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Chattisgarh High Court
Dr. Mahesh Prasad Gupta vs State Of Chhattisgarh on 4 July, 2025
1
Digitally signed
by RAMESH
KUMAR VATTI
2025:CGHC:30606
Date: 2025.07.08
14:19:54 +0530 NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WPS No. 7430 of 2018
1 - Dr. Mahesh Prasad Gupta S/o Late Prahlad Gupta aged about 64 years
presently posted as Principal at Rajiv Gandhi Govt. College Simga, District
Balodabazar-Bhatapara, R/o House No. 154, Adarsh Chowk, Sundar Nagar,
Raipur, Police Station D.D. Nagar, District Raipur, Chhattisgarh
... Petitioner
Versus
1 - State of Chhattisgarh, through its Secretary, Department of Higher
Education, Mahanadi Bhawan, Mantralaya, Atal Nagar, PO and Police Station
Rakhi, District Raipur, Chhattisgarh
2 - Under Secretary, State of Chhattisgarh, Department of Higher Education,
Mahanadi Bhawan, Mantralaya, Atal Nagar, PO and Police Station Rakhi,
District Raipur, Chhattisgarh
3 - Commissioner, Higher Education Department, State of Chhattisgarh,
District Raipur, Chhattisgarh
4 - Dr. Vijay Kumar Rakshit, P.G. Principal, Govt. NESPG College, Jashpur,
District Jashpur, Chhattisgarh
5 - Dr. Suman Singh Baghel, P.G. Principal, Govt. Kamla Devi Girls College,
Rajnandgaon, District Rajnandgaon, Chhattisgarh
... Respondents
For Petitioner : Ms Ruchi Nagar, Advocate holding the
brief of Mr. Mateen Siddiqui, Advocate
For Respondents/State : Ms. Neelima Singh Thakur,
Panel Lawyer
Hon'ble Shri Justice Rakesh Mohan Pandey
Order on Board
04/07/2025
Heard.
1. The petitioner has filed this petition seeking the following relief(s):-
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10.1 to kindly quash impugned order Dated 25.09.2018
(Annexure-P/1) issued by the respondent Under Secretary,
Higher Education Department, State of Chhattisgarh.
10.2 to kindly set-aside the impugned order Dated 05.06.2018
(Annexure-P/2) issued by respondent Under Secretary, Higher
Education Department, State of Chhattisgarh.
10.3 to grant any other writ / writs, order / orders, relief / reliefs
in favour of the petitioner, which the Hon'ble Court deemed fit &
just in the facts and circumstances of the case, including
awarding of the costs to the petitioner.
2. An interim order was passed in favour of the petitioner on 13.11.2018
to the effect that any further promotion, which shall be initiated or
carried out by the respondents, shall be subject to the outcome of the
present writ petition.
3. The facts of the present case are that the petitioner, who was posted
on the post of Principal (Graduate) at Rajiv Gandhi Government
College Simga, District Balodabazar-Bhatapara, filed this petition on
30.10.2018 when his age was 64 years. The consolidated provisional
Gradation List of the Graduate Principals and Joint Directors was
issued on 27.11.2017, wherein the name of the petitioner was at Serial
No. 6. The department considered candidates suitable to be promoted
to the post of Post Graduate Principals. The Departmental Promotion
Committee (for short 'DPC') vide its decision dated 05.06.2018
recommended names of 16 Graduate Principals for promotion to the
post of Post Graduate Principals. The petitioner was not found suitable
whereas the names of his juniors were found suitable for promotion by
the DPC.
The petitioner moved an application under the Right to
Information to obtain the Annual Confidential Reports (for short 'ACRs')
of the past 05 years as the ACRs of the preceding 05 years were not
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communicated. After the enquiry, the petitioner came to know that there
were no adverse entries in any of the ACRs. The petitioner was
supplied with ACRs for the years 2014 to 2017, but the ACR of 2013
was not supplied. The name of the petitioner was not found suitable on
account of the non-availability of the ACR of 2012-2013. It is also
pleaded that against the ACRs of 05 years, 15 marks were awarded to
the petitioner by the DPC. The petitioner made a detailed
representation on 29.08.2018 to respondent No. 1 raising all his
grievances. The representation of the petitioner was rejected by
respondent No.1 vide order dated 25.09.2018 stating that he was not
found fit for promotion.
It is also pleaded that according to the Circular issued by the
State Government dated 16.12.2010, all departments were under an
obligation to communicate the ACRs to the government servants.
