ORDER : 1. The petitioner has filed the instant petition under Article 226 of the Constitution of India seeking following relief (S) :- “7.1. That, this Hon’ble Court may kindly be pleased issue a writ of certiorari quashing the impugned order dated 02.03.2007 bearing No.B-1/2-1/A/108/2006-07/7127, passed by the Managing Director, Chhattisgarh State Agricultural Marketing Board. The Hon’ble Court may kindly be pleased to quash the order dated 31.05.2007 (Annexure P-21) and order dated 20.09.2007 (Annex.P-23) passed by the Managing Director. 7.2. That, the official respondents may kindly be directed to consider the case of the petitioner for promotion on the post of Assistant Director, which is equivalent to the post of Secretary (Senior) on the basis of rules and regulations. 7.3 That, this Hon’ble Court may kindly be pleased to direct the respondents to grant the promotion to the petitioner on the post of Senior Secretary w.e.f. 29.01.2005 and he may kindly be granted all the consequential benefits. 7.4 That, the Hon’ble Court may kindly be pleased to grant all the consequential benefits to the petitioner. 7.5 That this Hon’ble Court may kindly be pleased to grant any relief, which is deem fit and proper. 7.6 That, this Hon’ble Court may kindly be pleased to direct the respondents to include the petitioner in the gradation list of Secretary (junior) in pursuance of the order passed by the appellate authority and petitioner may kindly be granted seniority in accordance with rules and regulations. 7.7 The respondents may be directed to consider the case of the petitioner for promotion on the post of Senior Secretary with effect from the date when the juniors of the petitioner were considered. They may further be directed to consider the case of the petitioner without insisting upon the adverse uncommunicated entries. The petitioner may kindly be granted all the consequential benefits.” 2. In the instant petition, the learned co-ordinate Bench of this Court had passed the final order on 26.07.2017 and observed in para 8 as under :- “8. In the service jurisprudence, known criteria for promotion are selection based purely on merit, promotion on the criteria of merit-cum-seniority, promotion based on seniority-cum-merit, promotion based on seniority-cum-fitness. Promotion is a reward and whenever promotions are made, some kind of criteria is required to be fixed. In the service jurisprudence, known criteria for promotion are selection based purely on merit, promotion on the criteria of merit-cum-seniority, promotion based on seniority-cum-merit, promotion based on seniority-cum-fitness. Promotion is a reward and whenever promotions are made, some kind of criteria is required to be fixed. Ordinarily, while granting promotion in the lower rank of post, comparative merit criteria is not resorted to and subject to fitness, promotions are made on the basis of seniority. When promotions are made to higher posts, merit starts playing role. It is in three parts Firstly, where it is based purely on selection and seniority has no relevance. The other two criteria are merit-cum-seniority and seniority-cum-merit. In most of the public services, while in the matter of promotion to the lower rank of post, subject to fitness, seniority is made a basis, in the matter of promotion to the higher rank of post, carrying higher duties and functions, merit plays a prominent role. The well known jurisprudential concept of merit-cum-seniority and seniority-cum-merit and distinction thereof was considered by the Supreme Court in its authoritative judicial pronouncements in the case of B.V. Sivaiah (supra), the Supreme Court examined the concept of seniority-cum-merit as below- "17. On behalf of the promoted officers it was urged that for the purpose of promotion on the basis of seniority-cum-merit, seniority means the length of service and that among officers who were appointed on the same date and have the same length of service seniority can have no bearing and promotion has to be made on a comparative assessment of merit of such officers. We are unable to agree. while applying the principle of seniority-cum-merit for the purpose of promotion what is required to be considered is inter se seniority of the employees who are eligible for consideration. Such seniority is normally determined on the basis of length of service, but as between employees appointed on the same date and having the same length of service, but as between employees appointed on the same date and having the same length of service, it is generally determined on the basis of placement in the selected list for appointment. Such determination of seniority confers certain rights and the principle of seniority-cum-merit gives effect to the such rights flowing from seniority. Such determination of seniority confers certain rights and the principle of seniority-cum-merit gives effect to the such rights flowing from seniority. It cannot, therefore, be said that in the matter of promotion the basis of seniority-cum-merit seniority has no role where the employees eligible for promotion were appointed on the same date and have the same length of service." 