V K Bhardwaj Vs State of H.P

( 2026:HHC:18478 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

CWPOA No.2953 of 2019 Decided on: 19^th May, 2026

V.K. Bhardwaj

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....Petitioner

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versus

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State of H.P and others

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...Respondents

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Coram
*Hon’ble Mr.Justice Jiya*	*Lal Bhardwaj, Judge.*
*Whether approved for r*	*eporting?*¹
For the petitioner:	Mr.Vijay Chaudhary, Advocate.
For the respondents:	Mr.Anup Rattan, Advocate General with Mr.Hemant Kumar Verma, Deputy
	Advocate General for
	respondents No.1 and 2.
	Respondent No.3 ex-parte vide order dated 22.05.2013.

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None for respondents No. 4 to 6.

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Jiya Lal Bhardwaj, Judge (Oral)

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The petitioner, by way of present petition, has prayed for issuance of writ of mandamus directing respondents No.1 and 2 to promote him as Chief Engineer w.e.f. 18.09.2008 on adhoc basis, when the said post was vacated by Shri K.R. Singh and the name of petitioner was recommended to give him the charge of Chief Engineer,

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1 Whether the reporters of Local Papers may be allowed to see the judgment?

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2

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National Highway, HP PWD, Shimla, being the senior most officer and thereafter on regular basis w.e.f. 22.05.2009, when juniors to him, who have been arrayed as respondents No.3 to 5, were promoted, with all consequential benefits. 2. The petitioner was working as Superintending Engineer with the respondents-State and as per communication dated 06.05.2008 (Annexure P-2) issued by respondent No.1 to the Secretary (Personnel) to the Govt. of Himachal Pradesh, a proposal was mooted to give the petitioneras additional charge of Chief Engineer National Highway, HPPWD, Shimla being the senior most Superintending Engineer in addition to his duties. It was mentioned that no Court case/Vigilance case/enquiry was pending against the petitioner. However, vide Notification dated 18.09.2008 (Annexure P-3), Shri B.D. Joshi, Superintending Engineer, who was admittedly junior to the petitioner, was appointed as Chief Engineer, Project Director in H.P. Road Infrastructure Development Corporation, Shimla (for short the ‘HPRIDC’) in the pay-scale of Rs.18600-22100 with immediate effect in the public interest.

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Thereafter, the Departmental Promotion Committee (for short ‘DPC’) for regular promotion to the post

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of Chief Engineer was held on 20.05.2009 and the petitioner being the senior most and eligible Superintending Engineerand in the zone of consideration was considered alongwithrespondents No.3 to 5 in the order of seniority of Superintending Engineers. Total nine Superintending Engineers in the zone of consideration were considered and the DPC, after evaluating the ACRs of the eligible Superintending Engineers for the last five years, made its independent assessment and the petitioner was assessed as ‘Good’ as per his ACRs and thus, his name was not recommended for promotion, as is evident from perusal of Annexure R-3. The petitioner was given the ACRs ‘Very Good’ for the year 2003-04, ‘Good’ for the year 2004-05, ‘Very Good’ for the year 2005-06, ‘Good’ for the year 2006-07, ‘Good’ for the year 2007-08 and thus the DPC had overall assessed him as ‘Good’ (page-174).

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The claim of the petitioner in the writ petition is that the petitioner was never conveyed about his ACRs and his ACRs for the year 2004-05, 2006-07 and 2007-08 being Good has affected his chances of promotion. Since the petitioner was not communicated of his ACRs having Good, the same could not have been considered by the DPC and the

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petitioner being the senior most ought to have been promoted, ignoring the said ACRs.After the recommendations of the DPC, respondent No.1 had issued Notification dated 22.05.2009 (Annexure P-5), when juniors to the petitioner were promoted. The petitioner after coming to know about the said fact, made a representation to hold review DPC, however, the respondents did not convene the review DPC. It has been averred that though the petitioner was subsequently promoted to the post of Chief Engineer as per Notification dated 08.01.2010 (Annexure P-9), but since he was senior to respondents No.3 to 5, when the DPC was convened on 20.05.2009, the action on the part of the respondents is illegal, arbitrary as well as discriminatory. It has also been averred that as per judgment passed by the Hon’ble Supreme Court in Dev Dutt vs. Union of India and others (2008) 8 SCC 725 , which judgment has later on been affirmed by the Hon’ble three-Judge Bench of the Hon’ble Supreme Court in

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Abhijit Ghosh Dastidar vs. Union of India and others 2009 (16) SCC 146 , the promotion of respondents No.3 to 5 made to the posts of Chief Engineer be quashed and the petitioner may be promoted to the post of Chief Engineer from the said date.

