1. This petition, under Article 226 of the Constitution of India, has been filed by petitioner seeking following relief (s):-

          "(i) That, the respondents be directed to grant seniority to the petitioner w.e.f. 1990, the date on which Shri K. S. Yadav was extended benefit of promotion on the post of Assistant Engineer and accordingly the further promotion of the petitioner on the post of Executive Engineer in light of order dt. 27-2-2006, passed in case of Shri K.S. Yadav be directed to be made with all consequential benefits including the arrears of salary and other benefits.

          (ii) That, the other relief doing justice including cost be awarded."

2. Learned counsel for petitioner submits that petitioner was initially appointed as an Overseer w.e.f. 10.05.1974 and joined his duties on 29.06.1974. A gradation list was published by the respondents in the year 1989 in which the name of petitioner was placed at serial No. 1295. In the said list, the name of Shri Kamal Singh Yadav was placed at serial No. 1293. Petitioner passed a Diploma in Civil Engineering in the year 1973 and thereafter completed a Degree in Civil Engineering in the year 1988. Another employee, Shri S. S. Kushwah, was also working in the department against whom it appears that an enquiry under the Lokayukt was pending. By mistake, a notice dated 23.03.1985 was issued to petitioner. Petitioner submitted a reply stating that he was never posted at Baagwai Charaka Marg Construction Work and that the notice had been wrongly issued to him. Thereafter, a DPC was constituted for the purpose of promotion of Sub- Engineers, and the Superintendent Engineer forwarded information to respondent No. 2. The information regarding the petitioner and two other persons, namely Shri K. S. Yadav and Shri R. S. Sharma, was submitted. It is further submitted that no departmental enquiry or any proceedings under the Lokayukt were pending against the petitioner, as it is evident from Columns 6 and 7 of the information sent by the Superintendent Engineer (Annexure P/7). Despite this, junior persons, namely Shri R. K. Vyas, who was placed at serial No. 1312 and Shri K. K. Mishra, who was placed at serial No. 1326 in the gradation list, were promoted to the post of Assistant Engineer and petitioner was superseded without any fault on his part. It is further submitted that petitioner was eventually promoted to the post of Assistant Engineer in the year 2006; however, even at that time, his claim for grant of seniority w.e.f. 1990, i.e. the date on which Shri Kamal Singh Yadav was promoted as Assistant Engineer on the basis of the same information sent in the year 1989 was not considered, despite the petitioner having an excellent service record. It is further submitted that no departmental enquiry or criminal case is pending against petitioner.

3. The respondents have filed their reply, wherein it is admitted that no departmental inquiry was pending against petitioner. However, it has been stated that a departmental enquiry was pending against one Shri S.S. Kushwah, Assistant Engineer, who has since retired from service. The respondents have not denied the fact that no departmental inquiry or criminal case was pending against the petitioner. In the reply, it has also been stated that the case of petitioner for grant of notional seniority may be considered. It is further contended that as per settled law, the petitioner is not entitled to arrears of salary, even if promotion is granted at a later point of time, on the principle of "no work no pay".

4. Heard learned counsel for the parties and perused the record.

5. Perusal of record reveals that the petitioner was initially appointed as an Overseer w.e.f. 10.05.1974 and joined his duties on 29.06.1974. A gradation list was published by the respondents in the year 1989 in which the name of petitioner was placed at serial No. 1295 whereas the name of Shri Kamal Singh Yadav was placed at serial No. 1293. Petitioner passed a Diploma in Civil Engineering in the year 1973 and thereafter completed a Degree in Civil Engineering in the year 1988. Another employee, Shri S. S. Kushwah, was working in the department against whom an enquiry under the Lokayukt appears to have been pending. By mistake, a notice dated 23.03.1985 was issued to the petitioner. The petitioner submitted a reply stating that he was never posted at Baagwai Charaka Marg Construction Work and that the notice had been wrongly issued to him. Thereafter, DPC was constituted for promotion to the post of Sub-Engineer and the Superintendent Engineer forwarded information to respondent No. 2. The information relating to petitioner and two other persons, namely Shri K. S. Yadav and Shri R. S. Sharma, was submitted. From Columns 6 and 7 of the said information (Annexure P/7), it is evident that no departmental enquiry or proceedings under the Lokayukt were pending against the petitioner. Despite this, junior persons, namely Shri R. K. Vyas, placed at serial No. 1312, and Shri K. K. Mishra, placed at serial No. 1326 in the gradation list were promoted to the post of Assistant Engineer, and the petitioner was superseded without any fault on his part. The petitioner was eventually promoted to the post of Assistant Engineer in the year 2006; however, his claim for grant of seniority w.e.f. 1990, i.e. the date on which Shri Kamal Singh Yadav was promoted as Assistant Engineer on the basis of the same information sent in the year 1989, was not considered, despite the petitioner having an excellent service record. It is also evident that no departmental enquiry or criminal case has been pending against the petitioner.

6. As per the judgment rendered by Hon'ble Supreme Court in the case of Abhijit Ghosh Dastidar Vs. Union of India and Ors. reported in (2010) 1 SCC (L&S) 959, if the entry of adverse ACR has not been communicated to the delinquent, such non-communication would be arbitrary and as such is violative of Article 14 of the Constitution of India. The same view has been taken by the Hon'ble Supreme Court in the case of Dev Dutt Vs. Union of India, (2008) 8 SCC 725. It is settled law that uncommunicated adverse ACRS cannot be taken into consideration for promotion.

