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2025 DIGILAW 195 (PNJ)

Kamal Kishore Dhawan v. Union of India

2025-08-11

HARSIMRAN SINGH SETHI, VIKAS SURI

body2025
JUDGMENT : Harsimran Singh Sethi J. CM-11209-CWP-2025 Present application has been filed for fixing the main writ petition to an early actual date of hearing. Notice of the application to counsel for the respondents. Ms. Alka Chatrath, Advocate appears on behalf of the respondent-UPSC and accepts notice. She raises no objection for the grant of prayer as made in the present application. Keeping in view the averments made in the application, which are duly supported by an affidavit, the application is allowed and on the joint request of learned counsel for the parties, the main petition is taken up for hearing today. CWP-843-2018 1. In the present petition, the challenge is to the order dated 26.07.2017 (Annexure P-6) passed by the Central Administrative Tribunal by which, the claim of the petitioner that his representation against the ‘below bench mark’ ACR recorded for the year 2003-2004 has wrongly been rejected. The prayer of the petitioner in the present petition is that the review DPC dated 26.10.2012 conducted by the respondents by which the petitioner was declared unfit for the promotion to the post of Chief Commissioner of Income Tax, should also be set-aside. 2. Certain facts need to be mentioned for the correct appreciation of the issue in hand. 3. The petitioner joined as an Income Tax Officer (Group-A) on 14.07.1977. On 28.06.2001, the petitioner was promoted as Commissioner of Income Tax. While working on the said post, a charge-sheet came to be served upon him on 07.08.2002 in respect of the quasi judicial functions discharged by him in the year 1998. Thereafter, another charge-sheet was served upon the petitioner on 28.04.2003 for lapses committed by him in respect of certain assessments completed by the petitioner in the year 1995- 1996. Keeping in view the said facts, the petitioner was imposed upon with punishment upon proving of some of the allegations in the charge-sheet, which punishment order dated 13.04.2007 was challenged by the petitioner by filing Original Application (O.A.) No. 688 of 2007 before the Central Administrative Tribunal (Madras Bench). 4. After appreciating the facts, the Central Administrative Tribunal (Madras Bench) while passing order dated 06.08.2008 set-aside the punishment order dated 13.04.2007 by which, the petitioner was imposed with the penalty of reduction in pay by three stages till retirement. 5. 4. After appreciating the facts, the Central Administrative Tribunal (Madras Bench) while passing order dated 06.08.2008 set-aside the punishment order dated 13.04.2007 by which, the petitioner was imposed with the penalty of reduction in pay by three stages till retirement. 5. With regard to the second charge-sheet dated 28.04.2003, the punishment of compulsorily retirement was imposed upon the petitioner on 01.04.2008 and against this order of punishment also, the petitioner availed a remedy by way of filing Original Application (O.A.) No. 1179 of 2008 before the Principal Bench, New Delhi. On 06.02.2009, even the said order imposing punishment of compulsorily retirement upon the petitioner was set- aside by the Principal Bench of the Central Administrative Tribunal and the petitioner was directed to be reinstated in service. 6. As the petitioner was not being reinstated in service in pursuance to the order dated 06.02.2009, the petitioner filed Writ Petition (c) No. 9519 of 2009 for implementation of the order dated 06.02.2009 passed by the Central Administrative Tribunal (Principal Bench) and vide order dated 18.04.2012 direction was given to the respondents to implement the said order passed by the Tribunal keeping in view the said fact, ultimately the petitioner was reinstated in service. 7. During the period when petitioner filed a writ petition seeking reinstatement in service in pursuance of order dated 06.02.2009 passed by Tribunal, a DPC meeting was held on 23.10.2009 considering the promotion of certain employees to the post of Chief Commissioner (Director General of Income Tax). Certain Officers, who were junior to the petitioner and were in service, were considered and promoted to the said rank. 8. After the reinstatement of petitioner in service, the petitioner raised a claim for the grant of benefit of promotion to the aforementioned post with effect from the date employees junior to the petitioner were promoted to the post of Chief Commissioner (Director General of Income Tax). The petitioner’s claim qua the said aspect was considered by the review DPC dated 26.10.2012. 9. Keeping in view the ACR of the petitioner, in the said review DPC, the petitioner was declared unfit for promotion to the post of Chief Commissioner (Director General of Income Tax) on the ground that petitioner failed to secure minimum bench mark required for being declared fit for promotion. 