2025:CGHC:22595 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 4021 of 2013 Reserved on : 20.03 .2025 Delivered on : 09.06.2025 Rakesh Kumar Tiwari S/o Lt Shri C.L.Tiwari Aged About 56 Years Assistant Registrar, R/o Chandni Apartments, Block No.6, Narmada Nagar, Ps Civil Lines, Civil And Revenue District Bilaspur, 495001 Chhattisgarh ... Petitioner versus 1 - Honourable High Court Of Chhattisgarh Through Its Registrar General, O/o At High Court Campus, Village Bodri, Ps Chakarbhata, Civil And Revenue Distt Bilaspur, 495001, Chhattisgarh 2 - State Of Chhattisgarh Through Its Secretary, Department Of Law And Legislative Affairs, Mahanadi Bhawan, Naya Mantralaya, PO Naya Mantralaya, PS Rakhi, Civil And Revenue District Raipur, Naya Raipur 492002 Chhattisgarh 3 - State Of Chhattisgarh, Through Its Secretary, Department Of General Administration, Mahanadi Bhawan, Naya Mantralaya, PO Naya Mantralaya, PS Rakhi, Civil And Revenue District Raipur, Naya Raipur, 492002 Chhattisgarh ... Respondents For Petitioner : Mr. Sunil Kumar Soni, Advocate For Respondent No. 1 : Mr. Harshwardhan, Advocate For State : Mr. Sanjeev Pandey, Deputy Advocate General. Hon'ble Shri Narendra Kumar Vyas, J. CAV ORDER 1. The petitioner has filed this writ petition assailing the memo dated 31.10.2013 (Annexure P/1) issued by respondent No. 1 by which representation preferred by the petitioner to expunge adverse remarks reported in ACRs for the year 2007-08, 2008-09, 2009-10 & 2011-12, has been rejected. The petitioner has also assailed memo (Annexure BHUMIKA ANGARE Digitally signed by BHUMIKA ANGARE Date: 2025.06.09 16:43:47 +0530 P/2) issued by respondent No. 1 alleging ACRs for the year 2007-08, 2008-09, 2009-10 & 2011-12 has been communicated to the petitioner on 12.02.2013 collectively. 2. The brief facts, as reflected from records are that the petitioner was appointed as Assistant Grade-Ill on 15.12.1976 in the establishment of High Court of Madhya Pradesh and after re-organization of State of Madhya Pradesh as State of Madhya Pradesh & State of Chhattisgarh, services of the petitioner were allocated to the High Court of Chhattisgarh. On 01.04.2006, the petitioner was promoted to the post of Assistant Registrar. 3. On 12.02.2013, petitioner’s Annual Confidential Report (ACRs) for the year 2007-2008, 2008-09, 2009-2010 & 2011-12 were communicated to him wherein he was graded as Average "D", Average, Average & Below Average respectively. On 03.04.2013, the petitioner preferred representation before respondent No. 1 regarding delay communication of ACRs which was rejected on 31.10.2013. The petitioner being aggrieved with the order of rejection of his representation as well as delayed communicate of adverse ACRs has filed this writ petition contending that due to delay of 7 years in communication, his right to consideration for promotion on the next promotional post has been adversely affected, as such delay communication of adverse ACRs is illegal and deserves to be quashed. 4. Respondent No. 1 has filed its return mainly contending that the entire petition is based on the plea with regard to the poor ratings inflicted to the petitioner have been belatedly communicated, therefore, thereby denied the petitioner’s promotion and in the mean time several persons juniors to the petitioner were promoted regarding which the petitioner has neither disclosed the name of the persons nor made them as parties to the petition as such on this count alone, the instant writ petition is liable to be dismissed. It has been further contended that respondent has acted strictly in accordance with law as only adverse entry is required to be communicated to the person concerned but not down gradation of the entry, therefore, it has not been communicated to the petitioner. It has been further contended that as per the prevailing law at the relevant time, the ACR of the petitioner being average was not communicated to him for the year 2007-08, 2008-09 and 2009-10. However keeping in league with the development of law with regard to communication of ACR's it has been decided by the authorities to communicate to the petitioner such average entries made in ACR's and the same was communicated to the petitioner vide memo No. 1061 dated 12.02.2013. 5. It has been further contended that in the year 2011-12 the petitioner was graded 'below average' and such entry was communicated to the petitioner vide memo dated 10.09.2012 alongwith other adverse remark report in the ACR of the petitioner for the year 2011-12. It has been further contended that the adverse ACR for the year 2008-09 was communicated to him on 31.12.2009 (Annexure R/1) which subsequently expunged on 04.11.2011 as such, submission made by learned counsel for the petitioner that the adverse ACR for the year 2008-09 has not been communicated to him, deserves to be rejected as it has lost its significance by expunging the same by respondent No. 1 itself. It has been further contended that the ACR for the year 2009- 10 was communicated to him on 28.09.2012 (Annexure R/3). It has been further contended that the reporting authority has made grading on the basis of overall performance of the petitioner and the same was accepted by the reviewing authority, thus would pray for dismissal of the writ petition. 