# Prem Chand Jaiswal and others v. State of U.P. and others

- **Citation:** (2005) 3 ILRA 986
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-08-31
- **Case number:** Civil Misc. Writ Petition No. 31041 of 1991
- **Bench:** Shishir Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prem-chand-jaiswal-and-others-v-state-of-u-p-and-others-40529
- **Pages:** 11

## Headnote

Rule 1979 Rule 4 (c)-Regularizationpetitioner initially appointed as junior
clerk-in the year 1974-stood confirmed
on 1.9.79-considering the administrate
exigencies-by order date 5.2.75 the
petitioner alongwith so many others
appointed as Khandsari Inspector on Ad
hoe basis-all those person as well as
juniors to the petitioner regularsiedeven whose integrity were-downfallheld-action of the authorities illegal-in
rejecting the claim of petitioner on the
basis
of
adverse
entries-either
communicated after four, five years-or
time
of
four
yrs
consumed
inconsideration of representation heldentitled to be regularized from the date
on which juniors to the petitioner were
regularized
with
all
consessential
benefits.

Held-Para-15 and 16

It
is
also
not
disputed
by
the
respondents that he persons having bad
service record and whose integrity were
3 All] Prem Chand Jaiswal and others V. State of U.P. and others
987
doubtful have been regularized by the
Selection Committee on 3.12.1987 and
even
it
sis
not
the
case
of
the
respondents that their representation
against
the
adverse
entries
were
pending on the day when they were
considered for regularization.

In such a way, I find that action of the
respondents is illegal and the order
dated 10.10.1991 cannot be sustained in
eye
of
law.
As
the
order
dated
10.10.1991 (Annexure 19 to the writ
petition)
has
been
set
aside,
the
petitioner is entitled for regularization
on the post of Khandsari Inspector at
least immediately on the day when his
immediate
junior
to
the
petitioner
mentioned at Serial No. 19 of the list
dated 5th February, 1975 has been
regularized.
Case law discussed:
1970 (1) Sec-479
1992 (2) Sc-I
1997 (3) UPLBEC-1937
1981 (2) SLR 627
1996 (1) ECC-65
1993 (1) UPLBEC-347
1974 AISLRJ 106
1970 SCC876
AIR 2003 SC-3983
1980 (2) SLR 417

## Text

986 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
following such prescription, such notice
can not be construed as a valid notice.

9. Therefore, what we get from the
above analysis? We get the answer that
either in the law or in the contract or in
the advertisement or in the necessary
document if mode is prescribed, such
mode will be the guiding principle in
determining the issue as regards service.
If the mode is one, one has no other
alternative but to follow the same. If the
mode is more than one then the
alternative mode can be exercised. If one
chooses to apply adopting one mode and
failed to exercise other mode, the
responsibility lies with the sender not with
the addressee because the post office is
the agent only in respect of one mode. In
the instant case, fault might have been
committed by the post office be it agent of
either of the parties or be it a public
service mechanism. But so far as the
Commission is concerned, it is not at fault
whenever more than one mode is
prescribed in the advertisement. Frankly
speaking we are very much sympathetic
to the candidate, who lost the opportunity
of making application, but we are sorry to
say that we can not render any equitable
justice in favour of the petitioner against
the Commission in such circumstances.

Hence, the writ petition stands
dismissed.

However, no order is passed as to
costs.

However, this petitioner is not
prevented from taking action against the
postal authority in connection with
wrongful discharge of public duty, if so
advised.

 Petition dismissed.
---------
ORIGINAL JURISDICATION
CIVIL SIDE
DATED: ALLAHABAD 31.08.2005

BEFORE
THE HON'BLE SHISHIR KUMAR, J.

Civil Misc. Writ Petition No. 31041 of 1991

Prem Chand Jaiswal and others

...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri P.N. Saxena
Sri S.C. Budhwar
Sri R.M. Saggi

Counsel for the Respondents:
C.S.C.