10. 9. Keeping in view the ACR of the petitioner, in the said review DPC, the petitioner was declared unfit for promotion to the post of Chief Commissioner (Director General of Income Tax) on the ground that petitioner failed to secure minimum bench mark required for being declared fit for promotion. 10. Thereafter, keeping in view the fact that even the ‘Good’ reports which were not conveyed to the petitioner, were being treated ‘Adverse’, by the review DPC for the purpose of determining the claim of the petitioner for promotion to the post of Chief Commissioner (Director General of Income Tax), the petitioner filed representations dated 31.10.2012 with the respondents for upgradation of his ACR for the year 2003-2004 as well as for the year 2006-2007. The said representations were considered by the authorities concerned and were decided by passing order dated 04.02.2013 (Annexure A-8) qua the financial year 2006-2007 by which, grading in ACR of the petitioner was upgraded to that of ‘Very Good’ from ‘Good’ and qua the financial year 2003-2004, on the same date, another order dated 04.02.2013 (Annexure A-9) was passed by which the claim of the petitioner for upgrading the ACR from ‘Good’ to ‘Very Good’ was declined. 11. The said order was impugned by the petitioner before the Central Administrative Tribunal by filing OA No. 060/00456/2016 on certain grounds that the denial of the promotion to the petitioner for the post of Chief Commissioner (Director General of Income Tax), by declaring the petitioner unfit for the said promotion in the review DPC dated 26.10.2012 was bad as the respondents were under obligation only to take into consideration the above Bench Mark un-communicated reports to consider his claim for promotion to the post of Chief Commissioner (Director General of Income Tax) whereas, the un-communicated reports which were ‘Good’ have been considered. 12. 12. Further grievance of the petitioner is qua the rejection at the hands of respondents for upgradation of the ACR for the year 2003-2004 from ‘Good’ to ‘Very Good’ vide order dated 04.02.2013 (Annexure A-9) was cryptic and non-speaking and the said ACR needs to be upgraded, especially when the comments of the Officers, under whom the petitioner had worked for the relevant period, were not sought for evaluating the petitioner for the ACR and the said ACR of 2003-2004 was submitted by an Officer, who had only supervised the petitioner’s working in the service for a period of little over three months rather than by an Officer who had supervised the working of the petitioner in service for more than seven months in the said particular period. 13. The Tribunal after considering all the facts, dismissed the Original Application filed by petitioner vide order dated 26.07.2017 (Annexure P-6), which order of the Tribunal is under challenge in the present petition along with the prayer that the petitioner be declared fit for promotion by taking into consideration the non-communicated above Bench Marks ACRs of the petitioners of previous years which were available with the respondents and were not taken into consideration for considering claim of petitioner for promotion. 14. Learned senior counsel appearing on behalf of the petitioner has reiterated all the arguments which have been noticed here-in-before, which were also raised before the Tribunal and were not accepted by the Tribunal while passing the impugned order dated 26.07.2017 (Annexure P-6). 15. Apart from challenging the said order of Tribunal dated 26.07.2017 (Annexure P-6), learned senior counsel has raised a grievance that as the petitioner had retired from service on attaining the age of superannuation on 31.10.2012, all the efforts were made by the respondents not to give petitioner promotion retrospectively rather than extending him an objective assessment qua his claim for promotion with effect from the date, the employees junior to the petitioner were promoted to the post of Chief Commissioner (Director General of Income Tax). 16. 