JUDGMENT By the Court.—Heard Shri Ratnesh Chandra, learned counsel for the petitioner, Shri Umesh Chandra, learned counsel for the respondents and perused the record. 2. By means of the present writ petition, the petitioner has challenged the impugned order dated 2.9.2016 passed by State Public Service Tribunal, Lucknow in Claim Petition No. 626 of 2016. 3. Facts in brief of the present case are that claimant/respondent No. 1 i.e. Shri Suresh Chandra, who was working on the post of officiating Executive Engineer in U.P. Housing and Development Board, posted at Ghaziabad was served with a punishment order thereby awarding the adverse annual confidential remark in his service record. Thereafter, he filed a Claim Petition No. 626 of 2016 “Suresh Chandra v. State of U.P. and others” to quash the adverse entries which were awarded to him, allowed by order dated 2.9.2016 passed by State Public Services Tribunal, Lucknow. 4. The Tribunal, as per the provisions of Rule 4 (1) of U.P. Government Servants (Disposal of Representation Against Adverse Annual Confidential Reports & Allied Matters) Rules, 1995 (hereinafter referred to Rules 1995), has held that the adverse entries awarded to the claimant/respondent No. 1 were to be communicated within 45 days to him as provided in the said Rules but the same were communicated to him after expiry of the mandatory period i.e. 45 days, as such, granted the relief to claimant/respondent No. 1 by allowing the claim petition filed by him and set aside the order dated 18.3.2016. It is hereby ordered that the adverse annual confidential report for the year 2008-09 shall not be treated adverse for the purpose of promotion, crossing of efficiency bar and other service matters of the petitioner. 5. Shri Ratnesh Chandra, learned counsel for the petitioner while challenging the impugned order passed by the Tribunal argued that in the present case, adverse entries which were awarded to the claimant/respondent No. 1 for the period of 1.4.2008 to 13.10.2008 and thereafter for the period of 14.10.2008 to 31.3.2009 were approved by two Housing Commissioners on 26.2.2010 and 18.11.2011 respectively. 6. Thereafter, vide letter dated 15.12.2011 issued by the Joint Housing Commissioner, Superintending Engineer, VI Circle, Agra was directed to communicate the said orders to the claimant/respondent No. 1. Lastly, it was communicated to him on 6.1.2012. 7. 6. Thereafter, vide letter dated 15.12.2011 issued by the Joint Housing Commissioner, Superintending Engineer, VI Circle, Agra was directed to communicate the said orders to the claimant/respondent No. 1. Lastly, it was communicated to him on 6.1.2012. 7. In view of the above said facts, it is submitted by learned counsel for the petitioner that claimant/respondent No. 1 is not entitled to get the benefits as provided under Rule 4 of Rules 1995 as the adverse entries awarded to the claimant/respondent No. 1 were communicated within reasonable time. In support of his argument, he has placed reliance on the judgment given by Hon’ble the Apex Court in the case of Sukhdev Singh v. Union of India and others, (2013) 9 SCC 566 , wherein it has been held as under : “Para 3 - Subsequent to the above two decisions, in Dev Dutt v. Union of India, (2008) 8 SCC 725 , this Court had an occasion to consider the question about the communication of the entry in the ACR of a public servant (other than military service). A two-Judge Bench on elaborate and detailed consideration of the matter and also after taking into consideration the decision of this Court in U.P. Jal Nigam v. Prabhat Chandra Jain, (1996) 2 SCC 363 and principles of natural justice exposited by this Court from time to time particularly in A.K. Kraipal v. Union of India, (1969) 2 SCC 262 , Maneka Gandhi v. Union of India, (1978) 1 SCC 248 , Union of India v. Tulsiram Patel, (1985) 3 SCC 398 , Canara Bank v. V.K. Awasthy, (2005) 6 SCC 321 , and State of Maharashtra v. Public Concern for Governance Trust, (2007) 3 SCC 587 , concluded that every entry in the ACR of a public servant must be communicated to him within a reasonable time whether it is poor, fair, average, good or very good entry. This is what this Court observed in paras 17 and 18 of the Report in Dev Dutt (Supra) : “17. In our opinion, every entry in the ACR of a public servant must be communicated to him within a reasonable period, whether it is a poor, fair, average, good or very good entry. This is what this Court observed in paras 17 and 18 of the Report in Dev Dutt (Supra) : “17. In our opinion, every entry in the ACR of a public servant must be communicated to him within a reasonable period, whether it is a poor, fair, average, good or very good entry. This is because non-communication of such an entry may adversely affect the employee in two ways : (1) had the entry been communicated to him he would know about the assessment of his work and conduct by his superiors, which would enable him to improve his work in future; (2) he would have an opportunity of making a representation against the entry if he feels it is unjustified, and pray for its upgradation. Hence non-communication of an entry is arbitrary, and it has been held by the Constitution Bench decision of this Court in Maneka Gandhi (Supra) that arbitrariness violates Article 14 of the Constitution. 18. Thus, it is not only when there is a benchmark but in all cases that an entry (whether it is poor, fair, average, good or very good) must be communicated to a public servant, otherwise there is violation of the principle of fairness, which is the soul of natural justice. Even an outstanding entry should be communicated since that would boost the morale of the employee and make him work harder.” Para 5- In paras 37 and 41 of the Report, this Court then observed as follows : “37. We further hold that when the entry is communicated to him the public servant should have a right to make a representation against the entry to the authority concerned, and the authority concerned must decide the representation in a fair manner and within a reasonable period. We also hold that the representation must be decided by an authority higher than the one who gave the entry, otherwise the likelihood is that the representation will be summarily rejected without adequate consideration as it would be an appeal from Caesar to Caesar. All this would be conducive to fairness and transparency in public administration, and would result in fairness to public servants. The State must be a model employer, and must act fairly towards its employees. Only then would good governance be possible. 