1 / 13 2026:CGHC:18179 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 1301 of 2024 Om Prakash Sinha S/o Late Ganpat Sinha Aged About 33 Years Presently Posted As Constable Excise, At Office Of State Level Flying-Squad Raipur, District : Raipur, Chhattisgarh ... Petitioner(s) Versus 1 - State Of Chhattisgarh Through Its Principal Secretary, Department Of Commercial Tax (Excise) Ministry, Mahanadi Bhawan, Capital Complex, Atal Nagar, P S And P O Rakhi, District : Raipur, Chhattisgarh 2 - Under Secretary Department Of Commercial Tax (Excise) Ministry, Mahanadi Bhawan, Capital Complex, Atal Nagar, P.S. And P.O.- Rakhi, District : Raipur, Chhattisgarh 3 - Commissioner (Excise) Gst Bhawan Nawa Raipur, Atal Nagar, District - Raipur, Chhattisgarh. 4 - Assistant Commissioner Excise District - Rajnandgaon, Chhattisgarh. 5 - Abhishek Kumar Rajwade Sub Inspector Excise Office Of District Excise Officer, District - Balrampur -Ramanujganj, Chhattisgarh. ... Respondent(s) 2 / 13 For Petitioner : Mr. Mateen Siddiqui, Advocate For Respondent No. 1 to 4 : Mr. Vivek Verma, G.A. HON'BLE SHRI PARTH PRATEEM SAHU, JUDGE ORDER ON BOARD 21.04.2026 1. Petitioner has filed this writ petition seeking following reliefs. “10.1. The Hon'ble Court may kindly be pleased to quash the impugned posting (promotion) order Dated 29.09.2023 (P/1) issued by the Commissioner Excise, Raipur. (inrespectof private respondent) 10.2 The Hon'ble Court may kindly be pleased to consider the candidature of the petitioner for promotion on the post of Sub Inspector Excise, wef 29.09.2023 and grant all consequential benefit, as also considering the other ACR, which taken into point for considering of promotion.. 10.3 The Hon'ble Court may kindly be pleased to direct the respondent State to upgradion of ACR as उत्कृ ्ቖ (कृ) in place of "Ä" for the year 2017 of the petitioner. 10.4 The Hon'ble Court may kindly be pleased to grant any other relief which this Hon'ble Court deems fit & proper in favour of the petitioner as per the facts & circumstance of the present case, in the ends of justice.” 2. Counsel for the petitioner submits that pursuant to the notice published by the exercise department for promotion on the post of Excise Sub- Inspector through Limited Departmental Examination, petitioner had 3 / 13 submitted an application along with all relevant documents. Petitioner appeared in the written examination and have secured 84 marks out of 100. He submits that the petitioner was awarded 80 marks on his Annual Confidential Reports of the last five years for the period of 2017 to 2022. He further contended that after publishing of result, petitioner came to know that he was not appropriately awarded marks on his ACRs and thereafter petitioner obtained his ACRs of the relevant period under Right to Information Act from the respondent authorities. In the ACR of the year 2016-17 petitioner was awarded Grade ‘D-Poor’ mentioning that some departmental enquiry is pending against the petitioner. In the said ACR there is also mention that petitioner is not eligible for promotion. It is contention of counsel for the petitioner that this adverse entries made in the ACR of the petitioner has not been communicated to the petitioner by the competent authority. He also submitted that no departmental enquiry has been initiated against the petitioner during that relevant point of time. No show cause notice was issued nor any charge memo and therefore, the entry made in Column No. 9 that departmental enquiry is pending is erroneous. He also contended that petitioner was not served with any show cause notice on the observation made by the reporting authority in the form of allegation, that petitioner is having the relations with the private persons engaged in selling illicit liquors, as petitioner was not having any opportunity to submit any representation against the adverse ACR, it has affected the right of the petitioner and therefore, the ACR having the adverse entries ought not to have been considered. In support of his contention he placed reliance upon the decision of Hon’ble Supreme Court in Devdutt v. Union of India and Others, 2008 8 SCC 4 / 13 725. It is also contention of counsel for the petitioner that the copy of the ACR of the year 2016-17 filed as Annexure-P/3 would show that it was obtained under Right to Information Act. It bears signature of the reporting authority only. There is no signature of the reviewing authority or the accepting authority, however, in the ACRs of the petitioner of the other years in the same format bears the signature of the reviewing and the accepting authority and therefore, also the ACR in its form ought not to have been considered by the committee considered the candidature of the petitioner and other like employees participated in the limited departmental exam for their promotion. 