1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 3141 of 2023 1 - Shivani Thudgar W/o Anshul Thudgar Aged About 42 Years Working As Computer And Posted At Office Of Chief Medical And Health Officer, Raipur District Raipur Chhattisgarh. ... Petitioner(s) versus 1 - State Of Chhattisgarh Through Secretary, Department Of Health And Medical, Mahanadi Bhawan, Mantralaya, Atal Nagar, New Raipur District Raipur Chhattisgarh. 2 - Divisional Joint Director Department Of Health Service, Old Nursing Hostel, D.K.S. Campus Raipur, District Raipur Chhattisgarh. 3 - Chief Medical And Health Officer Raipur District Raipur Chhattisgarh. 4 - Nitin Pandey Working As Accountant And Posted At Civil Hospital Mana, District Raipur Chhattisgarh. ... Respondent(s) For Petitioner(s) : Mr. Vinod Kumar Sharma, Advocate. For Respondent(s)/State : Mr. Ujjawal Choubey, PL. Hon’ble Mr. Justice Amitendra Kishore Prasad Order on Board 20/02/2026 1. By way of this petition, the petitioner has prayed for following reliefs:- “(I) That, this Hon'ble Court may kindly be pleased to RAGHVENDRA JAT Digitally signed by RAGHVENDRA JAT 2 quash/set-aside the promotion order dated 24.03.2023 and 29.03.2023 in respect of the petitioner and private respondent, in the interest of justice. (ii) That, this Hon'ble Court may kindly be pleased to direct the respondent authorities to issue fresh promotion order of petitioner and private respondent as per seniority and assign opportunity of posting accordingly, in the interest of justice. (iii) Any other relief which may be suitable in the facts and circumstances of the case, may also be granted in the interest of justice.” 2. Brief facts of the case, is that, the petitioner is presently working on the post of Computer Operator and is fully eligible for consideration for promotion to the post of Accountant. As per the duly published seniority list, the petitioner stands at Serial No. 10, whereas the private respondent is placed much below at Serial No. 28. However, in complete disregard of the petitioner’s seniority, the private respondent was promoted to the post of Accountant vide order dated 24.03.2023. Aggrieved thereby, the petitioner submitted a complaint dated 27.03.2023, specifically objecting to the illegal promotion of her junior. Subsequently, the respondents promoted the petitioner on 29.03.2023, but without granting her seniority from the date on which her junior was promoted, thereby rendering her junior to the private respondent in the promoted cadre, despite her higher position in the feeder 3 cadre. Thereafter, on 06.04.2023, the petitioner again represented to the authorities seeking cancellation of the promotion orders dated 24.03.2023 and 29.03.2023 and issuance of a fresh promotion order strictly in accordance with seniority. It was later intimated to the petitioner that due to the alleged unavailability of her service records, she could not be promoted along with her junior, and she was further cautioned not to correspond with higher authorities regarding seniority, failing which disciplinary action would be initiated. The petitioner submits that she is in no manner responsible for the alleged non-availability of records and has been wrongfully deprived of her rightful seniority and consequential benefits. Had she been promoted on 24.03.2023 along with her juniors, she would have been entitled to posting at Raipur as per her seniority; however, the junior private respondent has been posted at Raipur while the petitioner has been posted at Dhamtari, thereby causing her serious prejudice. Moreover, at Dhamtari, there is only one sanctioned post of Accountant, which had already been filled prior to the petitioner’s promotion, rendering her unable to effectively assume charge. The service conditions of the petitioner are governed by the Promotion Rules, 2003, wherein the principle of “seniority subject to fitness” is the prescribed criterion for promotion from Class-III to Class-III posts, and both the feeder and promotional posts fall within the same category. The petitioner, being a female employee with two school-going children studying at Raipur, has also requested 4 posting at Raipur on compassionate and administrative grounds. Despite her repeated representations, no corrective action has been taken, and hence, the present petition has been filed seeking appropriate relief. 3. Learned counsel for the petitioner submits that the petitioner has not been promoted to the post of Accountant, despite being duly eligible for consideration. It is further contended that several juniors to the petitioner have already been promoted to the said post, whereas the petitioner has been denied promotion without any justifiable or plausible reason. Learned counsel further submits that subsequent to the filing of the present petition, the respondents have filed their reply, wherein it has been stated that the petitioner could not be granted promotion from the date on which he claims parity with his juniors due to the alleged unavailability of his Annual Confidential Reports (ACRs). It is thus urged that the denial of promotion on such grounds is arbitrary and unsustainable, particularly when the petitioner seeks promotion from the same date on which his juniors were promoted. 