41. All this would be conducive to fairness and transparency in public administration, and would result in fairness to public servants. The State must be a model employer, and must act fairly towards its employees. Only then would good governance be possible. 41. In our opinion, non-communication of entries in the annual confidential report of a public servant, whether he is in civil, judicial, police or any other service (other than the military), certainly has civil consequences because it may affect his chances for promotion or get other benefits (as already discussed above). Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution.” 8. Accordingly, it is submitted by him that taking into consideration the judgment as given by Hon’ble the Apex Court in the case of Sukhdev Singh (Supra), in the present case, adverse entries were communicated to the claimant/respondent within the reasonable time, because the word “shall” used in Rule 4 of Rules 1995 is not mandatory in nature but it is directing in nature, even if the adverse entries were not communicate to the delinquent employee within a period of 45 days from the date of recording of the report. So the order passed by the Tribunal is contrary to law and is liable to be set aside. 9. Shri Umesh Chandra, learned counsel for the respondents while supporting the impugned order under challenge in the present case submits that admittedly adverse entries awarded to the claimant/respondent No. 1 were not communicated to him within 45 days as per Rules 1995, so keeping in view the above said facts, there is no illegality or infirmity in the impugned judgment passed by the Tribunal and the present writ petition is liable to be dismissed. 10. We have heard learned counsel for the parties and gone through the records. 11. 10. We have heard learned counsel for the parties and gone through the records. 11. In order to resolve the controversy involved in the present case, it will be appropriate to go through the provisions of Rule 4 (1) of Rules 1995, which reads as under : “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 of the report and a certificate to this effect shall be recorded in the report.” 12. From the bare reading of Rule 4 (1) of Rules, 1995, the position which emerges out is that legislature has used the word “shall’ in the Rule 1995 and it has been provided by the legislature therein that the adverse 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. Accordingly, it is to be considered whether the word “shall” used in Rule 4 (1) of Rules, 1995 is mandatory or directly. 13. In the case of State of U.P. v. Babu Ram Upadaya, 1961 (2) SCR 679 , the law was down thus : “When a statute uses the word “shall”, prima facie, it is mandatory, but the Court may ascertain the real intention of the legislature by carefully attending the whole scope of the statute. For ascertaining the real intention of the Legislature the Court may consider, inter alia, the nature and 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, contingency of the non-compliance with the provisions, the fact the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above all, whether the object of the legislation will be defeated or furthered.” 14. In the case of State of Uttar Pradesh v. Jogendra Singh, 1964 (2) SCR 197 , in which Hon’ble the Apex Court Court has held that the word ‘may’ is capable of meaning ‘must’ or ‘shall’ in the light of the context in which the word is used and where a discretion is conferred upon a public authority coupled with an obligation, the word ‘may’ which denotes discretion should be construed to mean a command. 15. In the case of Govindlal Chhaganlal Patel v. The Agricultural Produce Market Committee, Godhra and others, 1975 (2) SCC 482 , wherein Hon’ble the Supreme Court has held that the question as to whether a statue is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed and, therefore, the use of the word ‘shall’ or ‘may’ is not conclusive on the question where the particular requirement of law is mandatory or directory. 16. Ho’ble the Apex Court in the case of Pesara Pushpamata Reddy v. G. Veera Swamy and others, 2011(3) SCR 496, after taking into consideration the principle of Statutory Interpretation, 12th Edition, 2010 at page 406-407, held as under : “The use of word `shall’ raises a presumption that the particular provision is imperative; but this prima facie inference may be rebutted by other considerations such as object and scope of the enactment and the consequences flowing from such construction.” In the case of Khub Chand v. State of Rajasthan, AIR 1967 SC 1074 , Hon’ble the Apex Court held that the term “shall” in its ordinary significance is mandatory and the Court shall ordinarily give that interpretation to that term unless such an interpretation leads to some absurd or inconvenient consequence or be at variance with the intent of the legislature, to be collected from other parts of the Act. The construction of the said expression depends on the provisions of a particular Act, the setting in which the expression appears, the object for which the direction is given, the consequences that would flow from the infringement of the direction and such other considerations. (See M/s. Sainik Motors, Jodhpur and others v. State of Rajasthan, AIR 1961 SC 1480 ). 