JUDGMENT Shabihul Hasnain,J. Heard Sri A. M. Tripathi, learned counsel for the petitioner and learned Standing counsel for the State. 2. Sri A. M. Tripathi requested that since affidavits have been exchanged, the matter may be heard finally. It is listed in final hearing list. 3. It was informed that counter affidavit filed by learned Standing counsel is not on record. Sri Tripathi requested that he may submit copy of the counter affidavit and that may be taken on record in the interest of justice. 4. The petitioner has been discriminated and the next promotion is going to take place soon and if the case is adjourned the petitioner shall suffer irreparable loss and injury. 5. Learned Standing counsel after examining the contents of the counter affidavit has verified that the contents of the counter affidavit are exactly the same as was filed by him earlier and the counter affidavit duly signed by both the counsels is taken on record. 6. Petitioner has prayed for a writ of mandamus commanding the opposite parties to? consider and promote the petitioner from the post of Senior Clerk to the post of Senior Assistant from the date his juniors have been promoted. Petitioner was awarded adverse entry in the Annual Confidence Report for the year 1999-2000. Petitioner moved representation to the District Development Officer against the said adverse entry on 20.9.2000. This has been mentioned in para 8 of the writ petition. This fact has been admitted in the counter affidavit in paragraph 13. 7. Petitioner has referred para 4 and 5 of the Uttar Pradesh Government Servants (Disposal of Representation Against Adverse Annual Confidential Reports And Allied Matters) Rules, 1995 which is quoted as under: - “4. (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). (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 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 his 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- (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 subrule (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. (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. 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 purpose of promotion, crossing of Efficiency Bar and other service matters of the Government Servant concerned.? 8. Under rule 4 representation against adverse entry is to be made within 45 days and the same has to be disposed of within a maximum period of 120 days from the expiry of 45 days. Under rule 5 it has been mentioned that in case representation is not decided in the aforesaid period, the same can not be read against the petitioner for promotional avenues. In the present case it is admitted case that representation was moved in time. The competent authority did not dispose of the representation within 120 days. Rather the representation was rejected one day prior. Petitioner in paragraph 20 has mentioned that Departmental Promotion Committee was going to take place on 12.9.2006. 9. It is clear that the adverse entry awarded in 2000 was challenged through representation made in 2000 i.e. in the same year but was rejected in 2006. This argument of Sri A. M. Tripathi carries weight. Petitioner in paragraph 20 has mentioned that Departmental Promotion Committee was going to take place on 12.9.2006. 9. It is clear that the adverse entry awarded in 2000 was challenged through representation made in 2000 i.e. in the same year but was rejected in 2006. This argument of Sri A. M. Tripathi carries weight. He says that this rejection order against adverse entry could not have been read against him for the purposes of promotion. Petitioner has also mentioned in paragraph 19 that on 23.3.2005 promotional pay scale after nineteen years' satisfactory past services has been given to the petitioner. This shows that the adverse entry was not taken into consideration on 23.3.2005. The same once not read against the petitioner can not be reiterated one year later for the purpose of promotion. 10. The case of the opposite parties in the counter affidavit is only to the extent that promotion was not made because there was adverse entry against him. 11. Sri A. M. Tripathi has taken a pure legal ground. Petitioner's case is fully covered by the Uttar Pradesh Government Servants' (Disposal of Representation against A.C.R.s and like materials) Rules, 1991. 12. Accordingly, the rejection order dated 11.9.2006 and 28.9.2006, as contained in annexure No.13 and 17 to the writ petition, are hereby set aside. This will not be read against the petitioner any more. 13. The opposite parties are directed to consider the case of the petitioner for promotion from the date his juniors were promoted on the post of Senior Assistant and be paid difference of salary on the said post with all consequential benefits. 14. The petition is allowed.