JUDGMENT AND ORDER : Heard Mr. H.S Paonam, learned senior counsel assisted by Mr. A. Arunkumar, learned counsel for the petitioner as well as Mr. H. Debendra, learned GA for the MPSC and Mr. B.R. Sharma, learned counsel for the respondent No. 4. 2. In this writ petition, the petitioner has sought for setting aside the proceedings of the DPC held on 26-2-2013 for promotion to the post of Deputy Secretary, Manipur Public Service Commission (MPSC) and consequential promotion order dated 27-2-2013 by which the respondent No. 4 was promoted as Deputy Secretary and for a direction to hold a Review DPC. 3. It is the case of the petitioner that at the relevant time, the petitioner was serving as an Examination Officer having been appointed to the said post in the year 2008. The next higher promotional post to the post of Examination Officer is Deputy Secretary. As per the relevant Recruitment Rules for the post of Deputy Secretary in the MPSC, the post is to be filled up by promotion from amongst the Law Reference-cum-Research Officer, Under Secretary, Registrar, Examination Officer of the MPSC with 4 (four) years regular service in the respective rank. According to the petitioner, the petitioner who was serving as Examination Officer became eligible for promotion to the post of Deputy Secretary in the year 2012 on completion of 4 (four) years of service on regular basis. 4. The MPSC initiated the process for filling up the vacant post of Deputy Secretary by treating it as a vacancy of 2012-2013, and accordingly, the DPC was held on 29th January, 2013 by considering the case of three eligible candidates including the petitioner and the respondent no. 4. However, the DPC did not make any recommendation on the ground that the ACRs of the 3 (three) officers were found to be incomplete as no place and dates had been mentioned by the Report Officer/Review Officer and the Accepting authority, and as such, the DPC could not judge the suitability of these officers on the basis of the aforesaid ACRs. Later, the DPC was held again on 26th February, 2013 which was on the eve of the end of the term of the Chairman of the MPSC on 28th February, 2013, which according to the petitioner was held post haste merely to favour the respondent no. 4. 5. Later, the DPC was held again on 26th February, 2013 which was on the eve of the end of the term of the Chairman of the MPSC on 28th February, 2013, which according to the petitioner was held post haste merely to favour the respondent no. 4. 5. It is the case of the petitioner that, while holding the second DPC, the concerned DPC by ignoring the available ACRs, resorted to a method of special assessment which is unknown to law, by ignoring rules. On the basis of the Special Assessment made, the respondent No. 4 was recommended for appointment as Deputy Secretary by ignoring the claim of the petitioner, who was more meritorious than the said respondent No. 4. It is the case of the petitioner that, in respect of the relevant 4 years i.e., 2008-2009, 2009-2010, 2010-2011, 2011-2012, the petitioner had been consistently graded outstanding/very good by the concerned authorities. For example, in respect of ACR for the period from 01.04.2011 to 31.03.2012, the petitioner had been graded as “Outstanding” by both the Reporting and Review Officers. But the same was downgraded as “Very Good” by the Accepting authority without assigning any reason and the Accepting authority had put the dates and place as Imphal dated 16-4-2012 in the said ACR. Mr. H.S. Paonam, learned counsel submits that similar is the position in respect of other relevant years where the petitioner had been assessed as “Outstanding” or “Very Good”. But these ACRs of the petitioner were ignored by the DPC which made its own assessment contrary to rules. 6. Mr. H.S Paonam submits that, there is an Office Memorandum (OM) issued by the Government of Manipur on 29.04.1999 which lays down the guidelines and principles to be followed for holding DPC. The aforesaid Office Memorandum provides how the ACRs are to be considered and what procedures are to be adopted by the DPC in the event of non availability of the relevant ACRs. Para 5.2.1 of the aforesaid OM deals with consideration of ACRs and accordingly, the same is reproduced herein below: “5.2.1. Confidential Rolls are the basic input on the basis of which assessment is to be made by each DPC. The evaluation of CRs should be fair, just and non discriminatory. Hence – (a) The DPC should consider ACRs for equal number of years in respect of all officers considered for promotion subject to (c) below. Confidential Rolls are the basic input on the basis of which assessment is to be made by each DPC. The evaluation of CRs should be fair, just and non discriminatory. Hence – (a) The DPC should consider ACRs for equal number of years in respect of all officers considered for promotion subject to (c) below. (b) The DPC should access the suitability of the Officers for promotion on the basis of their service record and with particular reference to the CRs for 5 preceding years (except in cases where R/Rs prescribe lesser qualifying service for promotion). However, in cases where the require qualifying service is more than 5 years, the DPC should see the record with particulars reference to the CRs for the years equal to be required qualifying service (If more than one CRs has been written for a particular year, all the CRs for the relevant year shall be considered together as the CRs for one year) (c) Where one or more CRs have not been written for any reason during the relevant period, the DPC should consider the CRs of the year preceding the period in question and if in any case even those are not available the DPC should take the CRs of the lower grade into account to complete the number of CRs required to be considered as per (b) above. If this is also not possible all the available CRs should be taken into account. (d) Where an Officer is officiating in the next higher grade and has earned CRs in that grade, his CRs in that grade may be considered by the DPC in order to assess his work, conduct and performance, but no extra weightage may be given merely on the ground that he has been officiating in the higher grade. (e) The DPC should not be guided merely by overall grading, if any, that may be recorded in the CRs but should make its own assessment on the basis of the entries in the CRs, because it has been noticed that sometime overall grading in a CRs may be inconsistent with the grading under various parameters or attributes. (e) The DPC should not be guided merely by overall grading, if any, that may be recorded in the CRs but should make its own assessment on the basis of the entries in the CRs, because it has been noticed that sometime overall grading in a CRs may be inconsistent with the grading under various parameters or attributes. (f) If the Reviewing authority or the Accepting authority as the case may be, has overruled the Reporting Officer or the Reviewing authority, as the case may be, the remarks of the latter authority should be taken as the final remarks for the purpose of assessment, provided it is