# State of U.P and another v. Narendra Singh

- **Citation:** (2010) 2 ILRA 787
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-12-04
- **Case number:** Writ Petition No. 134 (S/B) of 2002
- **Bench:** Uma Nath Singh, Devendra Kumar Arora
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-and-another-v-narendra-singh-41696
- **Pages:** 12

## Text

2 All] State of U.P. and another V. Narendra Singh
787
circulation in Uttar Pradesh, in addition to
notifying the same on the notice board of
the institution. Thus, it is by judicial
interpretation, in order to meet the test of
Article 16 of the Constitution of India, the
requirement was put for advertising the
vacancy
in
two
newspapers
having
circulation in the State. If at the relevant
time the Management had followed the
procedure for advertising a temporary
vacancy, in the absence of a challenge to
that procedure, that procedure cannot be
faulted.

14. Considering these aspects of the
matter, we are clearly of the opinion that
under the Act 1921 and/or Amendment Act
1975, and/or various Orders passed to
remove the difficulties, there was no
requirement that the vacancy should be
notified by publication in two newspapers.
Nothing has been placed before us by the
State showing the manner and the
conditions of appointment prescribed for
filling in the temporary vacancies other than
that followed by the Management. The
Management, as is apparent from the facts
on record, had advertised the post in
question. In our opinion, therefore, it cannot
be said that the procedure for appointment
on temporary vacancy/short-term vacancy
was without authority of law.

15. Accordingly, the impugned order
of
the
learned
Single
Judge
dated
04.12.2009 in Writ Petition No. 39090 of
2007, insofar as it relates to the appellant, is
set aside. Consequently, rule made absolute
in the following terms:-

"The order dated 27.07.2007 is
quashed insofar as the appellant herein,
petitioner no.1 in Writ Petition No. 39090
of
2007,
is
concerned.
The
State
respondents are directed to pay the appellant
the arrears of past salary and continue to
pay him salary till the time he continues to
occupy the post."
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.07.2010

BEFORE
THE HON'BLE UMA NATH SINGH, J.
THE HON'BLE DEVENDRA KUMAR ARORA, J.

Writ Petition No. 134 (S/B) of 2002

State of U.P and another
 ...Petitioner
Versus
Narendra Singh

 ...Respondents

U.P.
Govt.
Servant(Disposal
of
Representation
against
the
Annual
Confidential Reports of Allied matters)
Rules 1995 Rule-5-Delay in disposal of
Representation against adverse entryshall be deem no disqualification for
consideration crossing efficiency bar
and other service matter-service tribunal
committed no illegality by quashing the
order-passed beyond statuary periodpetition dismissed-without considering
individual case of employees.

Held Para 26

Accordingly, all the writ petitions are
hereby dismissed with the observation
that
in
the
cases
where
the
representation against the adverse entry
has not been disposed of in accordance
with provisions of Rule 4 of U.P.
Government
Servants
(Disposal
of
Representation
against
Annual
Confidential Reports and allied Matters)
Rule, 1995, such report shall not be
treated as adverse for the purposes of
promotion, crossing of efficiency bar and
other service matters of the government
servant concerned as per the mandate of
Rule 5 of Rules, 1995.
Case Law Discussed:
AIR 1954 SC 322, AIR 1961 SC 1527, (1999)3
SCC 422, (1959) 359 US 535: 3 L Ed 2d 1012,
788 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

(1975) 3 SCR 82, (1975) 3 SCR 619, 540-542
(1989 Reprint)

(Delivered by Hon'ble 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.

3. 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.

4. 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
2 All] State of U.P. and another V. Narendra Singh
789
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
2 All] State of U.P. and another V. Narendra Singh
791
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."

5. After coming into force of the
Rules, 1995, a number of employees
challenged their adverse reports before
the Tribunal on the ground that the
representations against the same had
either not at all been disposed of or not
been disposed of within the time schedule
provided in Rule 4 of Rules, 1995. The
learned Tribunal without entering into
merits of the case, merely on the ground
that the representation against Annual
Confidential
Reports
had
not
been
disposed of within the time schedule
mentioned in Rules, 1995, passed orders
for treating the adverse confidential
reports as not adverse for the purpose of
promotion, crossing of efficiency bar and
other service matters.