6. Learned counsel for the petitioner would submit that the ACRs should have been communicated to the concerned employee without any delay as per the Circular dated 15.07.1974 issued by the State of Chhattisgarh and joint communication of ACRs of five years, has lost its significance. He would further submit that as per Circular dated 29.11.1984, if any adverse entries in ACRs are not communicated within three months then such adverse entries would lose its relevance, force and no action can be taken on strength of such adverse entries. He would further submit that it is settled principle of service jurisprudence that ACRs are to be communicated at the earliest available opportunity to the employee concerned so that he may get reasonable time to improve his performance as per the Circular dated 29.08.1987 issued by the State Government. He would further submit that the delay caused in communication of ACRs is arbitrary and illegal as it has denied the right of consideration for promotion available to the petitioner to the next promotional post i.e. Deputy Registrar and in fact delay of 7 years in communication of ACRs stretching from 2007 causes' hostile discrimination to the petitioner and would pray allowing the writ petition. 7. To substantiate his submission, he would refer to the judgment rendered by Hon’ble the Supreme Court/ Delhi High Court in case of State of Haryana V/s P.C Wadhwa, 1987 AIR 1201, 1987 SCR(2) 1030, Baidyanath Mahapatra V/s State of Orissa, 1989 AIR 2218, 1989 SCR (3) 803, Gurudial Singh Fijji V/s State Of Punjab & Ors., 1979 AIR 1622, 1979 SCC(2) 368, judgment passed by Delhi High Court in case of Union of India V/s Krishna Mohan Dixit [Writ Petition (C) No.6013/2010] & S.D Dobhal V/s Union Of India & Ors. [Writ Petition (C) No.452/2009]. 8. On the other hand, learned counsel for respondent No. 1/High Court reiterating the submission made in the return would submit that ACR for the year 2007-08 is not required to communicate still it has been communicated to him. He would further submit that the ACR for the year 2008-09 has also been expunged and for the year 2009-10 & 2011-12, it has been communicated within time. He would further submit that due to non-communication of alleged ACRs, no right of the petitioner is adversely affected as no material has been placed on record to substantiate consequence of alleged non-communication of ACRs, thus, he would pray for dismissal of the writ petition. 9. I have heard learned counsel for the parties and perused the documents placed on record with utmost satisfaction. 10. From perusal of documents and pleadings of the parties, the point emerged for determination of this Court is:- “Whether non-communication of ACRs for the year 2007-08 which is Average-D, communication of ACR for the year 2009-10 on 28.09.2012, communication of ACRs for the year 2011-12 on 12.09.2012 is liable to be vitiated on account of delay/non- communication?. 11. Before adverting to the factual matrix of the case, it is expedient for this Court to go through the law on the communication of ACRs/adverse ACRs and its effect. Hon’ble the Supreme Court in case of Union of India & others Vs. G.R. Meghwal [2022 SCC OnLine 1291] has considered the effect of non-communication of ACRs. Hon’ble the Supreme Court in paragraphs 19 & 20 has held as under:- “19. In the present case, the learned Tribunal as well as the High Court have directed the department to review the case of the respondent by ignoring the below benchmark of “Good” in the year 2007-2008 mainly on the following grounds:- (i) that in the earlier years, the very reporting officer/reviewing authority awarded “Very Good” for the years 2005-2006 and 2006-2007 and the very reporting officer/reviewing authority has given below benchmark “Good” for the year 2007-2008 and therefore the same is arbitrary and there is no basis to award the below benchmark – “Good”; (ii) that before the below benchmark ACR “Good” for the year 2007-2008, no opportunity was given to the respondent officer to improve himself and no deficiency was pointed out; and (iii) that no opportunity was given to the respondent officer to make representation against the proposed below benchmark ACR of the year 2007-2008. While giving the aforesaid findings and while arriving at the aforesaid final conclusion, the Tribunal as well as the High Court have heavily relied upon the decisions of this Court in the case of Sukhdeo (supra); Dev Dutt (supra); Abhijit Ghosh Dastidar (supra) and“19. In the present case, the learned Tribunal as well as the High Court have directed the department to review the case of the respondent by ignoring the below benchmark of “Good” in the year 2007-2008 mainly on the following grounds:- (i) that in the earlier years, the very reporting officer/reviewing authority awarded “Very Good” for the years 2005-2006 and 2006-2007 and the very reporting officer/reviewing