16. Learned senior counsel appearing on behalf of the petitioner has further argued that as per the Instructions dated 16.02.2009 (Annexure A-15) qua preparation and maintenance of ACRs and Instructions dated 13.04.2010 (Annexure A-16), stipulating the procedure if ACR of an employee is to be considered for promotion, the same have not been kept in mind while considering the claim of petitioner for promotion in the review DPC dated 26.10.2012 as well as while considering the claim of petitioner for upgradation of the ACR. 17. Learned counsel appearing on behalf of the respondents submits that fair consideration was given to the claim of the petitioner while considering his claim for promotion in the review DPC dated 26.10.2012 and whatever the record of the petitioner existed at that time qua his ACR and service record, the same was depicted while assessing the petitioner for his claim of promotion and thereafter, after his claim got rejected, the petitioner filed representations for upgradation of his ACR for the year 2003-2004 as well as 2006-2007 which were graded as ‘Good’ and by giving a due consideration to the representations filed by petitioner, he was found to be entitled for upgradation of his ACR for the year 2006-2007 to ‘Very Good’ but, the claim of the petitioner was not found justifiable as was found in the case of his ACR for the year 2003-2004, his claim for upgradation for the year 2003-2004 was rejected. 18. Learned counsel for the respondents further submits that whatever was required to be done as per the Instructions dated 16.02.2009 and 13.04.2010, the same had been complied with and the same aspect was further considered by the Tribunal and the claim of the petitioner was rejected, hence, the present petition be also dismissed. 19. We have heard learned senior counsel for the petitioner and the respondents and have gone through the record with their able assistance. 20. The first question which has been raised by the learned senior counsel for the petitioner is that the ACRs granting the remark ‘Good’ were never communicated to him till the same were being considered in the review DPC dated 26.10.2012 for the claim of petitioner for promotion to the post of Chief Commissioner (Director General of Income Tax). 20. The first question which has been raised by the learned senior counsel for the petitioner is that the ACRs granting the remark ‘Good’ were never communicated to him till the same were being considered in the review DPC dated 26.10.2012 for the claim of petitioner for promotion to the post of Chief Commissioner (Director General of Income Tax). Learned senior counsel appearing on behalf of the petitioner submits that once, the said ACR of the petitioner for the year 2003-2004 was not conveyed by the respondents and the claim of the petitioner for promotion was being re- considered in the review DPC dated 26.10.2012, the Instructions dated 13.04.2010 (Annexure A-16) should have been brought in operation so as to first give him the chance of representation qua the ACR of the year 2003- 2004 and only thereafter, consider such report for claim of petitioner for promotion. Learned senior counsel further submits that the Instructions dated 13.04.2010 (Annexure A-16) have not been complied with while considering his representation for upgradation of the ACRs for the year 2003-2004 and 2006-2007, especially when even the Officers concerned who had recorded the ACR of petitioner, were not consulted hence, the order passed by the Authorities concerned firstly by treating the petitioner unfit for promotion in the review DPC dated 26.10.2012 is incorrect and contrary to the Instructions dated 13.04.2010 (Annexure A-16) and, therefore, the said consideration should be set-aside along with the order dated 04.02.2013 (Annexure A-9) by which the claim of the petitioner for upgradation of his ACR for the year 2003-2004 has been denied. 21. In this regard, it may be noticed that the only benefit which has been given to an employee concerned in the Instructions dated 13.04.2010 (Annexure A-16) is that whenever a claim of an employee is being considered on the basis of an un-communicated ACR, which ACR being below the ‘Bench Mark’ is causing prejudice, the employee concerned should be given an opportunity to file a representation qua the same. Though, in the present case, the opportunity was not given to the petitioner prior to review DPC dated 26.10.2012 after he was reinstated in service in pursuance of order dated 18.04.2012 passed by the Hon’ble Delhi High Court but, it is a matter of fact that after the review DPC dated 26.10.2012 by which the petitioner was declared unfit, the petitioner exercised the said right of filing a representation for consideration qua upgradation of two ACRs of the year i.e. 2003-2004 as well as 2006-2007. 22. The respondents have considered the representation filed by the petitioner and accepted the claim of the petitioner for upgradation of the report for the year 2006-2007 ‘Good’ to ‘Very Good’ but decided not to upgrade the ACR of the year 2003-2004 from ‘Good’ to ‘Very Good’ by stating that no interference is needed to modify the report. 