D K ARORA,J. - (1.) THIS bunch of writ petitions have been filed on behalf of the State of U.P. for quashing of the judgement & order, passed by the learned U. P. Public Services Tribunal, Lucknow in different claim petitions. Since, the common question of law is involved in these writ petitions, accordingly they are being heard and decided by means of a common judgment.
(2.) WRIT Petition No. 134 (S/B) of 2002, State of U.P. and another Vs. Narendra Singh will be leading case in this judgment. Brief facts of the case are that during the different years the private respondents were awarded adverse entries against which they preferred representations which were decided by the authorities concerned beyond the time prescribed in the Rules. The private respondents against the said adverse entries preferred various claim petitions before the State Public Services Tribunal, Lucknow and challenged the adverse entries on the ground that the representations were decided beyond the time, prescribed in the U.P. Government Servants (disposal of representation against the adverse annual confidential reports and allied matters) Rules- 1995 (here-in-after referred to as Rules, 1995) and prayed for quashment of the said adverse entries. The learned Tribunal allowed claim petitions basically on the ground of delayed disposal of the representations. The learned Tribunal also observed that the representations have also been decided by means of a nonspeaking orders, which is also violation of the Rules 1995 and held that the claim petitioners are entitled to get the benefit of Rule 5 of the Rules, 1995. The learned Tribunal further directed that the impugned adverse entry shall not be treated adverse against the claimants (herein private respondents) for the purposes of promotion, crossing of efficiency bar and other service matters. Being aggrieved with the said judgment and orders, passed by the learned Tribunal, the petitioner, State of U. P. has approached this Court. The main contention of learned Additional Chief Standing Counsel, appearing on behalf of the Petitioners/ State, is that the adverse entries have been provided to the private respondents by the competent authorities in order to bring qualitative improvement in public work. The adverse entries were speaking one and were also conveyed to the concerned private respondents. Further, the representations, so moved by the private respondents against their adverse entries, were also considered and decided and communicated to the concerned private respondents.
(3.) IT is further submitted that in order to bring clarity in matters of communication of adverse entries and for disposal of representation expeditiously, so that the government servant may not get deprived of service benefits because of non-disposal of representation, in the year 1995, the State Government in exercise of powers conferred under the proviso to Article 309 of the Constitution of India, framed Rules known as "Uttar Pradesh Government Servants (Disposal of Representation against Annual Confidential Reports and allied Matters) Rules, 1995. The Rules, 1995 have overriding effect over all existing Rules and orders on the subject relating to disposal of representation against Annual Confidential Reports. Rule 4 of Rules, 1995 reads as under: "4. Communication of adverse report and procedure for disposal of representation .- (1) Where a report in respect of a Government Servant is adverse or critical, wholly or in part, hereinafter referred to as adverse report, the whole of the report shall be communicated in writing to the Government Servant concerned by the accepting authority or by an officer not below the rank of reporting authority nominated in this behalf by the accepting authority, within a period of 45 days from the date of recording the report and a certificate to this effect shall be recorded in the report. (2) A Government Servant may, within a period of 45 days from the date of communication of adverse report under sub-rule (1), represent in writing directly and also through proper channel to the authority, one rank above the accepting authority, hereinafter referred to as the competent authority, and if there is no competent authority, to the accepting authority itself, against the adverse report so communicated:- Provided that if the competent authority or the accepting authority, as the case may be, is satisfied that the Government Servant concerned had sufficient cause for not submitting the representation within the said period, he may allow a further period of 45 days for submission of such representation. (3) The competent authority or accepting authority as the case may be, shall, within a period not exceeding one week from the date of receipt of the representation under sub-rule (2), transmit the representation to the appropriate authority, who has recorded the adverse report, for his comments who shall, within a period not exceeding 45 days from the date of receipt of the representation, furnish his comments to the competent authority or the accepting authority, as the case may be- Provided that no such comments shall be required if the appropriate authority has ceased to be in, or has retired from, the service or is under suspension before sending his comments. (4) The competent authority or the accepting authority, as the case may be, shall within a period of 120 days from the date of expiry of 45 days specified in subrule (3), consider the representation alongwith the comments of the appropriate authority, and if no comments have been received without waiting for the comments, and pass speaking orders- (a) rejecting the representation; or b) expunging the adverse report wholly or partly as he considers proper. (5) Where the competent authority due to any administrative reasons, is unable to dispose of the representation within the period specified in sub-rule (4), he shall report in this regard to his higher authority, who shall pass such orders as he considers proper for ensuring disposal 790 INDIAN LAW REPORTS ALLAHABAD SERIES [2010 of the representation within the specified period. (6) An order passed under sub-rule (4) shall be communicated in writing to the Government servant concerned. (7) Where an order expunging the adverse report is passed under sub-rule (4), the competent authority or the accepting authority, as the case may be, shall omit the report so expunged. (8) The order passed under sub-rule (4) shall be final. (9) Where any matter for - (i) communication of an adverse report ; (ii) representation against an adverse report ; (iii) transmission of representation to the appropriate authority for his comments ; (iv) comments of the appropriate authority ; or (v) disposal of representation against an adverse report : is pending on the date of the commencement of these rules, such matters shall be dealt with and disposal if within the period prescribed therefore under this rule. Explanation- In computing the period prescribed under this rule for any matters specified in this sub-rule, the period already expired on the date of the commencement of these rules shall not be taken into account." Rule 5 of Rules, 1995 provide that wherein the adverse reports were not communicated to the incumbent or where a representation against an adverse entry had not been disposed of in accordance with Rule 4, such report/entry would not be treated as adverse for the purposes of promotion, crossing of efficiency bar and other service matters of the government servant. Rule 5 reads as under: "5. Report not to be treated adverse:- Except as provided in Rule 56 of the Uttar Pradesh Fundamental Rules contained in Financial Handbook Volume II, Part-I to IV, where an adverse report is not communicated or a representation against an adverse report has not been disposed of in accordance with Rule 4, such report shall not be treated adverse for the purpose of promotion, crossing of efficiency-bar and other service matters of the Government Servant concerned." Rule 7 of Rules, 1995 provides for penalty in the event of failure to communicate adverse report or wilfully fails to dispose of the representation within the prescribed period and for willful default in placing the report before the competent authority by a Section Officer in the Secretariat and for treating such a default to be a misconduct punishable in accordance with the punishment rules applicable to the incumbent. Rule 7 is being quoted below: "7. Penalty: - (1) Where an officer legally bound to communicate an adverse report to the Government servant concerned or where an officer legally competent to dispose of a representation against an adverse report under these rules, wilfully fails to do so, within the period prescribed therefore, shall be guilty of misconduct and be punishable in accordance with the punishment rules applicable to him. (2) A Section Officer in the Secretariat and an officer or official incharge of an office, other than the Secretariat, shall place the representation, comments of the appropriate authority thereon and other relevant records, if any, before the competent authority or the accepting authority, as the case may be, immediately after their receipt. Any wilful default, in this behalf, on his part shall be a misconduct and he shall be punishable in accordance with the punishment rules applicable to him." ;