1 2025:CGHC:54699 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 1020 of 2023 Pushpa Kiran Bhagat W/o Shri D. R. Bhagat Aged About 57 Years R/o College Colony, Utai, H. N.-97, Ward-02, Utai, District : Durg, Chhattisgarh ... Petitioner versus 1 - State of Chhattisgarh Through Its Secretary, Department of Home, Mahanadi Bhavan, Nava Raipur, Atal Nagar, District : Raipur, Chhattisgarh 2 - Directorate Public Prosecutor, Mahanadi Bhavan, Nava Raipur, Atal Nagar, District : Raipur, Chhattisgarh 3 - Chhattisgarh Public Service Commission Through Its Secretary, Nava Raipur, Atal Nagar, District : Raipur, Chhattisgarh 4 - Joint Director Public Prosecutor, Durg, District : Durg, Chhattisgarh 5 - Suresh Kumar Sahu District Prosecutor Officer, Janjgir - Champa, District : Janjgir-Champa, Chhattisgarh 6 - Rajkumar Mishra District Prosecutor Officer, Kanker, District : Kanker, Chhattisgarh 7 - Krishna Kumar Chaturvedi District Prosecutor Officer, Kondagaon, District : Kondagaon, Chhattisgarh 8 - Sholk Shrivastava District Prosecutor Officer, A.C.B. Raipur, District : Raipur, Chhattisgarh 9 - Hina Yasmin Khan District Prosecutor Officer, Raipur, District : Raipur, Chhattisgarh ... Respondents (Cause-title taken from Case Information System) YOGESH TIWARI Digitally signed by YOGESH TIWARI Date: 2025.11.11 18:50:26 +0530 2 For Petitioner : Mr. Mahesh Kumar Mishra, Advocate For State/respondents No. 1, 2 and 4 : Mr. Rahul Tamaskar, Government Advocate For Respondent No.3 : Dr. Sudeep Agrawal, Advocate For Respondent No.5 : None, though served. For Respondents No.6 & 7 : Mr. Achyut Tiwari, Advocate For Respondent No.8 : None, though served. Hon’ble Shri Amitendra Kishore Prasad, Judge Order on Board 10.11.2025 1 The petitioner has filed this petition with the following relief(s):- “10.1) That, this Hon'ble Court may kindly be pleased to quash/set aside the recommendation of DPC held on 07/12/2022 made with regard to the petitioner's ineligibility to the post of Deputy Director of Prosecution and direct the respondent authorities to convene a review DPC to consider to name of the petitioner for promotion to the post of Deputy Director of Prosecution. 10.2) That, this Hon'ble Court may kindly be pleased to direct the respondent authorities that, in the grade of District Prosecution Officer, the seniority of the applicant over respondents 5 to 9 be maintained. 10.3) That, this Hon'able Court may be pleased to direct the respondent authorities to In the alternative, to set/quash the promotions of respondents 5 to 9 insofar as they are promoted and given seniority above the 3 petitioner during the pendency of the present writ petition. 10.4) That, this Hon'ble Court may be pleased to direct the respondent authorities to consider the representation of the petitioner pending before them. 10.5) That, this Hon'ble Court may be please to direct the respondent authorities to consider the name of the petitioner to the post of Joint Director Prosecution. 10.6) That, this Hon'ble Court may be please to direct the respondent authorities to give effect to the promotion order from the date its batch mats have been promoted. 10.7) That, grant of all the consequential benefits to the petitioner from the date her immediate juniors have been granted as a result of recommendations of the DPC meeting held on 07/12/2022. 10.8) That, Any other relief(s) may also be given to the petitioner, which this Hon'ble court may deem fit and proper in the facts and circumstance of the case.” 2 Brief facts of the case, in a nutshell, are as follows: the Petitioner was initially appointed as an Assistant District Prosecution Officer on 01.03.2008 under the Scheduled Tribe reserved category and had been serving as District Prosecution Officer at District Durg since 2017. By order dated 28.12.2017 issued by Respondent No. 1, she was promoted to the post of District Prosecution Officer. Her promotion was governed by the Prosecution (Gazetted) 4 Services Chhattisgarh Public Recruitment and Promotion Rules 2008 read with the Chhattisgarh Public Service Promotion Rules 2003, where promotion was based on the principle of seniority- cum-merit. Promotion to the post of Deputy Director of Prosecution for her batch became due in 2022. For such consideration, the Departmental Promotion Committee (DPC) was required to examine the service records of the preceding five years with specific reference to the Annual Confidential Reports (ACRs). The ACR for the year 2016-17 had never been communicated to the petitioner and was obtained only through the Right to Information Act. The ACRs for 2017-18 and 2018-19 were communicated belatedly in 2020, and the ACR for 2019-20 was communicated on 07.05.2021. Although the Reporting and Reviewing Officers had recorded “Very Good/A” for the years 2017-18, 2018-19 and 2019-20, the Accepting Officer downgraded all these ACRs to “Good/B” without assigning any reason and by affixing an undated seal and signature. The ACR for 2016-17 also carried a “Good/B” remark and was never communicated. All these ACRs were annexed by the petitioner. 