Uttar Pradesh Regularization of Ad hoe
appointments (on the post within the
preview of Public Service Commission)
Rule 1979 Rule 4 (c)-Regularizationpetitioner initially appointed as junior
clerk-in the year 1974-stood confirmed
on 1.9.79-considering the administrate
exigencies-by order date 5.2.75 the
petitioner alongwith so many others
appointed as Khandsari Inspector on Ad
hoe basis-all those person as well as
juniors to the petitioner regularsiedeven whose integrity were-downfallheld-action of the authorities illegal-in
rejecting the claim of petitioner on the
basis
of
adverse
entries-either
communicated after four, five years-or
time
of
four
yrs
consumed
inconsideration of representation heldentitled to be regularized from the date
on which juniors to the petitioner were
regularized
with
all
consessential
benefits.

Held-Para-15 and 16

It
is
also
not
disputed
by
the
respondents that he persons having bad
service record and whose integrity were
3 All] Prem Chand Jaiswal and others V. State of U.P. and others
987
doubtful have been regularized by the
Selection Committee on 3.12.1987 and
even
it
sis
not
the
case
of
the
respondents that their representation
against
the
adverse
entries
were
pending on the day when they were
considered for regularization.

In such a way, I find that action of the
respondents is illegal and the order
dated 10.10.1991 cannot be sustained in
eye
of
law.
As
the
order
dated
10.10.1991 (Annexure 19 to the writ
petition)
has
been
set
aside,
the
petitioner is entitled for regularization
on the post of Khandsari Inspector at
least immediately on the day when his
immediate
junior
to
the
petitioner
mentioned at Serial No. 19 of the list
dated 5th February, 1975 has been
regularized.
Case law discussed:
1970 (1) Sec-479
1992 (2) Sc-I
1997 (3) UPLBEC-1937
1981 (2) SLR 627
1996 (1) ECC-65
1993 (1) UPLBEC-347
1974 AISLRJ 106
1970 SCC876
AIR 2003 SC-3983
1980 (2) SLR 417

(Delivered by Hon'ble Shishir Kumar. J.)

1. The present writ petition has been
filed for issuing a writ of certiorari
quashing the order dated 10.10.1991
(Annexure 19 to the writ petition) passed
by the respondent No. 2 and issuing a writ
in the nature of mandamus directing the
respondents not to interfere with the
functioning of the petitioner as Khandsari
Inspector and to regularize the services of
the petitioner.

2. The fact arising out of the present
writ petition is that the petitioner was
initially appointed as junior Clerk in the
sugar Department of the State of U.P. in
the month of November, 1974 The
petitioner was confirmed on 1.9.1979 vide
order dated 15.91987 As the various posts
of Khandsari Inspectors were lying vacant
and the same were to be filled after
selection
by
the
public
service
Commission, the petitioner along with
number of other persons were appointed
as
Khandsari
Inspectors
by
direct
recruitment on ad hoc basis wide its
appointment letter dated 5.2.1975. The
appointment of the petitioner on the said
post was to continue till regular selection
is make by the Commission. The
petitioner
has
field
the
order
of
appointment dated 5.2.1975 as Annexure
I to the writ petition and the name of the
petitioners appears at Serial No. 18. The
post on basis was admittedly vacant and
no
selection
was
made
by
the
Commission, therefore the petitioner as
well as various other persons were
permitted to continue on ad hoc basis. The
State Government in exercise of powers
conferred under Article 309 to the
Constitution of India took a policy
decision for regularization of ad hoc
appointees (on the post within the preview
of Public Service Commission) without
approval from the Commission and a Rule
was framed called as " Uttar Pradesh
Regularization of Ad hoc Appointment
(on the post within the preview of Public
Service
Commission
Rules,
1979
published on 14.9.1979. These rules
provided that all the ad hoc appointees on
before 1.1.1977 who possesses
the
requisite qualification on the date of ad
hoc appointment and has completed three
years of continuous service be regularized
in permanent or temporary vacancies as
may be available on the basis of service
record and suitability, meaning thereby
that all ad hoc appointees were to be
988 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
regularized subject to rejection of unfit,
Relevant Rules is
4(1) The same is being reproduced
below:-
"4(1). Any person who -
(i)
 was directly appointed on ad hoc
basis before January 1.1977 and is
continuing in service, as such , on
date of commencement of these
rules:-
(ii)
possessed requisite qualification
prescribed for regular appointment
at the time of such ad hoc
appointment; and
(iii) has completed or, as the case may
be, after he has completed three
years continuous service.