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The respondents-State filed reply to the petition and has taken a stand that the respondents-State had issued the Memorandum dated 07.03.2011, whereunder it had been decided to communicate the entries in the APAR applicable prospectively only w.e.f. the reporting period year 2010-11, which is to be initiated after 1^st April, 2011. The respondentsState has not disputed the fact of non-communication of the ACRs to the petitioner as well as the fact that the petitioner was senior to respondents No.3 to 5. The only plea taken in the reply is that since the DPC had assessed him as ‘Good’ as is evident from the minutes of the meeting of the DPC held on 20.05.2009 (Annexure R-3), the action on the part of the respondents-State to promote the private respondents is just and does not warrant any interference by this Court. It has further been averred that the post of Chief Engineer being a selection post, a principle of promotion to the selection post prescribes that the officer, who is assessed as ‘Very Good’ will supersede the officer assessed as ‘Good’. Thereafter, the DPC was again convened on 23.12.2009 (Annexure R-4) (page 175) for promotion to the post of Chief Engineer and the petitioner again being senior mostand found fit and assessed as “Very Good), was considered and recommended for promotion to the

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post of Chief Engineer and vide Notification dated 08.01.2010(Annexure P-9)was promoted to the post of Chief Engineer.

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The petitioner filed rejoinder to reply and controverted the facts.

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I have heard the learned counsel for the parties and perused the record carefully.

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It is not in dispute that the petitioner was senior most Superintending Engineer when the DPC was convened on 20.05.2009. It is also not in dispute that the petitioner being the senior most was to be handed over the charge of the post of Chief Engineer, as per communication dated 06.05.2008 (Annexure P-2), but subsequently, one Shri B.D. Joshi, Superintending Engineer was appointed to the said post. Since it was a temporary arrangement, the petitioner cannot claim promotion to the post of Chief Engineer, when Shri B.D. Joshi was promoted. However, the petitioner is entitled for promotion from the date when respondents No.3 to 5 have been promoted as per Notification dated 22.05.2009, especially when he was not communicated about the ACRs of the period he was assessed as ‘Good’.

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The respondents have not disputed this fact while filing reply. The only contention raised by them in the reply is that as per office Memorandum dated 07.03.2011, the same was to be made applicable prospectively. Once the Hon’ble Supreme Court in Dev Dutt’s case (supra) has held that every entry in the ACR of a public servant must be communicated to him, non-adhering to the said procedure has caused injustice to the petitioner, who being the senior most was ignored for promotion to the post of Chief Engineer only for the reason that the DPC had overall assessed him as ‘Good’ which was on the basis of his remarks in the ACRs assessed as ‘Good’, whereas the juniors to him were assessed as ‘Very Good’. Once the law propounded by the Hon’ble Supreme Court is clear that every ACRs of a public servant must be communicated to him, the respondents-State after passing the said judgment ought to have communicated the same to the petitioner even for the past years too, which has not been done in the present case. No doubt, the petitioner has been promoted subsequently to the post of Chief Engineer, but once he was seniorto respondents No.3 to 5, who have been promoted as per Notification dated 22.05.2009, he is also

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entitled to be promoted to the post of Chief Engineer from the said date.

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In similar circumstances, this Court has already dealt with the issue in detail in CWPOA No.5738 of 2019, titled, Vikrant Bonsra vs. State of Himachal Pradesh and others , decided on 24^th March, 2026, in which, considering the judgment of the Hon’ble Supreme Court in Dev Dutt’s case has held as under:-

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“14. The Hon’ble Supreme Court in its judgment in Dev Dutt

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vs. Union of India and others , (2008) 8 SCC 725 , had categorically held that every entry in the ACR of a public servant must be communicated to him. It had held that all gradings whether ‘very good’, ‘good’, ‘average’ or ‘poor’ are required to be communicated to an employee working in the Government Offices or Statutory bodies, Public Sector Undertakings or other State Instrumentalities. The public servant should have a right to make representation and thus, all gradings are required to be communicated to him within a reasonable period. Even an outstanding ACR should be communicated since that would boost the morale of the employee and make him work harder. Further, the representation so made should 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 Caeser. The relevant paras of the judgment read as under:-