3 Upon receiving the ACRs, the petitioner submitted a representation dated 22.09.2022 seeking upgradation of the downgraded entries, as the downgrading brought her below the benchmark required for promotion. Respondent No. 1 forwarded this representation to the Accepting Officer under cover letter dated 30.09.2022, referring to the circular dated 25.05.1982 that 5 required an officer to respond within one month, failing which it would be presumed that no opinion existed. Circulars dated 13.01.1999 and 30.04.2007 also mandated strict timelines for recording ACRs and provided that delay would imply absence of opinion. In the petitioner’s case, the downgrading carried no dates, contrary to these circulars. While the petitioner’s representation was still pending, the DPC convened on 07.12.2022 and considered the final seniority list as on 01.04.2021. Instead of applying the seniority-cum-merit principle, the DPC considered candidates solely on the basis of their position in the seniority list. The petitioner’s name figured at serial No. 19. Under clause 12 of the applicable rules, the DPC was required to assess integrity and overall gradings of the preceding five years. The petitioner’s integrity for all five years was unquestioned, and the ACR of 2020-21 was graded “Very Good”. She had also submitted details of her immovable properties as required. However, for overall assessment under clause 12(A)(2), a minimum “Very Good” (13 points) was required. Because the ACR for 2016-17 carried a “Good/B” entry that had never been communicated, and the ACRs for 2017-18, 2018-19 and 2019-20 had been arbitrarily downgraded without reasons, the petitioner was pushed below the benchmark. 4 It further emerged that the DPC had upgraded the ACRs of 9 candidates from “Good/B” to “Very Good/A” under the circular dated 03.06.2015, and upgraded the ACRs of 3 others after re- 6 assessment. The petitioner’s case, however, was not considered for upgradation. Ultimately, the DPC recommended 20 candidates for promotion and found only the petitioner unfit, without recording any reason under clause 12 or clause 15 of the DPC proceedings, despite her pending representation against adverse downgrading. 5 Aggrieved, the petitioner submitted another representation on 09.01.2023, and also sought certified copies of her ACRs through an RTI application dated 04.01.2023. Respondent No. 1 informed her that the information sought pertained to pending official proceedings and would be supplied only upon completion of such proceedings. 6 Learned counsel for the petitioner submits that the present matter concerns the supersession of a senior District Prosecution Officer, appointed on 01.03.2008 under the Scheduled Tribe category, by several of her juniors, and the consequent recommendation of the Departmental Promotion Committee declaring her unfit for promotion, which is in clear violation of the statutory rules as well as the administrative instructions contained in various official circulars. Such action, it is submitted, infringes the petitioner’s rights guaranteed under Articles 14 and 16 of the Constitution of India. It is contended that the benchmark for promotion to the post of Joint Director (Prosecution) was “Very Good” ACRs for the preceding five years. However, the petitioner’s ACR for the year 2016-17, graded as “Good”, was never communicated to her, and 7 the ACRs for the years 2017-18, 2018-19 and 2019-20, which were graded “Very Good/A” by the Reporting and Reviewing Officers, were arbitrarily downgraded to “Good/B” by the Accepting Officer without assigning any reasons and by affixing an undated seal and signature. These downgraded entries were communicated belatedly, depriving the petitioner of her legitimate right to make a representation for their upgradation, and the ACR for 2016-17 was not communicated at all. Learned counsel further submits that the downgrading of ACRs was in violation of circulars dated 13.01.1999 and 30.04.2007, which prescribed strict timelines for recording ACRs and mandated that delay would amount to absence of opinion. The petitioner’s ACRs for four consecutive years did not bear dates or reasons for downgrading, which rendered them legally unsustainable. 7 It is further urged that the DPC failed to consider that the petitioner’s representation seeking upgradation of her ACRs was pending before Respondent Nos. 1 and 2 and that the DPC, instead of awaiting the outcome of the representation, proceeded to consider the candidates solely on the basis of seniority, ignoring the principle of seniority-cum-merit. The DPC upgraded the ACRs of nine candidates from “Good/B” to “Very Good/A” by granting them the benefit of Circular dated 03.06.2015, relating to Scheduled Areas, although the petitioner was never posted in a Scheduled Area; moreover, the ACRs of three other candidates were upgraded after assessment of their service records, but the 8 petitioner’s case was neither considered nor discussed. Learned counsel submits that the petitioner was also not extended the benefit of Rule 8 of the Promotion Rules, 2003, which empowered the Government to relax standards of evaluation in favour of officers belonging to the Scheduled Tribes. The DPC recommended twenty candidates for promotion and found only the petitioner unfit, without recording any reasons under clause 12 or clause 15 of the DPC proceedings, despite the pendency of her representation against the adverse ACR entries. It is submitted that the respondents have kept the petitioner’s representation pending for over three months without any justification, and due to the arbitrary actions and inaction of the respondents, the petitioner has suffered serious prejudice, as her juniors have been promoted while she has been unfairly excluded, causing her severe mental distress. 