6. Learned Additional Chief Standing
Counsel also submitted that Rule 4 lays
down the procedure for considering and
deciding the representation made by a
government servant against the Annual
Confidential Reports in which the time
prescribed with respect to various stages in
the procedure is not mandatory but is only
directory. Learned counsel further argued
that delay in disposal of representation, as
long as representation is not disposed of,
cannot be construed to mean that the
adverse material gets wiped off altogether
from the service record of the government
servant concerned. Further, the benefit of
Rule
5
inasmuch
as
the
Annual
Confidential Reports would not be treated
as adverse for the purpose of promotion,
crossing of efficiency bar and other service
matters of a government servant only upto
a point of time till the representation is not
decided and not beyond that. Once
representation has been decided by the
competent authority after adopting the
substantive procedure as laid down in Rule
4, it gives a fresh cause of action and such
an order disposing of the representation in
judicial review has to be tested on its own
strength independent of the delay.

Rule 5 comes into play in two
contingencies only:

(I)Where the adverse report has not
been communicated (a provision thereof is
made in Rule 4 (1))

(II)Where a representation against the
adverse entry has not been disposed of in
accordance with Rule 4.

It is only these two contingencies that
the report is not to be treated as adverse for
the purpose of promotion, crossing of
efficiency bar and other service matters.
Had it been the intention of the legislature
to give the benefit where the representation
has been disposed of though beyond the
prescribed time schedule, it would have
792 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

been specifically provided for such third
contingency in Rule 5 but the same is not
so.

7. Further submission of learned
counsel appearing on behalf of the State is
that mere delay of couple of days to a few
months or even more cannot be used by the
incumbent to his advantage. The effect of
such interpretation would actually mean
that an incumbent himself may indulge in
causing hindrance and ultimately reap the
benefit of his disposal of representation by
a delay of a day or two. Consequently, a
provision is to be construed in such a
manner so as to make it workable and
effective and with intent, not to defeat the
purpose of incorporation of the Rules,
1995. From the point of time of disposal of
representation onwards where the schedule
expires up till the time of decision,
Government Servant cannot be given the
benefit of Rule 5 beyond the date of
disposal of representation.

Another
submission
of
learned
counsel for State is that the time schedule
provided for in Rule 4 is only directory and
not mandatory and for proving home this
point, he referred to Order VIII Rule 1
C.P.C. which in sum and substance
provides that -

"the defendant shall on or before first
hearing or within such time as the court
may fix, which shall not be beyond 30
days from the date of service of summons
on the defendant, present a written
submission of his defence."

8. It is further submitted that in the
provision though a negative language has
been used yet in number of judgments
Hon'ble the Supreme Court interpreted it to
conclude that despite use of negative "shall
not be beyond 30 days" has held that it is
not mandatory in character but it is only
directory in nature.

A perusal of sub-rule (4) of Rule 4
would reveal that it does not make use of
any negative language nor does it limit the
period of 120 days by use of any such
words like 'not exceeding' etc. while
clothing the competent authority to dispose
of representation.

As such, where representation has
been disposed of though beyond the time
frame yet from that point onwards the
government servant cannot be any longer
held entitled to benefit of Rule 5. Moreso,
since such disposal of representation gives
a fresh cause of action quite capable to
standing on its own legs in judicial scrutiny
since it is a speaking order having been
passed
after
due
deliberation
and
consideration of all aspects in consonance
with principles of natural justice provided
for as safeguards as substantive provision
in Rule 4 of the Rules, 1995.

9.

We
have
considered
the
submission of learned counsel for the
petitioners and gone through the record of
writ petitions.