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“16. In our opinion if the office memorandum dated 10/11-9-1987, is interpreted to mean that only adverse entries (i.e. “poor” entry) need to be communicated and not “fair”, “average” or “Good” entries, it would become arbitrary (and hence illegal) since it may adversely affect the incumbent’s chances of promotion, or to get some other benefit. For example, if the benchmark is that an incumbent must have “very good” entries in the last five years, then if he has “very good” (or even “outstanding”) entries for four years, a “good” entry for only one year may yet make him ineligible for promotion. This good” entry may be due to the personal pique of his superior, or because the superior asked him to do something wrong which the incumbent refused, or because the incumbent refused to do sycophancy of his superior, or because of caste or communal prejudice, or to for some other extraneous consideration.

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17. In our opinion, every entry in the A.C.R. of a public servant must be communicated to him within a reasonable period, whether it is a poor, fair, average, good or very good entry . This is because non-communication of such an entry may adversely affect the employee in two ways: (1) Had the entry been communicated to him he would know about the assessment of his work and conduct by his superiors, which would enable him to improve his work in future (2) He would have an opportunity of making a representation against the entry if he feels it is unjustified, and pray for its upgradation . Hence non-communication of an entry is arbitrary, and it has been held by the Constitution Bench decision of this Court in Maneka Gandhi vs. Union of India (supra) that arbitrariness violates Article 14 of the Constitution.

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18. Thus, it is not only when there is a benchmark but in all cases that an entry (whether it is poor, fair, average, good or very good) must be communicated to a public servant, otherwise there is violation of the principle of fairness, which is the soul of natural justice. Even an outstanding entry should be

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communicated since that would boost the morale of the employee and make him work harder .

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19. to 21. xxxxx

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22. It may be mentioned that communication of entries and giving opportunity to represent against them is particularly important on higher posts which are in a pyramidical structure where often the principle of elimination is followed in selection for promotion, and even a single entry can destroy the career of an officer which has otherwise been outstanding throughout. This often results in grave injustice and heart-burning, and may shatter the morale of many good officers who are superseded due to this arbitrariness, while officers of inferior merit may be promoted.

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23. In the present case, the action of the respondents in not communicating the 'good' entry for the year 19931994 to the appellant is in our opinion arbitrary and violative of natural justice, because in substance the `good' entry operates as an adverse entry (for the reason given above). 24. to 33. xxxxx

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34. Originally there were said to be only two principles of natural justice: (1) the rule against bias and (2) the right to be heard (audi alteram partem). However, subsequently, as noted in A.K. Kraipak's case (supra) and K.L. Shephard's case (supra), some more rules came to be added to the rules of natural justice, e.g. the requirement to give reasons vide S.N. Mukherjee vs. Union of India AIR 1990 SC 1984. In Maneka Gandhi vs. Union of India (supra) (vide paras 56 to 61) it was held that natural justice is part of Article 14 of the Constitution.

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35. Thus natural justice has an expanding content and is not stagnant. It is therefore open to the Court to develop new principles of natural justice in appropriate cases.

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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

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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 nonarbitrariness 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.

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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 authority concerned, and the authority concerned 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.

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38. We, however, make it clear that the above directions will not apply to military officers because the position for them is different as clarified by this Court in Union of India vs. Major Bahadur Singh 2006 (1) SCC 368. But they will apply to employees of statutory authorities, public sector corporations and other instrumentalities of the State (in addition to Government servants).”

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The issue regarding communication of ACR was again considered by a three-judge Bench of the Hon’ble Supreme Court in Abhijit Ghosh Dastidar vs. Union of India and others , (2009) 16 SCC 146 , and the earlier view taken by a two-Judge Bench in Dev Dutt’s case (supra) was reiterated and held that noncommunication of entries in the ACRs of a public servant whether he is in civil, judicial, police or any other service, other than the armed forces, has civil consequences, because it may affect his chances of promotion or getting other benefits and as such noncommunication would be arbitrary and violative of Article 14 of the Constitution. The relevant para of the judgment reads as under:-

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“8. Coming to the second aspect, that though the benchmark "very good" is required for being considered for promotion, admittedly the entry of "good" was not communicated to the appellant. The entry of "good" should have been communicated to him as he was having "very good" in the previous year. In those circumstances, in our opinion, noncommunication of entries in the annual confidential report of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances of promotion or getting other benefits. Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution. The same view has been reiterated in the above referred decision (Dev Dutt case, SCC p. 738, para 41) relied on by the appellant. Therefore, the entries "good" if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent

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has no case that the appellant had ever been informed of the nature of the grading given to him.”