8 On the other hand, learned State counsel submits that although the ACR of the petitioner could not be communicated within the prescribed time, the said ACR contained only a “Good” entry and not a “C” or “Bad” grading. Therefore, according to the State, the non-communication of such an entry did not materially affect the petitioner’s prospects and would not vitiate the promotion process. It is further submitted that the case of the petitioner was duly placed before the Departmental Promotion Committee and considered on its merits, and during the pendency of the present proceedings, the petitioner has already been promoted to the post 9 of Deputy Director of Prosecution by order dated 19.09.2024 and pursuant to the same she had joined the said post on 24.09.2024 as Deputy Director, Mugeli District Mungeli. Hence, the grievance raised in the writ petition stands fully redressed and nothing further survives for adjudication. 9 Learned counsel for the Public Service Commission/Respondent No.3 submits that the Commission is merely a formal or pro forma party to the proceedings. It is submitted that it is for the State Government to act upon the entries recorded in the ACRs and to ensure proper and timely communication of such entries to the concerned officer. The PSC, therefore, has no independent role in the communication or upgradation of the ACRs in question. 10 Learned counsel appearing for Respondents No. 6 and 7 submits that the petitioner has now rightly been promoted to the post of Deputy Director of Prosecution, and therefore the grievance raised by her does not survive. However, upon a specific query from the Court, learned counsel fairly submits that Respondents No. 6 and 7, who were similarly situated and at par with the petitioner in the relevant cadre, had already been promoted earlier to the post of Deputy Director of Prosecution vide order dated 29.12.2022. 11 Despite service of notice, respondents No. 5 and 8 are not appeared before this Court to press this petition. 10 12 I have heard learned counsel for the parties at length, considered their rival submissions with due care, and meticulously examined the pleadings and documents placed on record, including the ACRs which were communicated belatedly. 13 The legal position on this issue is no longer res integra. It is firmly settled that any uncommunicated or belatedly communicated Annual Confidential Report (ACR) or Annual Performance Appraisal Report (APAR) cannot be relied upon to the prejudice of an employee. The Hon’ble Supreme Court, in Sukhdev Singh v. Union of India and Others, (2013) 9 SCC 566, has categorically mandated that every entry in the ACR—whether it records performance as poor, fair, average, good, very good, or otherwise must be communicated to the concerned employee within a reasonable time. The purpose of such communication is to ensure that the employee is afforded a meaningful opportunity to submit a representation seeking review or upgradation of the remarks. Failure to communicate these entries deprives the employee of a legitimate chance to contest or correct an adverse remark, thereby offending the principles of natural justice. 14 A similar principle was reiterated earlier in Dev Dutt v. Union of India and Others, (2008) 8 SCC 725, where the Supreme Court clarified that even a seemingly positive entry such as “good” may adversely affect an employee’s comparative merit, seniority, or prospects of promotion. Consequently, all entries irrespective of 11 whether they are adverse in the conventional sense—must be communicated expeditiously. 15 Recently, in R. K. Jibanlata Devi v. High Court of Manipur through its Registrar General and Others, (2023) 19 SCC 472, the Supreme Court considered and reaffirmed the principles laid down in Sukhdev Singh (supra) and Dev Dutt (supra). The Court reiterated that communication of ACR/APAR entries is an indispensable safeguard to ensure fairness in service jurisprudence, and non-communication of such entries renders their use for promotion or career advancement impermissible. 16 In the present case, it is an admitted and undisputed position that the petitioner’s ACRs relevant for consideration of promotion were not communicated to him within the prescribed or reasonable period. As a consequence, such uncommunicated or belatedly communicated ACRs lose their probative value and cannot be relied upon for denying the petitioner fair consideration for promotion. Had these ACRs been duly communicated in time, the petitioner would have been entitled to make an appropriate representation seeking correction or upgradation of the entries. Since this opportunity was denied, reliance on those ACRs for assessing his suitability is legally untenable. 17 This Court further notes that officers similarly situated and placed at par with the petitioner have already been promoted vide order dated 29.12.2022. The respondents have not been able to place 12 on record any rational or legally sustainable basis to justify such differential treatment between the petitioner and respondents No. 5, 6, 7, 8, and 9. The constitutional guarantee of equality under Article 14 mandates that persons who are similarly circumstanced must be treated alike. Any departure from this principle must be supported by cogent and convincing reasons. In the absence of such justification, the denial of promotion to the petitioner amounts to arbitrary and discriminatory action. 18 In view of the settled legal position and the admitted factual matrix, this Court finds the action of the respondents in not granting promotion to the petitioner from the date on which his counterparts were promoted to be unsustainable in law. Accordingly, the respondents are directed to grant the petitioner promotion from the same date on which respondents No. 5, 6, 7, 8, and 9 were promoted, i.e., 29.12.2022, along with all consequential service and monetary benefits admissible under law. The exercise shall be completed expeditiously. 19 With the aforesaid observations and directions, the writ petition stands allowed. There shall be no order as to costs. Sd/- (Amitendra Kishore Prasad) Judge Yogesh