1. Shri Amit Yadav, OIC, Deputy Director of Cultural Department is present in person before this Court.

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

          "7.1 That, this Hon'ble Court may kindly be pleased to allow this petition and call the record of the DPC held for the promotion to the post of lecturer before order Annexure P-1.

          7.2 That, impugned order Annexure P-1, dated 30.11.2015 may kindly be declared illegal and the same may kindly be quashed and set aside.

          7.3That, respondents may kindly be directed to consider the petitioner for the promotion to the post of Lecturer and they may further be directed to grant the promotion to the petitioner on the post of Lecturer from a day earlier to the date of promotion of his junior, private respondent, with all consequential benefits.

          7.4 That, any other relief, which this Hon'ble Court may deem fit and proper, may also be given to the petitioner along with costs."

3. Learned counsel for the petitioner submitted that the petitioner was appointed as Assistant Lecturer (Tabla) in the Scheduled Caste category under a special recruitment drive for Scheduled Caste and Scheduled Tribe candidates vide order dated 27/12/1989. It is submitted that in the gradation list of Assistant Lecturers, the name of the petitioner appears at Serial No. 19, whereas the name of the private respondent appears at Serial No. 27. Thus, the petitioner is senior to the private respondent. It is further submitted that, in view of the applicable promotion rules, the petitioner could not have been ignored for promotion to the post of Lecturer by the DPC constituted by the respondent authorities. However, without considering the claim of the petitioner, respondent No. 3, who is junior, was granted promotion vide order dated 30/11/2015. It is further submitted that the petitioner has not received any adverse ACRs affecting his promotion and, without communicating any adverse ACRs to him, he has been denied promotion, whereas respondent No. 3 has been promoted vide impugned order dated 30/11/2015. It is contended that the petitioner has been illegally superseded and that the respondent authorities considered uncommunicated ACRs while denying him promotion. Since the adverse ACRs affecting the petitioner's promotion were never communicated to him, the petitioner is entitled to promotion with effect from 30/11/2015.

4. Per contra, learned counsel for the respondent/State opposed the submissions and submitted that the petitioner's case was considered by the Departmental Promotion Committee in its meeting dated 09/07/2015. Although the petitioner was within the zone of consideration, his ACRs for the preceding five years (2008 to 2014) were evaluated and he was not found fit. It is submitted that the petitioner did not possess the requisite benchmark for promotion and, therefore, he was rightly not promoted to the post of Lecturer. It is further submitted that the petitioner received a "C" grade, which, as per circular dated 15/07/1974, does not amount to adverse ACR and therefore did not require communication. It is also contended that the petitioner was aware of the remarks in his ACRs but chose not to submit any representation for reconsideration. Hence, at this stage, the petitioner cannot contend that the remarks were not communicated. Accordingly, dismissal of the petition is prayed for.

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

6. Admittedly, junior to petitioner i.e. respondent No.3 has been promoted vide order dated 30/11/2015 but the case of petitioner has been rejected by the respondents on the basis of ACR is not up to the mark .

7. 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.

8. 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.

9. 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.

10. 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)

11. 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.

12. It is observed that petitioner was not communicated any adverse ACR by the respondents. The record further reflects that the last five years' ACRs i.e. from 2009 to 2014 were evaluated in relation to petitioner. It is a settled principle of law that uncommunicated adverse ACRs cannot be taken into consideration while assessing the suitability of an employee for promotion. Accordingly, any reliance placed on such uncommunicated ACRs is unsustainable.

13. In such circumstances, the petition stands partly allowed. It is directed that the uncommunicated ACR of petitioner (2009, 2010 and 2012) shall not be taken into consideration while deciding the case of petitioner regarding promotion to the post of Lecturer. Petitioner shall be treated as promoted to the aforesaid post w.e.f. 30/11/2015 , the date on which respondent No.3-Smt. Kamal Prabha Kotiya, was promoted to the post of Lecturer. The respondents are directed to extend all consequential benefits, including monetary benefits such as arrears arising out of the promotional post.

14. The respondents shall complete the aforesaid exercise within a period of three months from the date of receipt of a certified copy of this order. In case of non-compliance within the stipulated period, the respondents shall pay interest at the rate of 6% per annum from the date of entitlement till actual payment.

15. With the aforesaid observation, this petition is disposed of accordingly.