3. The said order dated 26.07.2017 passed by the learned co-ordinate Bench was challenged by the respondent/Department by way of appeal bearing W.A.No.418/2017, wherein the learned Division Bench of this Court observed in para 10 and 11 as under :- “10. In the above circumstances, the counsel representing the private Respondent No.1 takes a stand that the order of the learned Single Judge, if interfered, may be remanded for fresh consideration or else serious prejudice will be caused to him in light of these factual aspects which could not be taken note of during the course of assistance before the learned Single Judge. 11. We are satisfied that a case for interference with the impugned order dated 26.07.2017 is made out. The decision has been rendered by the learned Single judge on parameters and the Rules which have have no application to the case in hand and therefore, the same is set aside. However, the writ application is remanded back for fresh consideration where all these issues will be brought to the notice of the learned Single Judge. The parties are free to supplement their pleadings, if needed ever at this stage.” 4. After passage of the aforesaid judgment in W.A. No.418/2017, the petitioner arrayed Respondent Nos. 5 to 9 as necessary party. 5. Learned counsel for the petitioner submits that the petitioner has wrongly been denied the promotion in 2005 as well as in 2007 on the basis of the adverse remarks in his character role of 2003 and 2004, whereas such adverse remarks was never communicated to the petitioner. First time in 2007 the petitioner was informed that he was considered for promotion, but looking to the adverse entry “ x ” in the character role of 2003 and 2004, he was not considered for promotion. Learned counsel further submits that in 2003, the petitioner was working under the administrative control of President of Mandi and he has given “Very Good” along with the Deputy Director and the Managing Director has made adverse entry of “Average”. Learned counsel further submits that in 2003, the petitioner was working under the administrative control of President of Mandi and he has given “Very Good” along with the Deputy Director and the Managing Director has made adverse entry of “Average”. The said “Average” entry was considered for denying the promotion and the said entry was never communicated to the petitioner and the Managing Director has no right to write the ACR’s of the petitioner, who was under the administrative control of President and Deputy Director. The action is appears to be malafide because the D.P.C. was held on 27.01.2005 and adverse entry was made on 25.01.2005 with an intention to eliminate the petitioner from zone of consideration. 6. Placing reliance on the decision of Hon’ble Apex Court in the matter of Dev Dutt Vs. Union of India & Ors. reported in (2008) 8 SCC 725 , learned counsel submits that the petitioner is senior most employee and was entitled for promotion on the post of Senior Secretary in the D.P.C. held on 27.01.2005 and according to para 19 of the return filed by respondent Nos. 2 and 3 but he was found fit for promotion due to adverse entry “ x ” in his character role of 2003-04. The petitioner has been denied promotion by applying the principle of merit-cum-seniority. The principle of seniority-cum-merit or merit-cum-seniority are the parameters under Rule 15 of the Rules of 1998 to consider the case of the petitioner for promotion. In case of seniority-cum-merit, no bench mark can be fixed and it is well settled that un-communicated adverse entries cannot come in the way of the petitioner for promotion, when the petitioner was not communicated the ACRs’ and first time after denying the promotion, the petitioner was informed under the Right to Information Act that he was considered for promotion but looking to the adverse entry, he was not found fit. The said adverse entries of year 2003-2004 were never communicated to the petitioner. 