Uma Kant Tripathi vs State of U.P. and Others

Jagdish Bhalla, J.—By way of this petition, the Petitioner has prayed for issuance of a writ in the nature of mandamus commanding the Respondents to regularise the service of the Petitioner and to quash the impugned termination order dated 17.8.1983 which was based on three adverse entries.

An ad interim order was passed by this Court on 11.1.1984, on the basis of which the Petitioner is continuing, performing his duties and is getting his salary regularly. During this period, Petitioner made representations against the aforesaid adverse entries which were allowed by orders dated 16.9.85, 4.11.89 and 8.11.89.

It is also interesting to note that there were in all 29 persons, out of which the services of 27 persons were regularised. However, the Petitioner and one R.N. Shukla were not regularised and their services were terminated. Shukla approached this Court against his termination and regularisation of his services. It appears that his writ petition was dismissed. However, aggrieved by the aforesaid order, Shukla filed a SLP before the Hon''ble Supreme Court where the special leave was granted and by judgment and order dated 2.11.1988, the Hon''ble Supreme Court had directed the Respondents to reinstate and regularise the services of Shukla. The aforesaid order of the Hon''ble Supreme Court is quoted hereunder:

Special leave granted, Heard both the sides. Having taken into account all the relevant document and confidential reports, we are of the opinion that the services of the Appellant should have been regularised. We accordingly allow this appeal and direct that the Appellant should be reinstated in service and absorbed as a regular appointee with continuity of service. The reinstatement will be without salary for the interregnum from the date of his termination till 31st October, 1988. The Appellant will rejoin within 2 weeks. His services will be treated without break for the purposes of pension and for increments that might have become due to him. The appeal is disposed of accordingly. There will be no order as to cost.

In the present case, the Petitioner is still continuing and getting his salary regularly in view of the interim order of this Court.

Learned Counsel appearing for the Petitioner Shri V.B. Singh, placed reliance upon the judgments reported in State of Punjab v. Dewan Chunni Lal AIR 1978 SC 2086 and Dr. Girish Bihari v. State of U.P. and others 1982 LABIC 1500.

Learned Counsel for the Petitioner argued that in view of the doctrine of washing off, all the three adverse entries are no more in existence, and, therefore, the Petitioner is entitled for regularisation and, therefore, the order of termination is liable to be quashed and there is no justification for its continuation.

It is also been pointed out by the learned Counsel for the Petitioner that after passing of the impugned order, the Petitioner was allowed to cross efficiency bar and, therefore, in various years his work was found to be excellent which is evident from the various annexures filed alongwith the supplementary affidavit.

Shir K.M. Sahai, learned Standing Counsel appearing on behalf of Respondent Nos. 1 and 2 argued that at the time of termination, three adverse entries were there. Although the representations against the three adverse entries were pending and subsequently if these representations had been decided in favour of the Petitioner after the termination, even then the adverse entries were sufficient material for passing the termination order.

We have gone through the judgments cited by the learned Counsel for the Petitioner. In State of Punjab v. Dewan Chunni Lal (supra), the Hon''ble Supreme Court has held the following in para 11:

As regards the reports for the years 1945 and 1946, the Respondent''s complaint was that the Superintendent of Police, Montgomery was for certain communal reasons biased against him. As regards the reports for the period May 27, 1946 to 30th June, 1946 and the rest of the year, the same had been made by Shamsheer Singh who had given him no adverse remark and had left the column of honesty in the report ''blank'' Sadat Ali who was biased against the Respondent got the word "no" typed opposite the column of honesty. The report for the year 1945 was based mainly on the opium case and as he had been cleared of the charge in respect of that case, there was no foundation for the report for that year. Further, the order of dismissal was in violation of Rule 16.2 as this punishment was to be awarded for the gravest acts of misconduct proving incorrigibility and complete unfitness for police service which facts did not exist in his case. A further complaint was made that the enquiry officer did not care to summon A.L. Chopra, the Rehabilitation Inspector and Captain Chunni Lal, ex-military man although they had been allowed to be examined previously. The deposition of Ram Chander, Assistant Surgeon a defence witness was not typed out and made a part of the record although his deposition was noted by the steno typist in the note book. The order of dismissal was passed by the Deputy Inspector General without considering this evidence. Besides the above, the evidence of well placed officers like Deputy Commissioners, Superintendents of Police, Sub-Divisional Magistrate and others who had testified to the Respondents'' efficiency, honesty and reliability were totally ignored.

