ORDER : For the reasons that petitioner’s Annual Performance Appraisal Reports of five years under consideration did not meet the required benchmark of ‘Very Good’ prescribed in the office memorandum dated 21.6.2016, petitioner was denied promotion to the post of Principal (Polytechnic). He was superseded by his juniors. He has instituted present petition claiming promotion to this post from due date. 2. Facts 2(i) The petitioner is presently serving as Head of Department (Applied Sciences and Humanities) in the Government Polytechnic, Sundernagar, District Mandi, H.P. He was initially appointed as Lecturer (Mathematics) on regular basis on 6.12.1989 and promoted to the post of Senior Lecturer on 14.3.1997. The petitioner was further promoted as Head of Department (HOD) on 13.2.2009. Next promotion available to the petitioner was to the post of Principal in the pay scale of Rs. 37,400-67,000 + 8700 Grade Pay. 2(ii) Four posts of Principal (Polytechnic) had fallen vacant due to superannuation of the incumbents. The respondents-state initiated the process for filling-up these vacant posts of Principals (Polytechnic). In accordance with the Recruitment and Promotions Rules of the post of Principal (Polytechnic), the same was to be filled up 100% by promotion from amongst the Heads of department and Deputy Directors, Technical Education, Vocational and Industrial Training possessing five years regular service or regular combined with continuous adhoc service rendered up to 31.03.1991, if any, in the grade. 2(iii) A meeting of Departmental Promotion Committee (DPC) was held on 27.4.2021. Name of the petitioner also fell in the consideration zone in terms of R&P Rules. The DPC considered cases of 13 officers for promotion to the posts of Principal. On the basis of record and overall assessment of all the officers and their grading in the ACRs, the DPC recommended the names of following HODs for promotion to the post of Principal (Polytechnic) on regular basis:- (i) Shri Acchar Singh; (ii) Shri Satish Dhingra; and (iii) Smt. Manju Sharma (respondent No. 3 herein). The above three persons were promoted as Principal, Polytechnic, Class-I (Gazetted) vide notification dated 28.4.2021 (Annexure P-1). 2(iv) Shri Satish Dhingra and Smt. Manju Sharma promoted to the post of Principal were juniors to the petitioner. Since the name of the petitioner did not figure in the list of those promoted to the post of Principal, the petitioner applied for documents under the Right to Information Act to search for reasons for his supersession. 2(iv) Shri Satish Dhingra and Smt. Manju Sharma promoted to the post of Principal were juniors to the petitioner. Since the name of the petitioner did not figure in the list of those promoted to the post of Principal, the petitioner applied for documents under the Right to Information Act to search for reasons for his supersession. 2(v) The documents obtained by the petitioner and appended alongwith this writ petition revealed that petitioner’s name though figured at Serial No. 4 in the list of those considered by the DPC for promotion to the post of Principal (Polytechnic), however, on considering Annual Confidential Report of the petitioner for the last five years i.e. 2015-2016, 2016-2017, 2017-2018, 2018-2019 and 2019-2020, the DPC held him unfit for promotion on the ground that he did not possess the required benchmark of ‘Very Good’ in his ACRs. The petitioner who is set to superannuate on 30.6.2022, filed this writ petition for the following substantive relief:- “i. That appropriate writ, order or direction may very kindly be issued and Annexure P-1, notification dated 28th April, 2021 may very kindly be quashed and set aside to the extent, whereby persons junior to the petitioner has been promoted by further directing the respondents to promote the petitioner to the post of Principal (Polytechnic), Class-I (Gazetted) with effect from 28th April, 2021, with all consequential benefits of pay, arrears, seniority etc., in the interest of law and justice.” 3. Contentions I have heard learned Senior Counsel for the petitioner, the learned Deputy Advocate General for respondents No. 1 & 2 and considered the material available on record. 