Shall
be
considered
for
regular
appointment in permanent or temporary
vacancy as may be available on the basis
of his record and suitability before any
regular appointment is made in such
vacancy in accordance with the relevant
service rules or orders. ''

3. It has also been stated by the
petitioner that the suitability on the basis
of service record was to be seen by the
Selection Commission constituted by
appointing authority as provided under
Rules 4and 5 of the said Rules ant the
select list was to be prepared in order of
seniority. Rule 7 (1) provides that person
appointed under these rules shall be
entitled to seniority only from the date pf
appointment after selection and were to be
placed below the persons appointed
through regular selection before the
appointment of such persons and rules 8
provides that the services of a person,
who is not suitable, shall be terminated.
The entire scheme under the rule shows
that exercise for selection had to be taken
just after framing the rules in 1979
because according to rule 7 (1) the
seniority was to be fixed from the date of
appointment after selection and they were
to be placed below the persons appointed
through a regular selection before the
appointment of said persons ant the
selection were to be made from available
permanent or temporary vacancies on the
basis of service record. In the year 1979,
immediately after publication of the
aforesaid
Regularization
Rule,
the
petitioner had completed more than four
years
since
the
petitioner
was
appointment on a permanent vacant post
an the post was available. The petitioner
was having unblemished service record
and is entitled for regularization on a
permanent post of Khandsari Inspector
and on 5.7.1982, the petitioner was
communicated an adverse entry for the
1977-78
the
petitioner
filed
a
representation on 1.10.1982 the adverse
entry representation as well as the
rejection has filed as Annexure 5, 6 and 7
to the writ petition. It appears that in the
meantime the selection committee has
considered the case for regularization and
has published a list of selected candidates
for regularization on 31.12.1987. 47
persons were selection of which four
people from serial that No.44to 47 were
juniors to the petitioner. It is submitted
that the persons selected at Serial No. 1
Sri
Gyan
Prakash
Ahluwalia
was
ultimately awarded the punishment of
permanently with-holding five annual
increments and his integrity was note as
doubtful. The said integrity against the
aforesaid person is dated 16.11.1986. Sri
Ahluwalia has been selected while the
petitioner has not been shown in the select
list. One Sri Pawan Kumar Jain, his
integrity was also being noted as doubtful
yet he has been selected and has placed at
Serial No. 4 of the select lust, which has
3 All] Prem Chand Jaiswal and others V. State of U.P. and others
989
been filed as Annexure 2 to the writ
petition. The second select list was
published on 16.6.1989, In the aforesaid
list, one Sri B.D. Pandey was shown at
Serial No. 1 and Sri Chhabi Lal at Serial
No. 4 and the entries of both these
persons have been marked as doubtful.
The petitioner specifically submitted that
a specific averment has been made in the
writ petition regarding the aforesaid fact.

4. The second entry against the
petitioner is censure entry communicated
to
the
petitioner
vide
letter
dated
15.10.1981 with regard to two years i.e.
1979-80 and 1980-81. Against this, the
petitioner has submitted representation on
7.1.1982,
which
was
rejected
on
30.7.1991 after expiry of more than nine
years. The other adverse entry was
communicated to the petitioner vide letter
dated 31.5.1985, which did not disclose
the year for which this entry has been
made. The entry itself was vague.
However, this entry was recorded for the
year 1981-82. The representation dated
1.11.1985 filed by the petitioner kept
pending and was rejected on 4.6.1992.
The
fourth
adverse
entry
was
communicated vide letter dated 16.4.1990
(Annexure 15 to the writ petition) for the
year 1985-86. This entry was based on
some audit report for which the petitioner
was not giver any opportunity. The
petitioner
filed
a
representation
on
22.6.1990,
which
was
rejected
on
12.8.1992.

5. It has been submitted on behalf of
the petitioner that the petitioner was
allowed to cross the efficiency bar with
effect from 1.4.1987 and when the order
dater10.10.1991 was passed the petitioner
approached this Court and this court was
pleased to grant time to the learned
Standing counsel to file counter affidavit
and he operation of the order dated
10.10.991 was stayed. Petitioner submits
that he petitioner is still working on he
post of Khandsari Inspector on the basis
of the interim order passed by this Court.