7. The law relating to consideration of uncommunicated ACRs for promotion or upgradation is no longer res integra. In the case of Gurdial Singh Fijji Vs. State of Punjab & Ors reported in (1979) 2 SCC 368 , the court held that the non-inclusion of a government servant in the select list on account of adverse entry which was not communicated and the opportunity was not afforded to submit representation, cannot be made basis for denial of the promotion. In the case of Kaluram Patidar Vs. State of MP & Ors WP No.11064/2010 decided on 25.8.2011 , this court relying on the judgment passed by the Apex Court in the case of Abhijit Ghosh Dastidar Vs. Union of India (2009) 6 SCC 146 came to the conclusion that the ACRs which have been resulted in denial of the selection grade cannot be considered to be a ground for denying the claim to an employee. In the case of Dev Dutt Vs. Union of India & Ors. (2008) 8 SCC 725, it has been held that non- communication of entries in the ACRS of a public servant has civil consequences because it may affect his chance for promotion or get other benefits. Such non-communication of adverse ACRS would be arbitrary and violation of Article 14 of the Constitution of India. The same has been followed by a co-ordinate Bench in the case of Rajendra Kumar Verma vs. State of M.P. 2017(1) MPLJ 391 . The Division Bench of this court in the c a s e Higher Education Department Vs. Dr.(Smt) Kavita Bundela WA No.421/2017 decided on 23.10.2017 has taken a similar view.

8. The respondents have not shown any fault on the part of the employee for non-consideration of his case for promotion alongwith his juniors. Thus, the non-consideration for promotion of petitioner at the relevant time is solely attributable to the department and there is no fault on the part of the employee therefore, the employee cannot be denied the consequential benefits after promotion. In the case of Union of India Vs. K.V.Jankiraman, AIR 1991 SC 2010 , the Apex Court held that where the employee was not at fault and the department deprived him to perform on the promotional post, the principle of "No work no pay" would not be applicable. The said principle has been followed by the Apex Court in the subsequent judgment in the case of State of Kerala Vs. E.K.Bhaskaran Pillai (2007) 6 SCC 524, followed by the Division Bench of this court in the case o f C.B.Tiwari Vs. State of M.P. & others, 2015(2) MPHT 132 . A similar view has been taken by Division Bench at the Principal Seat at Jabalpur in WA No.1287/2017 (State of MP and Ors Vs. Jham Singh Pandre) decided on 02.01.2018.

9. Having considered the rival submissions and perused the record as also the decision rendered by the Division Bench of this Court in the case of Mehfooz Ahmad v. High Court of Madhya Pradesh & another reported as 2024 (3) JLJ 17, the relevant para of which is as follows, it is apparent that uncommunicated ACRs cannot be taken into account while considering the case of an employee for promotion:

          "36. The uncommunicated ACRs cannot be taken into consideration by the DPC. Under these circumstances, the consideration of ACRs by the DPC which were never communicated to the petitioner, the declaration by the DPC that the petitioner is not found fit for promotion is per se illegal. Although the petitioner has been granted promotion subsequently from a subsequent date but he has sought promotion from the date when the DPC has considered the case of other candidates that is from 11/14.08.2016. The DPC has taken a decision to promote the petitioner to the post of Assistant Registrar vide order dated 02.11.2018 considering the fact that none of ACRs considered by DPC were communicated to the petitioner."

          (Emphasis supplied)

10. Reference in this regard may also be had to the decision rendered by the Supreme Court in the case of Abhijit Ghosh Dastidar vs. Union of India and others reported as (2009) 16 SCC 146 in which it is also held that even if a person has received good grade, in that case also it is liable to be communicated to the employee so that he can have a chance to upgrade the aforesaid grade. Thus, when the facts of the present case are tested on the anvil of the aforesaid decisions, it is apparent that petitioner obtained grade-C in his ACR, which was, admittedly not communicated to him by respondents.

11. It is an admitted position that juniors to petitioner were promoted w.e.f. 1990. It is also undisputed that no departmental inquiry or criminal case was pending against the petitioner. The respondents themselves have stated in their reply, filed on 03.05.2007 that the petitioner may be granted notional seniority. Despite the aforesaid, the benefit of seniority and promotion has not been extended to petitioner. It appears that due to similarity of name with another employee against whom a departmental enquiry was pending, the case of the petitioner was wrongly considered by the respondents. As a result, due to the fault of the respondents, the petitioner was not promoted along with his juniors.

12. Considering the aforesaid, this petition is allowed and disposed of in following manner:

          i) The respondents are directed to grant seniority to petitioner w.e.f. 1990, i.e., the date on which Shri K.S. Yadav was promoted to the post of Assistant Engineer.

          ii)The respondents shall also consider and grant further promotion to the petitioner to the post of Executive Engineer in light of the order dated 27.02.2006 passed in the case of Shri K.S. Yadav, along with all consequential benefits, including monetary benefits. However, the principle of "no work no pay" shall not be applicable, as the petitioner continued to work on a lower post due to the fault of the respondents.

          (ii) The respondents are further directed to extend all consequential benefits to the petitioner within a period of three months from the date of receipt of a certified copy of this order, along with interest @ 6% per annum. In case of failure to comply within the stipulated period, the amount shall carry interest @ 12% per annum from the date of entitlement till actual payment.