3(i) On behalf of respondents No. 1 and 2, it has not been disputed that the petitioner was due for promotion to the post of Principal (Polytechnic) and his case for promotion to the said post was considered by the DPC in its meeting held on 27.4.2021. It has also not been disputed that the petitioner was found unfit for promotion by the DPC and his juniors namely Shri Satish Dhingra and Smt. Manju Sharma (respondent No. 3 herein) were promoted as Principals on 28.4.2021 on the basis of recommendations of the DPC made on 27.4.2021. It has also not been disputed that the petitioner was found unfit for promotion by the DPC and his juniors namely Shri Satish Dhingra and Smt. Manju Sharma (respondent No. 3 herein) were promoted as Principals on 28.4.2021 on the basis of recommendations of the DPC made on 27.4.2021. The justification given by the respondents for not promoting the petitioner to the post of Principal is that in terms of an Office Memorandum dated 21.6.2016 issued by the Department of Personnel, to the Government of Himachal Pradesh, an officer is to be considered for promotion to the selection post carrying grade pay Rs. 7600/- and above only if he meets prescribed benchmark of ‘Very Good’ in all the ACRs of five years under consideration. The petitioner did not satisfy required benchmark of ‘Very Good’ for promotion to the post of Principal, he was, therefore, found unfit for promotion. 3(ii) Learned senior counsel for the petitioner submitted that the ACRs for all the five years period in question were not communicated to the petitioner. Even the overall entries recorded therein were not brought to the notice of the petitioner by the respondent-department. Petitioner had no chance to represent against the grading in the ACRs. Learned senior counsel argued that on the strength of un-communicated ACRs of the petitioner for the period in question, the respondents-department cannot debar him from being promoted to the post of Principal (Polytechnic). In support of these submissions, reliance was placed upon Dev Dutt versus Union of India & Others, (2008) 8 SCC 725 , Abhijit Ghosh Dastidar versus Union of India and Others, (2009) 16 SCC 146 , Sukhdev Singh versus Union of India, (2013) 9 SCC 566 and Rukhsana Shaheen Khan versus Union of India, Civil Appeal No. 32 of 2013, decided on 28th August, 2018. Prayer was made to direct the respondents to consider the case of promotion of the petitioner to the post in question ignoring the un-communicated ACRs. 4. Observations Upon hearing learned counsel for the parties and taking note of the material available on record, I am of the considered view that this petition deserves to be allowed for the following reasons:- 4(i) Following material facts are not in dispute: 4(i)(a) Petitioner was eligible in terms of Recruitment and Promotion Rules for promotion to the post of Principal (Polytechnic). 4(i)(b) The respondents had convened a meeting of Departmental Promotion Committee on 27.4.2021 to effect promotions for the vacant post of Principals (Polytechnic). The DPC considered the names of 13 persons who were eligible in terms of Recruitment and Promotion Rules for promotion to the post of Principal. The name of petitioner figured at serial No. 4 in the list of those considered by the DPC. The petitioner was declared ‘unfit’ for promotion by the DPC for the reason that he did not satisfy the required benchmark of ‘Very Good’ in all the Annual Performance Appraisal Reports (APARs) for five years period under consideration. 4(i)(c) The office memorandum dated 21.6.2016 provides that in case of an officer to be considered for promotion to the ‘selection’ post carrying grade pay Rs. 7600/- and above, the benchmark of ‘Very Good’ is to be invariably met in all APARs of five years under consideration. 4(i)(d) The APARs of the petitioner under consideration pertain to years 2015-2016 to 2019-2020. The post of Principal is a selection post with grade pay Rs. 8700/-. Petitioner in his five APARs under consideration has been overall graded as under: Name of officers S/Shri/Smt. Date of Birth 2015-16 2016-17 2017-18 2018-19 2019-2020 Karam Singh Kaundal 10.06.1964 Good Good Good V.G. Good 4(ii) With the assistance of learned counsel for the parties, I have also seen the APARs of the petitioner appended alongwith the petition as Annexure P-5 (colly). In all these ACRs, there exits following at serial No. 21 “is he fit for independent charge for promotion to next higher post”. The remarks against the above column in all the APARs of the petitioner is “yes”. It defies logic that on one hand petitioner in the APARs is being considered ‘fit’ for holding independent charge on promotion whereas on the other hand because of overall grading of ‘good’ in the very APARs, he is being held by the DPC as ‘unfit’ for promotion on account of Office Memorandum dated 21.6.2016. Perhaps either