authority has given below benchmark “Good” for the year 2007-2008 and therefore the same is arbitrary and there is no basis to award the below benchmark – “Good”; (ii) that before the below benchmark ACR “Good” for the year 2007-2008, no opportunity was given to the respondent officer to improve himself and no deficiency was pointed out; and (iii) that no opportunity was given to the respondent officer to make representation against the proposed below benchmark ACR of the year 2007-2008. While giving the aforesaid findings and while arriving at the aforesaid final Sukhdev Singh (supra). However, on considering the aforesaid decisions, it emerges that in the aforesaid cases, the adverse ACRs either were not communicated at all and/or on facts found to be inconsistent and suffering from lack of bona fides. 20. In the case of Dev Dutt (supra), this Court has held in paragraphs 36 and 37 as under:- “36. In the present case, we are developing the principles of natural justice by holding that fairness and transparency in public administration requires that all entries (whether poor, fair, average, good or very good) in the annual confidential report of a public servant, whether in civil, judicial, police or any other State service (except the military), must be communicated to him within a reasonable period so that he can make a representation for its upgradation. This in our opinion is the correct legal position even though there may be no rule/G.O. requiring communication of the entry, or even if there is a rule/G.O. prohibiting it, because the principle of non- arbitrariness in State action as envisaged by Article 14 of the Constitution in our opinion requires such communication. Article 14 will override all rules or government orders. 37. We further hold that when the entry is communicated to him the public servant should have a right to make a representation against the entry to the authority concerned, and the authority concerned must decide the representation in a fair manner and within a reasonable period. We also hold that the representation must be decided by an authority higher than the one who gave the entry, otherwise the likelihood is that the representation will be summarily rejected without adequate consideration as it would be an appeal from Caesar to Caesar. All this would be conducive to fairness and transparency in public administration, and would result in fairness to public servants. The State must be a model employer, and must act fairly towards its employees. Only then would good governance be possible.” 26. The Tribunal has also noted that adverse remarks were not communicated to the respondent herein within the time limits prescribed for such communication under the prevailing rules governing the ACRs. Further attention of the officer was not drawn during the year itself, to supposed falling standards along with necessary caution/advice so as to give him a chance to improve. The Tribunal has further noted that it is not the case of below benchmark grading but a case of recording adverse remarks in the extreme. That the representations made by the respondent were not considered objectively, dispassionately, and fairly as there were contradiction in the qualities or attributes communicated in the said ACRs which were wholly contradictory to each other. In the circumstances, the Tribunal held that “adverse remarks made for the year 2007-08 were sweeping, extreme, and inconsistent with the previous remarks. Hence it was held that the rejection of the representation was unjustified and the same was set aside. It was further observed by the Tribunal that the assessment of 2007-08 were clearly arbitrary and inconsistent and ought not to be allowed to stand in the way of proper assessment of the respondent by the Screening Committee for his suitability to be promoted to a higher grade. Hence, a direction was issued to the Screening Committee to consider and reassess the suitability of the respondent herein for the purpose of grant of SAG by excluding the ACR of 2007-08 and if the respondent was found suitable for grant of consequential benefits. Against the order of the Tribunal the Union of India, the appellant herein preferred a writ petition before the High Court, which reiterated what had been observed by the Tribunal in paragraph 6 of its order and dismissed the writ petition. 