[Cites 15, Cited by 0]
Madhya Pradesh High Court
Dr.Radhakrishna Sharma (Deleted) ... vs State Of M.P. on 25 March, 2026
NEUTRAL CITATION NO. 2026:MPHC-GWL:10234
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND SINGH BAHRAWAT
ON THE 25th OF MARCH, 2026
WRIT PETITION No. 378 of 2008
DR.RADHAKRISHNA SHARMA (DELETED) THROUGH LRS RAMAN
SHARMA
Versus
STATE OF M.P. AND OTHERS
Appearance:
Ms. Preeti Kushwah, Advocate for the petitioner.
Shri K.K. Prajapati, Government Advocate for respondents/State.
ORDER
This petition under Article 226 of Constitution of India has been filed
seeking for following relief/s :-
"It is therefore most humbly prayed that this petition may kindly
be allowed with costs by issuance of a writ order or direction to
modify the order Annexure P/1 to the extent promoting the
petitioner on the post of Asst. Director(Agriculture) w.e.f.
28.10.2002 prior to his junior respondent No.3 and to pay the
backwages since 28.10.2002 which have been denied to the
petitioner by Annexure P/1 and to grant the seniority to the
petitioner w.e.f. 28.10.2002 with all consequential monetary
benefits and any other relief in favour of the petitioner looking to
the facts and circumstances of the case which this Hon'ble Court
deems fit may also kindly be grant."
2. Learned counsel for petitioner submitted that original petitioner was
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appointed on the post of Senior Agricultural Development Officer on
18.11.1978 and services of petitioner were quite satisfactory. As per
gradation list showing as on 01.04.2002 name of petitioner is placed at Serial
No.63 whereas name of respondent No.3 is placed at Serial No.68.
Thereafter, the matter relating to the promotion to the post of Assistant
Director (Agriculture) was taken into consideration by State Government
and matter of petitioner was also taken into consideration, but it was deferred
because of criminal case pending against petitioner. It is further submitted
that thereafter a criminal case has been decided in favour of petitioner
meaning thereby that petitioner has been acquitted in criminal case by order
dated 24.09.2005 and despite aforesaid acquittal order, petitioner has not
been promoted at par with respondent No.3. Thereafter, petitioner has
submitted a representation but respondents have not considered the
representation. Thereafter, petitioner sent notice through Advocate on
23.02.2006. Thereafter, by order dated 6.1.2007(Annexure P-1) petitioner
has been directed to be promoted on the post of Assistant Director
(Agriculture) and seniority has been assigned w.e.f. 28.02.2004 prior to the
Shri L. N. Pal who is junior to the petitioner and came to be promoted on
28.02.2004. Learned counsel for petitioner further submitted that petitioner
must be promoted w.e.f. 28.10.2002 when respondent No.3 has been
promoted. Learned counsel for petitioner further submitted that adverse
ACR of petitioner has not been communicated to petitioner and no
opportunity has been provided against adverse ACR, if any. He further
submits that original petitioner was superseded in the DPC held on
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24.10.2002 and present petition has been filed on 16.01.2008. There is no
delay on the part of petitioner for the reason that petitioner was never
apprised or intimated when he has been superseded and it is for the first time
on 06.01.2007, when order Annexure P-1 served to the petitioner whereby
benefit of promotion has been extended since 28.02.2004, only then
petitioner came to know about the fact that he has been illegally superseded
in DPC held on 24.10.2002. It is further submitted that as criminal case has
been pending at the time of consideration in the year 2002 and finally
petitioner has been acquitted in criminal case by order dated 24.09.2005.
Thereafter, immediately petitioner has submitted a representation dated
27.12.2005 and thereafter again submitted a representation w.e.f. 04.12.2006
and also sent notice through Advocate on 23.02.2006 and submitted that
respondents have considered the non communicated ACR and due to non
communicated ACR petitioner was not promoted. It is further submitted that
since adverse/annual ACR affecting promotion of petitioner were never
communicated to him, petitioner is entitled for promotion w.e.f. 28.10.2002,
when junior to petitioner has been promoted.
3. Per contra, learned Government Advocate opposes the prayer made
by learned counsel for petitioner and submitted that petitioner's case has
been considered by departmental promotion committee in its meeting dated
24.10.2002. Petitioner's case was also under the zone of consideration but
last five years ACR have been evaluated in relation to the petitioner and
same were not found fit and therefore, after considering the petitioner's case
he was not found fit. It is further submitted that petitioner was not possessing
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requisite Bench mark for promotion. Therefore, he was rightly not granted
promotion to the post of Assistant Director (Agriculture). Thereafter, in the
year 2004, when petitioner's case was considered by DPC on 31.01.2004, a
criminal case was registered against him. Therefore, his case was kept in
sealed cover proceedings and after exoneration from criminal case,
petitioner's sealed cover proceeding was opened and ultimately he was
promoted with retrospective effect, but on the basis of 'no work no pay'.