6. The contention on behalf of the
petitioner is that the regularization Rules
came in the year 1979 and at that time
various permanent posts were vacant and
the petitioner and other persons were
appointed on ad hoc basis till regular
selection was made by the Commission.
As the petitioner has completed more than
four years of service and there was no
adverse entry in the service record of the
petitioner as Rule 7 (1) provides that
persons regularized after selection shall
be entitled to seniority from the date of
appointment after selection,. It appears
that the selection was made sometime in
the year 1987 and the select list was
published on 31.12.1987.When there was
one
adverse
entry
(warning)
communicated
to
the
petitioner
on
5.7.1982 for the year 1977-78 already
another adverse entry was communicated
to petitioner on 15.10.1981 against which
the petitioner has already submitted a
representation, which was pending. Since
the petitioner had been permitted to cross
the efficiency bar with effect form
1.4.1987 the adverse entry for the year
1977-78 is to be washed up and second
entry communicated to to petitioner of
15.10.1981, the representation of the
petitioner was pending, as such, the same
cannot be taken into consideration by the
Selection Committee in 1987.

7. The petitioner has placer reliance
upon a judgment in The State of Punjab
Vs. Dee wan Chunnel Lal and others
report in 1970 (1) SCC Page-479 and has
990 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
placed reliance upon Paras 10 and 14 of
the said judgment. The same is being
reproduced below:-
''10. It was urged before us that the
crossing of the deficiency bar must be
regarded as giving him a clean bill up to
that date and in view of this the reports of
1941 and 1942 should not have been
taken into consideration against him."

''14. In our view reports earlier than
1942 should not have been considered at
all in as he was allowed to cross the
efficiency bar in that year. It is
unthinkable that if the authorities took
any serious view of the charge of
dishonesty and inefficiency contained in
the confidential reports of 1941 and 1942
they could have overlooked the same and
recommended the case of the officer as
one fit for crossing the deficiency bar in
1944. It will be noted that there was no
specific complaint in either of the two
years and at best there was only room for
suspicion regarding his behavior.''

8. The another judgment relied by
the petitioner is in Shri Baikuntha Nath
Das and another Vs. Chief Distic
Midecal Officer, Baripada and another,
reported in Judgment Today 1992(2) S.C.
Page 1,and has placed reliance upon Paras
32 and 34 of the said judgment.
''32. We may not be understood as
saying either that adverse remarks
need not be communicated or that
the
representations.
It
any,
submitted
by
the
government
servant (against such remarks) need
not be considered or disposed of.
The adverse remarks ought to be
communicated
in
the
normal
course, as required by the Rules
orders
in
that
behalf.
Any
representations made against them
would and should also be dealt with
in
the
normal
course,
with
reasonable promptitude. All that we
are saying is that the action under
F.R.56
(j)
(or
the
Rule
corresponding to it) need not await
the disposal or final disposal of
such
representation
or
representations, as the case may be.
In some cases, if may happen that
some adverse remarks of the recent
years are not communicated or if
communicated, the representation
received in that behalf are pending
consideration. On this account
alone. The action under F.R56 (j)
need not be held back. There is no
reason to presume that the Review
committee or the government, if
chooses to take into consideration
such
excommunicated
remarks,
would
not
be
conscious
or
cognizant of the fact that are but
communicated to the government
servant and that he was not given
an opportunity to explain or rebut
the
same.
Similarly,
if
any
representation
made
by
the
government servant so there, it
shall
also
be
taken
into
consideration. We may reiterate
that not only the Review Committee
is generally composed of high and
responsible officers. It is unlikely
that adverse remarks over a number
of years remain excommunicated
and yet they are made the primary
basis of action. Such an unlikely
situation it indeed present, may be
indicative of malice in-law. We may
mention in this connection that the
remedy provided by Article 226 of
the Constitution is no less an
important safeguard. Even with its
well-known constraints the remedy
3 All] Prem Chand Jaiswal and others V. State of U.P. and others
991
is
an
effective
check
against
malafide perverse or arbitrary
action."
"34. The following principles emerge
form the above discussions:
(i)
An order of compulsory retirement
is not a punishment. It implies no
stigma
or
suggestion
of
misbehavior.
(ii)
The order has to be passed by the
government on forming the opinion
that it sis in the public interest to
retire
a
government
servant
compulsorily. The order is passed
on the subjective satisfaction of the
government.
(iii) Principles of natural justice have no
place in the context of an order of
compulsory retirement. This does
not mean that judicial scrutiny is
excluded altogether. While the High
court or this court would to examine
the matter as an appellate court hey
may interfere if they are satisfied
that the order is p[assed (a)
malafide or (b) that it is based on no
evidence or (c) that it is arbitrary-in
the sense that no reasonable person
would form the requisite opinion on
the given material: in short if it is
found to be a perverse order.
(iv) The government (or the Review
committee, as the case may be)
shall have to consider the entire
record of serve before taking
decision in he matter of course
attaching more importance to record
of and performance during the later
years.
The
record
to
be
so
considered would naturally include
the entries in the confidential
records
character
rolls,
both
favorable
and
adverse,
If
a
government servant sis promoted to
a higher post not with standing the
adverse remarks such remarks lose
their sting more so it the promotion
is based upon merit (Selection) and
not upon seniority.
(v)
An order of compulsory retirement
is not liable to be quashed by a
court merely on the showing that
while passing it uncommunicated
adverse remarks were also taken
into
consideration.
That
circumstance by itself cannot be a
basis for interference. Interference
is permissible only on the grounds
mentioned in (iii) above. This
aspect has been discussed in paras
30 to 32 above."

