JUDGMENT : K. VINOD CHANDRAN, J. 1. The Life Insurance Corporation of India (hereinafter “LIC”), the employer and the writ petitioner, the employee are both before us in appeal from the judgment of the learned Single Judge. The parties are referred to from their status in the writ petition. 2. The petitioner who joined as Assistant Administrative Officer with the LIC in the year 1990 was promoted as Divisional Manager in the year 2007. In 2012 her batch mates have been promoted as Senior Divisional Managers and the grievance was that, the petitioner alone was denied such promotion. It was contended that the LIC does not follow a set selection procedure and a mere comparative assessment of the confidential reports of the employees, coming within the zone of consideration, is made to determine the inter se merit. This brings in an element of arbitrariness which alone resulted in the petitioner being denied promotion, while all her contemporaries were promoted. The petitioner's specific grievance was that she was singled out to be denied promotion in the selections conducted from the year 2012 to 2016. She claimed retrospective promotion from the year 2012, when first of her batch mates were promoted to the post of Senior Divisional Manager. 3. The learned Single Judge found that the LIC of India Staff Regulations of 1960 provided for an assessment of merit and suitability on the basis of confidential reports and/or interviews and/or examinations. The method adopted by the LIC was of comparative analysis of the confidential reports of the employees coming within the zone of consideration for promotion. The comparative analysis of the confidential reports for the purpose of assessment, it was found, legitimately led to elimination of certain persons. The petitioner's claim that her merit is very evident from the fact that she was chosen for a foreign assignment was negatived finding that this would not by itself entitle her to claim promotion in the substantive higher post. LIC was directed to furnish comparative chart of evaluation of ACR's conducted, with respect to the petitioner and other candidates. The respondent Corporation complied with the direction, by an affidavit dated 18.11.2016. On an examination of the chart furnished, it was found that a grading was given to various candidates who were considered for promotion to the post of Senior Divisional Manager in the year 2016-17. The respondent Corporation complied with the direction, by an affidavit dated 18.11.2016. On an examination of the chart furnished, it was found that a grading was given to various candidates who were considered for promotion to the post of Senior Divisional Manager in the year 2016-17. The evaluation by comparison of ACR's of various candidates was done based on different factors and grading was done variously on different attributes, both by reporting officers as well as reviewing officers. It is on the comparison of such grading given by the controlling officers, over a span of five years, that the officers were considered for promotion. The procedure was found to be flawless, but the learned Single Judge relying on Sukhdev Singh vs. Union of India and Others, AIR 2013 SC 2741 found that the assessments in the ACR's of the petitioner were never communicated to her prior to 2014, which resulted in a serious infraction of the right of the petitioner to represent against such entries. It was also found that in the years in which the assessments were not communicated there were grading inferior to what was already recorded in the earlier years. In such circumstances, it was found that there was serious irregularity insofar as the denial of promotion to the petitioner; when the down-grading in the ACR's were not communicated. 4. The learned Single Judge however, held that the petitioner cannot challenge the promotions between 2012 to 2016 without impleading the persons who were promoted. When promotions are made to a substantive post there could be no promotion given in addition to the available vacancies. In the circumstances of a challenge as against the denial; if at all eventually it is allowed, one of the persons who was promoted would have to be reverted. The learned Single Judge hence refused to consider the claim of retrospective promotion. The petitioner was directed to be considered for the year 2017 based on the confidential reports of the years 2014, 2015 and 2016. There was a further contention raised as to certain persons having been given higher grade benefits though not promoted to the post of Senior Divisional Manager. Those who were granted higher grade benefits continued in the post of Divisional Manager, but were entitled to the scale of pay of Senior Divisional Manager. There was a further contention raised as to certain persons having been given higher grade benefits though not promoted to the post of Senior Divisional Manager. Those who were granted higher grade benefits continued in the post of Divisional Manager, but were entitled to the scale of pay of Senior Divisional Manager. The petitioner's claim for consideration of higher grade in the year 2016 was also directed by the learned Single Judge. 5. Sri. S Easwaran, learned Counsel appearing for LIC submits that when there is a comparative assessment of ACR's, it will not be discernible, as to which entry would prejudice the employee, at the time when the confidential report is made. Only when the ACR's are taken up for consideration of comparative merit; a particular officer's short comings will come to the fore; especially vis-a-vis the other officers within the zone of consideration. As long as there is no adverse entry in a particular year, there would be no communication of a mere down-grading as long as it does not result in an adverse entry. It is argued that even Sukhdev Singh (supra), on facts considered the question whether the degrading from 'very good' to 'good' should be communicated when the bench mark of promotion was 'very good'. In the case of promotions which is the subject matter of challenge there is no bench mark prescribed and there is only a comparative assessment of the candidates, within the zone of consideration. As far as the higher grade is concerned, it is pointed out that such a higher grade is granted only to those persons found entitled to be promoted, being not actually promoted for reason of dearth of vacancies. That too only when there is an impending retirement disabling him/her from consideration for any further selection. Specifically reliance is placed on Exhibit P-13(c). Sri. Easwaran, learned Counsel also relies on a judgment of another Division Bench in W.A. No. 588/2011, LIC of India and Others vs. B. Kunhambu Nair, dated 12.06.2015 wherein Sukhdev Singh was specifically referred to, but the non communication of ACR's were found to be not fatal. 