JUDGMENT : 1. The petitioner has fled this petition with a prayer that promotion order dated 08.09.2009 (Annexure P/1) of respondents No. 2 to 4 be quashed being illegal. 2. The brief facts reflected from records are that the petitioner who was working as an Executive Engineer in Public Health Engineering Department was placed at serial No. 6 in the gradation list of executive engineer published on 01-04-2008. The respondent State has conducted the Departmental Promotion Committee on 14.07.2009 for promotion from the post of Executive Engineer to Superintending Engineer in the Public Health Engineering Department. As per the Minutes of Meeting, the promotion has to be done on the basis of merit-cum-seniority. The qualifying service prescribed in the Public Health Engineering (Gazetted) Recruitment Rules, 1980 for promotion from the post of executive engineer to 2 superintending engineering is 5 years of service on the post of executive engineer. Since the post of superintending engineer is super class-I and as per C.G. Lok Seva (Padonnati) Niyam 2003 (for short, “Rules 2003”), the criteria for promotion as per Rules 7 of the said Rules 2003 is merit-cum-seniority. The DPC for promotion was conducted on 14.07.2009 wherein the petitioner was though senior to last selected candidate, but on the basis of marks obtained because of the ACR, he was not promoted. Accordingly the State has issued list of candidates who have not been promoted or not found ft wherein the name of the petitioner is at serial No.6. 3. Learned counsel for the petitioner would submit that in the DPC though the petitioner was found suitable for promotion but, he was not promoted as the candidates who were secured higher marks in Annual Confidential Report have been promoted ignoring the claim of the petitioner on the basis of adverse Annual Confidential Report which was not communicated to him. The petitioner has submitted the record of the DPC and to substantiate his submission that because of the poor grading in the ACR, he was not awarded less marks. He would submit that for the year 2003-04 he has been awarded KHA and for the year 2004-05, he was awarded GA. The petitioner has submitted the record of the DPC and to substantiate his submission that because of the poor grading in the ACR, he was not awarded less marks. He would submit that for the year 2003-04 he has been awarded KHA and for the year 2004-05, he was awarded GA. These ACRs were never communicated to the petitioner and on the basis of this non-communicated ACR, his promotional avenues have been adversely afected, as such, he would submit that the respondent be kindly directed to communicate his ACR for these period and he may be allowed to make a representation and if the ACR is upgraded, then respondents may be also directed to conduct review DPC. 4. He would further submit that non-consideration of promotion on account of adverse Annual Confidential Report which was not communicated to the petitioner is illegal and against the law laiddown by Hon'ble Supreme Court in the matter of Devdutt vs. Union of India and others reported in (2008) 8 SCC 725 . He would further submit that action of respondent in not considering the promotion of the petitioner may be quashed and he may be granted promotion on the post of Superintending Engineer in Public Health Department. 5. On the other hand, State has fled return along with record of DPC wherein it has been categorically held that the candidate who has been found suitable, has not been promoted because of the confidential reports. The records of the DPC also contained list of suitable candidates for promotion but not promoted because of less marks of ACR wherein the name of the petitioner is also there, which reads as under:- ^^19- fopkj{ks= esa ,sls vf/kdkjh tks p;u lwph esa 'kkfey vafre vf/kdkjh ls ofj"B gS] fdUrq ftuds xksiuh; fjdkMZ dk Lrj p;u lwph esa 'kkfey vafre vf/kdkjh ds Lrj ls de gS vkSj ifj.kker% p;u lwph esa lfEefyr ugha gS vkSj u gh vuqi;qDr vf/kdkfj;ksa dh lwph esa gS %& vuqdzekad ofj"Brk dzekad vf/kdkjh dk uke 01- 06 Jh ,p0ds0 panfugk 02- 07 Jh :i dqekj xasnys 03- 10 Jh ds0ds0 ejdke 20- fopkj{ks= esa fuEufyf[kr vf/kdkjh] fopkj{ks= esa Hkh gS] vkSj mudk fjdkMZ p;u lwph esa 'kkfey vafre vf/kdkjh ds xksiuh; fjdkMZ ds Lrj dk Hkh gS] fdUrq dfu"B gksus ds dkj.k p;u lwph esa LFkku ugha ik lds %& vuqdzekad ofj"Brk dzekad vf/kdkjh dk uke 01 14 Jh jktsUnz dqekj pkScs 6. Learned counsel for the State would submit that because of adverse Annual Confidential Report the petitioner was not promoted. 7. On the other hand learned counsel for the respondents No. 2 and 3 would submit that the petitioner, who belongs to SC category, was junior to the selected candidates and because of his Annual Confidential Report, he was not promoted as he has secured less marks because of the ACR, therefore, he was not rightly selected. He would further submit that the post was reserved for SC candidate and the selected candidates who were found much suitable have been found ft and he has not been arrayed as party to the case, therefore, the petition is liable to be dismissed for non joinder of necessary party. 8. I have heard learned counsel for the parties and perused the record. 9. Learned counsel for the petitioner would submit that he is not agitating the promotion of the candidates, who belong to SC or respondent No. 2 to 4 but, he is making his submission with regard to the procedure adopted by the respondent while depriving the petitioner for promotion on the post of Superintending Engineer as they have taken into consideration the uncommunicated Annual Confidential Report for the year 2003-2004 and 2004-2005 which was found to be ? and ?. Learned counsel for the petitioner would further submit that due to non- communication of adverse Annual Confidential Report his marking has been down graded by the DPC which has adversely afected the future prospects of the petitioner. Therefore, action of the respondent is against the Judgment of Hon'ble Supreme Court in the matter of Devdutt (Supra) and would pray that respondents be directed to expunge his adverse Annual Confidential Report for the year 2004-2005. 