23. Once, the claim for upgradation of ACR, though raised after the review DPC dated 26.10.2012 was concluded, has been considered by the Department qua claim of petitioner for promotion, the question which arise for consideration is whether, after the passing of the order by the Competent Authority not accepting the claim by the petitioner for upgradation of ACR qua the year 2003-2004 in pursuance of representation filed by the petitioner, still the benefit should be given to the petitioner or not. The petitioner has already exercised the option of filing representation but failed to convince the authorities qua the upgradation of ACR for the year 2003-2004. Once, he has failed to avail the desired remedy through the way of filing representation, the petitioner is reverting now to claim that the said opportunity so granted is futile and is an afterthought in order to decline him the benefit which he was otherwise, entitled for under the settled principle of law. 24. In case, the petitioner was of the said view, that filing of the representation after review DPC is futile, petitioner should not have availed the remedy of representation and rather the petitioner should have approached against the review DPC dated 26.10.2012 before the Competent Court of Law rather than exercising his right to file a representation before the authorities concerned. In case, the petitioner was of the said view, that filing of the representation after review DPC is futile, petitioner should not have availed the remedy of representation and rather the petitioner should have approached against the review DPC dated 26.10.2012 before the Competent Court of Law rather than exercising his right to file a representation before the authorities concerned. Once, he himself chose the option to make a representation before the authorities concerned and consequently got an adverse order, he cannot at this stage regal out of an act done by him by leveling allegations against the respondents that they were biased against the petitioner or the remedy of representation was futile. 25. With regard to the argument regarding post-decisional hearing qua rejection of representation, the same is not permissible. It may be noticed that the allegation of the petitioner that the respondents were biased so as to not grant him relief as the petitioner had already retired. It may be noticed that qua the ACR for the year 2006-2007, the respondents themselves upgraded the same from ‘Good’ to ‘Very Good’ and qua the ACR for the year 2003-2004, the respondents considered the same for upgradation but rejected the same. In case, the intention of the respondents was only to close his case, they could have rejected both the prayers for upgradation of both the ACRs, which was concededly not done, rather one of his ACRs for the year 2006-2007 has been upgraded from ‘Good’ to ‘Very Good’ hence, the assertion of the petitioner that the respondents only wanted to close his case rather than granting the benefit, cannot be accepted in view of the facts stated here-in-before. 26. Further, the argument which has been raised by the learned senior counsel appearing on behalf of the petitioner is that the consideration qua the representation filed by the petitioner for upgradation of his ACRs at the hands of the respondents, in the facts and circumstances of the present case, is incorrect. Learned senior counsel has raised the argument that no comments/consultation of the reporting officer who had recorded the ACR of the petitioner for the year 2003-2004, were sought for before declining the claim of the petitioner for upgradation of his ACR for the year 2003-2004 hence, the same is contrary to the Instructions dated 13.04.2010 and hence, the consideration by the respondents is incorrect. 27. 27. It may be noticed that the ACR was submitted in the year 2003- 2004 and the same was being considered for upgradation after a period of a decade. The same was being decided on the basis of the factual assertion, which the petitioner made before the authorities concerned and such assertions raised by the petitioner for upgradation of his ACR for the year 2003-2004 were considered and decided by giving due reason in paragraph 4 of the order dated 04.02.2013 annexed herein as Annexure A-9. Merely that the consultation/comments of the Officers who had recorded the ACRs for the petitioner, which was causing prejudice to the petitioner, were not taken, will not vitiate the decision so taken by the respondents while declining to upgrade the ACR of the petitioner for the year 2003-2004, especially when reasoned order is passed while declining the request. 28. A bare perusal of the order which has been passed by the respondents while considering the claim of the petitioner for upgradation goes to show that due reasons have been given in paragraph 4 of the said order for not upgrading his ACR for the year 2003-2004. While considering the representation filed by the petitioner for upgradation of ACR, the aspects which are taken into account for deciding a case/claim, the same has to be done by keeping in view the averments made and the record available before the Authority. All the contentions raised have been dealt with by the respondents while passing the order dated 04.02.2013 with regard to declining the claim of petitioner for upgradation of the ACR for the year 2003-2004 from ‘Good’ to ‘Very Good’, hence, same cannot be treated as cryptic and non-speaking order. 