Doctor Cannot Challenge Colleague's ACR Upgrades to Claim Promotion Priority, HP High Court Rules
The Himachal Pradesh High Court dismissed a senior government doctor's petition attacking his colleague's upgraded ACRs, holding he had no locus standi and the petition was also barred by delay and laches.
Justice Jiya Lal Bhardwaj, sitting singly at the High Court of Himachal Pradesh, Shimla, dismissed CWP No.5569 of 2020 filed by Dr. Mukesh Surya, a Medical Officer in the HP Health Services seeking to quash the Annual Confidential Report upgrades of a rival doctor, Dr. Shikha Sood (respondent No.7), whose superior ACR gradings had led to her superseding him in a 2015 Departmental Promotion Committee for the post of Assistant Professor in Radiology. The court held that an employee has no right in law to question the ACRs of a colleague and that the petition was, in any event, filed almost five years after the events it challenged—rendering it fatally delayed.
The Promotion Dispute at IGMC Shimla
Dr. Mukesh Surya joined the Himachal Pradesh Health Services as a Medical Officer on 31 July 1997, was regularised through the HP Public Service Commission on 3 November 1998, and obtained his postgraduate degree in Radiology in 2006. He was thereafter posted as Senior Resident in the Department of Radiology at Dr. Rajendra Prasad Government Medical College, Tanda (RPGMC Tanda), joining on 12 February 2007. He remained there until 19 January 2011 and was subsequently designated as Assistant Professor in the same department until 2015.
Two posts of Assistant Professor were lying vacant at Indira Gandhi Medical College and Hospital, Shimla (IGMC Shimla). A DPC was convened on 28 November 2015 to fill those vacancies. Four doctors were in the zone of consideration. The petitioner held seniority number 352 as a General Duty Officer/Medical Officer; Dr. Shikha Sood was at number 538. The DPC assessed the petitioner as “Very Good” overall, while respondent No.7 was assessed as “Outstanding”. On that basis, respondent No.7 was placed at serial No.1 in the merit list and was offered the existing vacancy. The petitioner was placed at serial No.2 and was promoted against a vacancy that was not yet available—one that was only expected to arise in December 2016 upon the promotion of another incumbent.
The difference in overall assessment was traceable to the ACRs of respondent No.7. For the years 2008–2009, 2009–2010, 2011–2012 and 2012–2013, the Accepting Authority—respondent No.6, the Director of Medical Education—upgraded her gradings from “Very Good” (as recorded by the Reporting and Reviewing Authorities) to “Outstanding”. For 2007–2008, an earlier accepting authority had upgraded her from “Good” to “Very Good”. Respondent No.7 had no ACR for 2010–2011 because she was working abroad during that period.
What the Petitioner Alleged
Dr. Surya alleged that the upgrades were illegal and violated clause 19.8.5 of Chapter 19 of the Handbook on Personnel Matters, Volume II. That provision, he argued, required that an entry of “Outstanding” be made with great restraint and only by the Reporting Authority, with specific reasons tied to documented performance. He contended that the Accepting Authority had no power to upgrade entries to “Outstanding” and had done so without lawful authority, solely to benefit respondent No.7. He further alleged that respondent No.6 and respondent No.7 were “hand in glove” and that the ACRs for 2008–2009 and 2009–2010 had been presented belatedly on 14 December 2011, suggesting they were reconstructed.
He said he came to know of the supersession only in September 2020, when he met Dr. Dinesh Sharma—another doctor who had also been superseded by respondent No.7—who supplied him the relevant DPC minutes and ACR documents. He filed a representation on 10 September 2020. When nothing was done, he filed this writ petition in December 2020, also explaining that his counsel had suffered from COVID-19, delaying the filing.
The reliefs sought included: quashing the ACR upgrades for the five years in question; quashing the minutes of the DPC held on 28 November 2015 to the extent they allowed respondent No.7 to supersede him; a direction to convene a review DPC; a direction to hold an inquiry into how respondent No.6 had personally heard respondent No.7's representation and disclosed the Reporting and Reviewing Authorities' gradings to her; and an injunction against convening a fresh DPC for promotion to Associate Professor on the basis of the impugned DPC minutes.
The State's and Respondent No.7's Responses
Respondents No.1 to 6 (the State authorities) filed a reply stating that no legal right of the petitioner had been infringed and that the claim was premature. They confirmed the DPC process and the basis for the recommendation.
Respondent No.7 raised a pointed preliminary objection: ACR entries are matters between an employer and the concerned employee. No other employee has a right to say whether a colleague's performance should be assessed as “Poor”, “Good”, “Very Good” or “Outstanding”. The petition was therefore not maintainable. On the merits, she contended that the Accepting Authority had assigned adequate and documented reasons for the upgrades. She added that clause 19.8.5 does not absolutely prohibit an “Outstanding” entry; it only requires that the officer exercise restraint and record specific reasons.
She further pointed out that respondent No.7 had also competed in an open selection conducted by the HP Public Service Commission for the same post in 2015 and was placed at serial No.1 in the merit list. The petitioner had participated in the same selection and was not selected at all—failing even to rank second, a position taken by Dr. Sumala Kapila. Given that respondent No.7 was already recommended for promotion by the DPC, she joined through that route and the direct recruitment vacancy was offered to Dr. Sumala Kapila. This, respondent No.7 argued, independently confirmed her superior merit.
