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

          "(i) Issuing a writ of certiorari or any other suitable writ or order or direction thereby quashing the impugned order dated 28.12.2011 (Annexure P/19) thereby directing the respondents to promote the petitioner to the post of Pharmist grade II w.e.f. 17.12.2008 with all consequential benefits alongwith interest.

          (ii) Passing any other order or direction, which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.

          (iii) Costs of the petition may also be awarded to the petitioner."

2. Learned counsel for petitioner submits that petitioner is working on the post of Dresser since 22.10.1986 without there being any single complaint against him. Thereafter, petitioner completed the Pharmacist training and passed two years' Diploma Course. After getting enrolled with the Pharmacy Council, petitioner became entitled for promotion to the post of Pharmacist Grade II w.e.f. 17.12.2008. It is further submitted that in the month of January, 2011, respondents prepared gradation list showing the seniority of all Dressers/Compounders Grade-I including petitioner in which the name of petitioner was placed at Sr.No.12. It is further submitted that as per provisions of rules prevailing, incumbent who had completed 5 years of services on the post of Dresser Grade-I, undergone training of Pharmacist and registered as Pharmacist by Pharmacy council, is entitled to and eligible for his further promotion on the post of Pharmacist Grade-II. Since petitioner who had completed the required services of 5 years, undergone training, passed two years' Diploma Course of Pharmacy and registered Pharmacist by M.P. State Pharmacy Council Bhopal, he is entitled and eligible for his promotion to the post of Pharmacist Grade-II w.e.f. 17.12.2008. It is further submitted that by annexure P/19 the representation of petitioner was rejected on the ground that a special Teep  was mentioned in the ACR and due to unsatisfactory Teep  the petitioner was not promoted. It is further submitted that petitioner has specifically pleaded in Para-5.15 of his petition that such note of unsatisfactory has never been communicated to petitioner; therefore, as per law it cannot be considered by DPC at the time of promotion. It is further submitted that aforesaid fact as regards non- communication of unsatisfactory teep  has not been denied by the respondents by filing their reply/ counter affidavit. It is further submitted that in para 6.5, petitioner has again specifically mentioned that special adverse remark has never been communicated to the petitioner and this fact has also not been denied by the respondents in their reply. It is further submitted that DPC cannot reject the case of petitioner on the basis of adverse remark which has not been communicated to petitioner.

3. Per contra, learned counsel for respondents/State submits that as per prevailing rules, criteria prescribed by the DPC the ACR of petitioner was not found satisfactory; therefore, his claim was rejected and he was not promoted. It is further submitted that petitioner was not possessing the requisite benchmarks for promotion; therefore, he was rightly not granted promotion. Hence, learned counsel prays for dismissal of the present petition.

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

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 observed that petitioner was not communicated any adverse ACR/ special note by the respondents. It is a settled principle of law that uncommunicated adverse ACRs/Note cannot be taken into consideration while assessing the suitability of an employee for promotion. Accordingly, any reliance placed on such uncommunicated ACRs/Note is unsustainable.

12. In such circumstances, the petition stands partly allowed. It is directed that the uncommunicated ACR/Note of petitioner shall not be taken into consideration while deciding the case of petitioner regarding promotion to the post of Pharmacist Grade-II. Petitioner shall be treated as promoted to the aforesaid post w.e.f. 17.12.2008. The respondents are directed to extend all consequential benefits, including monetary benefits such as arrears arising out of the promotional post and to consider the case of petitioner for further promotion in accordance with law.

13. The respondents are directed to complete this exercise within a period of three months from the date of receipt of certified copy of this order.

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