10. Therefore, action of the respondent is against the Judgment of Hon'ble Supreme Court in the matter of Devdutt (Supra) and would pray that respondents be directed to expunge his adverse Annual Confidential Report for the year 2004-2005. 10. The adverse Annual Confidential Report of the petitioner has not been communicated to the petitioner is not disputed by the State as the petitioner in paragraph 8.5 of the petition has categorically stated that – “in absence of communication of Annual Confidential Report the petitioner has been superseded by his juniors in the alleged Departmental Promotion Committee held in 2009 and again he has stated unless and until his Annual Confidential Report is communicated to the concerned employee or if he fails to improve himself despite of the said communication then only it can be presumed that he is not qualifed or having requisite qualification for the promotion and made same averments in para 8.7 of the petition”. 11. This fact has not been disputed by the State and no material has also been placed on record by the State that the adverse ACR for the year 2003-04 & 2004-05 have been communicated to the petitioner, therefore, it is quite vivid that adverse Annual Confidential Report has not been communicated to the petitioner. Since the petitioner has been deprived from promotion on account of non-communication of adverse Annual Confidential Report it deserves to be quashed. This issue is no more res judicata as the Hon'ble Supreme Court in the matter of Union of India and others vs. G.R. Meghwal, reported 5 in 2022 SCC Online SC 1291 has held in para 19, 20, 26 and 30 which read as under. “19. This issue is no more res judicata as the Hon'ble Supreme Court in the matter of Union of India and others vs. G.R. Meghwal, reported 5 in 2022 SCC Online SC 1291 has held in para 19, 20, 26 and 30 which read as under. “19. In the present case, the learned Tribunal as well as the High Court have directed the department to review the case of the respondent by ignoring the below benchmark of “Good” in the year 2007-2008 mainly on the following grounds:- (i) that in the earlier years, the very reporting officer/reviewing authority awarded “Very Good” for the years 2005-2006 and 2006- 2007 and the very reporting officer/reviewing authority has given below benchmark “Good” for the year 2007-2008 and therefore the same is arbitrary and there is no basis to award the below benchmark – “Good”; (ii) that before the below benchmark ACR “Good” for the year 2007-2008, no opportunity was given to the respondent officer to improve himself and no deficiency was pointed out; and (iii) that no opportunity was given to the respondent officer to make representation against the proposed below benchmark ACR of the year 2007-2008. While giving the aforesaid findings and while arriving at the aforesaid final conclusion, the Tribunal as well as the High Court have heavily relied upon the decisions of this Court in the case of Sukhdeo (supra); Dev Dutt (supra); Abhijit Ghosh Dastidar (supra) and“19. In the present case, the learned Tribunal as well as the High Court have directed the department to review the case of the respondent by ignoring the below benchmark of “Good” in the year 2007-2008 mainly on the following grounds:- (i) that in the earlier years, the very reporting officer/reviewing authority awarded “Very Good” for the years 2005-2006 and 2006-2007 and the very reporting officer/reviewing authority has given below benchmark “Good” for the year 2007-2008 and therefore the same is arbitrary and there is no basis to award the below benchmark – “Good”; (ii) that before the below benchmark ACR “Good” for the year 2007-2008, no opportunity was given to the respondent officer to improve himself and no deficiency was pointed out; and (iii) that no opportunity was given to the respondent officer to make representation against the proposed below benchmark ACR of the year 2007-2008. While giving the aforesaid findings and while arriving at the aforesaid final Sukhdev Singh (supra). While giving the aforesaid findings and while arriving at the aforesaid final Sukhdev Singh (supra). However, on considering the aforesaid decisions, it emerges that in the aforesaid cases, the adverse ACRs either were not communicated at all and/or on facts found to be inconsistent and suffering from lack of bona fides. 20. In the case of Dev Dutt (supra), this Court has held in paragraphs 36 and 37 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 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.” 26. The Tribunal has also noted that adverse remarks were not communicated to the respondent herein within the time limits prescribed for such communication under the prevailing rules governing the ACRs. Further attention of the officer was not drawn during the year itself, to supposed falling standards along with necessary caution/advice so as to give him a chance to improve. The Tribunal has also noted that adverse remarks were not communicated to the respondent herein within the time limits prescribed for such communication under the prevailing rules governing the ACRs. Further attention of the officer was not drawn during the year itself, to supposed falling standards along with necessary caution/advice so as to give him a chance to improve. The Tribunal has further noted that it is not the case of below benchmark grading but a case of recording adverse remarks 7 in the extreme. That the representations made by the respondent were not considered objectively, dispassionately, and fairly as there were contradiction in the qualities or attributes communicated in the said ACRs which were wholly contradictory to each other. In the circumstances, the Tribunal held that “adverse remarks made for the year 2007-08 were sweeping, extreme, and inconsistent with the previous remarks. Hence it was held that the rejection of the representation was unjustified and the same was set aside. It was further observed by the Tribunal that the assessment of 2007-08 were clearly arbitrary and inconsistent and ought not to be allowed to stand in the way of proper assessment of the respondent by the Screening Committee for his suitability to be promoted to a higher grade. Hence, a direction was issued to the Screening Committee to consider and reassess the suitability of the respondent herein for the purpose of grant of SAG by excluding the ACR of 2007-08 and if the respondent was found suitable for grant of consequential benefits. Against the order of the Tribunal the Union of India, the appellant herein preferred a writ petition before the High Court, which reiterated what had been observed by the Tribunal in paragraph 6 of its order and dismissed the writ petition. 