17. Further, it is settled principle of law that The Courts decide what the law is and not what it should be. (See M/s. Sainik Motors, Jodhpur and others v. State of Rajasthan, AIR 1961 SC 1480 ). 17. Further, it is settled principle of law that The Courts decide what the law is and not what it should be. The Courts of course adopt a construction which will carry out the obvious intention of the legislature but cannot legislate. But to invoke judicial activism to set at naught legislative judgment is sub serve of the constitutional harmony and comity of instrumentalities. (See Union of India and another v. Deoki Nandan Agarwal, AIR SC 96, All India Radio v. Santosh Kumar and another, 71 (1998) 3 SCC 237 , Sakshi v. Union of India and others, (2004) 5 SCC 518 , Pandian Chemicals Ltd. v. CIT, (2003) 5 SCC 590 , Bhavnagar University v. Palitana Sugar Mills (P) and others, AIR 2003 SC 511 and J.P. Bansal v. State of Rajasthan, (2003) 5 SCC 134 ) 18. In Nasiruddin v. Sita Ram Agarwal, (2003) 4 SCC 753 , the Supreme Court has held that the Court can iron cut of the creases but cannot change the texture of the fabric. It cannot enlarge the scope of legislation or intention when the language of provision is plain, unambiguous. It cannot add or subtract words to statute or read something into in which is not there. It cannot rewrite or recast the legislation. 19. Accordingly, the word “shall” used by the legislature in Rule 4 (1) of Rules 1995 is mandatory in nature and adverse entry should be communicated to the delinquent employee within a period of 45 days from the date of recording of the report and a certificate to this effect shall be recorded in the report. So the argument advanced by learned counsel for the petitioner, that the word “shall” is not mandatory in the present case, has got no force, rejected. 20. Further a Division Bench of this Court In the case of State of U.P. v. Ishwar Chandra Sharma, 2009(10) ADJ 798 (DB)(LB), has observed that : “In the present case, legislature to their wisdom has used the words “other service matters” coupled with the matter relating to promotion, crossing of Efficiency Bar etc. 20. Further a Division Bench of this Court In the case of State of U.P. v. Ishwar Chandra Sharma, 2009(10) ADJ 798 (DB)(LB), has observed that : “In the present case, legislature to their wisdom has used the words “other service matters” coupled with the matter relating to promotion, crossing of Efficiency Bar etc. The provisions contained in rule 5 is comprehensive in nature and it seems to include not only only the period during which period the representation is pending but entire period of service in case the pending representation is not decided within the stipulated time provided under the rules. In case the provisions contained in Rule 5 is given different meaning then it shall frustrate the very object and purpose. The Legislature to their wisdom had provided safe guard to the Government employees from suffering from abuse of power by the authority for extraneous reason for promotion to higher post, cadre or grade is not affected because of arbitrary use of power rule -5 of the said Rules also ensures the finality of a controversy and safe the employee from possible abuse of power or manipulation in the matter of promotion. It check the influence of persons having vested interest in delaying the disposal of the representation with regard to adverse entry with ulterior motive. Virtually, rule-5 nullifies an adverse entry in case representation is not decided within the statutory period by friction of law. It has seems to be incorporated as a matter of public policy.” 21. Thus, the statutory obligation is casted upon the competent authority to communicate the adverse report within 45 days from the date of recording of the report and a certificate to this effect shall be recorded in the report. 22. It has seems to be incorporated as a matter of public policy.” 21. Thus, the statutory obligation is casted upon the competent authority to communicate the adverse report within 45 days from the date of recording of the report and a certificate to this effect shall be recorded in the report. 22. In the present case, admittedly, claimant/respondent No. 1 has been awarded two adverse entries by two Housing Commissioners on 26.2.2010 and 18.11.2011 respectively and the same were communicated to the claimant/respondent No. 1 on 6.1.2012 that is beyond the period of 45 days, as such, the same is in contravention to the provisions of Rule 4 of Rules 1995 and the petitioner cannot derive any benefit from the judgment cited on his behalf in the case of Sukhdev Singh (Supra) on the ground that adverse entries were not communicated to the claimant/respondent No. 1 within reasonable time because in the present case, as per intention of the legislature while enacting the Rule 4 of Rules 1995, statutory obligation is casted upon the competent authority to communicate the adverse report within 45 days from the date of recording of the report. 23. So far as the judgment cited by Shri Ratnesh Chandra, learned counsel for the petitioner in support of his contention, namely, Sukhdev Singh (Supra) is concerned, in the said judgment, Hon’ble the Apex Court has not taken into consideration the Rule 4 of the Rules, 1995 and has held that every entry in the ACR of a public servant must be communicated to him within a reasonable time whether it is poor, fair, average, good or very good entry. 24. In the present case, once the Legislature has itself provided time for communication of the adverse entry within 45 days, then it must be communicated to the concerned officer within a period of 45 days, which has not been done in the present case. 25. Hence, the argument advanced by learned counsel for the petitioner, that in the present case, adverse entries were communicated to the claimant/respondent No. 1 within reasonable time, so there is illegality in the impugned order passed by the Tribunal, is misconceived. 26. In the result, writ petition lacks merit and is dismissed. No order as to costs.