4. Ms. Ruchi Nagar, learned counsel appearing for the petitioner would
argue that the name of the petitioner was not found fit for promotion to
the post of Post Graduate Principal deliberately and the action on the
part of the respondents suffers from malafide. She would further argue
that the petitioner was Senior to the 16 Graduate Principals, who were
promoted vide order dated 05.06.2018. She would also submit that the
reasons assigned by the respondent authorities for non-consideration
of the name of the petitioner for promotion to the post of Post Graduate
Principal are illegal, arbitrary and discriminatory as the ACR of 2013
was never communicated to the petitioner and on account of its non-
availability, the right of the petitioner could not have been rejected. She
further argues that the representation made by the petitioner was
rejected by respondent No. 1 in a cryptic manner without assigning
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sufficient reasons. In support of her submissions, she placed reliance
on the judgments passed by the Hon'ble Supreme Court in the matters
of Dev Dutt Vs. Union of India and Others reported in (2008) 8 SCC
725 and Sukhdev Singh Vs. Union of India and Others reported in
(2013) 9 SCC 566.
5. On the other hand, Ms. Neelima Singh Thakur, learned Panel Lawyer
appearing for the State/respondents would oppose. Ms. Neelima Singh
Thakur would submit that the DPC vide its letter dated 23.01.2018
found the petitioner not fit for promotion. She would contend that an
order was passed by respondent No.1 whereby the representation of
the petitioner was rejected vide order dated 25.09.2018. She would
further submit that the name of the petitioner was considered by the
DPC and thereafter, a decision was taken to promote 16 Graduate
Principals to the post of Post Graduate Principals. She would also
submit that one of the minimum benchmarks for being recommended
for promotion to the post of Post Graduate Principal was that the ACRs
of the last 05 years should be "Very Good". She would further contend
that the petitioner could not achieve the minimum benchmark fixed by
the DPC therefore he was not promoted. It is also argued that the
petitioner has already retired from services in the year 2019 and
promotion cannot be granted retrospectively after retirement. She has
placed reliance on the judgment passed by the Hon'ble Supreme Court
in the matter of Government of West Bengal & Ors. vs. Dr. Amal
Satpathi & Ors., reported in 2024 (14) SCALE 294.
6. I have heard learned counsel for the parties and perused the
documents available on the record.
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7. Admittedly, the petitioner got retired from the services in the year 2019.
This petition was filed on 30.10.2018 when his age was 64 years. The
petitioner has challenged the order dated 25.09.2018 whereby his
representation was rejected and he has also challenged the promotion
order dated 05.06.2018.
8. Vide promotion order dated 05.06.2018, a total of 32 Graduate
Principals were promoted to the post of Post Graduate Principals. The
petitioner in this petition has pleaded that 16 promoted Graduate
Principals were junior to him, but in the relief Clause, he has
challenged the entire promotion order. The petitioner may be aggrieved
with the promotion of the Graduate Principals, who were junior to him,
but, the entire promotion list cannot be quashed on his instance. Thus,
relief 10.2 of the writ petition is technically erroneous. The DPC was
convened on 23.01.2018 for promotion to the post of Post Graduate
Principal. The names were considered according to the gradation list.
The criteria for promotion were merit-cum-seniority. The qualifying
service was two years in the post of Graduate Principal. The DPC
considered the ACRs of the last 05 years of candidates, who were
within the zone of consideration. After the evaluation of the ACRs of
107 eligible candidates, only 32 candidates were found fit for promotion
and many candidates were not found fit for promotion.
9. Ms. Ruchi Nagar argued that the ACR of the petitioner pertaining to the
year 2013 was not available, therefore, he was not found fit for
promotion, but no such reason was assigned by the DPC in its meeting
dated 23.01.2018. The petitioner has not placed any document to
demonstrate that he was not found fit on account of the non-availability
of the ACR of the year 2013. In the minutes of the meeting dated
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23.01.2018 of DPC, the name of the petitioner appears at Serial No. 09
and he was not found suitable. Thus, the contention made by Ms.
Ruchi Nagar appears to be misconceived.
10. Now coming to the judgments cited by the learned counsel for the
petitioner.
