ORDER 1. By way of this petition under Article 226 of the Constitution of India, petitioner seeks quashing of impugned Annexure-II circular dated 10-05-2012 as well as the selection of respondents 5 to 49 based on the said circular for promotion from Senior Management Grade Scale IV to Senior Management Grade Scale V in the United Bank of India. Petitioner further seeks issuance of a writ of mandamus to promote him from Senior Management Grade Scale IV to Senior Management Grade Scale V by holding fresh selection. 2. Case of the petitioner is that he had joined the United Bank of India (Bank), a public sector bank as Probationary Officer in December, 1985. He has risen through the ranks and is now serving as Senior Management Grade Scale IV to which grade he was promoted on 24-12-2009. Next promotion due is to Senior Management Grade Scale V i.e. the cadre of Assistant General Manager. 3. As per the revised promotion policy of the Bank vide circular dated 09-02-2012, promotion from Senior Management Grade Scale IV to Scale V is through the merit channel for which applications are invited from the eligible officers to participate in the promotion exercise. Minimum experience required is three years of service in the scale below i.e., in Scale IV, which is relaxable upto a maximum limit of one year by the Board of Directors of the Bank. Overall length of service required is twelve years. It will be mandatory to pass an examination test for computer literacy and computer knowledge. There shall be group discussion to assess the communication, conceptual and leadership capabilities of the candidates for such promotion. For such promotion, the eligible candidates are required to be called for interview in order of seniority, the zone of consideration being in the ratio of 1:3 which may be increased to 1:4 if required number of suitable persons are not available. Annual Performance Appraisal Report (APAR) of last three years would be considered. APAR would carry 50 marks whereas interview including group discussion would be of 50 marks, total 100. 4. Thereafter, the impugned circular dated 10-05-2012 was issued by the Bank. By the said circular, applications were invited from eligible officers for promotion from Senior Management Grade Scale IV to Senior Management Grade Scale V. It was mentioned that there were 43 vacancies in Scale V, subject to change. 4. Thereafter, the impugned circular dated 10-05-2012 was issued by the Bank. By the said circular, applications were invited from eligible officers for promotion from Senior Management Grade Scale IV to Senior Management Grade Scale V. It was mentioned that there were 43 vacancies in Scale V, subject to change. As per eligibility criteria mentioned, an officer in Scale IV should have completed minimum of three years of satisfactory service in that Scale as on 01-04-2012 and he should have completed a minimum of twelve years of service in the Bank. The candidate should have been a branch head for at least three years. It was remarked that the competent authority had allowed relaxation in the minimum satisfactory experience in Scale IV by one year for the said process. Thus, all those officers who had completed minimum two years of satisfactory service as on 01-04-2012 in Scale IV were declared eligible to apply. Moreover, only such candidates were made eligible to participate in the promotion process who had scored minimum 40% marks in computer literacy test organized by the Bank through IBPS on 22-04-2012. As per para 4(i) of the impugned circular dated 10-05-2012, selection for promotion would be on the basis of on the job performance and group discussion and personal interview. Only those candidates would be called for group discussion and personal interview who have scored minimum 60% marks in APAR for each of the two years of service required for eligibility for promotion. Both the segments would carry 50% marks each. 5. Petitioner had applied on 14-05-2012 for consideration of his case for promotion from Senior Management Grade Scale IV to Scale V. Group discussions and interviews were held from 27th May to 29th May, 2012. But petitioner did not receive any call letter to appear in the interview and group discussion. Petitioner thereafter submitted representation before the Bank authority against non-receipt of call letter but he did not receive any reply. 6. According to the petitioner, he could come to know from a reliable source that his case was rejected by the Bank on the ground that he did not secure minimum 60% marks in his APAR for each of the two years of eligible service. 7. 6. According to the petitioner, he could come to know from a reliable source that his case was rejected by the Bank on the ground that he did not secure minimum 60% marks in his APAR for each of the two years of eligible service. 7. Following the interview held, respondents 5 to 49 were recommended for promotion to Scale V pursuant to which they have been promoted to Senior Management Grade Scale V. The promotees include many who were junior to the petitioner in Scale IV. 8. Aggrieved, petitioner has filed the present writ petition seeking the reliefs as indicated above. 9. Contention of the petitioner is that impugned circular dated 10-05-2012 had deviated from the revised promotion policy to the prejudice of the eligible candidates like the petitioner. New eligibility requirements were introduced which adversely affected the eligible candidates including the petitioner. Zone of consideration was reduced and was not as per the prescribed ratio which led to exclusion of the petitioner. APARs of the petitioner for the relevant years were never communicated to him though his candidature was rejected on the ground that he did not secure minimum 60% marks in the relevant APARs. 