CAV Order

1. Petitioner has filed this writ petition seeking following reliefs:-

          "10.1 The Hon'ble Court may kindly be pleased to issue an appropriate writ, thereby directing the respondents to decide the pending representation of petitioner dated 05.01.2026 (Annexure P/16), within stipulated period.

          10.2 The Hon'ble Court may kindly be pleased to direct the respondents to immediately consider the petitioner for promotion to the post of Professor with all consequential benefits, including arrears of pay, seniority, and other retiral benefits.

          10.3 The Hon'ble Court may kindly be pleased to direct the respondents to provide certified copies of all records, evaluation sheets, Annual Confidential Reports (ACRs), and proceedings of the Review Departmental Promotion Committee pertaining to the petitioner's promotion, as sought under the Right to Information Act.

          10.4 The Hon'ble Court may kindly be pleased to pass such other order(s) or direction(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case in the interest of justice."

2. Learned counsel for the petitioner submits that petitioner was initially appointed as Lecturer (Chemistry) on 01.10.1983. Vide order dated 4th March 1987, her services were duly regularized on the post of Assistant Professor (Chemistry). Thereafter, vide order dated 14.02.1990, her services were duly confirmed on the post of Assistant Professor (Chemistry). She successfully completed her Ph.D. in Chemistry in the year 2010 and thereby fulfilled all eligibility criteria prescribed for promotion to the post of Professor. When the petitioner was in the zone of consideration of her promotion to the post of Professor, surprisingly, she received communication dated 18.02.2025 by the Department wherein it was informed to her that Annual Confidential Report (ACR) of the year 2012 contained adverse remarks. Along with the said communication, copy of ACR of the year 2012 was enclosed, which had never been supplied or communicated to the petitioner earlier. Upon receipt of said letter, petitioner submitted a detailed representation stating that neither any departmental enquriy was ever initiated against her nor any adverse ACR was communicated to her between 2005 to 2025. However, respondent authorities ignoring representation of the petitioner, issued promotion order dated 29.05.2025 excluding the name of petitioner. Thereafter petitioner again made representation dated 05.06.2025 seeking consideration of her case, upon which, she was informed that she was not found fit for promotion as the ACR grading for the period of 2008 to 2012 were below benchmark of 13 marks. It is the contention of learned counsel for the petitioner that adverse ACR had not been communicated to the petitioner and as such she was not aware about the adverse remarks entered in her ACR. She was never given any opportunity to file representation against her adverse ACR. Since she was not considered for promotion only on the basis of un- communicated ACR, the entire proceeding adopted by the authorities for not considering her name for promotion by the DPC is against the settled law. Non-communication of adverse ACR deprived the petitioner of an opportunity to represent against the same, thereby vitiating the entire consideration process of promotion. He submits that reasons assigned for denying consideration in respect of case of the petitioner for grant of promotion is unwarranted. Consequently, the grounds raised by the respondents to justify the non-consideration of the petitioner's case for promotion does not appear to be reasonable. He places reliance upon the decision of Hon'ble Supreme Court in the case of Dev Dutt Vs. Union of India (2008) 8 SCC 725, Rukhsana Shaheen Khan Vs. Union of India & Ors. (2018) 18 SCC 640 and order passed by this Court in case of Bela Manikpuri Vs. State of Chhattisgarh & Ors., (WPS No.4326 of 2024 decided on 10.01.2025).

3. On the other hand, learned counsel for the State opposes submission of learned counsel for the petitioner and submits that the review DPC, after due evaluation and consideration of ACR of petitioner and other candidates for the last 5 years commencing from 2008 to 2012 recommended the name of eligible candidates for promotion w.e.f. 19.06.2016 whereas petitioner has been found unfit for promotion as the evaluation of the marks of ACR of petitioner is not up to mark as she had failed to secure minimum 13 marks. He further submits that ACRs of the petitioner for the year 2008 to 2011 have not been communicated to petitioner as there is no adverse remarks in the ACR of four years i.e. 2008, 2009, 2010, 2011. ACR of petitioner for year 2012 is reported as 'x' ('C') communication of which has been made to petitioner on 18.02.2025. There is no arbitrariness or illegality in not considering the petitioner for promotion to the post of Professor, as she could not secure minimum benchmark.

4. I have heard learned counsel for the parties and also perused the documents enclosed along with this writ petition.

5. It is not in dispute that the petitioner has had a long and unblemished service career, having been initially appointed in the year 1983, regularized in 1987, and confirmed in 1990. It is further undisputed that she acquired the requisite educational qualification, i.e. Ph.D. in Chemistry in the year 2010, thereby fulfilling the eligibility criteria for promotion to the post of Professor. It is also an admitted position that no departmental enquiry or criminal case are pending against her at the relevant time when the Departmental Promotion Committee (DPC) considered candidature of petitioner along with others for promotion.

