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2012 DIGILAW 637 (UTT)

Suraj Singh v. State of Uttarakhand

2012-10-04

TARUN AGARWALA

body2012
Judgment : 1. The petitioner was appointed as a Patwari on 3rd January, 1984 on adhoc basis. On 31st August, 1987, the petitioner was appointed as a regular Patwari. His services was confirmed on 1st July, 1996. According to the petitioner, he was placed at serial no.94 of the seniority list and that persons junior to the petitioner were given increments and selection grade and promotional pay scale whereas the petitioner was denied these benefits. Accordingly, a representation was made which was rejected. The petitioner being aggrieved by the said order has filed the present writ petition, praying not only for the quashing of the order dated 6.6.1991 and 17.3.2004 but also praying for a writ of mandamus commanding the respondents to pay the selection grade of pay scale from 1992 as well as promotional scale from 1998. 2. As per the Government Order dated 2nd December, 2000, the petitioner is entitled for first increment upon completion of 8 years of service. According to the petitioner, since he was appointed in 1984, he completed 8 years of service and, therefore, was entitled to be given the first increment in the year 1992. The alternate case of the petitioner is, that assuming without admitting that the adhoc period cannot be taken into consideration, the petitioner was regularly appointed in the year 1987, and upon completion of 8 years of service in 1995, he was required to be paid the first increment, which has also not been paid. 3. The learned counsel for the petitioner contended that the reason indicated by the respondents for not giving the first increment is that there was an adverse entry against the petitioner in his service record for the year 1991 and another adverse entry was made in the year 1999. According to the petitioner, both these adverse entries were not communicated and consequently in view of Rule 5 of The U.P. Government Servants (Disposal of Representation Against Adverse Annual Confidential Reports and Allied Matters) Rules, 1995, such adverse entry, which has not been communicated, could not be treated as adverse for the purpose of promotion. In this regard, the petitioner has made necessary averment in paragraph 12 of the writ petition, which upon perusal, the Court finds that it only relates to the entry made against the entry in his confidential report for the year 1999-2000. In this regard, the petitioner has made necessary averment in paragraph 12 of the writ petition, which upon perusal, the Court finds that it only relates to the entry made against the entry in his confidential report for the year 1999-2000. The respondents, in paragraph 12 of the counter affidavit, have not denied this fact that the adverse entry awarded to the petitioner for the year 1999-2000 was ever communicated to the petitioner. 4. In the light of the aforesaid, Rule 5 of the Rules of 1995 comes into play. For facility, the said provision is extracted hereunder:- “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 adverse for the purposes of promotion, crossing of Efficiency Bar and other service matters of the Government Servant concerned.” 5. A perusal of the aforesaid Rule indicates that an adverse entry, which has not been communicated, will not come in the way for the purpose of promotion. Consequently, the impugned order to that extent cannot be sustained. 6. In so far as the adverse entry of 1991 is concerned, no averment, whatsoever, has been made by the petitioner in the writ petition. Further, merely because the petitioner, after the filing of the writ petition, has amended the writ petition, praying for the quashing of the order of 1991, which relates to the grant of the adverse entry, cannot be considered at this belated stage. Further, there is no pleading to that effect. 7. The Court finds that the adverse entry of the year 1991 related to the stoppage of three increments. The Court is of the opinion that it is not possible that the petitioner was unaware of the stoppage of these increments inasmuch as stoppage of such increments has a direct bearing on the release of the salary which the petitioner gets every month. In the light of the aforesaid, the Court is not inclined to accept the contention of the petitioner that the adverse entry of 1991 was not communicated to him. 8. In the light of the aforesaid, the Court is not inclined to accept the contention of the petitioner that the adverse entry of 1991 was not communicated to him. 8. The contention of the petitioner that he is entitled for selection grade upon completion of 8 years, which should include adhoc period of service, cannot be accepted in view of the Government Order dated 2nd December, 2000, which clearly indicates that the period of substantive service will only be taken into consideration for increments, promotion, etc. 9. In the light of the aforesaid, the period spent on adhoc cannot be taken into consideration. 10. In view of the aforesaid, the writ petition is partly allowed. The impugned order is quashed. The matter is remitted to the authority concerned to reconsider the matter within three months from the date of production of a certified copy of the order.