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Madhya Pradesh High Court
Dr. Kailash Narayan Mewafarosh vs The State Of Madhya Pradesh Thr on 8 January, 2026
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND SINGH BAHRAWAT
ON THE 8 th OF JANUARY, 2026
WRIT PETITION No. 1143 of 2017
DR. KAILASH NARAYAN MEWAFAROSH
Versus
THE STATE OF MADHYA PRADESH THR AND OTHERS
Appearance:
Shri Dharmendra Singh Raghuwanshi - Advocate for the petitioner.
Shri Ravindra Dixit - GA appearing on behalf of State.
ORDER
The present petition under Article 226 of the Constitution of India has
been filed seeking the following reliefs:
(i) That, the present writ petition may kindly be allowed.
(ii) That, the respondent may kindly be directed to modify the
impugned order dated 18.11.2016 (Annexure P/1) to the extent
granting first time bound pay scale in place of 01.04.2006 from
01.04.2013.
(iii) That, the respondents may kindly be directed to grant the
second time bound pay scale w.e.f. 01.04.2014 with interest of
Rs.18% P.A.
(iv) That, the other relief doing justice including cost be awarded.
2. Learned counsel for the petitioner submitted that initially petitioner
was appointed through Mini PSC on the post of Asstt. Homeopathy Officer
by order dated dated 07-11-1988. The petitioner was due for promotion on
the post of Medical Officer. However when he was not given the benefit of
his promotion, he filed a O.A. No. 135/1996 before State Administrative
Tribunal. After abolition of Tribunal, the said OA was transferred to High
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Court and re-numbered as W.P. 23371/2003. The said writ petition was
decided on 08-08-2005 with a direction to convene review DPC. In
compliance of order of High Court, the respondent convened the review
DPC on 29-08-2008. Accordingly petitioner was promoted vide order dated
04-10-2008 on the post of Medical Officer w.e.f. 21-02-1995. Learned
counsel for petitioner submitted that the State Govt. formulated a policy for
grant of time bound pay scale to its employees and same has come in force
w.e.f. 01.04.2006. Learned counsel for petitioner submitted that he
petitioner was promoted with retrospective effect w.e.f. 21.02.1995 and
according to the aforesaid policy, the petitioner is entitled for grant of first
time pay scale after completion of 8 years meaning thereby petitioner was
entitled for the same w.e.f. 2003, but the Policy has come in force w.e.f.
01.04.2006 and petitioner is entitled for second pay scale w.e.f. 01.04.2014.
When the respondents have not extended time pay scale, petitioner
filed W.P. 2604/2014 which has been decided by order dated 30.04.2014
and in compliance of the aforesaid order, the petitioner has submitted
representation for grant of first and second time pay scale but by the
impugned order dated 18.11.2016, first time bound pay scale has been
wrongly sanction w.e.f. 01.04.2013 in place of 01.04.2006 and the claim for
grant of second time pay scale has been rejected without assigning any
reason. Learned counsel for petitioner submitted that entire service career of
the petitioner was remained unblemished. Neither any departmental enquiry
was pending nor any adverse ACR has been communicated till filing the
present petition. Learned counsel for petitioner submitted that petitioner is
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entitled for first time bound pay scale w.e.f 2006 and the second time bound
pay scale w.e.f. 2014.
3 . Per contra, learned Govt. Advocate has submitted that the case of
the petitioner was duly considered by the selection committee in its meeting
dated 17.11.2016. The committee followed the parameters of 10 marks in
last five ACRs for first up-gradation and 13 marks in last five ACRs for
second up-gradation. The committee found that only nine years ACRs was
available of the petitioner between the period 1998 to 2014 and as per the
provisions of M.P. Civil Services Promotion Rules, 2002, if the immediately
preceding five years ACRs are not available, then the available ACRs
preceding to the immediately five years can also be seen. Hence, the
committee considered available nine ACRs of the petitioner. Upon
consideration, the committee found that the petitioner can be granted first
higher scale w.e.f. 01.04.2013 and since the petitioner did not obtain 13
marks till the meeting of the committee, hence petitioner was not found fit to
be granted second time bound pay scale.
4. Heard both the counsel for the parties and perused the record.
5. Petitioner has specifically mentioned in para 5.11 that whole service
career of the petitioner was remained unblemished. Neither any departmental
enquiry is pending nor any adverse ACR has been communicated to the
petitioner till date. The aforesaid fact has not been denied by the respondents
in their reply and the benefit of First time bound pay scale w.e.f. 1.04.2006
and the benefit of second time bound pay scale w.e.f. 1.04.2014 have not
been extended to the petitioner only on the basis of fact that petitioner has
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not obtained qualified marks prescribed by the committee.
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
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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
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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
adverse/lower grade ACR, which was, admittedly not communicated to him
by respondents.
11. 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 2002 to 2006 were evaluated in relation to petitioner for first
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time bound pay scale. 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/time bound pay scale. Accordingly,
any reliance placed on such uncommunicated ACRs is unsustainable.
12. In such circumstances, the petition stands allowed. It is directed
that the uncommunicated ACR of petitioner shall not be taken into
consideration while deciding the case of petitioner regarding First/Second
time bound pay scale. Consequently, respondents are directed to grant benefit
of first time bound pay scale w.e.f. 01.04.2006 and second time bound pay
scale w.e.f. 01.04.2014. As petitioner has since retired, the respondents are
directed to revise his PPO/GPO and extend all consequential benefits,
including monetary benefits such as arrears arising out of the First/Second
time bound pay scale.
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.
(ANAND SINGH BAHRAWAT)
JUDGE
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