3. Counsel for the State would oppose the submission of counsel for the petitioner and would submit that the submission of the counsel for the petitioner that the ACR was not communicated to the petitioner is not correct. In support of his contention he referred to the format of the application form to be submitted by the employees like the petitioner who had submitted the application form for their promotion to the post of ASI through limited departmental examination. He submits that along with the return, format of the application form to be submitted for the limited departmental examination (year 2022) is enclosed. He contended that along with the application form ACR of 5 years is to be enclosed and to be certified. Petitioner himself has enclosed this document mentioning the grading in the ACR as also the numbers to be put on by the Head of the Department and therefore, the petitioner would not be permitted to make a submission that, the ACR of the year 2017 is not communicated to the petitioner. He also contended that petitioner even after getting the knowledge of the ACR of the year 2017 has not submitted any representation with a prayer for upgrading the 5 / 13 same like other employees in particular Nand Kumar Dahariya. He also contended that Nand Kumar Dahariya after getting the knowledge about the adverse entries made in the ACR has submitted a representation and the respondent department has wisely considered his representation and corrected the grading given to the said employee in his ACR of the year 2018. Petitioner after participating in the promotion proceedings through limited departmental examination has filed this writ petition and therefore, at this stage petitioner cannot be permitted to raise that ground. 4. At this stage, counsel for the petitioner submits that the petitioner after declaration of the result and coming to the knowledge about the adverse entries in the ACR of the year 2017 has immediately submitted representation on 10.10.2023, however, representation submitted by the petitioner was not considered. 5. I have heard learned counsel for the parties. 6. The main grievance of the petitioner is that the ACR of the year 2017 is not communicated to the petitioner. Copy of which is obtained under Right to Information Act and is placed in record as Annexure-P/3. The copy of the ACR which is provided to the petitioner under Right to Information Act bears the entry mentioning that the ‘departmental enquiry’ proceedings is pending and further awarded Grade-D ‘Poor’. There is further mention that the petitioner is having relation with the private persons engaged in selling of the illicit liquor. Bare perusal of the said document Annexure-P/3 would reveal that it bears only the signature of the reporting authority, there is no signature of the reviewing authority or the accepting authority mentioning that the ACR prepared by the reporting authority and graded is accepted by the 6 / 13 higher authorities whereas, in the other ACRs of the petitioner of other years obtained by him under Right to Information Act along with the ACR of 2017 bears the opinion of reviewing and the accepting authority, accepting the grading awarded to the petitioner by the reporting and reviewing authority. In the aforementioned facts of the case, on the face of the document Annexure-P/3, it appears that the ACR of the petitioner of the year 2017 is not a complete document according to the procedure as provided under the law, because it has not been placed before the reviewing authority or the accepting authority. 7. So far as the submission of counsel for the petitioner that this ACR has not been communicated to the petitioner, and the objection raised by counsel for the State, from perusal of the documents enclosed by the respondent-State in its reply to submit that it is for the applicants to submit / enclose the copy of ACR of five years along with the application form. Along with the application, ACR of the year 2017, 2018, 2019, 2020 and 2021 are attached by petitioner. Perusal of the prescribed format enclosed by the State along with reply at page No. 45 would show that first two pages is to be filled up by the applicant- employee under his own signature and it is to be submitted before the employee authorized to receive the application of the limited departmental examination 2022. He will enclose the receipt of the application in the prescribed format and thereafter it is for the department to certify the details of an employee including his working in the prescribed format as appearing in Page No. 48 of the reply (Internal Page 4 of the application). The relevant page which deals with the grading awarded to the applicant for the relevant periods and the 7 / 13 award of marks accordingly. From the document it appears that it is to be enclosed by the department as it bears the assessment and grading of the document is to be certified and filled up by the Head of the Department and bears the signature of the Head of the Department. Along with the mentioning of the grading awarded to the concerned employee, the marks is also to be filled up. On the top of said document, name of office is to be mentioned which means that the document is to be issued