10. Case was admitted for hearing on 20-07-2012. 11. On receipt of notice, respondents 1, 2 and 3 i.e. the Bank and its authorities have filed a common affidavit. Stand taken in the affidavit is that Government of India, Ministry of Finance had issued a letter dated 03-05-2012 addressed to all public sector banks with regard to promotion policy. It was stated that as a one time measure, for promotion for the year 2012-2013, the requirement of securing minimum 75% marks in APAR for each year under consideration would be reduced to 60% in respect of promotion to those scales where passing of examination conducted by IBPS on computer literacy is mandatory. Board of Directors of the Bank had adopted the above as part of its promotion policy on 05-05-2012 which is reflected in the impugned circular dated 10-05-2012. It is stated that petitioner did not meet the eligibility criteria of securing minimum 60% marks in APAR for each of the two years under consideration and therefore he was not called for group discussion and interview. Impugned circular dated 10-05-2012 was issued in compliance of Government of India’s instructions dated 03-05-2012. It is stated that petitioner did not meet the eligibility criteria of securing minimum 60% marks in APAR for each of the two years under consideration and therefore he was not called for group discussion and interview. Impugned circular dated 10-05-2012 was issued in compliance of Government of India’s instructions dated 03-05-2012. In terms of the promotion policy of the Bank, as the petitioner’s APAR marks were not below average, which is 40, there was no necessity to communicate his APAR to the petitioner. As per the promotion policy, if over all assessment of an officer is found to be inadequate or below average, the officer concerned is offered counseling. It is not obligatory on the part of the Bank to communicate remarks in APAR to the petitioner as the marks secured by the petitioner on the basis of gradings in his APAR were above 40% i.e. not below average though he was not eligible for promotion having secured less than 60% marks based on his APAR. Clauses 7.9 and 8.1 of chapter VII of the promotion policy provides that such policy would be subject to modifications / amendments from time to time depending upon instructions of the Government of India. As per instruction of the Government of India dated 03-05-2012, zone of consideration for promotion should ordinarily be three times the number of anticipated vacancies; however, in case the required number of officers are not available, the zone of consideration should be atleast two times the number of likely / projected vacancies. Applying the eligibility criteria of 60% marks in APAR, it was found that only 112 officers had fulfilled the eligibility criteria for promotion from Scale IV to Scale V. Thus, participation in the promotion process was restricted to those who had secured minimum 60% marks based on APAR for each year, having passed the computer literacy test conducted by IBPS, which was more than twice the number of vacancies. 12. Other respondents, though served, have not filed affidavit. 13. Petitioner has filed reply affidavit to the counter affidavit filed by the Bank to which the Bank has also filed an affidavit. A further affidavit has been filed by the petitioner as well. 14. Heard Mr. S. Dutta, learned Counsel for the petitioner and Mr. M. Dutta, learned Counsel for the respondent Bank. 15. 13. Petitioner has filed reply affidavit to the counter affidavit filed by the Bank to which the Bank has also filed an affidavit. A further affidavit has been filed by the petitioner as well. 14. Heard Mr. S. Dutta, learned Counsel for the petitioner and Mr. M. Dutta, learned Counsel for the respondent Bank. 15. Learned Counsel for the petitioner has argued that the impugned circular dated 10-05-2012 is illegal in as much as it has deviated from the promotion policy of the Bank in force. It has introduced certain eligibility criteria like having minimum 60% marks on the basis of APAR gradings for the two years under consideration which has adversely affected the petitioner in as much as on the ground of securing less than 60% marks in APAR, case of the petitioner for promotion was not considered. He submits that the 43 vacancies had fallen vacant prior to the circular dated 10-05-2012 (subsequently 2 more vacancies were added). Therefore filling up of the said vacancies would be governed by the promotion policy existing prior to 10-05-2012 and not by the eligibility criteria laid down in the impugned circular. In support of this submission, learned Counsel has placed reliance on a decision of the Apex Court in the Case of Y.V. Rangaiah and other vs. J. Sreenivasa Rao and other reported in (1983) 3 SCC 284 . He further submits that the Delhi High Court has quashed the impugned circular in WP (C) No. 2888 of 2012 (Rajinder Kumar vs. Punjab National Bank and another) decided on 08-01-2013. However, learned Counsel for the petitioner makes an alternative argument that in case the Court is not inclined to strike down the impugned circular, petitioner would still be entitled to re-consideration of his case for promotion in view of the admitted factual position. It has been admitted by the Bank that petitioner’s APAR for the two years under consideration were not communicated to him. Such un-communicated remarks were acted upon which led to exclusion of the petitioner from consideration. He submits that this is against the law declared by the Supreme Court in Dev Dutt vs. Union of India reported in (2008) 8 SCC 725 which has been affirmed in subsequent decisions of the Supreme Court. 