A century ago in Taylor vs. Taylor
(1875) 1 Ch D 426 Jessel Mr. Adopted the
rule that "where a power is given to do a
certain thing in a certain way, the thing
must be done in that way or not at all and
that the other methods of performance are
necessarily forbidden". The rule was
followed by Privy Council in Nazir Ahmad
vs. King Emperor (Lord Roche) AIR 1936
Privy Council 253 (2), para-18 of the same
reads as under:-
2 All] State of U.P. and another V. Narendra Singh
793

"18......... The rule which applies is a
different and not less well recognised rule,
namely, that where a power is given to do
a certain thing in a certain way the thing
must be done in that way or not at all.
Other
methods
of
performance
are
necessarily forbidden.........."

This rule has since been approved by
Hon'ble Supreme Court in Rao Shiv
Bahadur Singh vs. State of V.P. AIR 1954
SC 322 : again in Deep Chand vs. State of
Rajasthan AIR 1961 SC 1527: State of
U.P. vs. Singhara Singh, AIR 1964 ASC
358, in Babu Verghese & others vs. Bar
Council of Kerala and others (1999) 3 SCC
422.

10. It is a well settled rule of
administrative law that an executive
authority must be rigorously held to the
standards by which it professes its actions
to be judged and it must scrupulously
observe those standards on pain of
invalidation of an act in violation of them.
This rule was enunciated by Mr. Justice
Frankfurter in Vitarelli v. Seaton (1959)
359 US 535: 3 L Ed 2d 1012 where the
learned Judge observed:

"An executive agency must be
rigorously held to the standards by which it
professes
its
action
to
be
judged.
Accordingly,
if
dismissal
from
employment is based on a defined
procedure, even though generous beyond
the requirements that bind such agency,
that procedure must be scrupulously
observed..... This judicially evolved rule of
administrative
law
is
now
firmly
established and, if I may add, rightly so.
He that takes the procedural sword shall
perish with the sword."

"The
Hon'ble
Supreme
Court
accepted the rule as valid and applied in
India in A.S. Ahluwalia vs. State of Punjab
(1975) 3 SCR 82 and in subsequent
decision given in Sukhdev vs. Bhagatram,
(1975) 3 SCR 619; The Hon'ble Supreme
Court in Ramana Dayaram Shetty vs. The
International Airport Authority of India &
others
AIR
1979
SC
1628,
while
appreciating the said rule pleased to
observe in para-10 as under:-

"It may be noted that this rule, though
supportable also as emanating from Article
14, does not rest merely on that article. It
has an independent existence apart from
Article 14. It is a rule of administrative law
which has been judicially evolved as a
check against exercise of arbitrary power
by the executive authority. If we turn to the
judgment of Mr. Justice Frankfurter and
examine it, we find that he has not sought
to draw support for the rule from the
equality clause of the United States
Constitution but evolved it purely as a rule
of administrative law. Even in England, the
recent trend in administrative law is in that
direction as is evident from what it stated
at
pages
540-41
in
Prof.
Wade's
Administrative Law 4th Edition. There is
no reason why we should hesitate to adopt
this rule as a part of our continually
expanding administrative law. Today with
tremendous expansion of welfare and
social service functions increasing control
of material and economic resources and
large scale assumption of industrial and
commercial activities by the State, the
power of the executive Government to
affect the lives of the people is steadily
growing.
The
attainment
of
socioeconomic justice being a conscious end of
State policy, there is a vast and inevitable
increase in the frequency with which
ordinary citizens come into relationship of
794 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

direct encounter with State power-holders.
This renders it necessary to structure and
restrict the power of the executive
Government so as to prevent its arbitrary
application or exercise. Whatever be the
concept of the rule of law whether it be the
meaning given by Dicey in his "the Law of
the Constitution" or the definition given by
Hayek in his "Road to Serfdom" and
"Constitution of liberty" or the exposition
set forth by Herry Jones in his "The Rule
of Law and the Welfare State", there is, as
pointed out by Mathew, J., in his article on
"The Welfare State, Rule of Law and
Natural Justice" in Democracy, Equality
and Freedom "substantial agreement in
juristic thought that the great purpose of
the rule of law notion is the protection of
the individual against arbitrary exercise of
power, wherever it is found". It is indeed
unthinkable that in democracy governed by
the rule of law the executive Government
or any of its officers should possess
arbitrary power over the interests of the
individual. Every action of the executive
Government must be informed with reason
and should be free from arbitrariness. That
is the very essence of the rule of law and
its bare minimal requirement. And to the
application of this principle it makes no
difference whether the exercise of the
power involves affection of some right or
denial of some privilege."

