Judgment :- A.P. Lavande, J. By this petition, the petitioner has sought the following reliefs: “a) For a writ of certiorari or writ in the nature of certiorari or any other appropriate writ, order or direction calling for the records and proceedings of the case from the respondent No.1 and upon perusing the same to quash and set aside the promotion order dated 9-9-2003 (exhibit E) and 24-3-2006 (exhibit L). b) For a writ of Mandamus or writ in the nature of Mandamus or any other appropriate writ or direction commanding the Respondent No.1 to promote the Petitioner to the post of Assistant Traffic Manager with effect from 9-9-2003 and any rate 24-3-2006 along with all consequential benefits. In the alternate the Petitioner is entitled for a appropriate writ, Order or direction commanding the Respondent No.1 to consider the case of the Petitioner for promotion to the post of Assistant Traffic Manager without taking into account the alleged and any rate uncommunicated adverse remarks.” 2. Briefly, the case of the petitioner is as under: The petitioner was appointed as a Clerk in the Medical Department of respondent No.1 on 18th November, 1971. In 1972, he was promoted as Outdoor Clerk in the Traffic Manager's Office of respondent No.1. On 14th December, 1985, the petitioner was promoted as Telephone Operator in the General Administration Department of respondent No.1. Thereafter, on 29th January, 1987, he was promoted as Import Supervisor and in August, 2001, he was further promoted as Assistant Wharf Superintendent. On 9th June, 2003, he was further promoted to the post of Assistant Yard Superintendent. In the year 2001-2003, three vacancies arose in the post of Assistant Traffic Manager. On 24th June, 2003, the petitioner addressed a representation requesting respondent No.1 not to fill up the post of Assistant Traffic Manager for a period of two months, so as to enable the petitioner to acquire the requisite qualification of graduation, since graduation was an essential qualification for the said post. In August, 2003, the Departmental Promotion Committee (DPC) met for considering the filling up the vacancies that had arisen. In the meantime, on 9th September, 2003, respondent No.3, was promoted to the post of Assistant Traffic Manager, although he was junior to the petitioner. On 8th May, 2004, the petitioner received an intimation that he had passed his B.A. Examination on 9th September, 2003. In the meantime, on 9th September, 2003, respondent No.3, was promoted to the post of Assistant Traffic Manager, although he was junior to the petitioner. On 8th May, 2004, the petitioner received an intimation that he had passed his B.A. Examination on 9th September, 2003. On 13th May, 2004, the petitioner informed respondent No.1 about the same. Thereafter, the petitioner made yet another representation on 15th May, 2004. In June, 2004, the petitioner filed Writ Petition No.299/2004, challenging the promotion of respondent No.3 and seeking directions to consider the candidature of the petitioner for the promotion to the post of Assistant Traffic Manager in accordance with the Recruitment Rules. Subsequently, the said writ petition was withdrawn by the petitioner. On 5th September, 2005, the petitioner was promoted as Wharf Superintendent. Again on 6th March, 2006, the DPC met for filling up the vacancies to the two posts of Assistant Traffic Manager. On 24th March, 2006, respondent No.1 promoted respondent No.2 to the post of Assistant Traffic Manager. In April, 2006, respondent No.1 informed the petitioner that the DPC had considered his case for promotion and the DPC upon considering the adverse entries (though not communicated) in the Confidential Reports of the petitioner, decided that the petitioner was not fit for promotion. Thereafter, the petitioner, made another representation dated 18th April, 2006 to respondent No.1 and since no reply was received to the said representation, filed the present petition on 8th June, 2006. 3. It is the case of the petitioner that the petitioner being senior to respondent No.2 and since respondent No.1 had not communicated the adverse remarks against the petitioner, the same could not have been taken into consideration by the DPC for refusing promotion to the post of Assistant Traffic Manager and consequently, the appointment of respondents No.2 and 3 and more particularly of respondent No.2 in the year 2006 is patently unsustainable inasmuch as in the year 2006, the petitioner was qualified to be appointed as Assistant Traffic Manager, since he had obtained graduation degree in the year 2004 itself. 4. 4. On behalf of respondent No.1, an affidavit-in-reply has been filed and it is the case of respondent No.1 that the petitioner was not eligible to be considered for the post in the year 2003 since the petitioner had not obtained his graduation degree, which was an essential qualification for being promoted to the post of Assistant Traffic Manager and, as such, no fault can be found with the appointment of respondent No.3. In so far as the appointment of respondent No.2 is concerned, it is the case of respondent No.1 that the DPC has considered the adverse remarks against the petitioner, though not communicated, in view of the judgment of the Delhi High Court in the case of All India Institute of Medical Sciences vs. R.K. Upadhyay, 127 (2006) Delhi Law Times 457, in which it has been held that even uncommunicated adverse entries can be taken into consideration while considering the case of a candidate for promotion. 