the column in the APARs are not in tune with the Office memorandum dated 21.6.2016 or this memo was not in the knowledge of Reporting/Reviewing/ Accepting Authorities who dealt with APARs in question. In fact APAR of the petitioner for the year 2015-2016 is of the period prior to the issuance of Office memorandum dated 21.6.2016. Perhaps either the column in the APARs are not in tune with the Office memorandum dated 21.6.2016 or this memo was not in the knowledge of Reporting/Reviewing/ Accepting Authorities who dealt with APARs in question. In fact APAR of the petitioner for the year 2015-2016 is of the period prior to the issuance of Office memorandum dated 21.6.2016. I have also considered the entries and remarks made in the APARs. The entries and remarks per-se do not convey any negative aspect of the petitioner. The remarks do not convey any intention of the reporting/reviewing/assessing authority of denying promotion to the petitioner. Be that as it may. 4(iii) The Hon’ble Apex Court in Dev Dutt’s case supra has held that fairness in public administration and transparency require that all entries in the Annual Confidential Reports of a public servant must be communicated within a reasonable period whether it is a poor, fair, average, Good or Very Good entry. The object of communication is to enable the employee to know about the assessment of his work and conduct by his superiors, enabling him to improve his work in future. In Abhijit Ghosh Dastidar’s case supra relying upon Dev Dutt’s case, it was held that non-communication of entries in the Annual Confidential Report to a public servant has civil consequences affecting his chances of promotion and getting other benefits. Non-communication of adverse ACRs would be violative of Article 14 of the Constitution. In Sukhdev Singh’s case supra, a larger bench of Hon’ble Apex Court affirmed the correctness of the view taken in Dev Dutt’s case but held that every entry in ACR must be communicated to the public servant and communication of only adverse entry is not enough. In Rukhsana Shaheen Khan’s case, the Hon’ble Apex Court observed that it is well settled legal position that uncommunicated and adverse ACRs cannot be relied upon. In (2019) 4 SCC 276 , titled Anil Kumar versus Union of India and Others, the Hon’ble Apex Court was considering the case of an employee who was aggrieved by the rejection of his claim for financial upgradation on the ground put forth by his employer that he did not fulfill the required benchmark of “Very Good” for the financial upgradation. The grievances of the appellant therein was that Annual Confidential Reports for the period in question in which he had failed to meet the benchmark were not communicated to him. Taking note of its previous judgments rendered in Dev Dutt vs. Union of India, Sekh Dev Singh vs. Union of India, the Hon’ble Apex Court held that failure to communicate the ACRs had deprived the appellant therein of the opportunity to submit his representation in the matter of financial upgradation. Having held this, the Hon’ble Apex Court also noticed that the employer in the said case had furnished an opportunity to the appellant therein to submit his representation before effecting the promotion in question and also taking note of the fact that appellant therein had since retired from his service and was claiming grant of Modified Assured Career Progression (MACP) benefits, which was not a matter of right, therefore, in the facts and circumstances of the case, the appellant therein was granted an opportunity to submit a representation in respect of the ACRs for the concerned years within a period of four weeks where he did not fulfill the required benchmark for financial upgradation. Time was given to the respondents to consider and to take decision on the said representation. In case of decision going on in favour of the appellant therein, consequential directions were given to the respondent/employer for giving due and admissible benefits to the employee therein. In JT 2022 (3) SC 430, titled Abhay Jain v. The High Court of Judicature for Rajasthan and Anr. the ACRs having adverse entries were not communicated to the judicial officer within reasonable time. Taking note of judgments delivered in Dev Dutt’s and Sukhdev Singh’s cases supra, the Apex Court held as under: “47. Moreover, it is not disputed that the ACRs were not communicated to him within reasonable time. In this context, a 3-Judge Bench of this Court in Sukhdev Singh vs Union of India [JT 2013 (8) SC 270] has held that: “In our opinion, the view taken in Dev Dutt [Dev Dutt vs. Union of India] that every entry in ACR of a public servant must be 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.” (emphasis supplied) Hence, in light of the above, the non-communication of the ACRs to the appellant in the present case is arbitrary and as has been held by this court in Maneka Gandhi vs. Union of India [ 1978 (1) SCC 248 ], such arbitrariness violated Article 14 of the Constitution of India. 