16. On the other hand, Mr. Such un-communicated remarks were acted upon which led to exclusion of the petitioner from consideration. He submits that this is against the law declared by the Supreme Court in Dev Dutt vs. Union of India reported in (2008) 8 SCC 725 which has been affirmed in subsequent decisions of the Supreme Court. 16. On the other hand, Mr. M. Dutta, learned Counsel appearing for the Bank submits that the impugned circular dated 10-05-2012 does not suffer from any infirmity to warrant judicial interference in exercise of the power of judicial review under article 226 of the Constitution of India. Bank is within its authority to prescribe minimum eligibility criteria for officers to be considered for promotion. Impugned circular is in aid of the promotion policy of the Bank and not in derogation thereof. He submits that the impugned circular was challenged before the Nagpur Bench of the Bombay High Court in Writ Petition No. 2844 of 2012 (Bank of Maharashtra Officers Organization and other vs. Union of India and other), which was dismissed. He therefore justifies the eligibility requirement of securing minimum 60% marks based on APAR gradings for each of the two years under consideration. Since petitioner secured less than 60% marks, he was not eligible for consideration and therefore was not called for interview. He also submits that as per the promotion policy, an officer securing less than 40% marks in APAR is required to be communicated the remarks recorded in his APAR and provided counseling. Since petitioner secured more than 40% marks based on his APAR gradings, his APAR remarks were not communicated to him. Thus, the Bank acted in accordance with the promotion policy. No case for interference is made out and writ petition should be dismissed, he submits. 17. Submissions made by learned Counsel for the parties have been considered. 18. Though learned Counsel for the petitioner had argued both the issues i.e. validity of the circular dated 10-05-2012 as well as non-communication of APAR for the years under consideration to the petitioner, Court could discern more emphasis being laid on the second issue, may be because the legal position governing the second issue has been settled by the Hon’ble Supreme Court. As a matter of fact, learned Counsel for the Bank in the course of his argument had to concede the legal position on the second issue based on the law enunciated by the Hon’ble Supreme Court though he vehemently argued on the validity of the impugned circular i.e. the first issue. 19. That being the position, I am of the considered view that it would meet the ends of justice if adjudication of the lis is confined to the second issue or the second ground of attack of the petitioner as a decision rendered on the second issue would be an effective resolution of the dispute. 20. On the second ground/issue, facts are not disputed. Bank had considered APARs of the officers for two years i.e. for the years 2010-11 and 2011-12. Only those officers in Scale IV who had secured 60% marks on the basis of gradings in APAR for each of the two years were considered eligible and were called to participate in the group discussion and to appear in the interview. Since petitioner had secured less than 60% marks in each of the two years, he did not meet the eligibility criteria and consequently he was not called for group discussion and interview. Bank has admitted that remarks in his APAR for the above two years were not communicated to the petitioner because petitioner had secured more than 40% marks in each of the two years and as per promotion policy of the Bank, it is not obligatory on the part of the Bank to communicate the APAR remarks to those officers who secure more than 40% marks. Petitioner has placed on record a communication dated 25-07-2013 issued by the Executive Director of the Bank to the petitioner under the Right to Information Act, 2005 furnishing him the year wise marks secured by the petitioner on the basis of his APARs for the last 10 years. As per the said communication, petitioner has secured 59 marks for the year 2010-11 and 95 marks for the year 2011-2012. 21. As per the said communication, petitioner has secured 59 marks for the year 2010-11 and 95 marks for the year 2011-2012. 21. In Dev Dutt (supra), the Hon’ble Supreme Court after observing that grant of a “good” entry would be of no satisfaction to the incumbent if it infact makes him ineligible for promotion or has an adverse effect on his chances, held that a person getting any of the entries from “poor” to “very good” should be communicated the entry so that he has an opportunity of making a representation praying for its up-gradation and that such a representation should be decided fairly and within a reasonable period by the authority concerned. Authority concerned has been indicated to be an authority higher than the one who gave the entry. Non-communication of entries would be arbitrary and violative of article 14 of the Constitution. Relevant portion of the said judgment is as under:- “36. In the present case, we are developing the principles of natural justice by holding that fairness and transparency in public administration requires that all entries (whether poor, fair, average, good or very good) in the annual confidential report of a public servant, whether in civil, judicial, police or any other State service (except the military), must be communicated to him within a reasonable period so that he can make a representation for its upgradation. This in our opinion is the correct legal position even though there may be no rule/G.O. requiring communication of the entry, or even if there is a rule/G.O. prohibiting it, because the principle of non-arbitrariness in State action as envisaged by Article 14 of the Constitution in our opinion requires such communication. Article 14 will override all rules or government orders. 