apparent from the relevant entries that the higher authority has come to a different assessments consciously after due application of mind. If the remarks of the Reporting Officer, Reviewing authority and Accepting authority are complementary to each other and one does not have the effect of overruling the other, then the remarks should be read together and final assessment made by the DPC.” 7. Mr. Paonam submits that the aforesaid sub para (c) of Para 5.2.1 of the OM clearly provides that, if one or more CRs have not been written for any reason during the relevant period, the DPC should consider the CRs of the year preceding the period in question and if in any case even those are not available, the DPC should take the CRs of the lower grade into account. If this is also not possible, all the available CRs should be taken into account. In other words, what sub para (c) provides is that on account of non availability of ACRs for a particular period or year, the other available relevant ACRs as mentioned in the said sub-para (c) ought to be considered. Mr. H.S Paonam, learned senior counsel submits that, however, instead of resorting to the aforesaid procedure mentioned in sub-para (c), the DPC rather than calling for the available confidential reports resorted to a process of making special assessment which is unknown in law. He submits that it was not competent for the DPC to make special assessment as such a procedure is not provided under the aforesaid Office Memorandum. He submits that it was not competent for the DPC to make special assessment as such a procedure is not provided under the aforesaid Office Memorandum. Therefore, it has been submitted that since the procedure adopted by the DPC in the meeting held on 27-2-2013 is not in conformity with the Office Memorandum, rather was in violation of the said Office Memorandum, the DPC proceeding is vitiated and is liable to be set aside. 8. Mr. H.S Paonam, learned senior counsel also submits that resorting to a special assessment by the DPC on the ground that the ACRs are incomplete as no place and dates have been mentioned by the Report/Review and Accepting authorities, cannot be accepted as correct. He submits that the ACRs cannot be ignored merely because dates and place were not mentioned by the Officers concerned in view of the fact that the ACRs are supposed to be written within specific time and period. He submits that how ACRs are to be written have been clarified in the Government letter dated 15th April, 1999 in which it laid down the guidelines relating to writing of ACRs. As per the said guidelines, it has been provided that: (i) “The ACRs are required to be initiated by the Reporting Officers concerned and submitted to the Reviewing Officers concerned by 30 April. (ii) The Reviewing/ Accepting Authorities shall ensure that the writing of ACRs is complete within 3 months after the financial year comes to an end i.e., by 30 June. (iii) The Addl. Chief Secretary/Principal Secretaries/Commissioners/Secretaries shall ensure that timely review is conducted and special drive launched, if necessary, to completed the ACRs in time. (iv) In the case of the senior officers such as Addl. Chief Secretary, Principal Secretaries, Commissioners, Secretaries and HODs, the ACRs shall be written in accordance with the procedure prescribed by the Office Memorandum No. 9/3/93-ACR(Pt) dated 23rd December, 1998 issued under the signature of the Chief Secretary.” Mr. Paonam submits that in view of the aforesaid guidelines, as there are provisions for deadlines for recording ACRs by the concerned authorities, in absence of any recording of dates, it will be presumed that the recordings of ACRs were made during the specified time by the concerned authority mentioned in the said guidelines. 9. Mr. Paonam submits that in view of the aforesaid guidelines, as there are provisions for deadlines for recording ACRs by the concerned authorities, in absence of any recording of dates, it will be presumed that the recordings of ACRs were made during the specified time by the concerned authority mentioned in the said guidelines. 9. Mr. H.S Paonam, learned senior counsel further submits that even for making special assessment of the ACRs, the Government had also issued an Office Memorandum on 31-7-2013 which lays down guidelines to be observed for recording special assessment report. He submits that the circumstances under which special assessment report is to be recorded have been mentioned and so also the manner in which it is to be recorded and who will record such special assessment. Mr. Paonam submits that in the present case, these guidelines were not followed by the DPC while making special assessment reports in respect of the candidates. Therefore, on this ground also, the special assessment made by the DPC on 27-2-2013 cannot be sustained. 10. Lastly, Mr. H.S Paonam, learned senior counsel has submitted that the holding of the second DPC is also vitiated by mala fide in as much as DPC was held in post-haste inasmuch as the Chairman of the MPSC was retiring on 28th February, 2013 and DPC conducted its meeting on 27-2-2013 merely to favour the respondent No. 4. Mr. H.S Paonam, learned senior counsel further contends that since the matter relates to recording of ACRs, which would require normally the opinion of the Department of Personnel, the MPSC themselves referred to the Department of Personnel, Government of Manipur for obtaining their opinion about the incomplete ACRs vide letter dated 29-1-2013. In view of the above, MPSC ought to have waited for the opinion of the DP before proceeding further with the DPC. However, instead of doing so, the MPSC without waiting for any opinion from the DP proceeded to hold DPC on 27-2-2013 which clearly indicates that MPSC was bent to hold the DPC before the Chairman of the MPSC retired. Accordingly, Mr. H.S Paonam, learned senior counsel prays that the DPC be set aside and a review DPC be held for promotion to the post of Deputy Secretary in the MPSC. 11. In response, Mr. Accordingly, Mr. H.S Paonam, learned senior counsel prays that the DPC be set aside and a review DPC be held for promotion to the post of Deputy Secretary in the MPSC. 11. In response, Mr. Debendra, learned GA for the MPSC has denied the allegations of the petitioner that the Office Memorandum dated 29-4-1999 had been violated. He submits that the provisions of the said OM was adhered to while holding the second DPC on 27-2- 2013. It has been submitted that para 5.1.2 of the Office Memorandum dated 29-4-1999 itself provides that the DPCs enjoy full discretion to devise their own methods and provisions for objective assessment of the suitability of candidates who are to be considered by them thus, giving wide scope and discretion to the DPC to resort to such appropriate process to assess the suitability of the candidates. In the present case, it has been submitted that the DPC followed the aforesaid process as permissible under para 5.1.2 of the OM and hence, it cannot be said that the DPC was held on 27-2-2013 in violation of the Office Memorandum. Rather, it was held in conformity with the said Office Memorandum. 