7. Learned State counsel strongly opposed the prayer of the petitioner and submits that there is separate set of rules for grant of promotion in the Mandi services which is governed by the Chhattisgarh State marketing Board Services Rules, 1988 (for short ‘the Rules, 1988’). The said adverse entries of year 2003-2004 were never communicated to the petitioner. 7. Learned State counsel strongly opposed the prayer of the petitioner and submits that there is separate set of rules for grant of promotion in the Mandi services which is governed by the Chhattisgarh State marketing Board Services Rules, 1988 (for short ‘the Rules, 1988’). Rule 15 of the Rules, 1988 lays down the basis and parameters for consideration in maters of grant of promotion to the employees of the Marketing Board. Here, parameters are either ‘seniority-cum-merit’ or ‘merit-cum-seniority’. There is no concept of ‘seniority-cum-fitness’ and therefore, the name of petitioner was not recommended by the D.P.C. 8. Learned counsel for respondent Nos. 4 to submits that the petitioner was initially appointed on 01/02/1982 on the post of Secretary (Class IV)/Junior Secretary). The petitioner continued on the said post and while he was posted at Ambikapur, the petitioner was alleged to have been involved in a misdeed, which ultimately led to initiation of the departmental enquiry. The said departmental enquiry continued and the final order of punishment was passed on 05/03/2005, wherein the petitioner was imposed a major penalty of reduction in rank. The said order was assailed before this Hon'ble Court and the said writ petition was disposed off with a direction to prefer a departmental appeal. The petitioner preferred a departmental appeal and the said appeal was allowed vide order dated 04/09/2006, whereby the order of punishment dated 05/03/2005 was quashed and set-aside. Before issuance of the order dated 04/09/2006, a Departmental Promotion Committee (D.P.C.) was convened on 27/01/2005 for considering the candidature of all those employees, who were holding the post of Junior Secretary for consideration, to be promoted to the post of Senior Secretary. The petitioner was also considered by the Departmental Promotion Committee. Unfortunately, the petitioner had entry being in the Annual Confidential Report (ACR) for the year 2003-04 and considerign the said ACR, the petitioner was declared to be unfit for promotion by the D.P.C.. However, the DPC recommended promotion of Respondent Nos. 5 to 8 as well as two other persons namely, Shri. Bhaskar Dahate and Shri. Mahendra Singh Sawanni, who were junior to the petitioner promoted to the post of Senior Secretary vide order dated 29/01/2005. However, the DPC recommended promotion of Respondent Nos. 5 to 8 as well as two other persons namely, Shri. Bhaskar Dahate and Shri. Mahendra Singh Sawanni, who were junior to the petitioner promoted to the post of Senior Secretary vide order dated 29/01/2005. Thereafter vide orders dated 01.03.2007, 04.04.2007, 28.12.2007 and 27.08.2008 (Annexure R/2), other juniors to the petitioner were also promoted, however, the petitioner continued on the post of Secretary Junior. The petitioner in the instant petition has not impleaded the necessary parties, who were promoted vide these orders and infact the order dated 29/01/2005 has not been assailed by the petitioner at all and primarily assailed the order dated 02/03/2007 passed by the Managing Director. In absence of any challenge to the DPC proceedings dated 27/01/2005 and other subsequent DPCs; and the orders of promotion dated 29/01/2005, 01.03.2007, 04.04.2007, 28.12.2007 and 27.08.2008, the petitioner cannot be considered for promotion over and above the juniors, who were promoted vide order dated 29/01/2005 and thereafter, a fresh DPC was convened on 24/02/2007 for considering the candidature of promotion from the post of Junior Secretary to the post of Assistant Director, Mandi. Pursuant to the recommendation made, Shri. Jageshwar Kumar Kanwar was promoted, vide order dated 02/03/2007. Though the petitioner has assailed the order dated 02/03/2007, but then the petitioner did not assail the DPC proceedings held on 24/02/2007 and after passing the order by Hon’ble Division Bench, the petitioner amended the petition and brought about fresh pleadings in the writ petition adding new grounds and relief(s). The challenge of the petitioner now in the instant writ petition is to the fact that the entry ' x ' in the ACR of the petitioner for the year 2003-04 was not communicated to the petitioner, but in the instant writ petition the petitioner has neither sought quashment of the DPC proceedings held on 27/01/2005 nor did the petitioner seek quashment of the DPC proceedings held on 24/02/2007. The instant writ petition therefore, is wholly misconceived