37. We further hold that when the entry is communicated to him the public servant should have a right to make a representation against the entry to the authority concerned, and the authority concerned must decide the representation in a fair manner and within a reasonable period. We also hold that the representation must be decided by an authority higher than the one who gave the entry, otherwise the likelihood is that the representation will be summarily rejected without adequate consideration as it would be an appeal from Caesar to Caesar. All this would be conducive to fairness and transparency in public administration, and would result in fairness to public servants. All this would be conducive to fairness and transparency in public administration, and would result in fairness to public servants. The State must be a model employer, and must act fairly towards its employees. Only then would good governance be possible.” ******************************* “41. 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 military), certainly has civil consequences because it may affect his chances for promotion or get other benefits (as already discussed above). Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution.” 22. In Abhijit Ghosh Dastidar vs. Union of India and other reported in (2009) 16 SCC 146 , a three judge bench of the Hon’ble Supreme Court referred to the judgment in Dev Dutt and held that when the bench mark to be considered for promotion was “very good” the entry of “good” which was recorded in the ACR of the appellant in that case and was found not communicated to him, should not have been taken into consideration for promotion to the higher grade. 23. Thereafter in Sukhdev Singh vs. Union of India and other reported in (2013) 9 SCC 566 , a three judge bench of the Hon’ble Supreme Court declared that their Lordships were not only in complete agreement with the view in Dev Dutt but also approved the same. After referring to Abhijit Ghosh Dastidar, it was held that every entry in ACR of a public servant should be communicated to him within a reasonable period. It was held as under:- “8. In our opinion, the view taken in Dev Dutt that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for up-gradation of the remarks entered in the ACR. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for up-gradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR – poor, fair, average, good or very good - must be communicated to him/her within a reasonable period.” 24. Thus, Court is of the considered view that the procedure adopted by the Bank in excluding the petitioner from consideration for promotion to Senior Management Grade Scale V is not in conformity with the law laid down by the Apex Court as noticed above. Petitioner was considered ineligible because his APAR grading for one of the two years i.e. 2010-11 was below 60% yet the APAR remarks were not communicated to the petitioner though as per the law declared by the Apex Court all the APARs were required to be communicated to the petitioner. 25. That being the position and having regard to the law laid down by the Apex Court, the following directions are hereby issued:- (1) Entries in the APAR of the petitioner for both the years 2010-11 and 2011-12 be communicated to the petitioner within a period of thirty days from the date of receipt of a certified copy of this order. (2) Petitioner may submit representation before the Bank against such entries within thirty days from the date of receipt of communication of the entries in the two APARs by him. (3) Such representation of the petitioner shall be considered by an authority of the Bank who is placed higher in office than the accepting authority. Consideration of the representation shall be done fairly and objectively with an open mind by the higher authority within a period of two months from the date of receipt of the representation. Decision taken on the representation shall be communicated to the petitioner. (4) Once the above exercise is completed within the period specified and if petitioner attains eligibility, Bank shall hold a review DPC to consider the case of the petitioner for promotion to Senior Management Grade Scale V alongwith the batch of respondent Nos. Decision taken on the representation shall be communicated to the petitioner. (4) Once the above exercise is completed within the period specified and if petitioner attains eligibility, Bank shall hold a review DPC to consider the case of the petitioner for promotion to Senior Management Grade Scale V alongwith the batch of respondent Nos. 5 to 49 within two months of completion of the exercise covered by directions (1) to (3). 26. Writ petition is accordingly allowed to the extent indicated above but without any order as to cost.