- (1.) S. Dikshit, J. Supplementary affidavit filed today. Let it be kept on record.
(2.) HEARD. This writ petition is directed against the order dated 10. 9. 96 by which the learned U. P. Public Services Tribunal modified its earlier interim order dated 8. 8. 96 and directed the opposite parties to consider the claim of the petitioner in future selection ignoring the adverse entries against which the representations were still pending and not decided by the said authorities. Learned Counsel for the petitioner has assailed the impugned order on the ground that once the learned Tribunal had accepted the conten tion of the petitioner that when repre sentations against an adverse entry were pending and not disposed of, the Depart mental Promotion Committee (DPC) could not have declined to consider his case for promotion ignoring the adverse entry along with other eligible candidates, than its was legally bond to directed the opposites par ties DPC to reconsider the case of the petitioner as on the date it had bye- passed him. According to learned Counsel the direction for consideration in future is er roneous and cannot be sustained in law. The facts of the case are that the petitioner was selected by U. P. Public Ser vice Commission on the post of Sales Tax Officer, currently known as Trade Tax Of ficer and he has been working as such regularly with the opposite parties to their satisfaction. A Departmental Promotion Committee was convened on 7. 6. 96 for holding selection for the next higher post of Assistant Commissioner Trade Tax. How ever, the case of the petitioner was rejected bye-passd for consideration on the ground that two adverse entries existed against him for the years 1990-91 and 1992-93, one of which was a special entry. One adverse entry was awarded to him for al leged use for political pressure for his trans fer and the other was given by the reviewing officer for alleged shortfall in achieving the targets fixed by the department for collec tion of tax. Petitioner had made repre sentations against both the aforesaid ad verse entries and the same were pending undisputedly and remained undisposed at the time the Departmental Promotion Committee met. This fact has not been dis puted by the opposite parties.
(3.) INITIALLY, petitioner preferred a Writ Petition No. 592 (SB) of 1996 before this Court but it was rejected on 30. 7. 96. on the ground of availability of alternative remedy by approaching the U. P. Public Service Tribunal. Petitioner, therefore, filed a Claim Petition No. 1218/96 against the action of the Departmental Promotion Committee along with an application for interim relief. Two more claim petition being Nos. 1221/96 and 1241/96 were also filed challenging both the adverse entries opposite parties in formed the Tribunal that one of the repre sentation preferred by the petitioner was rejected by the opposite parties on 21. 8. 96. In a way it was admitted by the opposite par ties that on the relevant date 7. 6. 96 when the Departmental Promotion Committee had met, representations against both the adverse entries were pending. The learned Tribunal initially directed the opposite par ties to keep one vacancy reserved for the petitioner and consider him in future for promotion, petitioner moved an applica tion for modification of this order. The learned Tribunal passed the interim order dt. 10. 9. 96 directing the opposite parties to consider the case of the petitioner in future ignoring both adverse entries which is under challenge in the present proceedings. Learned Counsel for the petitioner challenges this order mainly on the ground that it is in violation of Rule 5 of U. P. Government Servant (Disposal of Repre sentation Against the Adverse Annual Confidential Reports and Allied Matters Rule, 1995, Rule 5 which reads as follows: "rules 5.-Except as provided in Rule 56 of the Uttar Pradesh Fundamental Rules contained in Financial Handbook Volume-II, Part-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 pur poses of promotion, crossing of efficiency bar and other service matters of the Government Servant concerned. '' Learned Counsel for the petitioner contends that this Rule provides that if the representation against an adverse remark has not been disputed of as provided under these Rules then the said adverse entry can not be treated as adverse for the purpose of promotion, crossing of efficiency bar and other service matters f the concerned Government Servant, but the Departmen tal Promotion Committee inspite of this fact that representations against adverse remarks were pending did not consider the case of the petitioner for promotion, there fore, it acted contrary to the said statutory rules. In these circumstances, it has been strenuously argued by the learned Counsel for the petitioner that the learned Tribunal ought to have directed the Departmental Promotion Committee to consider the case of the petitioner for promotion as on 7. 6. 96. forthwith instead of defering it for future. According to learned Counsel, there is no likelihood of promotion on the post in question for several years and, therefore, petitioner shall suffer irreparable loss if his case is not considered as on 7. 6. 96 bacause he shall remaim superseded illegally for all these years.;