"The question as to whether a statute
is mandatory or directory depends upon the
intent of the Legislature and not upon the
language in which the intent is clothed.
The meaning and intention of the
Legislature must govern, and these are to
be
ascertained
not
only
from
the
phraseology of the provision, but also by
considering its nature, its design, and the
consequences which would follow from
construing it the one way or the other".
"For ascertaining the real intention of the
Legislature, the nature and design of the
statute, and the consequences which would
follow from construing it the one way or
the other; the impact of other provisions
whereby the necessity of complying with
the provisions in question is avoided; the
circumstances, namely, that the statute
provides for a contingency of the noncompliance with the provisions; the fact
that
the
non-compliance
with
the
provisions is or is not visited by some
penalty;
the
serious
or
the
trivial
consequences, that flow therefrom; and
above all, whether the object of the
legislation will be defeated or furthered." If
object of the enactment will be defeated by
holding the same directory, it will be
construed as mandatory. Whenever a
statute requires a particular act to be done
in a particular manner and also lays down
that failure to comply with the said
requirement
leads
to
a
specific
consequence, it would be difficult to accept
the argument that the failure to comply
with the said requirement should lead to
any other consequence.

11. Maxwell on interpretation of
statute, 12th edition, while analyzing the
cases in which statutory requirement have
been held to be mandatory observed that
where the whole aim and object of the
legislature would be plainly defeated if the
command to do the things in a particular
manner did not imply a prohibition on
doing it in any other. It is further opined
that if the benefit be for the protection of
an individual in his private capacity the
same can be waived. To illustrate,
reference has been made about waiver of
the benefit of the Limitation Act on the
maxim of law "Quilibet potest renunciare
juri pro se introducto", meaning "an
individual may renounce a law made for
2 All] State of U.P. and another V. Narendra Singh
795
his special benefit". Maxwell further says
that if the benefit be one which has been
imposed in public interest there can be no
waiver of the same.

Craies in his Statute Law has opined
the same, as would appear from what has
been stated at page 269 of 7th Edn. By
drawing attention to the aforesaid maxim,
it has been observed that if the object of a
statute is "not one of general policy, or if
the thing which is being done will benefit
only a particular person or class of persons,
then the conditions prescribed by the
statute are not considered as being
indispensable". To illustrate this principle,
it has been stated that if the statutory
condition be imposed simply for the
security or the benefit of the parties to the
action themselves, such condition will not
be considered as indispensable and either
party may waive it.

12. Crawford in his Interpretation of
Laws takes the same view as would appear
from pages 540-542 (1989 Reprint). The
learned author while quoting the aforesaid
maxim states at page 542 that requirement
like giving of notice may be waived as the
same is intended for the benefit of the
person concerned.

Francis Bennion in his Statutory
Interpretation (1984), at pages 27 et seq
stated that if the performance of statutory
duty be one which would come within the
aforesaid maxim, the person entitled to the
performance
can
effectively
waive
performance of the duty by the person
bound. As an illustration mention has been
made (at page 29) of decision in Toronto
Corpn. v. Russell and Stylo Shoes Ltd. v.
Prices Tailors Ltd. wherein it was held that
a duty to give notice of certain matters can
be waived by the person entitled to notice,
if there is no express or implied indication
that absence of notice would be fatal.

13. H.W.R. Wade has dealt with this
aspect at page 267 of the 6th Edn. of his
treatise wherein he has quoted what Lord
Denning, MR said in Wells v. Minister of
Housing and Local Government, which
reads as under:
"I take the law to be that a defect in
procedure can be cured, and an irregularity
can be waived, even by a public authority,
so as to render valid that which would
otherwise be invalid."