Learned counsel for respondents further submitted that juniors have been
promoted in the year 2002 and present petition has been filed on 16.01.2008
and submitted that petition is liable to be dismissed on the ground of delay
and latches. He placed reliance upon the judgment passed by this Court in
the case of Ashok Kumar Sharma Vs. State of M.P. passed in WP No.11064
of 2020 and also judgment passed by Hon'ble Apex Court in the case of
Government of West Bengal and Others Vs. Dr. Amal Satpathi & Others in
SLP(Civil) Diary No.43488/2023 and placed reliance of paragraph 21 of the
aforesaid Apex Court's judgment.
4. Heard both the counsels and perused the record.
5. Admittedly, juniors to the petitioner has been promoted by order
dated 28.10.2002. As per gradation list, as on 01.04.2002 name of petitioner
is placed at Serial No.63 whereas name of respondent No.3 is placed at
Serial No.68. Thereafter, the matter relating to the promotion of petitioner to
the post of Assistant Director (Agriculture) was taken into consideration by
State Government, but it was deferred because of criminal case pending
against petitioner. Thereafter criminal case has been decided in favour of
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petitioner meaning thereby that petitioner has been acquitted in criminal case
by order dated 24.09.2005 and despite aforesaid acquittal order, petitioner
has not been promoted at par with respondent No.3. Thereafter, petitioner
has submitted a representation, but respondents have not considered the
representation. Thereafter, petitioner sent notice through Advocate on
23.02.2006. Thereafter, by order dated 6.1.2007(Annexure P-1) petitioner
has been promoted on the post of Assistant Director (Agriculture) and
seniority has been assigned w.e.f. 28.02.2004 prior to the Shri L. N. Pal who
is junior to the petitioner and came to be promoted on 28.02.2004. Learned
counsel for petitioner further submitted that petitioner must be
promoted w.e.f. 28.10.2002 when respondent No.3 has been promoted.
Adverse ACR of petitioner has not been communicated to petitioner and no
opportunity has been provided against adverse ACR, if any. Original
petitioner was superseded in the DPC meeting held on 24.10.2002 and
present petition has been filed on 16.01.2008. There is no delay on the part
of petitioner for the reason that petitioner was never apprised or intimated
when he has been superseded and it is for the first time on 06.01.2007, when
order Annexure P-1 served to the petitioner thereby benefit of promotion has
been extended since 28.02.2004 only then petitioner came to know the fact
that he has been illegally superseded in DPC held on 24.10.2002. As
criminal case has been pending at the time of consideration for promotion in
the year 2002 and finally petitioner has been acquitted by order dated
24.09.2005. Thereafter, immediately petitioner has submitted a
representation dated 27.12.2005 and thereafter again submitted a
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representation w.e.f. 04.12.2006 and also sent notice through Advocate on
23.02.2006 and respondents have considered the uncommunicated ACR of
petitioner for promotion and due to non communication of ACR petitioner
was not promoted. Since adverse/annual ACR affecting promotion of
petitioner were never communicated to him, therefore, petitioner is entitled
for promotion w.e.f. 28.10.2002 when his junior has been promoted.
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
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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
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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
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aforesaid grade. Thus, when the facts of the present case are tested on the
anvil of the aforesaid decisions, it is apparent that adverse/annual ACR
admittedly was not communicated to petitioner by respondents.
11. It is observed that petitioner was not communicated adverse ACR
by the respondents. 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.
12. In such circumstances, the petition stands partly allowed. It is
directed that the uncommunicated ACR of petitioner shall not be taken into
consideration while deciding the case of petitioner regarding promotion to
the post of Assistant Director, Agriculture. Petitioner shall be treated as
promoted to the aforesaid post w.e.f. 28-10-2002, i.e. the date on which
respondent No.3- L. N. Pal, was promoted to the post of Assistant Director,
Agriculture. Due to the fault of respondents, adverse ACR affecting the
promotion of petitioner has not been communicated to petitioner, petitioner
has worked on the lower post, therefore, principle of 'No work No pay' is not
applicable. In the present case due to fault of respondents, petitioner was not
able to work on the promotion post.
13. 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 promotional post.
14. The respondents are directed to complete this exercise within a
period of three months from the date of receipt of certified copy of this
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order.
15. With the aforesaid observation, this petition is disposed of
accordingly.
(ANAND SINGH BAHRAWAT)
JUDGE
"R"