29. Learned senior counsel for the petitioner has raised an argument which the petitioner had raised in his representations for upgradation of his ACRs that the Authorities were influenced by the two departmental enquiries which were pending against him so as to record the ACR as ‘Good’ for the year 2003-2004. It may be noticed that a bare perusal of the ACR for the said year of 2003-2004 would show that no such fact has been recorded by the Officer concerned while recording the said ACR that certain departmental proceedings are pending against the petitioner due to which he has only been granted ‘Good’ as a remark. It may be noticed that a bare perusal of the ACR for the said year of 2003-2004 would show that no such fact has been recorded by the Officer concerned while recording the said ACR that certain departmental proceedings are pending against the petitioner due to which he has only been granted ‘Good’ as a remark. Once, no such fact is mentioned in the ACR, the argument being raised by the learned senior counsel that the reporting Officer was as has been alleged by petitioner, influenced by such facts, cannot be accepted as same is only speculation and not facts. 30. It should be noted that there is one other reason for not accepting the said argument; that even in the year 2006-2007, the aforementioned enquiries were still pending against the petitioner whereas for the said period, the reporting Officer adjudged the petitioner as ‘Very Good’ for the purpose of submitting his ACRs though, the same was downgraded to ‘Good’ by the reporting Officer. Once, in the same factual position, two different assessments have been made by the Reporting Officer, the Court has to assume that these two different assessments have been made by the Reporting Officer on the basis of the subjective opinion of the Reporting Officer and not because of being influenced by the pendency of the disciplinary proceedings. 31. Further, it may be noticed that the argument which has been raised by the learned senior counsel that the reasons for non-upgradation of the ACR from ‘Good’ to ‘Very Good’ for the financial year 2003-2004 are missing in order dated 04.02.2013 (Annexure A-9) but, it may be noticed that on the same date the said authorities accepted the claim for upgradation of the ACR of the petitioner for the year 2006-2007. This shows that the Authorities were opened to the conviction and wherever required, the benefit has been given. Merely, that the upgradation of the ACR has not been granted for the year 2003-2004, will not treat that the said order has been passed without application of mind or considering the claim raised by the petitioner in his representations. 32. This shows that the Authorities were opened to the conviction and wherever required, the benefit has been given. Merely, that the upgradation of the ACR has not been granted for the year 2003-2004, will not treat that the said order has been passed without application of mind or considering the claim raised by the petitioner in his representations. 32. Learned senior counsel has cited the law to contend that where the ACRs have not been conveyed to the petitioner but have been considered ‘Adverse’, the same were liable to be taken out from the purview of consideration and only the reports which were either conveyed or un- conveyed, which are above the Bench Mark, are to be considered for the purpose of determining the claim of petitioner for promotion. The reliance is being placed upon the judgment of the Hon’ble Supreme Court of India in Civil Appeal Nos. 8006-8007 titled as Prabhu Dayal Khandelwal Vs. Chairman, Union Public Service Commission and others , decided on 23.07.2015. Learned senior counsel places reliance upon paragraph 7, 8 and 9 of the said judgment, to contend that in the case of the petitioner also, the same law should have been ordered to be applied by the Tribunal, which non-grant of the benefit by the Tribunal is contrary to the settled principle of law noticed here-in-before. The relevant paragraphs 7, 8 and 9 of the judgment in Prabhu Dayal Khandelwal(supra) are as under :- “7. In the above view of the matter, we are satisfied that the impugned order passed by the High Court, deserves to be set aside, inasmuch as, the claim of the appellant could not be ignored by taking into consideration, uncommunicated Annual Confidential Reports for the years 1995-1996, 1996- 1997 and 1998-1999, wherein the appellant was assessed as “good”. In the absence of the aforesaid entries, it is apparent, that the remaining entries of the appellant being “very good”, he would be entitled to be considered fit for the promotion, to the post of Chief Commissioner of Income Tax, on the basis of the then prevailing DoPT guidelines, and the remaining valid Annual Confidential Reports. 