JUDGMENT AND ORDER : 1. Heard Mr. N K Kalita, the learned Counsel for the petitioner. The Food Corporation of India (FCI) and their offices are represented by the learned Counsel Mr. P K Roy. 2. The grievance of the petitioner relates to his non-promotion to the cadre of AG-II (D) in the FCI w.e.f. the date of promotion of his juniors. During pendency of this case, the petitioner has superannuated from service on 30.11.2011. 3. The learned Counsel Mr. N K Kalita refers to the communication dated 24.8.2009 (Page-73) of the employer to project that the petitioner was not considered for promotion on account of the low grading in his ACRs and therefore, the concerned entries recorded in the ACRs, should have been communicated to the employee, as those impacted his opportunity for promotion. 4. The petitioner contends that if a benchmark is stipulated on the kinds of grades to be secured by an employee in his previous ACRs, for being promoted to the next higher rank, any grading below the benchmark should have been communicated but in the instant case, the 3 “fair” grading for the petitioner, were never communicated and therefore, it is argued that the same cannot be made the basis for denying promotion to the employee. 5.1 On the other hand, the learned Counsel Mr. P K Roy for the FCI submits that promotion under Regulation 10(1) of the FCI (Staff) Regulation 1971 (hereinafter referred to as “the Regulation”) is to be considered on the basis of seniority, subject to fitness and here the petitioner was found to be unfit for promotion by the Departmental Promotion Committee (DPC). 5.2 The respondents lawyer refers to the OM dated 10.3.1989 issued by the Department of Personnel & Training to project that the benchmark in the ACR of the concerned years should be “good” and since the petitioner failed to secure the benchmark grading in his ACRs, he was rightly declared to be unfit for promotion. 6. The DPC which declared the petitioner to unfit took into account the petitioner’s grading in the ACR for 6 years starting from the year 1998 to 2003 and since the grading has relevance in the present litigation, the same are extracted herein below for ready reference :- YEAR - 1998 1999 2000 2001 2002 2003 GRADING - Good Fair Good Fair Fair Good 7. On account of the stipulated benchmark of “good” grading in the ACRs of the concerned years and the lower gradings (FAIR) in the petitioner’s ACR in the year 1999, 2000 and 2001, the DPC declared that the petitioner is unfit for promotion. But it is admitted that those gradings were never communicated to the petitioner, as under the applicable norms in the FCI, “average/fair gradings are not considered adverse. 8. For those gradings, which are not considered adverse in nature and yet they result in elimination of the candidate from being considered for promotion, the Supreme Court in Dev Dutta vs. Union of India reported in (2008) 8 SCC 725 observed as follows :- “…………………… 9. In the present case the benchmark (i.e. the essential requirement) laid down by the authorities for promotion to the post of Superintending Engineer was that the candidate should have “very good” entry for the last five years. Thus in this situation the “good” entry in fact is an adverse entry because it eliminates the candidate from being considered for promotion. Thus, nomenclature is not relevant, it is the effect which the entry is having which determines whether it is an adverse entry or not. It is thus the rigours of the entry which is important, not the phraseology. The grant of a “good” entry is of no satisfaction to the incumbent if it in fact makes him ineligible for promotion or has an adverse effect on his chances. 10. Hence, in our opinion, the “good” entry should have been communicated to the appellant so as to enable him to make a representation praying that the said entry for the year 1993 – 1994 should be upgraded from “good” to “very good”. Of course, after considering such a representation it was open to the authority concerned to reject the representation and confirm the “good” entry (though of course in a fair manner), but at least an opportunity of making such a representation should have been given to the appellant, and that would only have been possible had the appellant been communicated the “good” entry, which was not done in this case. Hence, we are of the opinion that the non-communication of the “good” entry was arbitrary and hence illegal, and the decisions relied upon by the learned counsel for the respondent are distinguishable. ……………………” 9. Hence, we are of the opinion that the non-communication of the “good” entry was arbitrary and hence illegal, and the decisions relied upon by the learned counsel for the respondent are distinguishable. ……………………” 9. In the above decision, the Supreme Court declared that any grading, irrespective of its nomenclature, should they impact the employee for promotion, must necessarily be communicated so that a representation can be filed by the affected employee for correction of the gradings. But as is apparent, the concerned entries in the ACR were never communicated and this resulted in the unfit declaration made by the DPC against the petitioner. This in my perception has impacted the petitioner’s legitimate right for a fair consideration for promotion which is to be considered on the criteria of seniority, subject to fitness. Therefore, notwithstanding the retirement of the employee, are ctificatory exercise must be ordered for the petitioner. 10. Following the above discussion, the “fair” entries in the ACRs of the years 1999, 2000 and 2001 are ordered to be immediately communicated to the petitioner. Where after, the petitioner if so advised, may represent against these entries, within 4 weeks thereafter. The competent authority in the FCI should decide the representation expeditiously and preferably within 6 weeks of receipt of representation. If the “fair” gradings in the ACR is upgraded and they satisfy the benchmark, the employer should arrange for consideration of retrospective promotion for the employee. The petitioner’s claim for promotion should be considered by the next DPC and if he is recommended for promotion, the retired employee should get the benefit of higher superannuation benefits by allowing his notional up gradation for the concerned service period. But it is made clear that in the event of positive consideration, the petitioner should not get any differential salary benefits since he earlier declined the promotion offered to him, under the office order dated 24.8.2009 (Annexure-XXIV). It is ordered accordingly. 18. With the above order the case stands allowed in the manner indicated. No cost.