6. Sri. N. Dharmadan, learned Senior Counsel appearing for the writ petitioner however, would argue for the benefit of retrospective promotion to the writ petitioner from 2012. 6. Sri. N. Dharmadan, learned Senior Counsel appearing for the writ petitioner however, would argue for the benefit of retrospective promotion to the writ petitioner from 2012. It is argued that as of now, the question is only of adjustment of the petitioner in the higher scale of pay if found to be entitled for promotion and payment of salary from the date she is actually entitled for such promotion. There is no question of any third party rights being affected or another promoted officer being prejudiced. Reliance is placed on the judgment of the High Court of Judicature at Madras, wherein the entire benefits were directed to be granted in W.A. No. 534/1997, LIC vs. S. Kasthurirangan. It is contended that as early as in Dev Dutt vs. Union of India, AIR 2008 SC 2513 there was declared a mandate to communicate the assessments in the ACR's even if there is no adverse entry. Reliance is also placed on three unreported judgments of the Hon'ble Supreme Court in Special Leave to Appeal No. 26556/2004 dated 22.10.2008, Abhijit Ghosh Dastidar vs. Union of India and Others, Civil Appeal No. 283/2008 dated 13.05.2014, Union of India and Others vs. Jai Prakash Gupta and Another and Civil Appeal No. 8006-8007 of 2003 dated 23.07.2015, Prabhu Dayal Khandelwal vs. Chairman, UPSC and Others. It is also submitted that though the learned Single Judge had directed consideration of higher grade for the year 2016 and for promotion in the year 2017 based on communicated ACR's of the three immediately prior years, the LIC has not done so. The petitioner admittedly has been promoted in the year 2018, but still claims retrospective promotion from the year 2012. 7. We see that Dev Dutt and Sukhdev Singh (both supra), considered the aspect of non communication of a positive assessment of 'good' when the benchmark for promotion was 'very good'. It was held that in such a situation, the 'good' entry, which otherwise is a positive assessment, “in fact is an adverse entry, since it eliminates the candidate from being considered for promotion” (Para 10 of Dev Dutt). However the learned Judges went further and held so in Paragraph 14: 14. It was held that in such a situation, the 'good' entry, which otherwise is a positive assessment, “in fact is an adverse entry, since it eliminates the candidate from being considered for promotion” (Para 10 of Dev Dutt). However the learned Judges went further and held so in Paragraph 14: 14. In our opinion, every entry (and not merely a poor or adverse entry) relating to an employee under the State or an instrumentality of the State, whether in civil, judicial, police or other service (except the military) must be communicated to him, within a reasonable period, and it makes no difference whether there is a bench-mark or not. Even if there is no bench mark, non communication of an entry may adversely affect the employee's chances of promotion (or getting some other benefit), because when comparative merit is being considered for promotion (or some other benefit) a person having a 'good' or 'average' or 'fair' entry certainly has less chances of being selected than a person having a 'very good' or 'outstanding' entry. Reference to Paragraphs 38 to 40 are also apposite and we extract them here under: 38. Thus natural justice has an expanding content and is not stagnant. It is therefore open to the Court to develop new principles of natural justice in appropriate cases. 39. 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. 40. Article 14 will override all rules or government orders. 40. 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 concerned authority, and the concerned authority 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. The State must be a model employer and must act fairly towards its employees. Only then would good governance be possible. 8. In Dev Dutt (supra), thus it was unequivocally laid down that all assessments are to be communicated to the officers whether it be an adverse entry or not. Sukhdev Singh (supra) also was on similar facts, but, however, the three Judge Bench followed the earlier decision in Dev Dutt (supra) even in the matter of the general directions issued and approved it. We extract Paragraph 8 here 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 upgradation 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. 9. Sri. Easwaran has a contention that only with Sukhdev Singh (supra) there was clarity in the matter and there were conflicting decisions earlier. 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. 9. Sri. Easwaran has a contention that only with Sukhdev Singh (supra) there was clarity in the matter and there were conflicting decisions earlier. We cannot countenance the said argument since the declaration made by the three judge bench applies even retrospectively and in any event in the present case the learned Single Judge has directed consideration only for the year 2016 and 2017; when definitely Sukhdev Singh (supra) applied with full force. We need not refer to the three unreported decisions by various Benches of the Hon'ble Supreme Court since they were also on the aspect of a positive assessment not being communicated when the benchmark was a higher grade. We only notice that all the three decisions specifically referred to Dev Dutt (supra) and followed it, one of which again, in 2008 itself, which was a three judge bench Special Leave to Appeal (Civil) No. 26556 of 2004 Abhijit Ghosh Dastidar vs. Union Of India on 22.10.2008. Both the decisions overruled in Sukhdev Singh (supra) were prior to the three judge bench decision in Abhijit Ghosh Dastidar (supra). 