1 (WPS No. 7059 of 2016) 2025:CGHC:11076 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 7059 of 2016 1 - Lala Ram Vaidya S/o Late Shri S.L. Vaidya, Aged About 66 Years, Retired as Assistant Statistical Officer, R/o Vandana Vihar Colony, Ratna Bandha Road, Dhamtari District Dhamtari Chhattisgarh --- Petitioner(s) versus 1 - State Of Chhattisgarh Through The Secretary, Department Of Economics And Planning Govt. Of Chhattisgarh, Mahanadi Bhavan, P.O. Rakhi, Naya Raipur District Raipur Chhattisgarh 2 - Director Of Economics & Statistics, Through Its Director, Indrawati Bhawan, P.O. Rakhi, Naya Raipur, District : Raipur, Chhattisgarh --- Respondent(s) (Cause-title taken from the Case Information System) For Petitioner :-Mr. H.A.P.S. Bhatia, Advocate on behalf of Mr. M.P.S. Bhatia, Advocate For State :-Dr. Surendra Kumar Dewangan, PL SB - Hon'ble Shri Justice Sanjay K. Agrawal Order On Board 05.03.2025 1. This writ petition is directed against order dated 27.07.2015 (Annexure P/1), whereby the petitioner’s representation for promotion to the post of Assistant ADITI DIWAN KAIWART Digitally signed by ADITI DIWAN KAIWART Date: 2025.03.10 10:34:41 +0530 2 (WPS No. 7059 of 2016) Director has been rejected holding that he was graded - ‘kha’ in his ACRs for the relevant years. 2. The case of the prosecution is that in the meeting of Departmental Promotion Committee held on 14.05.2002, the petitioner was not promoted to the post of Assistant Director, whereas his junior – R.L. Kosre was selected for the said post, which led to filing of writ petition bearing No.1337/2003 before this Court and this Court vide order dated 07.10.2013 (Annexure P/3) disposed of the said writ petition by reserving liberty in favour of the petitioner to make representation before the competent authority. Meanwhile, the petitioner stood retired on 30.06.2008 on attaining the age of superannuation. Thereafter, the petitioner filed representation before the concerned authority, which was ultimately rejected vide impugned order dated 27.07.2015 on the ground that since the petitioner was graded ‘Kha’ in his ACRs for the relevant five years i.e. 1997, 1998, 1999, 2000 & 2001, therefore, he was not eligible for promotion to the post of Assistant Director, which is sought to be challenged by way of this writ petition. 3. Mr. H.A.P.S. Bhatia, learned counsel for the petitioner submits that though the petitioner was graded ‘Kha’ in his 3 (WPS No. 7059 of 2016) ACRs, it ought to have been communicated to the petitioner in light of decision rendered by the Supreme Court in the matter of Dev Dutt v. Union of India And Others 1 , which has been reaffirmed in Sukhdev Singh v. Union of India And Others 2 . As such, the impugned order is liable to be set aside and this writ petition deserves to be allowed. 4. Dr. Surendra Kumar Dewangan, learned State counsel would submit that the impugned order is strictly in accordance with law and this writ petition is liable to be dismissed. 5. I have heard learned counsel for the parties, considered their rival submissions made herein above and gone through the materials available on record with utmost circumspection. 6. In the first round of litigation, the petitioner’s representation against his non-selection to the post of Assistant Director on arbitrary grounds was ultimately rejected by the State on 27.07.2015, holding that the petitioner was graded ‘kha’ in his ACRs for the relevant five years, as such, he was not fulfilling the criteria for the said post and, therefore, he was not promoted. In this 1 (2008) 8 SCC 725 2 (2013) 9 SCC 566 4 (WPS No. 7059 of 2016) second round of litigation, this Court vide earlier order dated 17.02.2025 had directed the State to file affidavit as to whether the ACRs for the relevant years were communicated to the petitioner or not and in compliance with the same, the Deputy Director has filed an affidavit dated 27.02.2025 stating that the ACRs for the relevant years have not been communicated to the petitioner. 7. 7. In this regard, the decision rendered by the Supreme Court in the matter of Dev Dutt (supra), may be noticed herein, in which their Lordships of the Supreme Court have held that even the good entry should be communicated to the government servant to enable him to make representation for up-gradation and held in Para 9 & 10 as under :- “ 9. In the present case the bench mark (i.e. the essential requirement) laid down by the authorities for promotion to the post of Superintending Engineer was that the candidate should have 'very good' entry for the last five years. Thus in this situation the 'good' entry in fact is an adverse entry because it eliminates the candidate from being considered for promotion. Thus, nomenclature is not relevant, it is the effect which the entry is having which determines whether it is an adverse entry or not. It is thus the rigours of the entry which is important, not the phraseology. The grant of a `good' entry is of no satisfaction to the 5 (WPS No. 7059 of 2016) incumbent if it in fact makes him ineligible for promotion or has an adverse effect on his chances. 10. Hence, in our opinion, the 'good' entry should have been communicated to the appellant so as to enable him to make a representation praying that the said entry for the year 1993-94 should be upgraded from 'good' to 'very good'. Of course, after considering such a representation it was open to the authority concerned to reject the representation and confirm the 'good' entry (though of course in a fair manner), but at least an opportunity of making such a representation should have been given to the appellant, and that would only have been possible had the appellant been communicated the 'good' entry, which was not done in this case. Hence, we are of the opinion that the non-communication of the 'good' entry was arbitrary and hence illegal, and the decisions relied upon by the learned counsel for the respondent are distinguishable.” 8. The aforesaid principle of law laid down in Dev Dutt (supra) has been reaffirmed by the Supreme Court in the matter of Sukhdev Singh (supra), in which their Lordships of the Supreme Court have held in para 8 & 10 as under :- “8. In our opinion, the view taken in Dev Dutt that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder 6 (WPS No. 7059 of 2016) and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for up-gradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR – poor, fair, average, good or very good – must be communicated to him/her within a reasonable period. 10. Insofar as the present case is concerned, we are informed that the appellant has already been promoted. In view thereof, nothing more is required to be done. The civil Appeal is disposed of with no order as to costs. However, it will be open to the appellant to make a representation to the concerned authorities for retrospective promotion in view of the legal position stated by us. If such a representation is made by the appellant, the same shall be considered by the authorities concerned appropriately in accordance with law.” 9. As such, though the petitioner was graded ‘Kha’ in his ACRs for the relevant five years, it ought to have been communicated to the petitioner, in light of decision rendered by the Supreme Court in Dev Dutt (supra) and reaffirmed in Sukhdev Singh (supra) and following that, the petitioner should have been given the opportunity to 7 (WPS No. 7059 of 2016) make representation for up-gradation in his ACRs and, thereafter, it could have been acted upon. 10. In that view of the matter, the impugned order dated 27.07.2015 (Annexure P/1) is hereby quashed. The respondents are directed to communicate the ACRs for the relevant years to the petitioner within 45 days from the date of receipt of this order. Thereafter, the petitioner may file representation for up-gradation of his ACR, if any, before the concerned respondent/authority, which will be considered and decided by the competent respondent/authority within six weeks therefrom. Depending upon the outcome of petitioner's said representation, the petitioner is at liberty to make further representation, if any, before the respondent authorities to consider his case for promotion retrospectively, if any. 11. With the aforesaid observations and directions, this writ petition is allowed to the extent indicated herein above. No order as to cost(s). Sd/- (Sanjay K. Agrawal) Judge @d!t!