# State Of U.P. & Ors v. Subh Karan Singh Gautam & Anr - **Citation:** (2016) 5 ILRA 1638 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-05-16 - **Bench:** Tarun Agarwala. J. Prabhat Chandra Tripathi - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-subh-karan-singh-gautam-anr-43798 - **Pages:** 6 ## Text 1638 INDIAN LAW REPORTS ALLAHABAD SERIES ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 16.05.2016 BEFORE THE HON'BLE TARUN AGARWALA. J. THE HON'BLE PRABHAT CHANDRA TRIPATHI, J. Writ A No.- 43421 Of 2015 State Of U.P. & Ors. ...Petitioners Versus Subh Karan Singh Gautam & Anr. ...Respondents Head Notes: Service Law-Adverse Annual Confidential Reports-U.P. Government Servants (Disposal of Representation against Adverse Annual Confidential Reports and Allied Matters) Rules, 1995Rules 4 & 5-Non-communication of adverse entry within stipulated period-Delay in disposal of representation-Effect-Scope of Rule 5-Whether adverse entry becomes illegal or liable to be quashed-Held, No-Rule 5 only bars consideration of adverse entry for promotion, efficiency bar and other service matters-Adverse entry once communicated remains operative-Tribunal misreading Rule 5-Order quashing adverse entries unsustainable-Respondent already retiredNo purpose in remand-Tribunal's order set aside-Writ petition allowed. Facts Respondent No.1, a Senior Cane Development Inspector, was awarded adverse entries: for the year 1991 on 10.01.1994; for the years 1986-87 and 1987-88 by order dated 17.05.1995, pursuant to disciplinary proceedings. Representation against adverse entries was rejected on 06.07.1996. Respondent filed a claim petition before the Tribunal. The Tribunal, by order dated 28.01.2015, quashed the adverse entries on the ground of: non-communication within prescribed period; and non-disposal of representation within time as required under Rules 4 & 5 of the Rules, 1995. Aggrieved, the State of U.P. filed the present writ petition. Issues: Whether non-communication of adverse entry within the time prescribed under Rule 4 renders the adverse entry illegal. Whether non-disposal of representation within stipulated time mandates quashing of adverse entry. 5 All. State Of U.P. & Ors. Vs Subh Karan Singh Gautam & Anr. 1639 Scope and true interpretation of Rule 5 of the Rules, 1995. Held: Limited scope of Rule 5: Rule 5 only provides that an adverse entry not communicated or representation not decided within time shall not be treated adverse for promotion, crossing of Efficiency Bar and other service matters. No automatic quashing: Non-communication within prescribed time does not render the adverse entry illegal, nor does delay in deciding representation result in deemed allowance of representation. Adverse entry remains operative: Once the adverse entry is communicated, it becomes effective and cannot be quashed merely on the ground of delay. Tribunal's error: The Tribunal misread Rule 5 by treating delay as a ground for quashing the adverse entries themselves. No remand required: Since the respondent had retired more than ten years prior, remitting the matter would serve no useful purpose. CONCLUSION: The writ petition is allowed. The order dated 28.01.2015 passed by the Tribunal is quashed. (Delivered by Hon'ble Tarun Agarwala, J.) 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, 1640 INDIAN LAW REPORTS ALLAHABAD SERIES 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- 5 All. State Of U.P. & Ors. Vs Subh Karan Singh Gautam & Anr. 1641 (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 1642 INDIAN LAW REPORTS ALLAHABAD SERIES adverse for the purposes of promotion, crossing of Efficiency Bar and other service matters of the Government Servant concerned. 4. Rule Rule 4(1) of the Rules provides that an adverse entry is required to be communicated to the incumbent within 45 days. Rule 4(2) of the Rules provides that a Government Servant can make a representation within 45 days against the adverse entry. Rule 4(4) of the Rules provides that the representation has to be decided within 120 days, either rejecting the representation or by expunging the adverse report. 5. Rule 5 provides, that if the adverse entry is not communicated within the stipulated period or a representation is not decided within the stipulated period, then 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. 6. Relying upon Rule 5 of the Rules the Tribunal found that since the adverse entries were not communicated within the stipulated period nor the representation was decided within the stipulated period, the Tribunal held that the petitioner is entitled to the benefit of Rule 5 and, accordingly, quashed the adverse entries. 7. In our opinion, the order of the Tribunal is erroneous and has misread Rule 5 of the Rules. Rule 5 only provides that if an adverse entry is not communicated within the stipulated period or a representation against an adverse entry is not disposed of within the stipulated period then such adverse report will not come in the way for the purpose of promotion, crossing of the Efficiency Bar and other service matters. The reason is not far to see. If an entry is not communicated, the Government Servant cannot be penalized for non-consideration of his promotion and other service matters. Such non-communication will not make the adverse entry illegal or barred by time. All Rule 5 of the Rules provides that such adverse report will not be taken into consideration, if the Government Servant is being considered for promotion, crossing of Efficiency Bar, etc. 8. We are of the opinion, that once the adverse report is communicated, the same becomes operative and cannot be quashed on the ground that it was not communicated within the stipulated period. Similarly, if the representation against an adverse entry is not decided within the stipulated period, it does not mean that the representation has to be allowed and the adverse entry is required to be quashed. 9. In the light of the aforesaid, the impugned order of the Tribunal cannot be sustained and is quashed. We also find that the respondent has retired more than 10 years back. Consequently, no useful purpose would be served in remitting the matter to the Tribunal to decide the matter afresh. 10. The writ petition is, accordingly, allowed. --------- 5 All. Madan Lal Ahuja Vs State Of U.P. & Ors. 1643 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 17.05.2016 BEFORE THE HON'BLE SUDHIR AGARWAL, J. THE HON'BLE SHAMSHER BAHADUR SINGH, J. Writ C No.- 4490 Of 1986 Madan Lal Ahuja ...Petitioner Versus State of U.P. & Ors. ...Respondents Counsel for Petitioner: H.S. Nigam, Ajit Kumar, Arun Kumar, B.D. Mandhyan, Manu Saxena, Manish Goyal Counsel for Respondents: S.C., A.P. Paul, B.B. Paul, M.B. Singh, R.B. Singhal, Satish Chaturvedi Head-Notes: Land Acquisition Act, 1894 - Sections 4, 5-A, 6, 17(1), 17(4) - Acquisition of Nazul land - State cannot acquire its own land - Nazul land vests in State - No transfer of ownership involved - Acquisition proceedings qua land itself impermissible - Only leasehold rights or super-structures, if any, could be subject of acquisition - Notifications proposing acquisition of Nazul land held void. Urgency clause - Dispensation of Section 5-A enquiry - Exceptional power - To be exercised sparingly - Planned development / commercial centre conceived decades earlier - Delay of several years belies urgency - Mere public purpose insufficient - No material to show that even minimal delay would frustrate object - Invocation of Section 17(4) held arbitrary and illegal. Section 5-A - Right of objection - Valuable and substantive right - Embodiment of natural justice - Cannot be taken away mechanically - Absence of real, immediate urgency vitiates acquisition. Tenant / allottee - Locus standi - Tenant under statutory allotment order is a "person interested" - Entitled to challenge acquisition affecting tenancy and super-structure - Objection as to non-joinder of original lessee rejected. Validation Ordinance / Amendment - U.P. Ordinance No. 32 of 1990 / U.P. Act No. 5 of 1991 -