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. 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:-

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