71. To conclude, we are of the firm view that in the present case there was no material to showcase unsatisfactory performance of the appellant in terms of requirement under Rule 45 and 46 of the RJS Rules, 2010. Moreover, the appellant’s discharge was not simpliciter, as claimed by the respondent. The non-communication of the ACRs to the appellant has been proved to be arbitrary and since the respondent choose to hold an enquiry into appellant’s alleged misconduct, the termination of his service is by way of punishment because it puts a stigma on his competence and thus affects his future career. In such a case, the appellant would be entitled to the protection of Article 311 (2) of the Constitution. Moreover, the adverse comments in the ACR for the year 2015 could not have been the basis on which the appellant was discharged from service. The appellant was never granted an opportunity to improve and there was no intimation to him about his performance being unsatisfactory. Importantly, no verifiable complaint was filed against the appellant that could form the basis of the disciplinary proceeding against him. The appellant was never granted an opportunity to improve and there was no intimation to him about his performance being unsatisfactory. Importantly, no verifiable complaint was filed against the appellant that could form the basis of the disciplinary proceeding against him. After perusing all the relevant record, we hold that the appellant was competent to pass the bail order dated 27.04.2015 and that the Respondent has not been able to prove the presence of any extraneous consideration or ulterior motive on the part of the appellant. It should also be highlighted here that neither the bail order dated 27.04.2015 was ever challenged by the State before any Court of law, nor was any complaint received against the appellant regarding the said bail order. This is not the case where there are strong grounds to suspect the appellant’s bona fides. Even if appellant’s act is considered to be negligent, it cannot be treated as “misconduct”. 4(iv) In the instant case, during hearing of the case, learned Deputy Advocate General placed on record the copy of instructions dated 21.6.2022, imparted from the office of Special Secretary (TE) to the office of learned Advocate General. According to these instructions, the APARs of the petitioner for the period in question were not communicated to him. These instructions have been taken on record. In the instant case neither the APARs for the period in question have been communicated to the petitioner nor any opportunity till date to represent against the same was granted to the petitioner. The petitioner is set to superannuate on 30.6.2022. One of the APAR of the petitioner i.e. for the year 2019-2020 fulfills the required benchmark “Very Good”. One of his APAR i.e. for the period 2015-2016 is prior in time to the office memorandum issued on 21.6.2016 mandating ‘Very Good’ benchmark. All the APARs of the petitioner for the period in question otherwise hold him fit for promotion. No adverse entry per se is reflected in any of the APARs. 5. Considering all the above aspects, the conclusion is that petitioner has made out a case in his favour. Accordingly, this petition is allowed. The respondents No. 1 and 2 are directed to convene a review DPC for considering the case of the petitioner for promotion to the post of Principal (Polytechnic) without considering the un-communicated ACRs for the period in question. Accordingly, this petition is allowed. The respondents No. 1 and 2 are directed to convene a review DPC for considering the case of the petitioner for promotion to the post of Principal (Polytechnic) without considering the un-communicated ACRs for the period in question. This exercise will be completed within a period of three weeks from today. Needless to observe that in case the petitioner is promoted to the post of Principal, he will be entitled to all the consequential benefits from due date. Pending miscellaneous application(s), if any, shall also stand disposed of.