12. Mr. Debendra, learned GA further submits that recording of dates and place on the ACRs is very important as otherwise it can lead to various manipulations because of which the Government of Manipur issued the Office Memorandum dated 6-7-2011 by which the importance of giving the dates in ACRs have been emphasised and it has been also provided in the said OM that, if the ACRs are not recorded within 31st December of the year to which they pertain, the overall grade shall be treated as only “Good”. In the present case Mr. Debendra, learned GA submits that the DPC had graded the ACRs of the eligible officers as “Very Good” which clarifies that such assessment was made by the DPC intentionally on the basis of records and it is not that the ACRs of the eligible candidates were ignored. In other words, what the DPC did was to make special assessment of the eligible candidates based of the entries already made in the ACRs of the eligible candidates. In other words, what the DPC did was to make special assessment of the eligible candidates based of the entries already made in the ACRs of the eligible candidates. The DPC accordingly assessed all the eligible candidates as “Very Good” and since all the eligible candidates were assessed to be equal in merit, the recommendation for promotion to the post of Deputy Secretary was made on the basis of seniority. Thus, the Respondent no. 4 who was the seniormost was recommended, as the merit was found to be same in respect of all the candidates. Accordingly, it has been denied that there had been any element of mala fide or favouritism while making assessment of the candidates. Mr. Debendra, learned GA also submits that the DPC which was held on 27-2-2013 was merely a continuation of the DPC which was already held on 29-1-2013 for the reasons mentioned above. Therefore, merely because DPC was held on 27-2-2013, two days before the retirement of the Chairman of the MPSC, it cannot be said to be mala fide. Mr. Debendra further submits that, the question of seeking advice of Department of Personnel does not arise as the Department of Personnel was not involved in the DPC proceedings. Merely because the proceeding of the DPC held on 29-1-2013 was furnished to the Department of Personnel, it did not mean that their opinion were sought. 13. In order to substantiate his submissions, Mr. Debendra, learned GA for the MPSC has relied on the decision of the Hon’ble Supreme Court in Anil Katiyar Vs. Union of India reported in (1997) 1 SCC 280 . Relying on this decision, Mr. Debendra, learned GA submits that it is now well settled that Court does not sit in judgment over the selection made by the DPC unless it is vitiated by mala fide or on the ground that it is arbitrary. He submits that in the present case, there is neither any arbitrariness nor any issue of mala fide. He submits that in the said judgment also it has been held by the Supreme Court that assessment made by the DPC about the candidates as to whether the candidate should be graded as “Very Good” or “Outstanding” cannot be also said to be arbitrary as it is within the authority of the DPC concerned to make their own independent assessment. He also relied on the decision of the Hon’ble Supreme Court in Union of India and Anr Vs S.K Goel and Ors reported in (2007) 14 SCC 641 to substantiate his submission that the DPC enjoys full discretion to device its method and procedure for objecting assessment as regards suitability and merit of the candidates and in the present case also the DPC had done the same while assessing suitability of the candidates and accordingly, he submits that no case has been made out for interference by this Court. 14. Mr. B.R. Sharma, learned counsel for the respondent No. 4 submits that the present writ petition has virtually become infrutuous in view of the fact that, the petitioner had been already promoted to the post of Deputy Secretary in December, 2013 and as such, the petitioner cannot have any further grievance. Further, the petitioner also had accepted the promotion without any protest. He further submits that, the allegation of the petitioner that ACRs have been downgraded is not correct inasmuch as there was no such downgradation as the DPC did not accept the incomplete ACRs of the petitioner and the others. Therefore, the DPC resorted to special assessment by grading all the candidates as “Very Good”. He, therefore, submits that there was neither downgradation nor arbitrariness inasmuch as all the candidates were treated the same in terms of merit. The respondent No. 4 was recommended because of his seniority position amongst the eligible candidates who were found to be equal in merit and therefore, the allegation of mala fide is without any basis. Mr. B.R. Sharma, learned counsel for the respondent No. 4 further contends that, even if the proceedings of the DPC is set aside/quashed and review DPC is directed to be held, the result would be the same inasmuch as the petitioner being junior to the respondent No. 4 cannot be promoted earlier to the respondent No. 4, as they are all equal in merit and as such it will be merely futile exercise which ought to be avoided, as no writ can be issued to undertake futile exercise. 15. In reply, Mr. 15. In reply, Mr. H.S Paonam, learned senior counsel has submitted that the para No. 5.1.2 of the OM dated 29.04.1999 which grants full discretion of the DPC to devise its own method and procedure will become applicable only in the event where there is difference in assessment by the Report/Review/Accepting authority as provided under sub clause (f) of para 5.2.1 of the said Office Memorandum. Mr. H.S Paonam, learned senior counsel submits that it has been so clarified by a Division Bench of this Court in WA No. 39 of 2010 (Kshetrimayum Rajendro Singh & Ors. Vs. L. Deben Singh & Ors.) and as such, it has been submitted that para 5.1.2 cannot be invoked in the circumstances obtained in the present case. As regards Office Memorandum dated 6-7-2011 relied on by the counsel for the respondents, it has been submitted by Mr. H.S Paonam that this Office Memorandum will be applicable only when no ACRs is recorded. However, in the present case, ACRs were recorded but dates were not given. Therefore, the said Office Memorandum dated 6-7-2011 is not applicable in the present case. Mr. H.S Paonam further submits that the contention of Mr. Debendra, learned GA for the MPSC that the DPC made the assessments on the basis of entries made in the ACRs is a self defeating argument for if the ACRs were incomplete and could not be relied upon when the DPC held its meeting on 29.01.2013, the question of referring to the entries of ACRs for making special assessment by the DPC on 26.02.2013 does not arise. It has been also submitted that the authorities have not been able to show any rule that if ACRs is not dated, it is to be ignored. Relying on the decision of the Hon’ble Supreme Court in S.B Bhattacharjee Vs S.D Majumdar and Anr, reported in (2007)10 SCC 513 , Mr. H.S Paonam submits that if certain procedures have been laid down by the Government for conducting the DPC, such procedures ought to have been followed at every stage. In the present case, procedures laid down as applicable in the present case is the Office Memorandum dated 29-4-1999 which however, were not followed by the authorities. Provisions regarding special assessment as mentioned sub-para (c) of Para 5.2.1 of the Office Memorandum have not been followed. 