9. The Supreme Court has held that
if
adverse
remark
is
remained
uncommunicated over a number of years,
it may be indicating of malice in law.
Petitioner has submitted that if a person
has been allowed to cross efficiency bar,
adverse entries in the service record of
that person for the years prior to crossing
efficiency bar shall stand washed out and
ceased to have effect and shall not be
taken into consideration by the Selection
Committee
to
deny
the
right
of
regularization of service. The further
reliance has been placed by the Counsel
for the petitioner in Ved Prakash Joshi
Vs. State of U.P. and others reported in
(1997) 3 UPLBEC, Page and in Sri Hira
Nand Vs. State of Himachal Pradesh
and others, reported in 1981 (2) SLR
Page-627.

10. The petitioner submits that order
of the respondents is also violative to
Article 14 as the petitioner has been
discriminated as one Parasnath Tewari
was denied promotion and his juniors has
been promoted because of successive
adverse entries in his record but as Sri
992 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
Parasnath Tewari had been allowed to
cross the efficiency bar, the U.P. Public
Service Tribunal allowed the claim
petition of Sri Paras Nath Tewari for
promotion on the ground that adverse
entries prior to crossing efficiency bas
have been washed out. Sri Paras Nath
Tewari as been regularized in spite of
successive adverse entries in this service
record on the post of Khandsari Inspector
and his name appears at Serial No.8 in the
first list that has been filed as Annexure 2
to the writ petition. But the petitioner in
spite of the aforesaid fact, has not been
selected and promoted. The further
submission made on behalf of the
petitioner
cannot
be
taken
into
consideration
as
in
view
of
the
Government
Order
dated
31.3.1997,
provides that the adverse entry shall be
communicated to a person concerned
within six weeks or recording entry and
the employee concerned was required ot
submit his representation within six
weeks
thereafter
of
receipt
of
communication
and
the
authority
concerned
was
to
decide
the
representation within three months from
the date of receipt. The State Government
has framed Rules regarding adverse
annual confidential reports and disposal
of representations know as "The U.P.
Government
Servants"
(Disposal
of
Representation against Adverse Annual
confidential Reports and Allied Matters)
Rules, 1995, which provided that adverse
report shall be communicated to the
employee within 45 days of its reporting
and within 45 days, the aggrieved person
may
filled
a
representation.
The
appropriate authority concerned, who has
recorded the adverse report was to submit
his comments to the competent authority
within 45 days and the competent
authority is required to decide the
representation within120 days thereafter.

11. It has further been argued on
behalf of the petitioner that for the
purposes of compulsory retirement under
fundamental rules 56, the screening
committee has to examine the service
record of the employee concerned and the
court has help that for the purposes of
compulsory retirement an entry against
which a representation is pending the said
adverse entry is to be excluded from
consideration.