In "words and Phrases" (Permanent
Edition),
the
meaning
of
words
"irregularity" and "nullity" has been
analyzed at page 469 of Vol. 22A and at
pages 772 and 773 Vol. 28A respectively.
"Irregularity" is want of adherence to some
prescribed rule or mode of proceeding";
whereas "nullity" is "a void act or an act
having no legal force or validity" as stated
at page 772. At page 773 it has been
mentioned that the safest rule of distinction
between an "irregularity" and a "nullity" is
to see whether "a party can waive the
objection: if he can waive, it amounts to
irregularity and if he cannot, it is a nullity."

14. The analysis of Rule 1995 reveals
that the whole adverse report has to be
communicated
in
writing
to
the
Government Servant by the concerned
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 the said effect has to be
recorded in the report.

15. The sub-rule (2) of Rule 4 gives
an option to a Government Servant to
796 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

represent in writing directly and also
through proper channel within a period of
45 days to the authority, one rank above
the accepting authority, and if there is no
such authority then to the accepting
authority itself. If government servant
concerned shows sufficient cause for not
submitting the representation within the
prescribed period, the competent authority
or the accepting authority may grant a
further time of 45 days for submission of
such representation.

16. The sub-rule (3) of Rule 4 further
mandates that the competent authority
within the 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 and the said
authority shall within a period not
exceeding 45 days from the date of the
receipt of representation has to furnish his
comments to the competent authority and
no 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.

Sub-rule (4) mandates a competent
authority to consider the representation
alongwith
comments
of
appropriate
authority, and if no comments have been
received without waiting for comments,
and pass speaking orders (a) rejecting the
representation; or (b) expunging the
adverse report wholly or partly as he
considers proper within a period of 120
days from the date of expiry of 45 days
specified in sub-rule (3).

17. The sub-rule (5) provides where
the competent authority due to any
administrative reasons, is unable to dispose
of the representation within a period
specified in sub-rule (4), he shall report in
this regard to his higher authority, and in
such situation the higher authority shall
pass orders as he considers proper for
ensuring disposal of the representation
within the specified period.

18. The Rule 5 provides that 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 treated
adverse for the purpose of promotion,
crossing of efficiency-bar and other service
matters
of
the
Government
Servant
concerned.

19. The examination of rule further
reveals that Rule 6 provides that the
competent authority has to maintain a
register in such form as may be specified
by the government from time to time and
shall make appropriate entries therein.

20. The sub-rule (1) of Rule 7
provides for penalty by treating it as a
misconduct and punishable in accordance
with the applicable punishment rules. If an
officer legally bond to communicate an
adverse
report
to
the
concerned
government servant or where an officer
legally
competent
to
dispose
of
a
representation against an adverse report
under these rules, willfully fails to do so,
within the period prescribed therefor.

Sub-rule (2) of Rule 7 cast a duty
upon section officer in Secretariat and
officer or official incharge of an office,
other than the Secretariat, of placing the
representation, comments of appropriate
2 All] State of U.P. and another V. Narendra Singh
797
authority thereon and other relevant
records, if any, before the competent
authority or the accepting authority,
immediately after their receipt and any
wilful default, in this behalf, on the part of
the said officer has to be treated as a
misconduct and the officer concerned is
liable for punishment in accordance with
the applicable punishment rules.

21. The analysis of the provisions of
rules 1995 makes it crystal clear that there
is a prescribed time schedule for disposal
of the representation and the time starts
from the stage of communication of the
adverse reports in writing to a government
servant. The authorities have been given
discretion to allow further time of 45 days
to
the
government
servant,
where
government servant fails to submit his
representation against the adverse report
within the time of 45 days from the date of
communication, on showing sufficient
cause for not submitting the representation
within the prescribed period of 45 days.
The rule further mandates that if the
comments of the authority, who has
recorded the adverse report are not
received within the time prescribed, the
competent authority has to proceed further
without waiting for the comments and pass
speaking orders within a period of 120
days from the date of expiry of 45 days
specified in sub-rule (3).