16. In the present case, procedures laid down as applicable in the present case is the Office Memorandum dated 29-4-1999 which however, were not followed by the authorities. Provisions regarding special assessment as mentioned sub-para (c) of Para 5.2.1 of the Office Memorandum have not been followed. 16. It has been submitted that any action taken in hot haste is not permissible and it amounts to mala fide act. Thus, relying on the decision of the Hon’ble Supreme Court reported in Union of India Vs. A.K. Narula, (2007)11 SCC 10 , Mr. H.S Paonam has submitted that since the process of assessment has been vitiated on the ground of bias, it needs interference. 17. As we proceed to examine the issues at hand, we may refer to the relevant law in this regard. The Respondents have relied upon two decisions of the Hon’ble Supreme Court, viz., S.K.Goel (supra) and Anil Katiyar (supra). This Court is also of the view that these are the two leading cases relating to the issue at hand, with reference to which the present case may be decided. It was made very clear by the Hon’ble Supreme Court in the aforesaid decisions that ordinarily the Courts of law should not interfere with proceedings of the DPC and assessment made by the DPC of the comparative merit of the eligible officers unless such DPC meetings are conducted illegally or in gross violation of standing government instructions or rules or there is misgrading of confidential reports as observed in S.K.Goel (supra) as follows: “27. In our opinion, the judgment of the Tribunal does not call for any interference inasmuch as it followed the well-settled dictum of service jurisprudence that there will ordinarily be no interference by the courts of law in the proceedings and recommendations of DPC unless such DPC meetings are held illegally or in gross violation of the rules or there is misgrading of confidential reports..............” (emphasis added) 18. In view of the above dictum, apparently there would be hardly any scope for interfering with the proceedings of the DPC and assessment made in the present case. However, before we arrive at any definitive conclusion, we may examine and analyse the facts of the present case as well as the circumstances in which the aforesaid decisions were rendered in S.K.Goel (supra) and Anil Katiyar (supra). However, before we arrive at any definitive conclusion, we may examine and analyse the facts of the present case as well as the circumstances in which the aforesaid decisions were rendered in S.K.Goel (supra) and Anil Katiyar (supra). While proceeding to do so, this Court called for the relevant records including the ACRs of the petitioner and the Respondent no.4 and the proceedings of the DPCs as maintained by the MPSC. As regards the assessment, what this Court has noted is that the 2nd DPC held on 26.2.2013, which is challenged herein, made the assessment in respect of each year and also the overall grading in respect of each candidate as follows. Assessment year Grading 2008-09 2009-10 2010-11 2011-12 Respondent no.4. VG VG VG VG VG Petitioner VG VG VG VG VG In the said proceeding it was also recorded that “The reason for reassessment of the ACRs of the officers is due to inconsistency observed by the DPC held on 29.01.2013. Therefore, the relevant ACRs are downgraded to V.G.” The DPC held on 26.02.2013 accordingly, made the recommendation as follows: “7. For 1 (one) vacant post of Deputy Secretary, Manipur Public Service Commission available in 2012-13 (1-4-2012), the zone of consideration is 5 (five) officers. However, there are only 3 (three) eligible officers. The Committee after examining the Integrity Certificate, ACRs and assessing the overall grading of ACRs of the officers, recommended LALKHOLIEN SINGSON for appointment by promotion to the post of Deputy Secretary in the scale of pay of Rs. 15,600- 39,100/- plus Grade pay of Rs. 6,600/- p.m. (ROP/2010) in the Manipur Public Service Commission.” In view of the above observation and finding, the Court examined the proceedings of the 1st DPC held on 29.01.2013. In the proceeding of the 1st DPC held on 29.01.2013, the findings of DPC was as follows, as also stated in para no. 2 of the affidavit in opposition of the official respondents no.1, 2 and 3: “7. FINDINGS: ACRS of these three officers are found to be incomplete as no place and date has been mentioned by the Reported upon Officer, Reporting/Reviewing Officer and Accepting Authority. These remarks are mandatory while writing/recording/accepting an ACR. Therefore, the DPC cannot judge the suitability of these officers for promotion to the vacant post of Deputy Secretary on this Commission basing on these Reports.” In the affidavit in opposition file by the Respondents no. These remarks are mandatory while writing/recording/accepting an ACR. Therefore, the DPC cannot judge the suitability of these officers for promotion to the vacant post of Deputy Secretary on this Commission basing on these Reports.” In the affidavit in opposition file by the Respondents no. 1, 2 & 3, it has been also mentioned in para no. 3 thereof, that the DPC considered, examined/assessed the merit of the eligible candidates in accordance with the relevant rules, norms and practices and recommended the most suitable officer based on the comparative merit with relevant ACRs and the connected relevant documents. It was reiterated in para no. 4 that the DPC examined all the relevant ACRs which were produced in the earlier DPC held on 29.1.2013 and after making assessment/reassessment as empowered to the DPC, the DPC assessed/reassessed the gradings of the relevant ACRS of all the officers with reasons. It was also mentioned that all the officers under consideration are all subordinate officers to the office of the MPSC where the members of the DPC are also working in the same office. It was also stated that the DPC adopted their own method and procedure for objective assessment of the candidates as empowered under OM dated 29.4.1999. The contention of Sri Debendra, Ld. Counsel appearing for the MPSC was in tune with the aforesaid pleading. 