12. The reliance has been place upon
a judgment in Narendra Singh vs. State
of U.P. and others reported in 1993 (1)
UPLBEC, page 347, and in Nand Lal vs.
State of U.P. and others reported in
1996(1) ECC, 65 [Allahabad]. It has
further been submitted on behalf of the
petitioner that a specific allegation in
paras 12 and 13 has been made regarding
the stoppage of five annual increment and
regarding with holding the increment o0f
Gyan Prakash Ahluwalia and similarly
Pawan Jain and regarding regularization
of one B.D. Panday and Chabilal. Who
are at serial Nos. 1and 5 respectively were
regularized. Thought their integrity are
withheld earlier The allegation to this
effect in the said paragraph has not been
controverter by the respondents in the
counter affidavit. In such a way, the
petitioner submit the adverse entries
communicated after a lapse a of few years
are
not
in
accordance
with
the
Government Order and Rules. The entries
before crossing the efficiency bar cannot
be taken into consideration and the
representation, which was pending the
said entry cannot be taken into was
pending the said entry cannot be into
consideration. The submission of the
3 All] Prem Chand Jaiswal and others V. State of U.P. and others
993
petitioner is that it is not the number of
adverse entries, Which matter but it is the
gravity of the adverse enter In the case of
the petitioner, entries are of general in
nature and at the time of consideration by
the selection committee the same was
washed off crossing of efficiency bar. The
Representation
of
the
petition
was
pending which was decided after 1990 but
the petitioner was have been awarded
punishment and persons whose integrity
have been recorded as doubtful has
selected for regularization way back in
1987 and 1987 but the services of the
petitioner has been terminated on the
ground that he has not been selected by
two Selection Committees. Petitioner
submits that the aforesaid Act of the
Selection Committee is wholly illegal,
arbitrary and volatile to Articles 14 and
16 of the Constitution of India

13. On the other hand the learned
Standing
Counsel
submits
that
the
petitioner was suspended and the adverse
entries have also been awarded against the
petitioner for the years 1977-78, 197879,1979-80, 1980-81 and 1981-82 and for
the year 1987-88 special adverse entries
have been entered in his character roll, as
such the petitioner services have been
terminated
on
10.10.1991.
The
representation of the petitioner has also
been rejected and that has not been
challenged, therefore, that has become
final. The respondents have submitted that
the adverse sentries for the year 1977-78,
which was recorded on 5.7.1982 and
informed to the petitioner on the same day
will not be treated as time barred. It has
been submitted that as soon as the entry
was recorded, it was informed to the
petitioner and as the petitioner has already
submitted the representation, the same
was considered and rejected, therefore,
the petitioner cannot claim that there was
no
adverse
entry
and
taking
into
consideration the adverse entry by the
Selection
committee,
the
Selection
Committee has committed an illegality.
The reliance has been placed by the
respondents in judgment reported in 1974
in All India Service Law Journal page106 Sri Kant Chand Jain Vs. State of
U.P. and has submitted that in view of the
aforesaid judgment, the contention that
adverse entry has to be communicated.
There is no statutory rules and it is
difficult to accept the right proposition the
adverse entry which is not communicated
may nerve be taking into consideration.
The further reliance has been placed by to
respondents in case of R.L. Butail Vs.
Union of India and others reported in
1970 Supreme Court SCC Page- 876, and
has
submitted
that
rules
regarding
preparation
ad
maintenance
of
confidential
rules
or
by
way
of
departmental, are neither statutory rules
nor rules made under Article 309 of the
Constitution of India. As the petitioner
right form 1977 to 1987 continuously
awarded entries as such, his case has been
rejected,. It has further been submitted
that if certain junior persons have been
given promotion or confirmed that will
not give any right to the petitioner.
Reliance has been placed in Union of
India and another Vs. International
Trading Company and another reported
in A.I.R. 2003 Supreme Court, Page-
3983. The further submission of the
respondents is that similar controversy
has been raised and decided by the Full
Bench decision of the Oirssa High Court
in Ramesh Prased Mahapatra Vs. State
of Orissa and others reported in 1980 (2)
SLR Page 417. As the petitioner was not
found suitable in view of the adverse
994 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
entries awarded against the petitioner, as
such his services have been terminated.