30. Therefore, in view of the above and in the facts and circumstances of the case and considering the fact that though the respondent was graded as “Very Good” in the ACRs for the years 2005-2006 and 2006- 2007 and was graded only “Good” in the ACR for the year 2007-2008 by the very same reporting and reviewing officer, despite the fact that specifically the respondent was given the opportunity against the ACR for the year 2007-2008. However, no valid reasons are given for rejecting the representation, we are of the opinion that in view of the aforesaid facts and circumstances, the learned Tribunal and the High Court have not committed any error in directing the Department to call for a review meeting of the Screening Committee to re-assess the suitability of the respondent for the purpose of grant of SAG and while doing so to exclude the ACR for the year 2007-2008. Therefore, in the facts and circumstances of the case, no interference of this Court is called for” 12. Again in the matter of R.K. Jibanlata Devi vs. High Court of Manipur through its Registrar General and others reporting in 2023 live-law (SC) 139 has held in 6.4 and 6.7 which reads as under:- 6.4 In the present case the petitioner got “Good” gradings for the year 2016-17 and received “Very Good” gradings in her ACRs for the years 2017-18 and 2018-2019. It was the specifc 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. 6.7 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” 13. From the above stated legal position and considering the facts and circumstances of the case, it is quite vivid that the petitioner was deprived from promotion on account of non-communication of Annual Confidential Report. Due to non-consideration of adverse ACR the petitioner was not given an opportunity to make representation or to improve his performance causing adverse afect of his promotional avenues. As such, it is necessary for the respondent/State to communicate the same which was not communicated to him. 9 Therefore, it is directed that the respondent shall communicate adverse Annual Confidential Report to the petitioner within two months from the date of receipt of copy of this order and thereafter will allow him 15 days time to make his representation to the adverse Annual Confidential Report and even if it is found that the petitioner's Annual Confidential Report deserves to be expunged, the same shall be carried out and respondents will also conduct review DPC for consideration of the case of the petitioner for promotion within further period of three months from the date of decision to be taken by them with regard to ACR of the petitioner. It is also directed that since the other candidates have already been promoted and the petitioner has not challenged their promotion and even if the petitioner is found suitable for promotion, the interest of the respondents who have already been promoted will not be adversely affected. 14. The contention raised by the learned counsel for the private respondents that in the present writ petition the petitioner belongs to SC category and the candidate namely S.K. Agre who has been promoted in pursuance of the DPC held by the respondents has not been arrayed as party respondent in this case, therefore, the writ petition deserves to be dismissed for non-joinder of necessary party. From the record, it is quite vivid that the petitioner has never prayed for quashing of the promotion order of any ofcer, but only prayed that the petitioner may be promoted from the date respondents No. 2 to 4 have been promoted with all consequential benefts. The record of the DPC would refect that the petitioner was found ft in the DPC, but he was not promoted because of non-communication of adverse ACR, which has down graded the marking of the petitioner, which is illegality on the part of the respondents. The record of the DPC would refect that the petitioner was found ft in the DPC, but he was not promoted because of non-communication of adverse ACR, which has down graded the marking of the petitioner, which is illegality on the part of the respondents. The petitioner has confned his case because non-communication of adverse ACR, therefore, the objection raised by the privates respondents deserves to be and accordingly it is rejected. 15. Learned counsel for the petitioner would submit that the respondents at the time of consideration of DPC have not taken into consideration the vacancies which may arise in future which is non-compliance of the promotion rules 2003 16. Considering the entire factual matrix of the case, the State is directed to communicate adverse ACR for the year 2003-2004 and 2004-2005 10 of the petitioner within two months from the date of receipt of a copy of this order and will give him 15 days time to make representation and on the basis of representation, if adverse Confidential Report of the petitioner is expunged, the State shall constitute a review DPC within a period of 3 months from the date of decision to be taken by them with regard to the adverse Annual Confidential Report of the petitioner. The entire activities shall be completed within an outer limit of 5 months from the date of receipt of the copy of this order. 17. With the aforesaid observation and direction, the writ petition is allowed.