by the office. All the enclosure except application is to be under signature of the Head of the office. From the face of this document it is apparent that this document is not to be enclose by the candidate / employee, but it is to be filled up by the department and thereafter to enclose along with application. It is not specific pleading by the State that this document after preparing by the department is handed over to the employee in particular like petitioner on particular date and therefore, in the opinion of this Court, the submission made by counsel for the State at the time of submission of the application, the petitioner has also enclosed the certification issued by the Head of the Department, with regard to his Annual Confidential Report with assessment and therefore petitioner was having knowledge of his ACR of 2017 on the date of submitting application is not sustainable. In reply the respondent-State has not made any specific pleading in this regard. 8. As discussed above the copy of ACR of the year 2017 obtained by petitioner under Right to Information Act of the year 2017 does not bear the signature of the Reviewing and Accepting Authorities, as such the ACR of the petitioner of the year 2017 is incomplete and could not have been considered even otherwise. 8 / 13 9. It is settled law that when the authorities / department considers the ACRs of the particular employee which bears the adverse entries for the purpose of promotion and found that it was not communicated to the concerned employee then those ACRs are not to be considered. 10. Petitioner has taken specific ground in the writ petition that the petitioner was not communicated the ACRs. Except for the year 2017, petitioner has been granted Very Good and Excellent (A+). In reply there is no specific denial to the aforementioned facts and in support there of have not submitted any document to show that the ACRs of the year 2017, 2018, 2019 etc has been communicated to the petitioner. The document filed along with the reply i.e. the application Form attached with the other documents including the assessment of the employee, mentioning award of marks based on the ACR as fixed by the authorities, award of grade and the maximum marks on the ACR. As discussed in preceding paragraph, this document is to be filled up and enclosed in the application of an employee by the department and not by the petitioner. 11. Law with regard to the communication of the ACR is well settled by Hon’ble Supreme Court in case of State of Harayana v. P.C. Wadhwa IPS, Inspector General of Police and another, reported in 1987 SCC 602 has observed thus: “13. Before we part with this appeal, we may dispose of another contention of the respondent about the delay in communicating to him the impugned adverse remarks. Under Rule 5 of the Rules, a confidential report assessing the performances, character, conduct and qualities of every member of the service shall be written for each financial year, or calendar year, as may be specified by the Government, ordinarily within two months of the close of the said year. Rule 6 provides that the confidential report shall be reviewed by the 9 / 13 reviewing authority ordinarily within one month of its being written. Under Rule 6A, the confidential report, after review, shall be accepted with such modifications as may be considered necessary, and countersigned by the accepting authority, ordinarily within one month of its review. Thus, the whole process from the writing of the confidential report to the acceptance thereof has to be completed ordinarily within a maximum period of four months. Further, under Rule 7 the adverse remarks, if any, in a confidential report shall be communicated to the officer concerned within three months of the receipt of the confidential report. Thus, a total period of seven months has been laid down as the maximum period within which adverse remarks, if any, has to be communicated to the officer concerned. It has been already noticed that the adverse remarks were sent to the respondent after two years three months, that is, after twenty seven months of the close of the year. It is submitted by the respondent that in view of the delayed communication. the adverse remarks lost all importance and should be struk down on that ground. 