19. From the above, what this Court finds is that the DPC made a reassessment of the ACRs of the candidates. But is it permissible under the law or the OM dated 29.4.1999? What the OM (vide Para no. 5.2.2) and the law contemplates is that the DPC or the Selection Committee is to give an “overall grading” to each of the candidates after making their independent assessment of the ACRs and each candidate is to be graded as (i) Outstanding, (ii) Very Good, (iii) Good, (iv) Average/Fair or (v) Unfit for purpose of examining his merit and suitability and the DPC is not bound to give the same grading as recorded in the ACRs of the candidates. The DPC may make its own independent assessment which may be different from the assessment recorded in the ACR. The DPC may make its own independent assessment which may be different from the assessment recorded in the ACR. For example, in respect of a candidate all the ACRs of the relevant period may record “Outstanding” and hence though normally one might expect that he may be given the overall grading of “Outstanding”, the DPC may for valid reasons give a different overall grading of “Very Good” while assessing his suitability and merit. This difference in the “overall assessment” by the DPC is permissible as provided under para no. 5.2.2. of the OM and the Courts have acknowledged the power of the DPC to do so while making overall assessment of the candidates. Para 5.2.2. of the OM provides as follows: “5.2.2 Grading of Officers: In case of each officer, an overall grading should be given. The grading should be one among (i) Outstanding (ii) Very Good, (iii) Good (iv) Average/Fair and (v) Unfit.” But while enabling the DPC to make its own assessment on the basis of the methodology adopted by it, the DPC cannot make their assessment as if the DPC is recording the ACRs. Recording of ACR is within the exclusive domain of the Reporting/Reviewing or the Accepting Authority and not that of the DPC. The DPC can make its own independent overall assessment on the basis of the contents in existing ACRs but cannot alter the contents and make their own assessment of the ACRs by ignoring the actual contents/recording made in the ACR by the competent authority. For example, if any ACR for any particular year is missing or found to be incomplete or defective for any reason, the DPC cannot make it good by making its own assessment for that missing/incomplete/defective ACR. In such an event, the DPC has to either return the ACR to the competent authority for rectification of the defect/shortcoming or to adopt the procedure as provided under para no. 5.2.1 (c) of the Office Memorandum dated 29.4.1999 as already quoted above or any other permissible procedure or method. It is certainly not within the authority or power to make any assessment in respect of such defective/incomplete or missing ACR by assuming the role of Reporting/Reviewing/Accepting authority. The only option available to the DPC is to resort to the method as provided under para 5.2.1.(c) of the OM as mentioned above in the event the ACRs are not written or missing. The only option available to the DPC is to resort to the method as provided under para 5.2.1.(c) of the OM as mentioned above in the event the ACRs are not written or missing. 20. It is to be remembered that the scope and authority of the DPC to make its own assessment is on the basis of the contents in the valid and existing ACRs. The power of the DPC to devise their own methods and procedures for objective assessment of the suitability of candidates as mentioned in para no. 5.1.2 of the OM, also relied upon by the Respondents, is to make assessment basing on the contents of the valid and existing ACRs and not by substituting their own assessment of invalid or incomplete or non-existent ACRs. If any ACR is found to be defective or incomplete or absent, these should be returned and the DPC be deferred or the DPC could resort to the procedure contemplated under Para no. 5.2.1 (c) of the OM. Any other method, not being provided under the OM to deal with such situation cannot be adopted by invoking para 5.1.2. of the OM as the said provision does not empower the DPC to make good any defective or incomplete or missing ACR on the plea that it has power to devise its own method and procedure. The authority to devise its own method and procedure is related as to how to make their own assessment on the basis of the contents in the valid ACRs. Therefore, if the ACRs of the candidates were found to be incomplete by the 1st DPC on the ground that no date or place were recorded in the ACRs because of which the 1st DPC declined to make its assessment of the ACRs to adjudge the suitability in the proceeding held on 29.1.2013 and deferred the consideration, the 2nd DPC ought to have again returned the same to the competent authority for rectifying the shortcomings, or proceeded by invoking the method provided under para no. 5.2.1(c) of the OM. Since, the DPC did not either return the ACRs for rectification or adopted the method provided under para no. 5.2.1.(c) of the OM, on what basis the 2nd DPC held on 26.2.2013 make their own assessment? 5.2.1(c) of the OM. Since, the DPC did not either return the ACRs for rectification or adopted the method provided under para no. 5.2.1.(c) of the OM, on what basis the 2nd DPC held on 26.2.2013 make their own assessment? The records produced before this Court shows that the same defects in the ACRs as found earlier on 29.1.2013 by the DPC continued to remain. Yet the 2nd DPC held on 26.2.2013 did not say that it made the overall assessment by ignoring these incomplete ACRs and that it relied on the ACRs of other period. What the 2nd DPC did was to make its own assessment in respect of the aforesaid four years, 2008-09, 2009-10, 2010-11 and 2011-12 as if members of the DPC were the Reporting/Reviewing/Accepting authority by grading all the candidates as “Very Good”, which in the words of the DPC by “down grading” to “Very Good” as mentioned in the DPC proceeding. The question, which remains to be answered therefore, is, what was the basis for assessment by way of downgrading as “Very Good” for the aforesaid years? What were the inputs on the basis of which the DPC downgraded/assessed as “Very Good” for the aforesaid period? If the respondents claim, as also stated in their affidavit in opposition, that the reassessments were made on the basis of existing records, did the DPC also take into consideration the incomplete ACRs for the aforesaid period which were not acted upon by the DPC on the ground that these ACRs were not dated and place of recording not mentioned and hence incomplete? Could the DPC take into consideration the contents in these ACRs in the second meeting held on 26.2.2013 which the 1st DPC (consisting of the same members) refused to consider in their first meeting held on 29.1.2013 without any changes in the ACRs? Nothing has been brought to the notice of the Court the documents or the records which were the basis for the 2nd DPC to make their own independent assessment other than the ACRs which were treated to be incomplete and hence not acted upon. Interestingly, the 2nd DPC makes the observation that the DPC made the reassessment because of the inconsistency in the ACRs observed by the DPC held on 29.1.2013. Interestingly, the 2nd DPC makes the observation that the DPC made the reassessment because of the inconsistency in the ACRs observed by the DPC held on 29.1.2013. The MPSC Respondent however, stated in its affidavit in opposition that the DPC examined all the relevant ACRs which were produced in the earlier DPC held on 29.1.2013. 