- (1.) Against the order of the Tribunal dated 28.1.2015 quashing the adverse entry for the years 1991, 1986-87 and 1987-88 the State of U.P. has filed the present writ petition.
(2.) The facts leading to the filing of the writ petition is, that the respondent No.1 was a Senior Cane Development Inspector and was awarded an adverse entry on 10.1.1994 for the year 1991. Similarly, by an order dated 17.5.1995, adverse entries for 1986-87 and 1987-88 were awarded pursuant to an action taken in disciplinary proceedings. The respondent preferred a representation against the adverse entries, which was rejected by an order dated 6.7.1996. The said respondent, being aggrieved, filed a claim application for the quashing of the orders dated 10.1.1994, 17.5.1996 and 6.7.1996. The Tribunal by an order dated 28.1.2015 allowed the claim application on the short ground that the adverse entries were not communicated to the respondent No.1 and reference was not decided within the stipulated period as provided under Rules 4 and 5 of the U.P. Government Servants (Disposal of Representation against Adverse Annual Confidential Reports and Allied Matters), Rules, 1995 (hereinafter referred to as the "Rules") and, accordingly, the Tribunal quashed the adverse entries with a further direction to the Department that the adverse entries would not be considered for promotion, crossing the Efficiency Bar and other service matters. The State Government, being aggrieved by the said decision, has filed the present writ petition.
(3.) Rules 4 and 5 of the Rules of 1995 are extracted hereunder: "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 sub-rule (3), consider the representation along with 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 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 disposed of within the period prescribed therefor 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. 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, Parts II 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 purposes of promotion, crossing of Efficiency Bar and other service matters of the Government Servant concerned.;