22. Sub-rule 5 of Rule 4 further take
care of a situation where a competent
authority due to any administrative reason
is unable to dispose of the representation
within the period specified in sub-rule 4
then the competent authority has to inform
his higher authorities and the duty has been
cast upon the said higher authority for
passing such orders as he considers proper
for ensuring disposal of the representation
within the specified period.

Under Rule 6, the competent authority
is required to maintain register and make
appropriate entries therein for achieving
the object prescribed under Rules, 1995.

23. The Legislature even has taken
care for making compliance of Rule 4 by
incorporating penal clause in Rule 7 in the
event of failure to communicate adverse
report or dispose of the representation
willfully within the prescribed period by
competent authority or in default in placing
the representation, comments of the
appropriate authority with other relevant
record before the competent authority, by
the concerned officer.

A holistic view of the provisions of
the Disposal of Representation Rules, 1995
reflects
that
the
same
have
been
incorporated with zeal and pious intention
of ensuring disposal of representation of
government servant made against adverse
entry awarded to him and on examining
the provisions of Rules, 1995, it is
absolutely clear that a time frame schedule
has been prescribed with the panel
provisions against the defaulting officers.
The rule further prescribes the mode which
is required to be strictly observed and
failure of disposal of the representation in
accordance
with
rule
4,
entitles
a
government servant of the benefit of not
treating such report as adverse for the
purposes
of
promotion,
crossing
of
efficiency bar and other service matters.

24. In view of the above, we are of
the considered view that Rules 1995, no
where provides the situation, where the
representation of a government servant has
been decided by the competent authority
798 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

beyond/ after the expiry of time schedule
prescribed under rule 4 will remain in
operation except for the period upto the
disposal of the representation.

25. On the basis of aforesaid analysis,
we are of the considered view that all these
writ petition lack merits and do not warrant
any interference by this Court.

26. Accordingly, all the writ petitions
are hereby dismissed with the observation
that in the cases where the representation
against the adverse entry has not been
disposed of in accordance with provisions
of Rule 4 of U.P. Government Servants
(Disposal
of
Representation
against
Annual Confidential Reports and allied
Matters) Rule, 1995, such report shall not
be treated as adverse for the purposes of
promotion, crossing of efficiency bar and
other service matters of the government
servant concerned as per the mandate of
Rule 5 of Rules, 1995.

27. As we are deciding these writ
petitions only on legal issues without
entering into the factual disputes, therefore,
the concerned authorities are hereby
directed to examine the individual case in
pursuance to the provisions of Rule 5 of
Rules, 1995.

28. With the aforesaid observations
and directions, all these writ petitions are
dismissed.

There shall be no order as to costs.
---------

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.08.2010

BEFORE
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE KASHI NATH PANDEY, J.

Special Appeal No. 143 OF 2008

Committee
of
Management
Adarsh
Shishu Sadan

 ...Applicant
Versus
State of UP & others ...Opposite Parties

Counsel for the Petitioner
Sri Siddharth Khare
Sri Awadh Narain Rai

Counsel for the Respondents
Sri Y.K.Yadav
C.S.C.

Constitution of India Art.21 A and
Art.45-read with Right of Children to
Free and Compulsory Education Act 2009
Section 12-Private management having
reorganization under Section 4 of U.P.
Recognized
Basic
School
Rules
(Appointment and Conditions of service
of teacher) Rules 1975-with condition to
arrange finance from its own sourcesrunning primary schools-whether can
claim recurring-grant as a matter of
Right? Held-'No'-only the responsibility
of giving free education cast upon the
State Govt.-which is being successfully
discharged
under
"Sarv
Shiksha
Abhiyan"-No duty cast upon Private
Management-not entitled for any kind of
aid or recurring grant

Held Para 27

The fundamental rights under Article 21A
given to the children of the age of 6 to
14 years and the corresponding duty of
the State to provide free and compulsory
education by law, now provided by the
Right of Children to Free and Compulsory