and absolutely misplaced. The grounds about the said adverse entry was available with the petitioner even before the year 2007, which is evident by the fact that the petitioner himself had submitted the ACR before this Hon'ble Court in the instant writ petition as Annexure P-25. The instant writ petition therefore, is wholly misconceived and absolutely misplaced. The grounds about the said adverse entry was available with the petitioner even before the year 2007, which is evident by the fact that the petitioner himself had submitted the ACR before this Hon'ble Court in the instant writ petition as Annexure P-25. However, the petitioner did not challenge the said entry despite being aware of the same before the competent authority/appellate authority for rectification/modification/upgradation of the said ACR, which was recorded in the year 2003-04. The said entry in the ACR for the year 2003-04 has already attained finality and the petitioner cannot be permitted to circumlocutously by-pass the said entry in his ACR. The petitioner was found fit for promotion to the post of Senior Secretary only in the DPC dated 11th August, 2010 and the petitioner was promoted. The petitioner accepted the said promotion without challenging the same and had attained the age of superannuation in the year 2018. Even Respondent Nos. 4 to 8 have also retired from service. 9. Learned counsel also submits that Seniority-cum-merit postulates that seniority attains preference for grant of promotion in such a situation only amongst such candidates, who attained the minimum benchmark of merit prescribed by the DPC. The Respondent Nos. 4 to 7 were rightly granted promotion vide order dated 29.01.2005 and the petitioner does not hold any justification to seek indulgence of this Court in the order of promotion passed by the respondent authorities. Therefore, the instant petition being misconceived is liable to be dismissed. 10. Reliance has been placed on the decision of Hon'ble Supreme Court in the matter of Tek Chand & Others Vs. Bhakra Beas Management Board & Others, reported in 2021 SCC Online SC 514. 11. The petitioner has filed rejoinder and submits that the petitioner filed representation before the respondent authorities for consideration of his case for promotion from the date when his juniors were considered from 29.01.2005. Further, in W.P.(S) No.2370/2007, this Court had passed an order to decide the representation dated 29.01.2005 within four weeks. The petitioner’s representation was considered and rejected vide impugned order dated 31.05.2007 (Annexure P/1), which is the subject matter of the petition. The petitioner amended the petition because liberty was granted by Hon’ble Division Bench that parties are free to supplement their pleadings, if needed even at this stage. The Respondent Nos. The petitioner’s representation was considered and rejected vide impugned order dated 31.05.2007 (Annexure P/1), which is the subject matter of the petition. The petitioner amended the petition because liberty was granted by Hon’ble Division Bench that parties are free to supplement their pleadings, if needed even at this stage. The Respondent Nos. 1 to 3 did not file any counter to the said amendment. The petitioner retired on 31.03.2018. If the petition will be allowed the promotion of Jageshwar Kanwar or Hichkiyel Kujur, they would not suffer/disturb because they have already retired from the service. The petitioner would get monetary benefits. 12. The respondents did not file any additional return to the rejoinder. 13. I have heard learned counsel for the parties and perused the material available on record. 14. It is an admitted position in this case that in the meeting of D.P.C. dated 27.01.2005, the petitioner’s name was considered and on the basis of his gradation/remark ‘ x ’ in ACR, his name was not recommended for promotion. It is also not disputed that the criteria of promotion before the D.P.C. is seniority-cum-merit, which is clear from para 4 and 6 of the proceeding of D.P.C. held on 27.01.2005. It is also not disputed that the criteria of promotion before the D.P.C. is seniority-cum-merit, which is clear from para 4 and 6 of the proceeding of D.P.C. held on 27.01.2005. The relevant portion i.e. para 4 and 6 of the D.P.C. proceeding are extracted herein as under :- ^^¼4½ fopkj {ks= %& ofj"Brk≶&miqDrrk (Seniority-cum-merit) ij vk/kkfjr inksUufr;ksa ds laca/k esa ofj"Brk Øekuqlkj vgZrk izkIr ,oa e/;izns'k dk fodYi nsus okys deZpkjh dks NksM+dj ¼ofj"Brk lwph Øekad 02 ls 11 vkSj 13 ls 33 rd½ vf/kdkfj;ksa ds ukeksa ij fopkj fd;k x;kA ------- ¼6½ ekin.M ,oa dlkSVh %& inksUufr lfefr us fuEufyf[kr