.06.1999. The post of Hindi Translator/Hindi Officer is/was a civilian post in the Assam Rifles, and while working as Hindi Translator Grade-I, he was posted as Hindi Officer on deputation, being selected by U.P.S.C. in terms of the Assam Rifles Hindi Officer and Hindi Translator Grade-I(Group-B) Recruitment Rules, 2002 (hereinafter mentioned as Rules of 2002). Though, he was eligible for promotion to the post of Hindi Officer and the post was lying due to be filled up, but since he was not promoted regularly to the post, he filed O.A. No. 154/03 before the Central Administrative Tribunal (for short, CAT), and by judgment and order dated 31.03.2004, the Tribunal directed the respondents to consider the petitioner for promotion by the next Departmental Promotion Committee (for short, DPC). Subsequently, DPC was held for the year 2003-04 but the Committee did not recommend promotion of the petitioner on the ground that the ACRs for the year 2001-02 fell short of the benchmark and no reason was communicated to the petitioner. Subsequently, the petitioner filed O.A. No. 86/06 before the CAT, seeking direction for holding review DPC to consider his case for promotion to the post of Hindi Officer on the ground that the non-communication of downgrading of the ACRs for the years 2000-01 and 2001-02, which formed the basis for denying the promotion. The petitioner stated that the DPC minutes was reflecting that his ACRs for the years 1997-98, 1998-99, 1999-2000 were graded as -Very Good", whereas for the year 2000-01 it was graded as -Good" and 2001-02 as "Average". He claimed that since the downgraded ACR with "Average" remark was considered negative for promotion and that was not communicated to him, being "adverse' remark that should not have been taken into consideration. The Tribunal by judgment and order dated 22.05.2008 disposed the petition with a direction to the respondents to re-examine the matter and to pass appropriate orders 1(2). He claimed that since the downgraded ACR with "Average" remark was considered negative for promotion and that was not communicated to him, being "adverse' remark that should not have been taken into consideration. The Tribunal by judgment and order dated 22.05.2008 disposed the petition with a direction to the respondents to re-examine the matter and to pass appropriate orders 1(2). It is further contended by the petitioner that the Recruitment Rules of 2002 was framed under Article 309 of the Constitution of India, notified on 08.05.2002, and that Rule regulates recruitment, promotion, seniority, etc in respect of Hindi Officer and Hindi Translator and the Rule holding the field as on date. Referring to the judgment of CAT dated 22.05.2008 and the Rules, in force, the petitioner made a representation to Director General of Assam Rifles (for short, DGAR) on 20.04.2004(Annexure-4 to the writ petition) and the DGAR vide his order dated 16.08.2004(Annexure-5 to the writ petition) directed that the petitioner was eligible for promotion to the post of Hindi Officer and that he should be considered for promotion by the next DPC. But, thereafter, no DPC was held from the years 2004-05 to 2009-10 in spite of the fact that holding of DPC at a regular interval was mandatory. 1(3). The petitioner further stated that the Ministry of Home Affairs (for short, MHA), by letter dated 19.09.1989 directed combatisation of ministerial and other civilian posts in Assam Rifles subject to the terms and conditions stated therein that the existing incumbents will be given option to opt for combatisation and those, who will not opt for combatisation, will continue the civilian posts until superannuation. The petitioner did not opt for combatised post and continued in the civilian post and prayed for his promotion to the post of Hindi Officer. Though, DGAR, by order dated 16.08.2004(Annexure-5 to the writ petition), directed promotion of the petitioner but, subsequently, no action was taken pursuant to that order and he made several representations to the authority and DGAR vide Annexure-9 and Annexure-10 to the writ petition i.e. impugned order dated 17.12.2008 and 30.12.2008 refused promotion of the petitioner on the ground that the post of Hindi Officer was combatised and since the petitioner did not opt for combatised post, he was not eligible for promotion. It was further held that under the "Revised Peach Establishment' (for short, RPE) the post of "Hindi Officer' was combatised as "Subedar Major(Hindi Officer)' and in view of such RPE the post of Hindi Officer in civilian side was presumed to have abolished, and therefore, the petitioner was not entitled to get promotion. The petitioner challenged the order before the CAT, Gauhati vide O.A. No. 38/09 and the CAT by impugned judgment dated 30.03.2010 observed that RPE has to be read in conjunction with the Recruitment Rules of 2002 and since the post of Hindi Officer, a civilian post of Assam Rifles, was combatised as "Subedar Major(Hindi Officer), and since the petitioner did not opt for that post, his prayer for direction for promotion was rejected. 