8. In the absence of the aforesaid entries, it is apparent, that the remaining entries of the appellant being “very good”, he would be entitled to be considered fit for the promotion, to the post of Chief Commissioner of Income Tax, on the basis of the then prevailing DoPT guidelines, and the remaining valid Annual Confidential Reports. 8. On the issue, whether the representations filed by the appellant against the Reports for the years 1995-1996, 1996- 1997 and 1998-1999 need to be taken to their logical conclusion, we are of the view, that since almost two decades have passed by since the aforesaid Annual Confidential Reports were recorded, it would be too late in the day to require the Authorities to adjudicate upon the representations made by the appellant as against the uncommunicated Annual Confidential Reports. 9. In the above view of the matter, we are satisfied, that the respondents ought to be directed to reconsider the claim of promotion of the appellant, to the post of Chief Commissioner of Income Tax, for the vacancies which arose during the years 2000-2001 and 2001-2002 on the basis of the communicated reports for the years 1997-1998 and 1999-2000, within a period of three months from today. Ordered accordingly.” 33. It may be noticed that the said judgment in Prabhu Dayal Khandelwal (supra), places reliance upon the view taken in Dev Dutt Vs. Union of India and others , (2008) Vol. 8 SCC 725 as well as in the judgment in Sukhdev Singh Vs. Union of India , (2013) Vol. 9 SCC 566 and the judgment in Abhijit Ghosh Dastidar Vs. Union of India , (2009) Vol. 16 SCC 146. It may be noticed that the initial judgment of the Hon’ble Supreme Court of India with regard to consideration of the ACRs, which are not conveyed to an employee concerned, was considered in Dev Dutt’s case (supra). 9 SCC 566 and the judgment in Abhijit Ghosh Dastidar Vs. Union of India , (2009) Vol. 16 SCC 146. It may be noticed that the initial judgment of the Hon’ble Supreme Court of India with regard to consideration of the ACRs, which are not conveyed to an employee concerned, was considered in Dev Dutt’s case (supra). After considering that the said action of not conveying the ACRs to the employee concerned causes prejudice, the ultimate relief granted was that such employees whose claim had been rejected on the ground of ACRs, which ACRs were not communicated to the employee concerned, the benefit of representation should be given and in case, the employee chooses to represent against the un-communicated ACRs, the ultimate decision in the representation should be taken into account for assessing the fitness of the Officer concerned for the benefits claimed by him. Relevant paragraph Nos.47 and 48 of the said judgment are as under:- “47. We are informed that the appellant has already retired from service. However, if his representation for upgradation of the `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. 48. We, therefore, direct that the 'good' entry be communicated to the appellant within a period of two months from the date of receipt of the copy of this judgment. On being communicated, the appellant may make the representation, if he so chooses, against the said entry within two months thereafter and the said representation will be decided within two months thereafter. If his entry is upgraded the appellant shall be considered for promotion retrospectively by the Departmental Promotion Committee (DPC) within three months thereafter and if the appellant gets selected for promotion retrospectively, he should be given higher pension with arrears of pay and interest @ 8% per annum till the date of payment.” 34. If his entry is upgraded the appellant shall be considered for promotion retrospectively by the Departmental Promotion Committee (DPC) within three months thereafter and if the appellant gets selected for promotion retrospectively, he should be given higher pension with arrears of pay and interest @ 8% per annum till the date of payment.” 34. The same view was reiterated in Abhijit Ghosh Dastidar’s case (supra) as well and even in Prabhu Dayal Khandelwal’s case (supra) . The relief which was granted in Prabhu Dayal Khandelwal’s case (supra) by the Hon’ble Supreme Court of India qua ignoring of the un-communicated ACRs, is based upon the factual aspect which was present in Prabhu Dayal Khandelwal’s case (supra) as noticed in paragraph 8. In paragraph 8, the Hon’ble Supreme Court of India held that as the ACRs which were taken into consideration were for the year 1995-1996 upto 1998-1999, which was almost two decade ago, it will be too late in the day to direct petitioner to file representation and to ask the authorities to consider the representation and adjudicate upon them hence, the benefit of promotion was granted to the petitioner therein and direction was given to the authorities to ignore the uncommunicated report. 