6. Perusal of the documents enclosed along with writ petition reveals that the petitioner was informed for the first time on 18.02.2025 about an adverse remark in her ACR for the year 2012. The said communication was issued long after the relevant period and at a stage when her case for promotion was under consideration. Prior to this, no adverse entry or low grading had ever been communicated to her, nor was she afforded any opportunity to represent against the same.

7. The law on the issue is well settled that non-communication of ACR entries which have civil consequences vitiates the entire process of consideration for promotion. An employee must be made aware of an entry that may adversely affect career progression so as to enable him/her to improve performance or challenge the entry. Denial of such opportunity is violative of principles of natural justice.

8. In case of Dev Dutt (supra), Hon'ble Supreme Court held as under :

          "17. In our opinion, every entry in the A.C.R. of a public servant must be communicated to him within a reasonable period, whether it is a poor, fair, average, good or very good entry. This is because non- communication of such an entry may adversely affect the employee in two ways : (1) Had the entry been communicated to him he would know about the assessment of his work and conduct by his superiors, which would enable him to improve his work in future (2) He would have an opportunity of making a representation against the entry if he feels it is unjustified, and pray for its upgradation. Hence non- communication of an entry is arbitrary, and it has been held by the Constitution Bench decision of this Court in Maneka Gandhi vs. Union of India (supra) that arbitrariness violates Article 14 of the Constitution."

9. In case of Sukhdev Singh Vs. Union of India & Ors. reported in (2013) 9 SCC 566, Hon'ble Supreme Court held as under:

          "8. In our opinion, the view taken in Dev Dutt that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR - poor, fair, average, good or very good - must be communicated to him/her within a reasonable period."

10. Hon'ble Supreme Court in case of Rukhsana Shaheen Khan Vs. Union of India & Ors. (2018) 18 SCC 640, relying upon its earlier decision in case of Sukhdev Singh (supra), held as under:

          "1. The sole issue involved in this appeal is whether the uncommunicated Annual Confidential Reports (ACRS), which are adverse to the appellant, should have been relied upon for the purpose of consideration of the appellant for promotion.

          2. In view of the decision of this Court in Sukhdev Singh Vs. Union of India (2013) 9 SCC 566, there cannot be any dispute on this aspect. This Court has settled the law that uncommunicated and adverse ACRs cannot be relied upon in the process.

          3. This appeal is, accordingly, allowed and the impugned judgment is set aside with the following directions:

          (a) the competent authority is directed to ignore the uncommunicated adverse ACRs and take a fresh decision in accordance with law

          (b) The appellant shall be afforded an opportunity of hearing in the process."

11. In case of Union of India & Ors. Vs. G.R. Meghwal reported in 2022 SCC OnLine SC 1291, Hon'ble Supreme Court held that uncommunicated, downgraded Annual Confidential Reports (ACRs) or Annual Performance Appraisal Reports (APARs) cannot be used to deny promotions. The judgment reiterates that all performance ratings (good, very good, etc.) must be communicated to the employee.

12. In the present case, the petitioner has been declared non- suitable for promotion on the ground that she did not secure the minimum benchmark of 13 marks for the period 2008 to 2012. However, admittedly, these gradings were never communicated to her in time. The communication made in the year 2025 with respect to the ACR of 2012 is clearly belated and it deprived the petitioner of an opportunity to make a representation at the relevant time. Uncommunicated downgraded ACRs could not be looked into by the DPC while making assessment of an officer for promotion to the higher grade. The belated communication of the adverse ACR defeats the very purpose of communication, which is to afford an opportunity to the employee to make an effective representation and seek its upgradation. The petitioner, in the present case, was deprived of such an opportunity at the relevant time. Further, it is evident that the petitioner's non-consideration for promotion is directly linked to the uncommunicated ACR gradings. Once such gradings are founded upon entries which were not communicated in time, the entire process of evaluation stands vitiated. Consequently, the action of the respondents in declaring the petitioner non-suitable for promotion on the basis of such uncommunicated adverse ACR is arbitrary, unjust and contrary to settled principles of law. In the facts of case, DPC should have ignored the adverse uncommunicated ACR.

13. For the foregoing discussions and decisions of Hon'ble Supreme Court, I am of the view that writ petition deserves to be allowed and is accordingly allowed. The action of the respondents in declaring the petitioner non-suitable for promotion on the basis of uncommunicated downgraded ACRs is held to be arbitrary, violative of principles of natural justice, and unsustainable in law. The said observation in DPC proceeding to that extent, is hereby quashed and set aside.

14. Respondents are directed to constitute Review Departmental Promotion Committee for reviewing the proceeding of DPC dated 22.04.2025 and to consider the candidature of petitioner ignoring the uncommunicated adverse ACR of the year 2012 and to make fresh recommendation.

15. In the event the petitioner is found suitable for promotion by the Review DPC, she shall be granted promotion from the date her immediate junior was promoted, with all consequential benefits, including notional seniority and fixation of pay. However, the entitlement of arrears of salary shall be regulated in accordance with applicable rules and settled principles of law.

16. The entire exercise, as directed above, shall be completed within a period of three months from the date of receipt of copy of this order.