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Thereafter, again a three-Judge Bench of the Hon’ble Supreme Court considered the same very issue in Sukhdev Singh vs. Union of India and others , (2013) 9 SCC 566, and has held as under:-

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“7. A three-Judge Bench of this Court in Abhijit Ghosh Dastidar v. Union of India followed Dev Dutt. In para 8 of the Report this Court with reference to the case under consideration held as under: (Abhijit Ghosh Dastidar case (2009) 16 SCC 146, SCC p. 148)

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"8. Coming to the second aspect, that though the benchmark 'very good' is required for being considered for promotion, admittedly the entry of 'good' was not communicated to the appellant. The entry of ‘good’ was not communicated to him as he was having 'very good' in the previous year. In those circumstances, in our opinion, non-communication of entries in the ACR of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances for promotion or getting other benefits. Hence, such noncommunication would be arbitrary, and as such violative of Article 14 of the Constitution. The same view has been reiterated in the above referred decision (Dev Dutt case, SCC p. 738, para 41) relied on by the appellant. Therefore, the entries 'good' if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him."

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8. In our opinion, the view taken in Dev Dutt that every entry in ACR of a public servant must be

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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 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 upgradation 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.”

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From the aforesaid expositions of law laid down by the Hon’ble Supreme Court, it is crystal clear that every entry in the ACR including outstanding, whether it affects to an employee or not has to be communicated to him, except to an employee serving in armed forces and non-communication thereof would be violative of Article 14 of the Constitution.

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In the present case, the petitioner had been given “very good” ACRs by the Reporting Officer, who was his immediate superior and the Reviewing Officer had accepted the same, but the Accepting Officer/Authority had downgraded the same as “average” which had materially affected the petitioner while considering his candidature for promotion to the post of Inspector of Police. No doubt, the Accepting Officer/Authority may differ from the ACRs/grading of the Officer, but if the ACRs are

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downgraded, the least which is expected is to communicate the same to the affected employee. However, in the present case the said average ACRs were not communicated to the petitioner, so as to enable him to represent against them.

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Learned Additional Advocate General has placed reliance upon the judgment in Union of India and another vs. Major Bahadur Singh , (2006) 1 SCC 368, and laid much emphasis on paras 13, 16, 17, 18 and 19 of the judgment, to contend that there are specific parameters laid down for making promotion in the disciplinary forces.

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I have gone through the said paragraphs of the judgment in Major Bahadur Singh’s case (supra) , which provide that the same shall apply to military officers as held in Dev Dutt’s case (supra) . Further, it was held that once the parameters were specifically highlighted and the promotion was to be made on merit-cum-seniority basis, the respondents had rightly considered the material in the DPC and the same does not require any interference by the Court. In U.P. Jal Nigam and others versus Prabhat Chandra Jain and others , (1996) 2 SCC 363 , the Hon’ble Supreme Court had held that the average ACRs are not to be communicated. However, the Supreme Court in Major Bahadur Singh’s case (supra) hadheld that the principles laid down in U.P. Jal Nigam has no universal application. Relevant para of the judgment in Major Bahadur Singh’s case (supra) is reproduced as under:-

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“8. As has been rightly submitted by learned counsel for the appellants U.P. Jal Nigam case has no universal application. The judgment itself

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shows that it was intended to be meant only for the employees of U.P. Jal Nigam only.”

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In Dev Dutt’s case (supra) , the Hon’ble Court had held that the decision in U.P. Jal Nigam (supra) is cryptic and does not go into details. It was held that U.P. Jal Nigam (supra) cannot be said to have laid down any legal principle that entries need not be communicated. Since there was a conflict of view taken by two-Judges Bench decisions in U.P. Jal Nigam’s case (supra) and Major Bahadur Singh’s case (supra) , the matter was referred to the larger Bench and the Hon’ble Supreme Court by a threeJudge Bench in Sukhdev Singh’s case (supra) had considered the issue again taking into account the

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judgment passed in Dev Dutt’s case (supra) and Abhijit Ghosh’s case (supra) in detail and returned the findings that the purpose of communication of ACRs is to achieve three-fold objectives i.e. first, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him or her in improving work and to give better results, second, to make him/her aware of the entry in the ACRs, so that, if he/she feels dissatisfied, can make representation for upgradation of the remarks, and third, communication of ACRs brings transparency in recording the remarks to a public servant.