2. The respondents by filing a common written statement inter alia stated that the Tribunal rightly dismissed the application of the petitioner since the post of Hindi Officer had already been combatised as Subedar Major (Hindi Officer) and since there was no post of Hindi Officer, lying vacant after combatisation, the petitioner was not entitled for the promotion. It was further stated that the petitioner worked as a Hindi Officer on deputation for three years but he could be considered for promotion to the post by the DPC as he did not fulfill the ACR criteria. It was further stated that combatisation order was passed on 19.09.1989, laying down the condition that incumbents, who do not opt for combatisation, will continue in the civil post until superannuation under the existing condition of service, which will be deemed to continue as personal to them. The post of Hindi Officer, which was equivalent to the post of Subedar Major, in civilian side stands abolished. The petitioner was given opportunity to opt for combatisation but he rendered his unwillingness on 14.01.2006 and after the order of the Tribunal a second chance was given but he did not opt for combatised post, and hence, the petitioner was not eligible to be considered for promotion to the post of Hindi Officer. After RPE the post of Hindi Officer, in civilian side, since was not in existence, the petitioner had no case to claim promotion to the post of Hindi Officer from the post of Hindi Translator Grade-I. 3. We have heard learned counsel, Mr. M. Chanda for the petitioner and learned C.G.C., Mr. S.C. Shyam for the respondents. 4. After RPE the post of Hindi Officer, in civilian side, since was not in existence, the petitioner had no case to claim promotion to the post of Hindi Officer from the post of Hindi Translator Grade-I. 3. We have heard learned counsel, Mr. M. Chanda for the petitioner and learned C.G.C., Mr. S.C. Shyam for the respondents. 4. Points emerged for decision in this writ petition may be summarized thus: (A) Whether combatisation of posts and subsequent issuance of RPE shall prevail over the Recruitment Rules of 2002 and whether the petitioner, while not opted for combatised post, was entitled to get promotion to the post of Hindi Officer? (B) Whether refusal by the DPC to recommend promotion of the petitioner on the basis of downgraded ACR of the year 2001-02 was justified in view of non-communication of such adverse remark in the ACR to the petitioner? DECISION ON POINT NO.(A) 5. It is undisputed rather an admitted fact that the petitioner was promoted to the post of Hindi Translator Grade-I on 29.06.1089 and he was eligible to be promoted to the post of Hindi Officer. Admittedly, the posts were civilian sorts of Assam Rifles. 6. It is also an undisputed fact that the Government of India, vide letter No. A. 27011/44/99-FP.I dated 19.09.1989, communicated to the DGAR for combatisation of the ministerial and other civilian posts in the Assam Rifles and the letter reads thus: A. 27011/44/99-FP.I Government of India Ministry of Home Affairs New Delhi 110001, the 19 Sept, 1989. To, The Director General Assam Rifles, Shillong. Sub:-Combatisation of Ministerial and other civilian post in the Assam Rifles HQrs(headquarters and Units) Sir, I am directed to convey the sanction of the president to the combatisation by conversion of the civilian posts in Assam Rifles (head quarters and Units) under the Assam Rifles Act, 1941 and Assam Rifles Rules, 1985 with immediate effect subject to the following terms and conditions: (a) The equivalence of the ranks and pay scales for the combatised posts shall be as indicated in the Annexure. This is in suppression of the existing orders regarding equivalence for ministerial posts. This is in suppression of the existing orders regarding equivalence for ministerial posts. (b) On combatisation, the incumbents of the posts who opt for such combatisation will be governed by the Assam Rifles Act 1941 and Assam Rifles Rules, 1985 as amended from time to time for all purposes and the posts concerned on the civil side shall be deemed to have been abolished. (c) All future appointments/recruitment against the vacancies in various categories of posts combatised by this sanction shall be in the combatised ranks as per the recruitment rules. 