21. In such a situation, this Court would hold that if the 2nd DPC held on 26.2.2013 had considered the same set of ACRs which were produced before the 1st DPC held on 29.1.2013 which the 1st DPC refused to consider on the ground that these were incomplete, the 2nd DPC could not have considered the same set of incomplete ACRs unless the defects in the ACRs were rectified. Such incomplete ACRs were as good as invalid or non-existent ACRs as far as the DPC was concerned as can be inferred from the proceeding in their 1st meeting held on 29.1.2013. If the ACRs were incomplete and hence not valid because of which the 1st DPC consisting of the same members refused to make any assessment, how could the 2nd DPC consisting of the same members turn around and make their own assessment by grading all the candidates as “Very Good” on the basis of the same set of incomplete, hence, invalid or non-existent ACRs? 22. If those ACRs were held to be incomplete and thus, invalid, what prevented the DPC to invoke sub-para no.(c) of para 5.2.1 of the OM as also urged by the petitioner which provides that where any one or more CRs have not written for any reason (which in the opinion of the Court would include incomplete or invalid ACRs), the DPC should consider the CRs of the year preceding the period in question and if in any case even those are not available, the DPC should take the CRs of the lower grade into account to complete the number of CRs required to be considered and if this is also not possible all the available CRs should be taken in to account. However, there is nothing on record to show that such procedure was adopted by the DPC. However, there is nothing on record to show that such procedure was adopted by the DPC. Considering thus, this Court finds merit in the contention of the petitioner relying on the decision in S.B.Bhattacharjee (supra) that if certain procedure had been laid down by the authority to be followed by the DPC, it was obligatory on the part of the DPC to follow such a procedure. Since it was not done, the 2nd DPC proceeding is vitiated with illegality. In S.B.Bhattacharjee (supra) the Hon’ble Supreme Court held that, “38. In a given case, and in absence of rule, the Court might have been justified to hold that the DPC must take into consideration the merit and merit only. However, in a case of this nature, where the State lays down the procedures as to how and in what manner the merit and suitability is to be judged, it was obligatory on the part of the Commission to follow the same in its letter and spirit. 23. As clearly evident from the records, the 2nd DPC did consider the “incomplete” ACRs which the 1st DPC refused to take into consideration for making assessment of the candidates. The 2nd DPC by adopting a convoluted process acted upon these “incomplete” (hence, invalid) ACRs by ingeniously applying the principle that DPCs enjoy full discretion to devise own methods and procedure for objective assessment of the suitability of candidates by taking shield under para 5.1.2 of the OM. Could the DPC in the guise of devising one method take into consideration which it refused to take into consideration on the ground that it was “incomplete” and hence, non actionable? How did the ACRs which were not actionable in the first meeting held on 29.1.2013 became actionable in the second meeting held on 26.2.2013? What according to the 1st DPC was not permissible, i.e., to take into account incomplete ACRs, could become permissible to the 2nd DPC without rectifying these defects? The Respondents have no valid answers for these. The 2nd DPC could not take the plea for downgrading the ACRs of all the candidates for all the relevant years to “Very Good” on the ground that these ACRs were inconsistent, as observed by the 1st DPC. The 2nd DPC could not assume the role of the Reporting/Reviewing/Accepting authority. However, even this plea of the 2nd DPC is not supported by records. The 2nd DPC could not assume the role of the Reporting/Reviewing/Accepting authority. However, even this plea of the 2nd DPC is not supported by records. As mentioned in the proceedings of the 1st DPC, the reason for not considering the ACRs by the 1st DPC was that these were incomplete as the dates and place were not recorded on the ACRs and not on the ground of “inconsistency”. What the Court finds is that the DPCs had acted inconsistently and dehors the rules. 24. It may be also noted that this Court is not at all putting a stamp of approval to the action of the 1st DPC that merely because some of the ACRs were not dated or the place mentioned, these could not have been acted upon. The Chairman of the DPC also happened to be accepting authority in respect of some of these ACRs. However, since the findings/recommendation of the 1st DPC has not been challenged, this issue is left to be decided in an appropriate case. For the present, the important and decisive issue to be determined is on what basis the 2nd DPC made assessment/reassessment of the ACRs in respect of those periods where the earlier DPC had declined to examine the ACRs on the ground that these ACRs were incomplete and the effect thereof. 25. On examination of the records produced before this Court it has been found that the 2nd DPC acted upon the same set of “incomplete” ACRs which it refused to consider in the first meeting held on 29.1.2013, by downgrading, which action, this Court finds to be unacceptable, more so in the light of the provisions under subpara(c) of Para no. 5.2.2 of the OM as discussed above. It is one thing to say that the DPC can make its own assessment to adjudge the suitability of candidates on the basis of the ACRs, grading of which need not bind it, yet it is another to say that it can make its own assessment by ignoring or substituting the gradings in the ACRs on the ground that these are incomplete or inconsistent by assuming the role of the Reporting/Reviewing/ Accepting authority, which it cannot, which however, had been in the present case. 26. 26. In that view of the matter, the further question which arises for consideration is as whether the aforesaid two decisions of the Hon’ble Supreme Court relied upon the Respondents would be applicable in the present fact situation. It may be noted that while the Supreme Court decided the case in S.K.Goel (supra), the Supreme Court also called the records of the DPC and examined the records and found that the DPC followed the prescribed norms and also applied its discretion vested in it as observed in para 25 thereof, which is reproduced herein below: 25. At the time of hearing, the original record was placed before us. We have carefully perused the same. DPC, in our view, followed the prescribed norms as also applied its discretion vested in it to determine the comparative merit of the eligible officers and thereafter made recommendations in order of merit. There was thus no occasion or justification for interference in the order passed by the appellants, as upheld by the Tribunal. (emphasis added) Further in para 27 it has been stated that 27. ...............In the present case, DPC had made an overall assessment of all the relevant confidential reports of the eligible officers who were being considered. DPC considered the remarks of the reviewing officers. There was clear application of mind. In S.K. Goel case the Supreme Court also referred