30.Therefore, in view of the above and in the facts and circumstances of the case and considering the fact that though the respondent was graded as “Very Good” in the ACRs for the years 2005-2006 and 2006- 2007 and was graded only “Good” in the ACR for the year 2007-2008 by the very same reporting and reviewing officer, despite the fact that specifically the respondent was given the opportunity against the ACR for the year 2007-2008. However, no valid reasons are given for rejecting the representation, we are of the opinion that in view of the aforesaid facts and circumstances, the learned Tribunal and the High Court have not committed any error in directing the Department to call for a review meeting of the Screening Committee to re-assess the suitability of the respondent for the purpose of grant of SAG and while doing so to exclude the ACR for the year 2007-2008. Therefore, in the facts and circumstances of the case, no interference of this Court is called for.” 12. Again Hon’ble the Supreme Court in case of R.K. Jibhanlata Devi Vs. High Court of Manipur through its Registrar General & others [2023 Live Law SC 139] has held in paragraphs 6.4 & 6.8 as under:- “6.4 In the present case the petitioner got “Good” gradings for the year 2016-17 and received “Very Good” gradings in her ACRs for the years 2017-18 and 2018-2019. It was the specific case on behalf of the petitioner which has not been denied that the ACRs grading of “Good” for the year 2016-17 was never communicated to the petitioner even till the DPC met. Therefore, as per the law laid down by this Court in catena of decisions more particularly, as observed and held by this Court in Rukhsana Shaheen Khan (supra); Sukhdev Singh (supra) and Dev Dutt vs. Union of India and Ors, (2008) 8 SCC 725 uncommunicated adverse ACRs may be even with “Good” entry which can be said to be adverse in the context of eligibility for promotion is not to be relied upon for consideration of promotion. Therefore, uncommunicated ACR for the year 2016-17 having the grading “Good” could not have been relied upon for consideration for promotion. 6.7 The sum and substance of the aforesaid discussion would be that as the ACR Grading of “Good” for the year 2016-17 was not communicated till the DPC met, the same is to be ignored and/ or be not relied upon for consideration of promotion. Similarly, the grading for the year 2019-2020 also is to be excluded and/or be not relied upon for consideration for promotion as the same was communicated on 08.04.2021 and the petitioner was granted 15 days’ time to make representation and before the representation could be made the DPC met on 09.04.2021 and considered the case of the petitioner for promotion.” 13. From the above stated legal position, it is quite vivid that the adverse ACRs has to be communicated to the employees as on account of this non-communicate adverse ACRs, any employee may be deprived from promotion and other service benefits then it has to be communicated. From the averments made in the petition, the petitioner in paragraph No. 8.2 of the petition has pleaded that he was promoted as Assistant Registrar on 01.04.2006. As per the recruitment rules applicable to the employees of the High Court, various promotional avenues have been prescribed from the post of Assistant Registrar from which the petitioner has been deprived thus, in such circumstances, communication of the ACRs is very essential. 14. Now in light of the above stated legal position, the case of the petitioner has to be considered by this Court. The petitioner was not communicated the ACR for the year 2007-08 which is Average-D and have an adverse effect in service career, therefore, its communication is must. Thus, due to non-communicate of ACRs for the year 2007-08, it has lost its significance and deserves to be expunged from the service record. So far as ACR for the year 2008-09 is concerned which was graded Average and the same has been expunged, as such the contention made by the petitioner that he has not been communicated the ACR for the year 2008-09 has lost its significance and he cannot be granted benefits of alleged average ACR for the year 2008-09 which has already been expunged. 15. So far as the ACR for the year 2009-10 which is Average and the has been communicated to the petitioner on 28.09.2012 after more than one year and six months whereas as per the Circular dated 29.11.1984 issued by the State Government clearly provides that the ACRs should be communicated within three months failing which it has lost its significance. The circular further provides that beyond three months the adverse ACRs be communicated but in the special circumstances and only after obtaining permission from the authorities, it can be communicated. In the present case, the respondent No. 1 is unable to justify their delay communication of the ACR for the year 2010-11 on 28.12.2012, therefore, the adverse ACR for this year, deserves to be expunged, accordingly, it is expunged. So far as communication of the ACR for the year 2011-12 is concerned, it has been communicated to the petitioner on 28.12.2012 which cannot be said delayed one. As such, the contention raised by learned counsel for the petitioner that on account of delay communication the ACR for the year 2011-12 deserves to be expunged, is liable to be rejected. Accordingly, it is rejected. As such, the Point emerged for determination of this Court, is answered partly in favour of the petitioner and partly against the petitioner. 16. Consequently, the ACR for the year 2007-08 and 2010-11 are expunged on account of non-communication and delay communication. So far as prayer for expunging the ACRs for the year 2009-10 & 2011-12, is rejected and the same will remain intact. 17. Accordingly, the writ petition is partly allowed. Sd/- (Narendra Kumar Vyas) Judge Bhumika