2. The existing incumbents of the posts mentioned in Col.1 in Annexure will be given option to opt for combatisation with a period of 3 months from the date of issue of this sanction. Those who do not opt for combatisation will continue in the civilian posts until superannuation under the existing conditions of service which will be deemed to continue as personal to them. 3. The expenditure involved shall be met from within the budget grant of the Assam Rifles for the years 1989-90 and subsequent years. 4. This issues with the concurrence of the Ministry of Finance, Department of Expenditure vide their U.O. No. 5(33)E.III/89 dated 19.7.89 and the Integrated Finance of this Ministry vide their U.O. No. 2605/89-Fin.III(D-I) dated 1.9.89. Yours faithfully, Sd/- (K S Parthasarathy) Under Secretary to the Govt. of India Dated 19 Sep 89. On combatisaton the Hindi Officer was to be ranked as Subedar Major(Hindi Officer). It is an admitted position that the petitioner never opted for the combatised post. The question, now, whether he was entitled to promotion in the civilian hierarchy of the post. 7. It is also an admitted fact that Recruitment Rules of 2002 (Annexure-3 to the writ petition) was made by the Government of India in exercise of the powers under Article 309 of the Constitution of India and that Rules still hold the field in respect of the appointment, promotion, etc. of Hindi Officer and Hindi Translator. According to that Rules, there were 3 posts of Hindi Officer, out of which 2 were to be filled up by promotion and rest by deputation, failing which by direct recruitment. The post of Hindi Translator Grade-I is the feeder post of Hindi Officer, according to the Rules. It is an undisputed fact that the petitioner was eligible for promotion to the post. The post of Hindi Translator Grade-I is the feeder post of Hindi Officer, according to the Rules. It is an undisputed fact that the petitioner was eligible for promotion to the post. It is also an undisputed rather an admitted fact that in the year 2003-04, DPC was held and the petitioner was topping the list of the candidates, having fulfilling all eligible criteria for promotion and DPC did not recommend promotion with the entry -Not recommended as lacking ACR criteria". Admittedly, the petitioner was having ACR of -Very Good" during the years 1997-98, 1998-99 and 1999-2000 and -Good" during the year 2000-01 and "Average" during the year 2001-02. Since the petitioner was not promoted, he made representation to DGAR (Annexure-4 to the writ petition), and in response to that DGAR passed an order dated 16.08.2004(Annexure-5 to the writ petition). Since Annexure-5 is very relevant for decision, it is reproduced here as under: ORDERS BY LT GEN BHOPINDER SINGH, AVSM, VSM, DIRECTOR GENERAL ASSAM RIFLES IN THE APPLICATON DATED 20 APRIL 2004 SUBMITTED BY SHRI N S RATHORE, HINDI TRANSLATOR GRADE-I 1. Shri NS Rathore, Hindi Translator Grade-I, was temporarily appointed as Hindi Officer on deputation basis for a period of three years with effect from 29 Jun 2000(FN) vide this Directorate Order No A/1-A/25/Part-II dated 29 Jun 2000. At the time of appointment, as Hindi Officer was to be filled up by deputation, failing which by direct recruitment. No provision existed for filling up the said appointment by promotion from feeder cadre at that time. He was reverted back to his original post of Hindi Translator Grade-I, w.e.f 29 Jun 2003(FN) on completion of tenure of deputation. 