ekin.Mksa ,oa dlkSfVk;ksa dks fopkj esa j[krs gq, vuq'kalk,a dh gS %& ¼1½ lafu"Vrk lansg ls ijs gks vkSj izekf.kr gksA ¼2½ ik¡p o"kksZ ds xksiuh; izfrosnuksa dk lexz ewY;kadu ^^[k** ¼vPNk½ Js.kh dk gksA ¼3½ vafre ,oa uohure o"kZ dk xksiuh; izfrosnu ^^x** ¼vkSlr½ Js.kh dk u gksA ¼4½ ;fn vU; o"kksZ esa dksbZ xksiuh; izfrosnu ^^x** Js.kh dk gks rks mldh izfriwfrZ nwljs d$ ¼mRd`"B½ vFkok ^^d** ¼cgqr vPNk½ Js.kh ds xksiuh; izfrosnu ls gksrh gSA ¼5½ vioknkRed xq.k rFkk dk;Z laiknu laca/kh fo'ks"k dkj.kksa dks mYysf[kr djrs gq;s nh xbZ mRd`"V Js.kh dks dsoy mRd`"V Js.kh vadu ls vfrfjDr egRo nsukA ¼6½ e.Mh cksMZ lsok fofu;e 1998 ds fu;e 16 ¼2½ ds vuqlkj ,sls vf/kdkfj;ksa dks tks fo'ks"k :i ls ;ksX; rFkk mi;qDr gks mUgsa lwph esa ls mlls ofj"B vf/kdkjh dh rqyuk esa mPprj LFkku nsukA** 15. Further, as per para 13 of the proceeding of D.P.C., the petitioner was not found fit. Further, as per para 13 of the proceeding of D.P.C., the petitioner was not found fit. The relevant portion/contents of para 13 of the D.P.C. proceeding is extracted herein as under :- ^^¼13½ mi;qDrrk ds fu/kkZj.k gsrq ewY;kadu %& xksiuh; pfj=koyh ds ewY;kadu ds i'pkr fuEufyf[kr dfu"B lfpoksa dks inksUufr ds v;ksX; ik;k % ¼1½ Jh fot; dqekj flag Bkdqj] ¼2½ Jh yfyr dqekj 'kekZ] ¼3½ Jh tkxs'oj daoj] ¼4½ Jh d`".k eksgu HkkxZo] ¼5½ Jh Fkkej VksIiks dh xksiuh; pfj=kofy;ksa ds ewY;kadu ls Kkr gksrk gS fd o"kZ 2003&04 uohure o"kZ dh xksiuh; izfrosnu ^^x** ¼vkSlr½ Js.kh ,oa blh izdkj ¼6½ Jh ghjk yky dkSy dh o"kZ 2000&01 ,oa 2001&02 dh xksiuh; pfj=koyh ^^x** ¼vkSlr½ Js.kh rFkk ¼7½ Jh y[kuyky oekZ dh o"kZ 99&2000 ,oa 2001&02 dh xksiuh; pfj=koyh ^^x** ¼vkSlr½ Js.kh rFkk ¼8½ Jh ,l- ds- esJke dh o"kZ 99&2000] 2000&01] 2001&02 ,oa o"kZ 2003&04 dh xksiuh; pfj=koyh miyC/k u gksus ds dkj.k bUgsa foHkkxh; inksUufr lfefr }kjk vuqi;qDr ekuk x;k gSA** 16. While dealing with the issue of adverse remark in the ACR and promotion of an employee, Hon’ble Supreme Court in the matter of Dev Dutt (supra) held in para 45 and 47 as under :- “45. 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. 46…… 47. We are informed that the appellant has already retired from service. However, if his representation for upgradation of ‘good’ entry is allowed, he may benefit in his pension and get some arrears. Hence we direct that the ‘good’ entry of 1993-94 be communicated to the appellant forthwith and he should be permitted to make a representation against the same praying for its upgradation. If the upgradation is allowed, the appellant should be considered forthwith for promotion as Superintending Engineer retrospectively and if he is promoted he will get the benefit of higher pension and the balance of arrears of pay along with 8% per annum interest.” 17. It is an admitted position that the petitioner was not promoted on the basis of entry ‘ x ’ recorded in his ACR. It is an admitted position that the petitioner was not promoted on the basis of entry ‘ x ’ recorded in his ACR. It is also not disputed that this entry was never communicated to the petitioner. Para 13 of the DPC meeting makes it clear that the petitioner was not found fit for promotion because of his adverse entry ‘ x ’ in ACR for the year 2003-2004 and that this entry was never communicated to the petitioner so as to enable him to represent against this. However, respondents have objected that the petitioner did not file any representation against the adverse entry recorded in his ACR, however, the petitioner has filed this petition on 03.01.2008 and since then the petitioner and respondent have been filing various documents before this Court exhibiting their stand. The matter is pending before this Court since 2008. It is not disputed that in the year 2010, the petitioner got promoted, however, as per previous D.P.C., his juniors were promoted only on the basis that the petitioner is having entry “ x ” in his ACR. 18. In view of the foregoing discussion and in the light of guideline of Hon’ble Apex Court in Dev Dutt (supra), this Court deem it appropriate to direct the petitioner to file/make a fresh representation for upgradation of his ACR if he so chooses, against the said entry within two months thereafter and the said representation will be decided within two months. If his entry is upgraded, the petitioner shall be considered for promotion retrospectively by the Departmental Promotion Committee dated 27.01.2005 within three months thereafter and if the petitioner gets selected for promotion retrospectively, he should be given higher pension with arrears of pay and interest @ 6% per annum till the date of payment. 19. With these observation, this appeal is allowed. No costs.