14. I have heard learned counsel for
the petitioner and learned Standing
Counsel and have perused the record.

15. The petitioner was given
appointment as a junior clerk in he year
1974 and was promoted on the post of
Khandsair Inspector on ad doc basis on
5.2.1975. The name of the petitioner is in
the list at serial No. 18, which the
regularization
Rules
of
1979
was
published on 14.5.1979, the petitioner was
completed three years of ad hoc service
on the post of Khandsair Inspector. As
regards, the adverse entries for the year
1977-78 ad the representation of the
petitioner is of 1.101982. According to
the Government Order, the adverse of sex
weeks. Admittedly, the same has been
communicated to the petitioner after lapse
of about four years and the representation
of the petitioner was rejected in the year
1987 after a lapse of five years, which is a
clear violation of the government order,
which has been issued on 31.3.1977. That
U.P.
Government has framed rules
regarding disposal ad communication of
the adverse entry against an employee. In
the present case, admittedly, the adverse
entries against the petitioner have not
been communicated as provided under the
government order and rules. Admittedly,
the petitioner has cross the efficiency bar
on 1.4.1987, therefore, in view of the
judgments cited above, all the adverse
entries before 1.4.1987 will be treated to
be washed out. The respondents have also
not denied the allegations made in Paras
12 and 13 of the writ petition, which
clearly states that the persons, who have
been awarded adverse entries and their
integrity was also withheld vide its order
dated 16.11.1986, has been regularized an
his name is at serial No. 1 of the list dated
31.12.1987. The case of Pawan Kumar
Jain,. Who is at Serial No.4 of the said
list, his integrity is also withheld on
16.11.1986 but both the persons were
regularized by the Selection Committee. It
has also come form the record that one Sri
Dhoom Singh, who is admittedly, junior
to the petitioner in the list of ad hoc
promotion dated 5.2.1975 have been
regularized. Similarly,. One Paras Nath
Tewari, who is at Serial No. 8 of the
select l8ist of Regularization dated 31st
December, 1987, has been given benefit
on the basis of the judgment passed by the
Tribunal only on the ground that Sri Paras
Nath Tewari was permitted to cross the
efficiency bar therefore, the earlier
adverse entries awarded against Sri Paras
Nath was treaded to be washed out. The
said judgment of the Tribunal has become
final and Sri Paras Nath Tewari has been
regularized on the post of Khandsair
Inspector. The court has also considered
the judgment of Ved Prakash Joshi and
Sri Hira Lal (Supra). The Court has taken
a view that if a person has been allowed
to cross efficiency bar, the averse entries
in the service record of that person was
prior to crossing efficiency bar shall be
treated to be washed out and shall ceased
to effect an shall not be taken into
consideration by the Selection Committee
to deny the right of regularization of his
service. The court has also perused the
adverse entries, which has been awarded
against the petitioner. It clearly goes to
show that the same has been given to the
petitioner only to deprive the petikti0ner
form regularization on the post of
Khandsair Inspector. If the working of an
employee is not up to the mark for a
particular yea, the immediate authority
has to record the performance of that
3 All] Prem Chand Jaiswal and others V. State of U.P. and others
995
particular employee within a reasonable
time in the service record of the person
concerned and it there is provision that in
case of communication of the adverse
entry to an employee has right to make
representation to the competent authority
to satisfy the authority that the adverse
entry, which has bee awarded that is to
correct and if that authority is satisfied the
same can be washed out. But in the
present case, the adverse entries of 197778 has been communicated to the
petitioner in the year 1982 after a lapse of
four years and the representation of the
petitioners has been rejected after a lapse
of five years on 26.11.1987. Only about
one moth before of the consideration of
various employees similarly situated to
the petitioner, for the purposes of
regularization by the Selection Committee
according to Regularization Rules. The
said action of the respondents appears to
be intentional and malafide from the
perusal of the list dated 31.12.1987 of the
selected candidate for regularization, 47
persons were selected and admittedly
persons mentioned at serial numbers 44 to
47 were junior to the petitioner and
certain persons have been regularized in
spite of the fact that their integrity were
doubtful and that was not expunged on
the date when the Selection Committee
was constituted for consideration of the
cases of those persons. Further it is noted
that censure entry, which was given to the
petitioner with regard to the years 1997980 and 1980-81 was communicated on
15.10.1981 and the representation which
was filed by the petitioner on 7.1.1982
was rejected on 30.7.1991, therefore, in
view of the various judgments of the
Court and the Apex Court, the said censor
entry for the years 1979-80 and 1980-81
cannot be take into consideration as on
the date when the Selection Committee
was considering the cases of various
employees, the representation of the
petitioner was pending,. The adverse
entry dated 31.5.1985 does not disclose
the adverse entry of any year, The
representation
dated
1.11.1985
was
rejected on 4.6.1992 meaning thereby the
said adverse entry should not have been
taken into consideration at the time of
consideration on 31st December,1987. The
adverse entry for the year 1985-86 was
communicated
to
the
petitioner
on
16.4.1990, therefore, in my view, in of the
Government Order, the same should not
be treated to be a adverse entry, which has
been communicated after four years.
From the record, it sis also clear that on
the day when the selection Committee has
considered
the
other
persons
for
regularization according to Rules, there
was nothing against he petitioner as the
petitioner as the petitioner was permitted
to cross the efficiency bar. In case of
State of Punjab Vs. Dewan Chunni Lal,
the Apex Court has held that crossing of
the efficiency bar must be recorded as
giving him a clean chip up to that date
and the same should not be taken into
consideration against him. In case of
Baikunth Nath (Supra) the Apex Court
has observed "It is unlikely that adverse
remarks over a number of years remain
uncommunicated a yet they are made
primary basis of action. Such an unlikely
situation. It needed present may be
indicative of malice in law" It is also not
disputed by the respondents that he
persons having bad service record and
whose integrity were doubtful have been
regularized by the Selection Committee
on 3.12.1987 and even it sis not the case
of
the
respondents
that
their
representation against the adverse entries
were pending on the day when they were
considered for regularization.
996 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
16. In such a way, I find that action
of the respondents is illegal and the order
dated 10.10.1991 cannot be sustained in
eye of law. As the order dated 10.10.1991
(Annexure 19 to the writ petition) has
been set aside, the petitioner is entitled for
regularization on the post of Khandsair
Inspector at least immediately on the day
when his immediate junior to the
petitioner mentioned at Serial No. 19 of
the list dated 5th February, 1975 has been
regularized. It is also to be noted that this
Court vide order dated 28.10.1991 was
pleased
to
stay
the
order
dated
10.10.1991. The petitioner is working on
the basis of the interim order on the post
of Khandsair Inspector.