2. With, the change in the Recruitment Rules w.e.f May 2001, Hindi Translator Grade-I post, became eligible, for filling up from the feeder category. Further, as per said policy 67% of the posts were required to be filled up by promotion. Having been selected through the Union Public Service Commission for filling up the said appointment of Hindi Officer on deputation basis for a tenure of three years; he performed the duties satisfactorily. Since, two posts of Hindi Officers are presently lying vacant, as per the Recruitment Rules in vogue, now, he being the senior most eligible candidate in the feeder grade, his case for promotion to the said post should be considered subject to approval by DPC. Since, two posts of Hindi Officers are presently lying vacant, as per the Recruitment Rules in vogue, now, he being the senior most eligible candidate in the feeder grade, his case for promotion to the said post should be considered subject to approval by DPC. In difference to the order of Hon'ble CAT, Guwahati Bench, his case for promotion must be considered. 3. All the aforestated issues, alleged by Shri NS Rthore have been deliberated upon in detail, in the light of relevant instructions. It transpires that the individual in terms of earlier Recruitment Rules was duly afforded opportunity to fill the post of Hindi Officer on deputation on a term of three years w.e.f 29 Jun 2000(FN) to 28 Jun 2003(AN). The present Recruitment Rules which became effective in May 2001 rendered him ineligible for consideration on two counts; firstly, not having requisite three years regular service as Hindi Translator Grade-I and secondly he being a deputationist (at that time) was not eligible for consideration by promotion. Further, the selection through UPSC was only for filling up the post on deputation and not for the purpose of selection from feeder cadre on promotion, as being made out. The petitioner has been considered for promotion to the post of Hindi Officer by the DPC in his turn, for the year 2003-2004 but not been recommended due to lack of ACR. 4. Notwithstanding the above, I direct that Shri NS Rathore be considered by the next DPC for promotion to the post of Hindi officer. Even thereafter, the petitioner was not promoted, and so, the petitioner made several representations and also approached the CAT. 8. Respondents contended that RPE of Assam Rifles (Annexure-8 to the writ petition) was issued by the Ministry of Home Affairs restructuring the posts of Hindi Officer as Subedar Major (Hindi Officer) and taking into consideration the said RPE of 2003 dated 26.03.2003, DGAR by impugned Annexure-9 and Annexure-10 refused promotion of the petitioner. Annexure-11 to the writ petition shows that Government of India issued clarification regarding uniformity in the entry level of the Stenographers and Ministerial Cadres and held that the uniformity in the entry level should be applicable only to the new entrants, and who are already working will continue to work in the same level and enjoy the same promotional avenues. Annexure-11 to the writ petition shows that Government of India issued clarification regarding uniformity in the entry level of the Stenographers and Ministerial Cadres and held that the uniformity in the entry level should be applicable only to the new entrants, and who are already working will continue to work in the same level and enjoy the same promotional avenues. Annexure-12 to the writ petition, issued by the office of the DGAR on 11.10.2006 further clarified the position thus: PROMOTION OF COMBATANT/CIVILIAN CLERKS (UNIT CADRE) 1. Prior to notification of Rect Rules and approval of RPE, a common seniority roster for combatised ranks of clks and their equivalent civil posts of unit cadre was being maintained and promotions of both the cats i.e. combatant and they were being regulated as per their inter-se-seniority in the present rank. 2. However, Rect Rules-2000 (for combatants) and REct Rules-2001 (for civilians) have been notified by MHA. As per Rect Rules-2000, a vacancy created by wastage or promotion of a combatant clerk can only be filled up by promoting a combatant clerk from the feeder cadre i.e. a Sub(Clk) can only be promoted to Sub Maj(Clk) only against a vacancy created due to wastage of a Sub Maj(Clk) and likewise. Similarly, as per Rect Rules-2001, in vacancy created by wastage or promotion of a civilian clerk can only be filled up by promoting a civilian clerk from the feeder cadre i.e. a Head Assistant can only be promoted to senior Accountant only against a vacancy created due to wastage of a senior Accountant and like-wise. 3. Hence, with a view to regulate promotions of combatant and civ clerks in common seniority criss-cross promotions in the vacancy created by combatants and civilians can not be made by violating the provisions of Rect Rules. Moreover, MHA has also clarified that there is no bar in promotion of the existing incumbent of the non-combatised posts as per available promotional avenues. 