In para 5 of the judgment in the case of Dr. Girish Bihari (supra), a Division Bench of this Court has observed thus:

In the The Regional Manager and Another Vs. Pawan Kumar Dubey, , Pawan Kumar Dubey was a senior station incharge. He was holding the substantive post of Junior Station Incharge. He was promoted on an officiating basis to the higher post of Senior Station Incharge. Subsequently he was reverted from the post of Senior Station incharge to substantive post on the ground of certain misconduct as indicated by the adverse entry communicated to him. Pawan Kumar Dubey challenged his order of reversion before this Court on a number of grounds. A learned single Judge as well as a Division Bench of this Court quashed the order of reversion. On appeal by the Regional Manager, the Supreme Court upheld the order of this Court. The order of reversion was sought to be justified before the Supreme Court on the complaints made against him as well as on the number of adverse entries awarded to him. Repelling the contention the Supreme Court observed thus (para 16):

There were some old adverse entries also against the Respondent but they must be deemed to have been washed off by the orders of his promotion on ''ad hoc'' or officiating basis by an order of 7th March, 1972, which had been approved by the Deputy Transport Commissioner of Uttar Pradesh on 18th March. 1972, as required by the Rules.

The above observations of the Supreme Court leave no room for any doubt about the doctrine that adverse entries awarded to an officer prior to his promotion even if it be on ad hoc and officiating basis would stand washed off. If that be so, the adverse entries lost all value and they could not constitute any valid material for considering the same again at the next selection or promotion of the officer. Applying the dictum laid down by the Supreme Court in Pawan Kumar''s case 1976 Lab IC 1146, it would be legitimate to hold that if an officer is selected and promoted to a higher post despite adverse entries against him, those adverse entries lose all their value and it is not open to the authorities to consider those adverse entries against the officer again at the time of his subsequent promotion. After promotion by selection despite adverse entries, the adverse entries lose all value and they cease to be of any relevant material for consideration for further promotion. In Satish Chandra Mittal v. State of U.P. 1975 (1) S LR 65 : 1975 Lab IC 285, a learned Judge of this Court held that adverse entries in the character roll of an officer prior to his selection as Superintending Engineer lost all their value after he was selected to that post on merits which was determined on the basis of his service record. We are in full agreement with the view taken by the learned Judge. If crossing efficiency bar would make the prior adverse entries ineffective, the same result would follow with greater force if an officer is promoted to selection grade on consideration of his service record including those adverse entries. We have, therefore, good authority in the cases of Dewan Chunni Lal AIR 1978 SC 2086; Pawan Kumar Dubey 1976 Lab IC 1146 (SC) and Satish Chandra Mittal 1975 Lab IC 295 (All)(supra) to support the view that the doctrine of washing off the adverse entries on promotion of an officer to higher post is applicable to selection and promotion and the contention that the principle should be confined only to the case of compulsory retirement does not appear to be reasonable or sound. If the adverse entries ceased to be effective, they cannot constitute valid material and even if the entire record of the officer is taken into account, those entries cannot be used against the officer concerned for purposes of denying him future promotion. If it were not so, an officer would be subject to repeated review of his adverse entries of remote past at various stages even though they were rendered ineffective as he was given promotion to higher post at an earlier stage despite those adverse entries.

We are of the view that since the representations against adverse entries were allowed and the same had been expunged by the authorities, then they became non est to be taken into consideration at this stage.

In view of above, the writ petition succeeds and the termination order dated 17.8.1983, as contained in Annexure SA-1 to the supplementary affidavit in the amendment application, is quashed forthwith. Respondents are directed to regularise the services of the Petitioner within a period of one month from the date of production of certified copy of this order before them. Petitioner be also given all the consequential benefits of the regular service. There will be no order as to cost.