ORDER
Abhay M. Naik, J.
1. The petitioner is aggrieved by the order contained in Annexurc-A/6 promoting thereby respondent No. 4 to the post of Reader in the department of Pediatrics,. Admittedly, the petitioner and the respondent No. 4 were lecturers and the petitioner was senior in the feeder cadre to the respondent No. 4. The petitioner has assailed the impugned order on the ground that he being senior to the respondent No. 4 ought to have been considered and selected for the said post. It has further been contended that no adverse entry in the service book of the petitioner could have been considered in the absence of its communication to him while making promotion on the post of Reader.
2. Shri Harish Agnihotri, learned Government Advocate, submitted that the promotion was made on the basis of seniority-cum-merit. The criteria prescribed by the DPC for the purpose of promotion included 5 years ACRs., (relating to the period from 19.90 to 1994 in the present case). It was further necessary as per the criteria that at least 3 years ACRs. must be good or very good and there must be at least 2 ACRs, with good report. The criteria was that there should not be any ACR with “poor” remark during the relevant period. It is submitted by Shri Harish Agnihotri, learned Government Advocate, that the DPC considered the eases of the petitioner as well as of respondent No. 4 and found the respondent No. 4 more suitable on the basis of ACRs. of five preceding years. The position of ACRs. of the petitioner as well as the respondent No. 4 is reflected from paragraph 2 of thc return. It has been stated by the respondents that the respondent No. 4 was found more suitable in comparison to the petitioner and was accordingly promoted to the post of Reader.
3. Per contra, Shri Puspendra Yadav, submitted that the average entry contained in the ACR of 1994 ought to have been treated as an adverse entry and the same could not be taken into consideration without intimation to the petitioner. He relied upon the decisions reported as Gurdial Singh Fijji v. State of Punjab and Ors. and U.P. Jal Nigam and Ors. v. Prabhat Chandra Jain and Ors..
4. After considering the submissions, I am of the opinion that the petition is devoid of force and is liable to be dismissed for the following reasons:
(i) Admittedly, the petitioner as well as the respondent No. 4, both were considered along with other candidates for promotion to the post of Reader. The criteria of merit-cum-seniority has been applied. DPC, after considering both of them, made an assessment and found the respondent No. 4 to be more meritorious. The Supreme Court in the case of U.P. Jal Nigain and Ors. v. Prabhat Chandra Jain and Ors. reported as has held that if the graded entry is of going a step down like falling from ‘very good’ to ‘good’ that may not ordinarily be an adverse entry since both are a positive grading. All what is required by the Authority recording confidentials in the situation is to record reasons for such down grading on the personal file of the officer concerned and inform him of the change in the form of an advice. If the variation warranted be not permissible, then the very purpose of writing annual confidential reports would be frustrated. The Apex Court has further held that it may be emphasised that even a positive confidential entry in a given case can perilously be adverse and to say that an adverse entry should always be qualitatively damaging may not be true.
(ii) It is commonly said that an adverse entry is to be communicated before taking it into consideration. What is meant by adverse entry ? It is not an entry which is not as per the self appraisal or personal assessment of the employee. Similarly, it is not an adverse entry if it merely does not suit the employee. In order to call an entry as adverse one, it must restrict the chances of promotion and must come in a way of the employee while claiming promotion. This may be said only if, on account of an entry the employee stands excluded from the zone of consideration at the time of promotion. If an employee falls within the zone of consideration and is in fact considered in the process of promotion despite an entry, the same can not be legally treated as adverse entry warranting communication.
(iii) Necessity of communicating the adverse entry has been explained by Division Bench of this Court in Shiva Nand Prasud v. Chief of Army Staff and Ors. reported as 1993 MPST 344. It has been held by the Division Bench headed by learned Hon’ble Mr. Justice Dharmadhikan (later on elevated as Judge of the Hon’ble Supreme Court of India) that where the entry takes away the case of the petitioner out of consideration for promotion and renders him unfit, such an entry must be treated as adverse necessitating its communication and representation against the same.
(iv) Considering from this view, it is found that the petitioner fell within the zone of consideration and was in fact considered, so it was not necessary for the State Government/ department to communicate the entry of the year 1994 and the same cannot be said to be adverse warranting communication. The petitioner was found to be less meritorious/suitable by the D.P.C. on the basis of the service records and no infirmity is found in the process of promotion.
(v) The judgment of Supreme Court in Gurdial Singh Fijji v. State of Punjab and Ors. reported as has no application because the explanation offered by the employee against the adverse entry was pending. The present case is quite distinguishable on facts.
5. Resultantly, I do not find any force in the petition. The same is hereby dismissed without costs.