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The above view expressed by the Hon’ble Supreme Court, is being consistently followed till date. In R.K. Jibanlata Devi vs. High Court of Manipur, through its Registrar General and others, (2023) 19 SCC 472 , the Hon’ble Supreme Court had

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reiterated the same view that uncommunicated ACRs cannot be considered, if it affects an employee. The DPC proceedings were quashed and set aside and the case of the petitioner for promotion was directed to be considered afresh. The relevant para of the judgment reads as under:-

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23. In view of the above and for the reasons stated above, present petition is allowed. The DPC proceedings dated 9-4-2021 denying the promotion to the petitioner for the post of Assistant Registrar are hereby quashed and set aside. The case of the petitioner for promotion to the post of Assistant Registrar as on 9-4-2021 i.e. the date on which the juniors came to be promoted is directed to be considered afresh ignoring the uncommunicated ACRs for the years 20162017 and 2019-20 and thereafter the DPC/competent authority to take a fresh decision in accordance with law and taking into consideration the ACRs of remaining years i.e. 2017-2018 and 2018-2019. Such an exercise be completed within a period of six weeks from today.”

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From, the perusal of dicta in the ibid judgments, it is crystal clear that the ACRs which affect a public servant while making promotion has to be communicated.

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In the present case, had the ACRs of the petitioner been considered as “very good”, he would have definitely found place in the merit list above 55 candidates, who were recommended for promotion to the post of Inspector of Police and it is not the case of the respondents that the juniors to the petitioner were not recommended. Since, the petitioner had been given one mark less by the DPC on the basis of the “average” ACRs, this Court is of the considered view that grave injustice has been caused to him.

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It would also be apt to notice that the Hon’ble Division Bench of this Court had also the occasion to consider the same very issue in CWP No.645 of 2018 , titled, Himachal Pradesh State Electricity Board vs. Prem Chand , wherein the order passed by the learned Tribunal directing the employer to make promotion of the petitioner, to the post of Assistant Engineer by ignoring the uncommunicated ACRs for the period from 2007 to 2011 with all consequential benefits was upheld.

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Further the learned Single Judge of this Court in CWPOA No.1304 of 2019 , titled, Jai Gopal Lodta vs. State of Himachal Pradesh and others , has also followed the principles laid down by the Hon’ble Supreme Court enunciated in the aforesaid judgments and held the person entitled for promotion to the post of Superintendent, Model Central Jail, from the date the person junior to him was promoted to the post of Superintendent, Model Central Jail vide notification dated 03.12.2014, with all consequential benefits.”

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Once the law on the subject is very clear, the plea taken by the respondents-State that the ACRs had to be communicated after issuance of office memorandum dated 07.03.2011, cannot be countenanced and the said plea is rejected. The appropriate course in such like cases is to relegate the parties to the employer to review the DPC, but in the present casesince the DPC was convened on 20.05.2009 and the private respondents have now retired from service, this Court is of the considered opinion that instead of relegating the parties to the stage of DPC convened on

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20.05.2009 will cause injustice to all. Therefore,to advance substantial justice, it is ordered that the respondents-State shall promote the petitioner to the post of Chief Engineer w.e.f. 22.05.2009, when respondents No. 3 to 5 were promoted with all consequential benefits and the promotion of the private respondents is not disturbed since they were not at fault. However, it is made clear that to promote the petitioner w.e.f. 22.05.2009 as Chief Engineer, the respondents-State shall create a supernumerary post, if the post was not availablewith all benefits.

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Consequently, the present petition is allowed and the respondents are directed to promote the petitioner as Chief Engineer w.e.f. 22.05.2009 with all consequential benefits. However, it is made clear that the respondents-State will not disturb the promotions of the private respondents, since they have retired from service by creating a supernumerary post if post of Chief Engineer was not available. No orders as to costs. Pending applications, if any, also stand disposed of.

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( Jiya Lal Bhardwaj ) 19^th May, 2026 Judge (naveen)

V K Bhardwaj v. State of H.P

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V K Bhardwaj v. State of H.P

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