On delay, respondent No.7 argued that the petition was filed nearly five years after her promotion as Assistant Professor in December 2015 and that the rights that had accrued in her favour could not now be disturbed. She also argued, relying on H.S. Sidhu v. Devendra Bapna, (2016) 1 SCC 495, that the High Court cannot sit in appeal over a DPC's recommendations.
The Court's Reasoning on Locus Standi
Justice Bhardwaj began by examining the ACRs on record. He found that for the years 2008–2009, 2009–2010, 2011–2012 and 2012–2013, respondent No.6 had indeed upgraded the gradings to “Outstanding”—but had assigned reasons for doing so in each case, drawing on respondent No.7's paper presentations, research publications, attendance at national conferences and her performance in the DM Neuro-Radiology examination. The only ACR where no reason was recorded was 2007–2008, and in that case the accepting authority was not respondent No.6 but a different officer.
The petitioner had relied on the Supreme Court's decision in Lakhi Ram v. State of Haryana and others, (1981) 2 SCC 674, which had held that a co-employee whose promotional prospects are prejudiced by the expunction of adverse remarks in a colleague's ACR has locus standi to challenge that expunction. Justice Bhardwaj distinguished that case squarely. Lakhi Ram concerned the expunction of adverse remarks—a situation where the removal of a negative entry directly improves the colleague's standing. The present case was different: the petitioner was not challenging any expunction of adverse remarks against respondent No.7. He was challenging positive upgrades in her favour. That is a materially different proposition.
Justice Bhardwaj placed significant weight on the Division Bench judgment of this court in CWP No.1608 of 2019, Surender Kumar v. State of Himachal Pradesh and others, which had examined exactly this question. That bench had held that Lakhi Ram dealt only with the expunction of adverse remarks and that the Supreme Court's later three-judge bench decision in Chandra Gupta IFS v. Secretary, Government of India, Ministry of Environment and Forests and others, (1995) 1 SCC 23, had itself clarified that mere chances of promotion do not give rise to a vested right, and that cases of expunction of adverse remarks stand on a different footing from cases where there are no adverse entries at all.
The Division Bench in Surender Kumar had articulated the principle directly: “No one has a right to say whether another employee's performance shall be assessed as ‘Poor’, ‘Average’, ‘Satisfactory’, ‘Good’, ‘Very Good’ or ‘Excellent’.” Justice Bhardwaj adopted this reasoning and held that only one inference followed: a co-employee cannot challenge the ACRs of a colleague, and the petitioner therefore had no locus standi to maintain the petition.
Rejection of the Mala Fide and Inquiry Pleas
Justice Bhardwaj also declined to accept the allegation that respondents No.6 and No.7 were “hand in glove”. He noted that no cogent material had been placed on record to support this assertion. The averments in the petition on this point were, in his view, made on assumptions. While entertaining a writ petition under Article 226 of the Constitution of India, the court could not make a roving inquiry on the basis of bare allegations unsupported by documentary evidence.
The petitioner had also argued that an adverse inference should be drawn against respondents No.6 and No.7 because the original ACR record had not been produced by the State, which claimed it had been misplaced. The court rejected this too. The petitioner himself had placed the ACRs of respondent No.7 on record, and their contents did not support an inference of manipulation.
The plea for a direction to the State to hold an inquiry into how respondent No.6 had personally heard respondent No.7's representation was also turned down. Since no material had been placed on record showing that the documents supplied by respondent No.7 were submitted after the ACR proforma had been filled, the court said it could not direct an inquiry merely at the asking of the litigant.
The Delay and Laches Bar
Even if locus standi had existed, Justice Bhardwaj held the petition would fail on delay. Respondent No.7 was promoted as Assistant Professor by notification dated 11 December 2015. The petitioner filed the writ petition in December 2020—approximately five years later. His explanation was that he only came to know of the supersession in September 2020 when Dr. Dinesh Sharma told him and supplied the documents.
The court did not accept this. Dr. Dinesh Sharma had received information about the matter under the Right to Information Act in January 2017. Given that Dr. Surya himself was similarly situated and had been pursuing his own case regarding supersession, the court found it implausible that information available to Dr. Dinesh Sharma from 2017 was genuinely unknown to the petitioner until September 2020. The petitioner had also not filed an affidavit of Dr. Dinesh Sharma confirming the September 2020 meeting. The court held the petition was hit by delay and laches on this ground as well.
The Public Service Commission Result as Additional Context
Justice Bhardwaj observed one additional undisputed fact that bore on the petitioner's broader claim of superior merit. Both Dr. Surya and respondent No.7 had appeared in the HP Public Service Commission selection for the post of Assistant Professor in Radiology in 2015. Respondent No.7 was placed at serial No.1 in the merit list. The petitioner was not selected at all; he did not rank even second, a position taken by Dr. Sumala Kapila. The petitioner could not, therefore, sustain the argument that respondent No.7's “Outstanding” grading was unsupported by any underlying merit. The DPC's recommendation and the open competitive result pointed in the same direction.
Order
Justice Jiya Lal Bhardwaj dismissed CWP No.5569 of 2020 on 5 August 2026 on two grounds: absence of locus standi to challenge a colleague's ACR entries, and delay and laches. No order as to costs was made. All pending applications in the petition were also disposed of.