to the decision in Anil Katiyar. In Anil Katiyar, the Supreme Court also went through the records and observed that, 5. The question is whether the action of the DPC in grading the appellant as “very good” can be held to be arbitrary. Shri G.L. Sanghi, the learned Senior Counsel appearing for the Union Public Service Commission, has placed before us the confidential procedure followed by the DPCs in the Union Public Service Commission for giving overall gradings, including that of “outstanding”, to an officer. Having regard to the said confidential procedure which is followed by the Union Public Service Commission, we are unable to hold that the decision of the DPC in grading the appellant as “very good” instead of “outstanding” can be said to be arbitrary. ................................” (emphasis added) 27. What is evident from the above is that the restraint placed on the Court in interfering with the proceedings and recommendation of the DPCs is not absolute but conditional. ................................” (emphasis added) 27. What is evident from the above is that the restraint placed on the Court in interfering with the proceedings and recommendation of the DPCs is not absolute but conditional. Further, the Hon’ble Supreme Court also noted that certain confidential procedures were followed by the DPC/UPSC. However, in the present case, nothing has been shown as to the procedure adopted and followed by the MPSC on which basis the MPSC made the assessment of the comparative merits of the candidates, except by saying that such assessment/reassessments were made on the basis of the ACRs. Nothing has been shown as to how and by following such procedure and adopting such criteria, the DPC came to assess all as “Very Good”. The fact that the DPC “downgraded” all the ACRs to “Very Good” must have some basis for doing so, which, however, have not been neither disclosed or mentioned in the proceedings except to say in the affidavit in opposition that the DPC considered, examined/assessed the merit of the eligible candidates in accordance with the relevant rules, norms and practices and recommended the most suitable officer based on the comparative merit with relevant ACRs and the connected relevant documents. As to what are “the norms and practices” which had been followed have not been mentioned in the affidavit in opposition nor produced before this Court. In the cases before the Hon’ble Supreme Court, such confidential procedures were produced before the Supreme Court which after examining, observed that the recommendation of the DPC/UPSC does not warrant interference. This Court has already observed earlier the impermissibility of the 2nd DPC to act upon the same set of ACRs which were found to be incomplete and failure of the DPC to resort to the method provided under para no. 5.2.1.(c) and (f) of the OM dated 29.4.1999. 28. Assuming that it was permissible for the DPC to make reassessment of the ACRs of the relevant period by taking into consideration the “incomplete” ACRs of the officers, was the DPC entitled to downgrade all the ACRS as “Very Good” in the manner it had been done? It has been recorded in the DPC proceedings that the reason for reassessment of the ACRs of the officers is due to inconsistencies observed by the DPC held on 29.01.2013 and therefore, the relevant ACRs are downgraded to VG. It has been recorded in the DPC proceedings that the reason for reassessment of the ACRs of the officers is due to inconsistencies observed by the DPC held on 29.01.2013 and therefore, the relevant ACRs are downgraded to VG. From the aforesaid noting in the proceedings of the 2nd DPC, it seems that the downgradation was done in a mechanical manner without due application of mind on the contents of the ACRs for the petitioners and the respondent No.4 as reproduced above. The downgradation to “VG” (very good) was done on the ground of the purported “inconsistency” and the reassessment was made as if the members of the DPC were acting as the Accepting Authority. As clearly evident from the record of the 2nd DPC, the ACRs of the officers were downgraded en-masse on the ground of the purported inconsistencies. This, in the opinion of the Court, is not sanctioned by law as no such power is conferred on the DPC to make reassessment of the ACRs by downgrading on the ground of inconsistencies in the ACRs. 29. The reliance by the respondents on the Office Memorandum dated 6.7.2011 cannot be accepted. What the OM provides is that submission of ACRs should not be delayed as it often leads to manipulations, because of which it has been provided that if any officer fails to get his ACR recorded by the Reporting/Reviewing/Accepting authorities within 31st of the year, the overall grading shall be treated as “Good” only. In the present case it is not the situation. It has not been pleaded that the petitioner or the respondent no.4 got their ACRs recorded belatedly. The issue was of non-mentioning of dates and place of recording or the so called “inconsistency” of ACRs as observed by the 2nd DPC. The 2nd DPC made the assessment as “Very Good” and not “Good” as contemplated under the aforesaid OM. In any event, it was not the basis of the OM dated 6.7.2011 that the DPC made the assessment. Therefore, this Court does not find any merit in the submission of the respondents. 30. There is yet another issue regarding down gradation of the ACRs by the DPC as “Very Good”. This presupposes that in respect of some ACRs for some candidates, the grading given by the Reporting/Reviewing/Accepting Authorities are “Outstanding” which the DPC downgraded as “Very Good”. Therefore, this Court does not find any merit in the submission of the respondents. 30. There is yet another issue regarding down gradation of the ACRs by the DPC as “Very Good”. This presupposes that in respect of some ACRs for some candidates, the grading given by the Reporting/Reviewing/Accepting Authorities are “Outstanding” which the DPC downgraded as “Very Good”. While the autonomy and discretion of the DPCs in making their own overall assessment and arrive at a grading at the time of examining suitability and merit of the candidates, which may be different from what had been actually recorded in the ACRs, is not doubted, it is subject to certain conditions. Such discretion of the DPC is not untrammelled and unguided. A Division Bench of this Court had occasion to examine this issue in W.A. No. 39 of 2010 and W.A. No. 22 of 2010 (Kshetrimayum Rajendro Singh & Ors. Vs. Sri Lourembam Deben Singh & Ors) decided on 2.6.2015. In that case the Court while interpreting the provisions of para no. 5.2.1.(e) and (f) of the Office Memorandum dated 29.4.1999 held that, “[13] ..................Therefore, the authority of the DPC to make its own assessment on the basis of the entries made in the ACRs as provided in Clause 5.2.1(e) is subject to the restriction in Clause 5.2.1.