14. The whole object of the making and communication of adverse remarks is to give to the officer concerned an opportunity to improve his performance, conduct or character, as the case may. The adverse remarks should not be understood in terms of punishment, but really it should be taken as an advice to the officer concerned, so that he can act in accordance with the advice and improve his service career. The whole object of the making of adverse remarks would be lost if they are communicated to the officer concerned after an inordinate delay. In the instant case, it was communicated to the respondent after twenty seven months. It is true that the provisions of Rules 5, 6, 6A and 7 are directory and not mandatory, but that does not mean that the directory provisions need not be complied with even substantially. Such provisions may not be complied with strictly, and substantial compliance will be sufficient. But, where compliance after an inordinate delay would be against the spirit and object of the directory provision, such compliance would not be substantial compliance. In the instant case, while the provisions of Rules 5, 6, 6A and 7 require that everything including the communication of the adverse remarks should be completed within a period of seven months, this period cannot be stretched to twenty seven months, simply because these Rules are directory, without serving any purpose consistent with the spirit and 10 / 13 objectives of these Rules. We need not, however, dilate upon the question any more and consider whether on the ground of inordinate and unreasonable delay, the adverse remarks against the respondent should be struck down or not, and suffice it to say that we do not approve of the inordinate delay made in communicating the adverse remarks to the respondent.” 12. Hon’ble Supreme Court in case of Devdutt v. Union of India and Others reported in (2008) 8 SCC 725, which reads 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 concerned authority, and the concerned authority 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.” 13. In case of R.K. Jibanlata Devi vs. High Court of Manipur through its Registrar General and Others reported in 2023 19 SCC 472, considered that the ACR grading of ‘Good’ is to be communicated because sometimes for the purpose of consideration of promotion, it may be adverse, and observed thus; “18. In the present case the petitioner got “Good” gradings for the 11 / 13 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. 20. 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”. 14. In the case at hand also there is specific plea of the petitioner that the ACRs were not communicated to the petitioner and in the ACR of the year 2017 there was adverse entries mentioning departmental enquiry is pending, awarded grade ‘D’ and mentioned not suitable for promotion. Petitioner after getting the knowledge of adverse entry in the year 2023 had submitted an application before the authorities to provide the relevant document with regard to the initiation of the enquiry and its pendency. In petition it is pleaded that till filing of this writ petition no such document were made available to him. The State in its return also has not placed on record any such documents or fact 12 / 13 to show that departmental enquiry was initiated and pending against the petitioner in the year 2017. 15. Not only the adverse entry made in the year 2017 is uncommunicated, but perusal of the ACR which was obtained by the petitioner under the Right to Information Act of the year 2017 would show that except the signature of the reporting authority it does not bears signature of the reviewing and the accepting authority. Though, in other ACRs provided to the petitioner under Right to Information Act (at the same time as submitted by the petitioner) does bears the signature of reviewing and the accepting authorities. Except the ACR of the year 2017, petitioner was graded ‘Very Good’ in the year 2018, ‘Excellent’ in the year 2019, ‘Excellent’ in the year 2020 and ‘Excellent’ in the year 2021. 16. In the aforementioned facts of the case, the ACR of the year 2017 could not have been considered by the authorities for considering the candidature of the petitioner for promotion on the basis of the Limited Departmental Examination. 17. Hon’ble Supreme Court in case of Rukhsana Shaheen Khan v. Union of India and Others, reported in (2018) 18 SCC, while considering the issue with regard to un-communicated annual confidential reports, adverse to the appellant therein, taking note of the decision in case of Sukhdev Singh v. Union of India reported in 2013 9 SCC 566 has observed thus: “3. This appeal is, accordingly, allowed and the impugned Judgment is set aside with the following directions :- (a) The competent authority is directed to ignore the uncommunicated adverse ACRs and take a fresh decision in accordance with law. (b) ------------” 13 / 13 18. Considering the aforementioned facts and circumstances of the case, more particularly, in view of the fact that the adverse ACR pertaining to petitioner was not communicated to him, it is directed that the adverse ACRs of the petitioner shall not be take into consideration and the respondent authorities are directed to reconsider the candidature of the petitioner for promotion, ignoring the ACR of the year 2017 (un- communicated) and thereafter to consider the candidature of the petitioner a fresh on the basis of the other ACR available and to pass fresh appropriate speaking order with regard to promotion of the petitioner within a further period of three months from the date of receipt of copy of the order. 19. With the aforesaid observation and direction, the writ petition stands disposed of. Sd/- (Parth Prateem Sahu) Saurabh JUDGE