35. In the present case, though, at the time of consideration qua promotion to the post of Chief Commissioner (Director General of Income Tax) the below Bench Mark ACR had not been communicated to the petitioner but thereafter, the petitioner had already filed the representation against such non-communicated ACRs out of which, one of the representation was rejected for upgradation of ACR qua the year 2003-2004 which was good enough to declare the petition unfit even for the DPC, which was held in the year 2009. Once, the order qua representation made by petitioner had come, directing the authorities to ignore the ACR for the year 2003-2004 even after rejection of the representation after this stage so as to consider the claim of the petitioner will be contrary to the judgment in Dev Dutt’s case (supra) and will also amount to ignoring an order passed after due consideration request of the petitioner for upgradation of the ACR for the year 2003-2004, which request was declined. 36. 36. The facts which were present before the Hon’ble Supreme Court of India in Prabhu Dayal Khandelwal’s case (supra), are different as compared to the facts in the present case on the date when the petitioner assailed the review DPC dated 26.10.2012 as, the date when petitioner approached the Central Administrative Tribunal against orders passed qua the representations, even the representations filed by the petitioner against the ACR for the year 2003-2004 had already been rejected and, therefore, the judgment in Prabhu Dayal Khandelwal’s case (supra), cannot be brought into operation so as to direct the respondents to ignore all the un- communicated reports so as to take only the reports which were above the Bench Mark so as to declare the petitioner fit for promotion to the post of Chief Commissioner (Director General of Income Tax). 37. Further, the settled law as per Dev Dutt’s case (supra) is that un-communicated ACRs when taken into consideration causes prejudice to the employee concerned and the said prejudice needs to be addressed. 38. In the present case, against the un-communicated ACRs, the petitioner had already filed a representation and the said representation was accepted qua the ACR for the year 2006-2007 and the same was upgraded to ‘Very Good’ but the representation against the ACR of the year 2003-2004 has been rejected. After the rejection, the prejudice which was being pleaded no longer exists. It cannot be said that even after the rejection of the representation, the prejudice by considering the un-communicated ACRs percepts. Therefore, in case the prayer of the petitioner that only the communicated reports and un-communicated ACRs which are above ‘Very Good’ should be considered by ignoring the ‘Good’ communicated report cannot be accepted. As, on the day when the petitioner assailed the recommendations of the review DPC dated 26.10.2012, the said prejudice had already been redressed by the Department on the basis of the representation filed. Therefore, the argument that the petitioner is prejudiced even after the rejection of his representation, cannot be accepted. 39. Further, it may be noticed that the similar question of law came up for consideration before the Division Bench of Telangana High Court in CWP No. 15979 of 2019 titled as Y. Lakshmana Rao Vs. Therefore, the argument that the petitioner is prejudiced even after the rejection of his representation, cannot be accepted. 39. Further, it may be noticed that the similar question of law came up for consideration before the Division Bench of Telangana High Court in CWP No. 15979 of 2019 titled as Y. Lakshmana Rao Vs. Union of India and others , decided on 24.04.2023, wherein also, the view taken by the Division Bench is that the prejudice caused to an employee by taking into consideration his un-communicated ACRs can only be redressed by way of allowing such employees to represent against the ACR gradings and in case, the same are upgraded, the DPC should re-consider the claim qua the promotion. 40. Keeping in view the facts and circumstances of the case mentioned here-in-before including the settled principle of law, the said issue has rightly been decided by the Tribunal while declining the said claim of the petitioner, which needs no interference at the hands of this Court. 41. No other argument is raised. 42. No ground is made out for any interference by this Court in the facts and circumstances of the present case. 43. Dismissed. 44. Pending miscellaneous application, if any, also stands disposed of.