1 2025:CGHC:60374 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 5339 of 2023 Vasdev Sahu S/o Late Shri Laxman Aged About 38 Years Working As Sweeper At Bharat Ratna Late Shri Atal Bihari Bajpayee Smriti, Govt. Medical College, Rajnandgaon, District - Rajnandgaon (C.G.) ... Petitioner versus 1 - State of Chhattisgarh Through - The Secretary, Medical Education Department, Mahanadi Bhawan, Atal Nagar, Nava Raipur, District - Raipur (C.G.) 2 - The Presiding Officer Bharat Ratna Late Shri Atal Bihari Bajpayee Smriti, Govt. Medical College, Rajnandgaon, Distirct - Rajnandgaon (C.G.) 3 - Joint Director and Superintendent Bharat Ratna Late Shri Atal Bihari Bajpayee Smriti, Govt. Medical College, Rajnandgaon, District - Rajnandgaon (C.G.) 4 - Shri Vijay Kumar Yadav Working As Sweeper At Bharat Ratna Late Shri Atal Bihari Bajpayee Smriti, Govt. Medical College, Rajnandgaon, Distirct - Rajnandgaon (C.G.) ... Respondents (Cause-title taken from Case Information System) For Petitioner : Mr. Somkant Verma, Advocate For Respondents No.1 to 3 : Mr. Hariom Rai, Panel Lawyer For Respondent No.4 : Mr. Vivek Kumar Shrivastava, Advocate YOGESH TIWARI Digitally signed by YOGESH TIWARI Date: 2025.12.12 13:11:10 +0530 2 Hon’ble Shri Amitendra Kishore Prasad, Judge Order on Board 11.12.2025 1. The petitioner has filed this writ petition with the following relief(s):- “10.1 That, this Hon'ble Court may kindly be pleased to quash order of promotion of private respondent dated 17.04.2023 and also prays for direction to the respondent No.- 3 to consider case of the petitioner for promotion to next higher post, within stipulated period. 10.2 That, this Hon'ble court may kindly be pleased to direct the respondent No.-2 and 3 to consider pending applications (Annexure P-4) of the petitioner, within stipulated period.” 2. Learned counsel for the petitioner submits that the petitioner has an undisputed and clean service record and fulfills all the eligibility criteria for promotion from the post of Sweeper (Class-IV) to the post of Record Clerk (Class-III). It is submitted that the sole reason assigned by the respondents for not considering the petitioner for promotion is the alleged non-availability of his ACR for the relevant period. Learned counsel contends that the petitioner cannot be made to suffer for the omission or administrative lapse on the part of the concerned authority in not maintaining or forwarding the ACR in time. It is further submitted that the petitioner stands at Serial No.07 in the officially published 3 gradation list dated 20.09.2022, whereas the private respondent is placed at Serial No.40; therefore, the seniority of the petitioner is undisputed. The Promotion Rules, 2003 clearly prescribe “seniority subject to fitness” as the governing criteria for promotion from Class-IV to Class-III. Since there is no complaint, no adverse remark, and no disciplinary proceeding against the petitioner, he is fully fit for promotion. Despite repeated representations, the respondents have failed to consider his claim, whereas the private respondent No.4, who is junior to the petitioner has been promoted. Such action of the respondents is arbitrary, discriminatory and in violation of Articles 14 and 16 of the Constitution of India. Reliance has been placed in the matter of Major General H.M. Singh VSM v. Union of India and others reported in (2014) 3 SCC 670. 3. On the other hand, learned State counsel submits that the petitioner could not be considered for promotion due to non- availability of his ACR for the relevant period, which is an essential component for assessing suitability under the Promotion Rules, 2003. It is further submitted that unless the complete ACR record is available, the Departmental Promotion Committee cannot evaluate the petitioner’s fitness for the post of Record Clerk (Class-III), and therefore the promotion of the private respondent has been made as per rules and administrative exigency. 4 4. I have heard learned counsel appearing for the parties and perused the documents annexed with the writ petition. 5. Upon perusal of the entire material available on record, this Court finds that the petitioner has consistently maintained an unblemished service profile and stands senior to the private respondent as reflected in the undisputed gradation list dated 20.09.2022. The petitioner has successfully completed his probation, has been duly confirmed in service, and has served for more than five years without any adverse remark, complaint or disciplinary proceedings. The only ground cited by the respondents for not considering the petitioner for promotion is the alleged non-availability of his ACR for a particular period. This Court is of the considered view that such an administrative lapse, attributable solely to the authorities, cannot be permitted to defeat the legitimate claim of an employee who is otherwise fully eligible and senior. 6. It is a settled principle in service jurisprudence that an employee cannot be prejudiced for no fault of his own, and that non- availability of ACR cannot be used as a shield to bypass the rightful claim of a senior employee, especially when the promotion criteria prescribed under the Promotion Rules, 2003 is “seniority subject to fitness.” In the present case, there is nothing on record to suggest that the petitioner is unfit for promotion, nor is there 5 any material to justify the supersession of the petitioner by a junior employee. 7. In view of the above discussion, this Court finds that the action of the respondents in granting promotion to the private respondent No.4, without considering the petitioner’s claim is arbitrary, unfair, and violative of Articles 14 and 16 of the Constitution of India. 8. Accordingly, the writ petition is allowed. The respondent authorities are directed to consider the petitioner’s case for promotion to the post of Record Clerk (Class-III) afresh, strictly in accordance with the applicable rules, seniority position, and the petitioner’s service record, and to pass a reasoned and speaking order within a period of three months from the date of receipt of a certified copy of this order. It is further observed that the mere non-availability of the ACR for a particular period shall not be treated as a ground to deny consideration of the petitioner’s candidature, and the respondents shall adopt an appropriate method for assessing his suitability based on available materials so that his rightful claim is not defeated due to administrative deficiency. Sd/- (Amitendra Kishore Prasad) Judge Yogesh