10. We also went through the decision of the Division Bench as placed before us by the learned Standing Counsel for LIC. Though Sukhdev Singh was referred to, that was a case in which the Court perused the confidential reports and did not find any adverse remark against the petitioner in the confidential report. The facts in the instant case are quite distinct and the general directions in Dev Dutt and Sukhdev Singh squarely apply. We agree with Sri. Easwaran, that whether an assessment is adverse or not, would be discernible only at the time of comparative assessment of the merit of the candidates within the zone of consideration. More reason why every assessment in the ACR and grading made by the reporting and reviewing officers should be communicated to the employee. The employee, always alive to the prospects of promotion, would then, definitely be enabled and entitled to make a representation on the assessment made claiming a higher grade. As has been held by the Hon'ble Supreme Court this would result in a complete satisfaction of one facet of the avowed principles of natural justice. The employee, always alive to the prospects of promotion, would then, definitely be enabled and entitled to make a representation on the assessment made claiming a higher grade. As has been held by the Hon'ble Supreme Court this would result in a complete satisfaction of one facet of the avowed principles of natural justice. We agree with the findings of the learned Single Judge on the aspect of non communication of assessment in the ACR's and the direction to consider the writ petitioner's promotion based on the communicated ACR's of the years 2014, 2015 and 2016. 11. The claim of the writ petitioner for retrospective promotion, which is pressed vehemently by Sri. Dharmadan, is based on the unreported decision of the Madras High Court, proffered before us. We have gone through the decision and find the facts to be quiet distinct. That was a case in which the denial of promotion in the year 1985, to the post of Divisional Manager was challenged by the employee, by Writ Petition No. 11577/1986. Hence immediately on denial, the employee was before Court. The learned Single Judge directed the promotion to be carried out for reason of non communication of the assessment in various years. The Division Bench of the Madras High Court found that there was no reason stated for the denial of promotion as is seen from the files which were produced before Court. The petitioner was merely found not suitable without any supporting reasons. It was in such circumstances that the petitioner was directed to be granted promotion in 1986 itself and all consequential benefits; even though he was promoted in they year 1989 and he had retired by the time when the writ appeal was disposed of. We do not think that any parallel can be drawn in the present case, especially since the petitioner has not challenged the promotion carried out in the year 2012 to 2015. In the year 2016 though she challenged the denial of promotion from 2012 she failed to implead the persons who were promoted in the successive years. We are of the opinion that the question of third party rights would not be only with respect to another employee being prejudiced. In the year 2016 though she challenged the denial of promotion from 2012 she failed to implead the persons who were promoted in the successive years. We are of the opinion that the question of third party rights would not be only with respect to another employee being prejudiced. The employer, LIC may also stand to be prejudiced when they are called upon to pay salary to a person in a promoted post, in addition to the available sanctioned post, especially when the employee has not worked in that higher post. The public authority dealing with public funds cannot also be so prejudiced and we reject the claims made for retrospective promotion. 12. As far as the grant of higher grade, directed to be considered for the year 2016, by the learned Single Judge, we are inclined to accept the contention of Sri. Easwaran. Higher grade as is evidenced from Exhibit P-13(c), is granted only to officers whose retirement would disable them from being considered for promotion thereafter. The petitioner obviously has longer service and has also had opportunity to be considered in the following years and she stood promoted in 2018. We hence delete the directions with respect to the consideration of higher grade from 2016. 13. Be that as it may, the promotion in 2018 would not dis-entitle her from the consideration for promotion in the year 2017, as directed in the impugned judgment. The petitioner was not so considered only for reason of the appeal filed by the LIC. We cannot but observe that there was no stay granted in the appeal. The plea of Sri. Easwaran is that it was undertaken that the petitioner would not press for contempt. Though the records does not reveal such an undertaking, we will take it as having been made. Even then, when the appeal of the LIC, to that extent, stands rejected they have to necessarily comply with the directions; which would have been the case even if a stay was in force, in the pending appeal. The LIC, hence would consider the petitioner, on the basis of the ACR assessments for the years starting from 2014 and if it falls short of the five years as taken in the case of the successful officers, the assessments shall be telescoped to five years for the purpose of effective assessment of comparative merit. The LIC, hence would consider the petitioner, on the basis of the ACR assessments for the years starting from 2014 and if it falls short of the five years as taken in the case of the successful officers, the assessments shall be telescoped to five years for the purpose of effective assessment of comparative merit. If the assessment so made finds her at par with any of the successful candidates, she shall be granted all consequential benefits in the post from the date on which the others were appointed and her emoluments paid for the period as also consequential fixation carried out from the date of her promotion in 2018. This shall be done without reference to the available post in the cadre of Senior Divisional Manager, since it was a necessary consequence of the impugned judgment; the appeal against which, to that extent, has been rejected. We also direct that the comparative assessment so done for 2017 be furnished to the petitioner with full details of the assessments of ACR's of all successful officers. W.A. No. 22/2017 is partly allowed. W.A No. 166/2017 is dismissed.