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Sajjan Singh v. Secy. Gramya Vikas U.P. Lucknow & Others - WRIT - A No. 7165 of 2002  RD-AH 2917 (15 September 2005)
Civil Misc. Writ Petition No.7165 of 2002
State of U.P. and others........................................Respondents.
Heard Sri S.N.Dubey, the learned counsel for the petitioner and the learned Standing Counsel for the respondents.
The petitioner was awarded an adverse entry in the year 1989-90 as well as in the year 1991-92 and a show cause notice was issued to the petitioner on 12.5.1995, against which the petitioner made a representation on 2.6.1995 for expunging the aforesaid entries. The representation of the petitioner remained pending and consequently he approached this Court by filing a Writ Petition No.16529 of 2001 which was disposed of by an order dated 2.5.2001 directing the respondents to decide the representation. The representation against the adverse entry was rejected by an order dated 3.7.2001.
On account of the adverse entry, the petitioner was not given the promotion to the post of a Senior Clerk. The petitioner has filed the present writ petition praying that in view of the fact that the representation of the petitioner against the adverse entry was not decided within 120 days, such adverse entry could not be taken into consideration while rejecting the claim of the petitioner for being promoted to the next higher grade. In this regard the petitioner has placed reliance on Rule 5 of the U.P. Government Servants (Disposal of Representation against Adverse Annual Confidential Reports and allied matters) Rules, 1995. Rule 5 of the said Rules is quoted herein under:-
"(5) Except as provided in rule 56 of the Utttar 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 purposes of promotion, crossing of Efficiency Bar and other service matters of the Government Servant concerned."
From the perusal of the aforesaid, it is clear that where a representation against the adverse report has not been disposed of in accordance with Rule 4 of the aforesaid Rules, such report could not be treated adverse for the purpose of promotion or crossing the efficiency bar, etc. This fact has been stated by the petitioner in paragraph 16 of the writ petition which has not been denied by the respondents in the counter affidavit. The respondents have admitted in their counter affidavit that on account of an adverse entry, the petitioner was not considered for the promotion. Admittedly, the representation of the petitioner was filed in the year 1995 which was eventually decided in the year 2001. Consequently, the said entry could not be taken consideration while considering the promotion of the petitioner. Consequently, the petitioner is entitled for the relief.
The writ petition is allowed and a mandamus is issued to the respondents to consider the case of the petitioner for being promoted to the post of a Senior Clerk with effect from the date when the juniors to the petitioner were promoted without taking into consideration the adverse entry. The order shall be passed by the respondents within three months from the date of production of a certified copy of this order before the authority concerned. In the event, the petitioner is promoted, he shall be paid all the consequential benefits within one month thereafter.
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