(f). In other words, if the grading given by the Reporting Officer, Reviewing Authority and Accepting Authority is consistent, overall grading is to be accepted by the DPC. Even in the case, where the Grading given by the Reporting Officer is not accepted by the Reviewing authority or the grading given by the Reviewing authority is not accepted by the Accepting authority and the accepting authority gives a different grading, the same cannot be disturbed by the DPC if it comes to conclusion that the Accepting Authority came to a different assessment consciously after due application of mind. Therefore, the DPC and the MPSC could only resort to downgrading or upgrading of ACRs when they find that grading given by the Reporting Officer is different than the grading by the Reviewing authority or that grading given by the Reviewing authority is different than the grading given by the higher authority and such grading given by the Accepting authority has not been done after due application of mind................................................................................ …………………………………. 14. …………………………………. 14. While concluding, we hold that the finding of the learned Single Judge to the effect that the DPC and the MPSCV has no authority to upgrade the entries in the ACRs is not correct but such upgradation made by the MPSC made by the DPC is permissible subject to the provision contained in Clause 5.2.1.(f) ................................................................... ....................................” 31. The aforesaid principle in the opinion of this Court does not go contrary to judicial pronouncements made in S.K. Goel and Anil Katiyar as the Hon’ble Supreme Court did not have the occasion to deal specifically with similar provisions of para no. 5.2.1.(e) and (f) of the OM dated 29.4.1999. In any event the Hon’ble Supreme Court also observed that judicial interference is permissible if the DPC is held in violation of the rules or misgrading of ACRs. Since the OM has statutory force, the DPC cannot violate the provisions of the said OM. However, the 2nd DPC did not follow properly the aforesaid OM. It may be also noted that as per the records, the respective grading of the ACRs of the petitioner and the respondent no. 4 for 2005 to 2013 are as follows: For the Petitioner Period Reporting Officer Reviewing Officer Accepting Officer 1.4.2012 to 31.3.2013 V.G. V.G. V.G. 1.4.2011 to 31.3.2012 Outstanding Outstanding V.G. 1.4.2010 to 31.3.2011 Outstanding Outstanding Outstanding 1.4.2009 to 31.3.2010 Outstanding Outstanding Outstanding 1.4.2008 to 31.3.2009 Outstanding Outstanding Outstanding 1.4.2006 to 31.3.2007 Outstanding Outstanding Outstanding Special Assessment for 2005-2006 Outstanding Excellent/ Outstanding For the Respondent No.4 Period Reporting Officer Reviewing Officer Accepting Officer 1.4.2012 to 28.2.2013 V.G. V.G. V.G. July, 2011 to 31.3.2012 Outstanding V.G. V.G. 1.4.2011 to 3.6.2011 Outstanding Endorsed Accepted 1.1.2011 to 31.3.2011 Outstanding Endorsed Nil 1.4.2010 to 15.12.2010 Outstanding V.G. V.G. 1.4.2009 to 31.3.2010 Outstanding V.G. V.G. 1.4.2008 to 31.3.2009 Outstanding V.G. V.G. 1.4.2008 to 01.3.2009 V.G. V.G. V.G. 1.4.2007 to 31.3.2008 V.G. V.G. V.G. 1.4.2006 to 31.3.2007 V.G. V.G. V.G. 1.4.2005 to 31.3.2006 V.G. V.G. Applying the above principle discussed by the Division Bench of this Court in Kshetrimayum Rajendro Singh (supra), this Court finds it difficult to accept the down gradation and assessment made in respect of all the candidates as “Very Good” without examining the gradings made by the Reporting Officer/Reviewing and Accepting Officer. If the Reporting/Reviewing/Accepting authority had consistently given “Outstanding”, the DPC should make the necessary assessment as “Outstanding” as provided under para no. If the Reporting/Reviewing/Accepting authority had consistently given “Outstanding”, the DPC should make the necessary assessment as “Outstanding” as provided under para no. 5.2.1.(f) Therefore, on this score also, this Court finds the reassessment and overall grading given to the officers as “Very Good” by not following the principle laid down in para no. 5.2.1.(f) as not tenable and hence bad in law. 32. This Court, while noting the dictum stated in S.K.Goel (supra) that the Court would not ordinarily interfere in the proceedings and recommendations of DPC, followed the dictum that the Court can interfere if the DPC meetings are held illegally or in gross violation of the rules or there is misgrading of confidential reports. In the present case, as discussed above, this Court finds that the DPC did not follow proper criteria while making the assessment and grading all the candidates as “Very Good” thus misgraded the ACRs of the candidates. This Court also found that the assessment made by the 2nd DPC was in violation of para 5.2.1(c) as well as (f) of the Office Memorandum dated 29.4.1999. 33. For the reasons discussed above, this Court holds that the proceedings of the 2nd DPC held on 26.2.2013 for promotion to the post of Deputy Secretary, MPSC is illegal. Consequently, the promotion order dated 27.2.2013 promoting the Respondent no. 3 is also liable to be set aside and is, accordingly, set aside. The MPSC is directed to convene and hold a review DPC for promotion to the post of Deputy Secretary, MPSC relating to the year of vacancy of 2012-13 within a period of one month from today. The reconvened and review DPC is to make its recommendation having regard to the observations made in this petition. 34. For the reasons discussed above, this Court is of the view that it may not be necessary to deal with the other grounds raised by the petitioner in challenging the proceedings of the DPC held on 26.02.2013 and the promotion order dated 27.02.2013 35. 34. For the reasons discussed above, this Court is of the view that it may not be necessary to deal with the other grounds raised by the petitioner in challenging the proceedings of the DPC held on 26.02.2013 and the promotion order dated 27.02.2013 35. It is also clarified that since the petitioner has been also promoted to the post of Deputy Secretary during the pendency of this petition, the respondent no.4 will be allowed to hold the post of Deputy Secretary, MPSC though purely on provisional basis and not on regular basis, in order not to cause any dislocation in the functioning of the MPSC, and this provisional continuation in service of the respondent no.4 as Deputy Secretary, MPSC will be subject to the result of the review DPC which is directed to be held within a period of one month from today. In the event the respondent no.3 is recommended again for promotion to the post of Deputy Secretary, MPSC, the earlier promotion order dated 27.2.2013 will revive and he will be deemed to have been promoted on regular basis in terms of the said promotion order dated 27.2.2013. However, in the event, the review DPC does not recommend the respondent no.3 for promotion to the post of Deputy Secretary, MPSC, he will be replaced by the recommended candidate as far as the post of Deputy Secretary, MPSC, the vacancy of which arose in the year 2012-13, is concerned. The Respondent authorities, accordingly, are to take necessary and consequential actions in terms of this judgment. 36. Petition is, accordingly allowed with the above observations and directions, however, without any costs.