11. In the matter of Dev Dutt (supra), the Hon'ble Supreme Court has held
that when the benchmark for promotion was "Very Good", the award of
"Good" entry in the ACR would be an adverse entry. It is further held
that the nomenclature is not relevant, it is the effect which the entry is
having determines whether it is an adverse entry or not. The Hon'ble
Supreme Court further held that even "Good" entry should be
communicated to the government servant so as to enable him to make
a representation praying up-gradation of such entry from "Good" to
"Very Good". The relevant Paragraphs 9 and 10 are reproduced herein
below:-
"9. In the present case the benchmark (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
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 1993-1994 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
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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-cummunication of the
"good" entry was arbitrary and hence illegal, and the
decisions relied upon by the learned counsel for the
respondent are distinguishable."
12. In Shukdev Singh (supra), the Hon'ble Supreme Court has held that
every entry in the ACR, whether poor, fair, average, good, very good or
outstanding, should be communicated to the employee concerned
within a reasonable period.
13. Now coming to the judgments cited by the learned counsel for the
State.
14. In the matter of Dr. Amal Satpathi (supra), the name of Dr. Satpathi
was recommended for promotion to the post of Principal Scientific
Officer by the department on 13.04.2016 to the Public Service
Commission. The department received the final approval for his
promotion on 04.01.2017, by which time, he had already
superannuated on 31.12.2016. Dr. Satpathi made a representation to
the department which was rejected. The Hon'ble Supreme Court held
that an employee is not entitled to retrospective promotion after his
superannuation, nor to the notional financial benefits for the
promotional post, as he was not promoted to the said post before his
retirement. The Hon'ble Supreme Court in Paragraphs No. 15 and 19
held as under:-
"15. The primary question that arises for our
consideration in the present appeal is whether
respondent No.1, who was recommended for the
promotion before his retirement but did not receive
actual promotion to the higher post due to
administrative delays, is entitled to notional financial
benefits of the promotional post after his retirement.
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19. It is a well settled principle that promotion
becomes effective from the date it is granted, rather
than from the date a vacancy arises or the post is
created. While the Courts have recognized the right to
be considered for promotion as not only a statutory
right but also a fundamental right, there is no
fundamental right to the promotion itself. In this
regard, we may gainfully refer to a recent decision of
this Court in the case of Bihar State Electricity
Board and Others v. Dharamdeo Das, 2024 SCC
Online SC 1768, wherein it was observed as follows:-
"18. It is no longer res integra that a promotion is
effective from the date it is granted and not from the
date when a vacancy occurs on the subject post or
when the post itself is created. No doubt, a right to
be considered for promotion has been treated by
courts not just as a statutory right but as a
fundamental right, at the same time, there is no
fundamental right to promotion itself. In this context,
we may profitably cite a recent decision in Ajay
Kumar Shukla v. Arvind Rai, (2022) 12 SCC 579
where, citing earlier precedents in Director, Lift
Irrigation Corporation Ltd. v. Pravat Kiran
Mohanty, (1991) 2 SCC 295 and Ajit Singh v.
State of Punjab, (1999) 7 SCC 209, a three-Judge
Bench observed thus:
41. This Court, time and again, has laid emphasis
on right to be considered for promotion to be a
fundamental right, as was held by K. Ramaswamy,
J., in Director, Lift Irrigation Corpn. Ltd. v. Pravat
Kiran Mohanty in para 4 of the report which is
reproduced below:
'4....... There is no fundamental right to
promotion, but an employee has only right to be
considered for promotion, when it arises, in
accordance with relevant rules. From this
perspective in our view the conclusion of the
High Court that the gradation list prepared by the
corporation is in violation of the right of
respondent-writ petitioner to equality enshrined
under Article 14 read with Article 16 of the
Constitution, and the respondent-writ petitioner
was unjustly denied of the same is obviously
unjustified.'
42. A Constitution Bench in Ajit Singh v. State of
Punjab, laying emphasis on Article 14 and Article
16(1) of the Constitution of India held that if a
person who satisfies the eligibility and the criteria
for promotion but still is not considered for
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promotion, then there will be clear violation of
his/her's fundamental right. Jagannadha Rao, J.
speaking for himself and Anand, C.J.,
Venkataswami, Pattanaik, Kurdukar, JJ., observed
the same as follows in paras 22 and 27:
[[‘Articles 14 and 16(1) : is right to be considered for
promotion a fundamental right
22. Article 14 and Article 16(1) are closely
connected. They deal with individual rights of the
person. Article 14 demands that the ‘State shall
not deny to any person equality before the law or
the equal protection of the laws’. Article 16(1)
issues a positive command that:
‘there shall be equality of opportunity for all
citizens in matters relating to employment or
appointment to any office under the State’.