4. Hence, in view of Rect Rules and clarification from MHA as well, it is not in order to held up the promotion of any combatant or civilian clerk on the basis of their common seniority, especially when both the cat are being governed by different Rect Rules in which different service terms & conditions and pay scales have been provided. Hence, in view of Rect Rules and clarification from MHA as well, it is not in order to held up the promotion of any combatant or civilian clerk on the basis of their common seniority, especially when both the cat are being governed by different Rect Rules in which different service terms & conditions and pay scales have been provided. Therefore, civilian clerks are being promoted against the vacancies created by civilian clerks likewise the combatant clerks are being promoted against the vacancies created by combatant clerks. Thus, question of supersession in promotion by civilian or combatant clks to each other on the grounds of common seniority does not arise in the prevailing conditions. 5. In view of the above prevailing conditions, promotions in respect of combatant and civ clks of unit cadre are not being regulated as per their inter-se-seniority. 6. The fms/unit/ests are requested to educate all clerical staff accordingly. 7. Please acknowledge. Sd/ (J.S. Gularia) Lt. Col Offg. Col.(Records) For DGAR 9. The petitioner contended that even after issuance of RPE 2003, advertisement was made by Employment News 21-27 July, 2007(Annexure-13 to the writ petition) and promotion was also given in different clerical posts vide orders dated 25.08.2006 and 04.02.2010(Annexure-14 and Annexure-15 to the writ petition). 10. It is an undisputed position that the Recruitment Rules of 2002 in respect of Hindi Officer/Hindi Translator is still holding the filed, and therefore, the petitioner cannot be deprived from his legal right of promotion to the post of Hindi Officer. The Executive Orders issued on 19.09.1989 regarding combatisation or that of the RPE, issued in the year 2003, cannot have any impact on the statutory rules. 11. The Apex Court in the case of K. Kuppusamy & Anr. Vs. State of Tamil Nadu reported in 1998 (8) SCC 469 has held that statutory rules cannot be overridden by executive orders or executive practice. The rules framed under Article 309 shall hold the filed until it is amended and the Government cannot act contrary to such rules. In the case of Union of India & Ors. Vs. V. Ramakrishnan & Ors. reported in 2005 (8) SCC 394 , the Apex Court has held thus: Valid rules made under proviso appended to Article 309 of the Constitution of India operates so long the said rules are not repealed and replaced. In the case of Union of India & Ors. Vs. V. Ramakrishnan & Ors. reported in 2005 (8) SCC 394 , the Apex Court has held thus: Valid rules made under proviso appended to Article 309 of the Constitution of India operates so long the said rules are not repealed and replaced. The draft rules, therefore, could not form the basis of grant of promotion, when principle in Abraham Jacob, Vimal Kumari and Gujrat Kishan Mazdoor Panchayat that draft Rules can be acted upon, will apply where there are no rules governing the matter and where recruitment is governed by departmental instructions or executive orders under Article 162 of the Constitution of India. In the case of Punjab State Warehousing Corpn., Chandigarh vs. Manmohan Singh & Anr. reported in 2007 (9) SCC 337 , the Apex Court has held thus: Furthermore, when the terms and conditions of the services of an employee are governed by the rules made under a statute or the proviso appended to Article 309 of the Constitution of India, laying down the mode and manner in which the recruitment would be given effect to, even no order under Article 162 of the Constitution of India can be made by way of alterations or amendments of the said rules. A 'fortiori if the recruitment rules could not be amended even by issuing a notification under Article 162 of the Constitution of India; the same cannot be done by way of a circular letter. 