4. On the other hand learned counsel for the State submits that for the purpose of considering promotions from the post of AG-II to the post of Accountant, a duly constituted Departmental Promotion Committee (DPC) was convened on 20.03.2023, wherein the candidature of all eligible employees, including the petitioner, was taken up for consideration in accordance with the applicable rules 5 and service norms. It is submitted that although the petitioner was placed at Serial No. 10 in the seniority list, the DPC was unable to recommend her name for promotion on account of the non- availability of her Annual Confidential Report (ACR), which is a mandatory and essential document for assessing suitability and merit for promotion. In the absence of the requisite ACR, the Committee could not undertake a proper evaluation of her service record and, therefore, her case could not be favorably considered. On the other hand, Respondent No. 4, Nitin Pandey, was found fully eligible and suitable for promotion as all relevant documents, including his complete service record, were duly placed before the Committee, and accordingly, he was promoted to the post of Accountant vide order dated 24.03.2023. The perusal of which clearly demonstrates that the petitioner’s case could not be processed due to the unavailability of the necessary documents. Hence, it is submitted that there is no illegality, arbitrariness, or procedural irregularity in the action of the respondents. 5. I have heard learned counsel for the parties and perused the material available on record. 6. From a perusal of the records, it appears that the service records of the petitioner are essentially within the exclusive domain and custody of the State authorities, and therefore the responsibility for their maintenance and preservation squarely lies with the State. The State cannot be permitted to evade or shift its liability by contending that, due to the alleged unavailability of such 6 records, the petitioner could not be considered or granted promotion. Any lapse in maintaining or producing the requisite service records cannot be attributed to the petitioner, nor can it be used as a ground to deny him his legitimate claim for promotion, particularly when the records are required to be preserved and managed by the respondent authorities themselves. 7. This Court in the matter Shyam Lal Soni Vs. The State of Chhattisgarh & Ors. passed by the Hon’ble Division Bench of this Court in WA No. 48/2015 has already dealt with the similar issue and stated in paragraph 4 of the said judgment which is reproduced herein under :- “The Learned Single Judge himself observed that it took seven years for the Respondents to retrieve the ACR of the Appellant. ACR is a document in exclusive possession of the Respondents. If it is not produced before the DPC hindering consideration for promotion, it affects the fundamental night of the citizen under Article 14 of the Constitution. If the fault lay with the Respondents, they cannot take advantage of their own wrong.” 8. The non-availability of the service reports is attributable solely to the negligence or lapse on the part of the State authorities, who are responsible for maintaining and preserving such official records. The State cannot be permitted to take advantage of its own fault or administrative shortcomings to deny the petitioner his 7 legitimate claim for promotion, particularly when his juniors have already been promoted to the higher post. Once it is established that the relevant records were in the custody and control of the State, any deficiency in their maintenance cannot be used as a ground to prejudice the petitioner’s rights. Therefore, the State cannot escape its obligation to consider and grant promotion to the petitioner merely on the plea that the requisite service reports are not available. 9. Considering the facts and circumstances of the case, and upon due appreciation of the submissions advanced as well as the material available on record, the writ petition deserves to be and is hereby allowed. Accordingly, the respondents are directed to grant promotion to the petitioner from the date on which she has claimed promotion, subject to due verification of her eligibility and other requisite service particulars. While undertaking such verification, the respondents shall ensure that the petitioner is extended the same treatment and benefit as accorded to her juniors, so as to maintain parity and avoid any discrimination. Sd/- (Amitendra Kishore Prasad) Judge Raghu Jat