5. Mr. Sonak, learned Counsel appearing for the petitioner submitted that no reliance could have been placed on the uncommunicated adverse remarks against the petitioner for refusing the promotion to the petitioner in March, 2006 inasmuch as the petitioner had the requisite qualification and had even passed the graduation in the year 2004 and was admittedly senior to respondent No.2. Learned Counsel further submitted that the reliance by the DPC on the Judgment of the Delhi High Court is patently unsustainable, in view of the consistent view taken by the Apex Court that uncommunicated adverse remarks cannot be taken into consideration at the time of consideration of a candidate for the promotion. Mr. Sonak submitted that since the post of Assistant Traffic Manager is a selection post, the petitioner ought to have been preferred over respondent No.2 who was junior to him. In support of his submissions, Mr. Sonak has placed reliance upon the following judgments: (1) Gurdial Singh Fijji vs. State of Punjab and ors., (1979) SCC 368; (2) Brij Mohan Singh Chopra vs. State of Punjab, (1987) 2 SCC 188 ; (3) Swatantar Singh vs. State of Haryana and ors., (1997) 4 SCC 14 ; (4) State of Gujarat and another vs. Suryakant Chunilal Shah, (1999) 1 SCC 529 ; (5) State of U.P. and another vs. Lalsa Ram (2001) 3 SCC 389 ; and (6) Dev Dutt vs. Union of India and others (2008) 8 SCC 725 . Mr. Sonak further submitted that the petitioner has retired with effect from 30th April, 2011, so also respondent No.2 has retired with effect from 1st October, 2012 and, as such the relief in favour of the petitioner be moulded inasmuch as in view of the retirement, the relief in the nature of reinstatement cannot be granted. 6. Mr. Nadkarni, learned Counsel appearing for respondent No.1, on the other hand, submitted that the DPC relied upon the judgment of the Delhi High Court in the case of All India Institute of Medical Sciences vs. R.K. Upadhyay (supra), and took into consideration the uncommunicated adverse entries against the petitioner. Mr. Nadkarni fairly submitted that now the law is well settled by a catena of decisions that uncommunicated adverse remarks cannot be taken into consideration. However, Mr. Nadkarni submitted that the petitioner, having retired with effect from 30th April, 2011, would, at the most, be entitled to deemed promotion with effect from the date respondent No.2 was promoted and shall be also entitled to the benefit of refixation of the pension and other retiral benefits. Mr. Nadkarni placed reliance upon a judgment of the Apex Court in the case of Abhijit Ghosh Dastidar vs. Union of India and others (2009) 16 SCC 146 . 7. We have carefully considered the rival submissions, perused the record and the judgments relied upon. 8. Admittedly, the petitioner and respondent No.2 have already retired from the service. In so far as the appointment of respondent No.3 with effect from 9th September, 2003 is concerned, no fault can be found with the action of respondent No.1 inasmuch as on that date, the petitioner was not eligible to be appointed to the post of Assistant Traffic Manager since he had not passed graduation and the same was communicated to the petitioner himself in 2004. Therefore, no fault can be found with the action of respondent No.1 in promoting respondent No.3 with effect from 9th September, 2003. 9. In so far as promotion of respondent No. 2 by respondent No.1 vide order dated 24th March, 2006 is concerned, there is no serious dispute that the uncommunicated adverse remarks against the petitioner were taken into consideration by the DPC. 9. In so far as promotion of respondent No. 2 by respondent No.1 vide order dated 24th March, 2006 is concerned, there is no serious dispute that the uncommunicated adverse remarks against the petitioner were taken into consideration by the DPC. In the case of Gurdial Singh Fijji (supra), the Apex Court has held that in accordance with the rules of natural justice, an adverse report in a confidential roll cannot be acted upon to deny promotional opportunities, unless it is communicated to the person concerned so that he has an opportunity to improve his work and conduct or to explain the circumstances leading to the report. Such an opportunity is not an empty formality, its object, partially, being to enable the superior authorities to decide on a consideration of the explanation offered by the person concerned, whether the adverse report is justified. The Apex Court has reiterated the said ratio in the subsequent judgments relied upon by Mr. Sonak and we do not deem it necessary to refer to all the judgments. 10. In the case of Dev Dutt (supra), the Apex Court has held that even a “good” entry can be taken as adverse in the context of eligibility for promotion and even such an entry must be communicated to the person concerned inasmuch as some other candidate having grading “very good” may be preferred to the one having grading “good”. In the present case, since, admittedly, the petitioner and respondent No.2 have retired, the question of quashing the appointment of respondent No.2 and granting promotion to the petitioner at this stage, does not arise. Mr. Nadkarni is justified in placing reliance on the judgment of the Apex Court in the case of Abhijit Ghosh Dastidar (supra), in which the appellant, who was the Post Master General, was wrongly denied the promotion. The Apex Court, after holding in favour of the appellant who had retired from the service, observed that he was not entitled to any pay or allowances for the period for which he had not worked in the Higher Administrative Grade Group A, but his retrospective promotion shall be considered for the benefit of refixation of his pension and other retiral benefits as per rules. In our view, the ratio of the said case is squarely applicable to the present case. In our view, the ratio of the said case is squarely applicable to the present case. As such, the petitioner is deemed to have been promoted with effect from 24th March, 2006, the date on which respondent No. 2 was wrongly promoted, instead of the petitioner. 11. In view of the above discussion, we dispose of the petition in terms of the following order: ORDER (I) The petitioner shall be deemed to have been promoted to the post of Assistant Traffic Manager with effect from 24th March, 2006 and his pension and other retiral benefits shall be refixed accordingly. (II) Respondent No.1 shall pay to the petitioner all arrears of pension and other retiral benefits, upon refixation, within a period of twelve weeks from today. 12. Rule is made absolute in the aforesaid terms, with no order as to costs.