12. In view of the foregoing discussions and settled position of law, we have no hesitation to arrive at a conclusion that the Tribunal was absolutely wrong in holding that the RPE has to be read in conjunction with the Recruitment Rules. RPE, since an executive order, cannot overrule amend or override the statutory rules and the rules shall prevail until and unless, these are amended or replaced. The petitioner was, therefore, entitled to get promotion as per the provisions of the existing Recruitment rules. DECISION ON POINT NO. (B) 13. Admittedly, the matter of promotion of the petitioner was considered in the DPC of the year 2003-04 but the petitioner, though was fulfilling all criteria for promotion, was not recommended for the reason as already stated earlier. The petitioner was having three -Very Good" and one -Good" ACRs. One ACR was "Average". Considering the ACRs he was not recommended for promotion. The petitioner was having three -Very Good" and one -Good" ACRs. One ACR was "Average". Considering the ACRs he was not recommended for promotion. There is nothing in the Rules of 2002 that an "average" grade shall disqualify a person from promotion. If an "average" grading was considered as a downgraded ACR, it should be termed as an "adverse' remark, and in that case, according to law, such an ACR ought to have been communicated to the person concerned i.e. the petitioner. It may be mentioned here that purpose of an adverse entry is primarily to forewarn the Govt. servant to mend his ways and to improve his performance and that is why this requires to be communicated the adverse entry so that the Govt. servant to whom the adverse entry is given, may have either pray to explain his conduct so as to show that the adverse entry was wholly uncalled for, or the silently brood over the matter and on being convinced that his previous conduct justified such an entry, to improve his performance. It is no more res integra that if downgrading has got effect of adverse consideration in the matter of promotion then the ACR has to be communicated to the person concerned. The Apex Court relying on the ratio of Dev Dutt vs. Union of India reported in (2008) 8 SCC 725 , in the case of Abhijit Ghosh Dastidar vs. Union of India & Ors. reported in (2009) 16 SCC 146 in paragraph 8 has held thus:- Coming to the second aspect, 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 annual confidential report 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 of promotion or getting other benefits. Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution. The same view has been reiterated in the above referred decision (Dev Dutt case, SCC p.738, para 41) relied on by the appellant. Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution. The same view has been reiterated in the above referred decision (Dev Dutt case, SCC p.738, para 41) relied on by the appellant. Therefore, the entries "good" if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him. 14. In the case in hand, the petitioner was fulfilling all eligibility criteria for promotion to the post of Hindi Officer. It appears, for one "Average" grading his promotion was not recommended though there was nothing in the Rules to that effect. It seems to be most arbitrary and unethical and contrary to the settled position of law. The DGAR vide Annexure-5 considered the issue in the right direction and directed for holding the review DPC and for promotion of the petitioner but review DPC was not held thereafter. Since the "average" entry was considered as "adverse' and since that entry was not communicated to the petitioner, it should not have been taken into consideration by the DPC and DPC ought to recommend this promotion based on the rest four ACRs. The judgment and order of the Tribunal dated 30.03.2010 in O.A. No. 38 of 2009 was wholly unjustified, and therefore, is liable to be set aside. The impugned letter dated 17.12.2008(Annexure-9) and letter dated 30.12.2008(Annexure-10) are also accordingly found illegal, unjustified and irrational, and liable to be set aside. 15. Accordingly, the judgment and order dated 30.03.2010, passed by CAT, Gauhati Bench in O.A. No. 38 of 2009 and impugned order dated 17.12.2008(Annexure-9) and order dated 30.12.2008(Annexure-10) are set aside and quashed. The respondents are directed to hold review DPC as per the existing Rules of 2002 within 45 days from today and to consider the promotion of the petitioner to the post of Hindi Officer with retrospective effect from the date the promotion was due to him with all other benefits thereof. 16. The writ petition is allowed to the extent as indicated hereinabove. However, in the facts and circumstances of the case, there will be no order as to costs. A copy of this judgment be sent to the respondents for compliance. Petition allowed