It has been held repeatedly by this Court that
clause (1) of Article 16 is a facet of Article 14 and
that it takes its roots from Article 14. The said
clause particularises the generality in Article 14
and identifies, in a constitutional sense “equality
of opportunity” in matters of employment and
appointment to any office under the State. The
word “employment” being wider, there is no
dispute that it takes within its fold, the aspect of
promotions to posts above the stage of initial
level of recruitment. Article 16 (1) provides to
every employee otherwise eligible for promotion
or who comes within the zone of consideration, a
fundamental right to be “considered” for
promotion. Equal opportunity here means the
right to be “considered” for promotion. If a person
satisfies the eligibility and zone criteria but is not
considered for promotion, then there will be a
clear infraction of his fundamental right to be
“considered” for promotion, which is his personal
right. “Promotion” based on equal opportunity and
seniority attached to such promotion are facets of
fundamental right under Article 16(1).
***
27. In our opinion, the above view expressed in
Ashok Kumar Gupta [Ashok Kumar Gupta v.
State of U.P., (1997) 5 SCC 201, and followed in
Jagdish Lal [Jagdish Lal v. State of Haryana,
(1997) 6 SCC 538, and other cases, if it is
intended to lay down that the right guaranteed to
employees for being “considered” for promotion
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according to relevant rules of recruitment by
promotion (i.e. whether on the basis of seniority
or merit) is only a statutory right and not a
fundamental right, we cannot accept the
proposition. We have already stated earlier that
the right to equal opportunity in the matter of
promotion in the sense of a right to be
“considered” for promotion is indeed a
fundamental right guaranteed under Article 16(1)
and this has never been doubted in any other
case before Ashok Kumar Gupta [Ashok Kumar
Gupta v. State of U.P.], right from 1950.’
“20. In State of Bihar v. Akhouri Sachindra
Nath, 1991 Supp (1) SCC 334, it was held that
retrospective seniority cannot be given to an
employee from a date when he was not even
borne in the cadre, nor can seniority be given with
retrospective effect as that might adversely affect
others. The same view was reiterated in Keshav
Chandra Joshi v. Union of India, reported 1992
Supp (1) SCC 272, where it was held that when a
quota is provided for, then the seniority of the
employee would be reckoned from the date when
the vacancy arises in the quota and not from any
anterior date of promotion or subsequent date of
confirmation. The said view was restated in
Uttaranchal Forest Rangers’ Assn. (Direct
Recruit) v. State of U.P, (2006) 10 SCC 346, in
the following words:
’37. We are also of the view that no retrospective
promotion or seniority can be granted from a date
when an employee has not even been borne in
the cadre so as to adversely affect the direct
recruits appointed validly in the meantime, as
decided by this Court in Keshav Chandra Joshi
v. Union of India held that when promotion is
outside the quota, seniority would be reckoned
from the date of the vacancy within the quota
rendering the previous service fortuitous. The
previous promotion would be regular only from
the date of the vacancy within the quota and
seniority shall be counted from that date and not
from the date of his earlier promotion or
subsequent confirmation. In order to do justice to
the promotes, it would not be proper to do
injustice to the direct recruits……
38. This Court has consistently held that no
retrospective promotion can be granted nor can
any seniority be given on retrospective basis from
a date when an employee has not even been
11borne in the cadre particularly when this would
adversely affect the direct recruits who have been
appointed validity in the meantime.”
(emphasis supplied)”
15. Admittedly, the name of the petitioner was considered for promotion to
the post of Post Graduate Principal, but he was not found suitable and
later on his representation was rejected by respondent No. 1 and
during the pendency of the writ petition, the petitioner got retired from
services. The Hon’ble Supreme Court in the matters of Dev Dutt
(supra) and Sukhdev Singh (supra) has held that the government
departments are under an obligation to communicate the ACRs to its
employees and the employees have the equal right to be
communicated with the ACRs of each and every year without any delay
so they may make a representation for the up-gradation of the adverse
entries, if any. As held by the Hon’ble Supreme Court in the matter of
Dr. Amal Satpathi (supra), after retirement, the promotion cannot be
granted from a retrospective date and further, the notional benefits
cannot be extended as the government servant had not been promoted
to the said post before his retirement.
16. Taking into consideration the facts of the present case and the law laid
down by the Hon’ble Supreme Court in the matter of Dr. Amal
Satpathi (supra), in my opinion, no case is made out for interference.
Consequently, the petition fails and is hereby dismissed. No costs.
Sd/-
(Rakesh Mohan Pandey)
Judge
vatti
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