17. As the order dated 10.101991
has been quashed, the respondent No.2 is
directed
to
pass
appropriate
orders
regarding regularization of the petition on
the post of Khandsair Inspector form 31st
December, 1987 when the junior persons
of he petitioner have been regularized by
the Selection Committee. It is also made
clear that the petitioner swill be entitled
for all the consequential promotional
benefits for which the petitioner is entitled
according to law.

18. The writ petition is allowed.
There shall be no order as to costs.

Petition Allowed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.10.2005

BEFORE
THE HON'BLE MRS. POONAM
SRIVASTAVA, J.

Criminal Misc. Application No.14442 of
2005

Rajpal and another

...Applicants
Versus
State of U.P. & another...Opposite Parties

Counsel for the Applicants:
Sri Raghuraj Kishore.

Counsel for the Opposite Parties:
A.G.A.

Code
of
Criminal
Procedure
S-482Compromise Application-offence under
section
307/506.IPC-if
prosecution
version accepted maximum conviction
under 324 IPC can be given-which is a
compoundable
offence-concerned
session
Judge
directed
to
grant
permission
and
to
accept
the
compromise.

Held-Para-6

In view of various decisions, I find that
especially in the facts of the present
case, injuries are not such which could
constitute offences under Section 307
I.P.C. In the circumstances, if the
prosecution version is accepted, the
conviction would end only one under
Section
324
I.P.C.,
which
is
compoundable with the permission of
the court. In view of the facts and
circumstances of the present case, I
dispose
of
this
application
with
a
direction to the concerned court to grant
permission and accept the compromise
in Sessions Trial No. 1105 of 1999 State
vs. Rajpal and another (supra), and pass
a fresh order in confirmation of the
guidelines
given
above.