High Court · 2025

3. Shri Samir Sharma, learned Senior Counsel assisted by Shri Himanshu Agrawal, learned counsel for the petitioner submits: i. That the three entries on which reliance was placed were not liable to be considered as adverse since the representations of the petitioner against the said entries were not decided in the time frame contemplated in Rule 5 of the U.P. Government Servants (Disposal of Representation Against Adverse Annual Confidential Reports and Allied Matters Rules), 1995. ii. As far as the fourth adverse entry was not liable to be considered as it did not pertain to the relevant period for grant of ACP. iii. The petitioner was exonerated of the charges enumerated in the chargesheet after a disciplinary enquiry. The fourth entry was advisory in nature.

4. Shri Girish Chandra Yadav, learned counsel for the respondent submits that: i. The petitioner did not have an unblemished record of service. ii. He had earned successive bad entries for the period of four years. iii. In view of the aforesaid record of service it cannot be stated that the petitioner had a satisfactory record of service. iv. The ACP scheme is not applicable to the respondent in view of the departmental order dated 17.10.2017.

5. Rejoining the issue Shri Sameer Sharma, learned Senior Counsel assisted by Shri Himanshu Agrawal, learned counsel for the petitioner contends that the aforesaid circular of the year 2017 has been recalled by circular dated 05.03.2020.

6. Heard learned counsel for the parties.

7. These facts are established from the pleadings and from the records. The petitioner became entitled for grant of second ACP on 01.11.2012. The record of service including the ACRs awarded to the petitioner up to the aforesaid date alone were liable to be considered for grant of second ACP benefits. The petitioner was awarded an adverse entry in the year 2009-10 which was served upon him on 11.01.2011. The petitioner appealed against the said entry by instituting a departmental appeal on

25.02.2011. The aforesaid appeal was decided on

01.01.2013. The petitioner was awarded an adverse entry for the year 2010-11 in January, 2012 which was carried in appeal on 10.02.2012. The said appeal has not been decided till date. Lastly, the petitioner was awarded an adverse entry for the year 2011-12. The same was served upon him in July, 2012. The petitioner took the aforesaid entry in appeal before the competent authority on

30.07.2012. The aforesaid appeal was rejected on

01.01.2013.

8. A chargesheet was drawn up against the petitioner on

30.03.2012. The chargesheet pertains to the charges which were the subject matter of the adverse entry made in the month of July, 2012. The enquiry officer absolved the petitioner of the aforesaid charges. The disciplinary authority agreed with the findings of the enquiry officer and dropped the proceedings against the petitioner by order dated 26.02.2013.

9. The consideration of adverse entries is governed and regulated by the U.P. Government Servants (Disposal of Representation Against Adverse Annual Confidential Reports and Allied Matters Rules), 1995 (hereinafter the Rules of 1995). The aforesaid Rules of 1995 were duly adopted by the respondent corporation by resolution dated

11.06.1996. The decision was thereafter circulated by circular dated 13.11.1997.

10. Rule 4 of the Rules of 1995 which prescribes the time period and manner of disposal of ACRs is reproduced below:

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 accep0itng 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 - (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 a 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.

11. Rule 5 of the Rules of 1995 forbids the authorities to consider an entry as adverse in certain circumstances 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."

12. Admittedly the time period prescribed in Rule 4 for deciding ACRs is of a directory nature. Ipso facto exceeding the time limit prescribed in the said rule may not vitiate the order passed on the representations against the annual adverse entry. In facts and circumstances of a case the delay may be curable if there is a satisfactory explanation for the same. In such cases, the delay may not have a vitiating consequence and the order deciding the representation may not be treated as illegal and beyond recall. However, in absence of good explanation for the aforesaid delay in deciding the representation beyond the period prescribed in Rule 4 of the 1995 Rules, the authorities will be precluded from treating the report as adverse under Rule 5 of the Rules of 1995. A directory provision does not mean that the authorities can flout the mandate of legislature with impunity. Rule 4 has to operate in consonance with Rule 5 extracted above.

13. Absent a satisfactory cause or good explanation for failure to decide the representation against the ACR in the time frame under Rule 4, the provisions of Rule 5 will trigger and preclude the authorities from considering the order passed under Rule 4 of the Rules of 1995. In the facts of this case no good and satisfactory cause has been disclosed for the failure to decide the applications of the petitioner against adverse entries within the time period prescribed under the Rule 4. In this wake by virtue of operation of Rule 5 of the 1995 Rules, the respondents are barred from considering the adverse entries against the petitioner for the assessment years in question for purpose of grant of the ACP.

14. The aforesaid Rule arose for consideration before a learned Single Judge of this Court in Gaya Prasad Pandey vs. State of U.P. and 11 Others (Writ A No. 2630 of 2020). Ajit Kumar, J. while examining the import of the aforesaid Rules held as under: "18. From the aforesaid Rule, it is clear that if representation remains undisposed of beyond the period prescribed for its disposal, then such adverse entry would not be a bar for the purposes of consideration for promotion."

15. In the facts of this case, it is admitted that the appeals against the adverse entries were not decided in accordance with the mandate of Rule 4 and 5 of the Rules of 1995 as discussed in the preceding paragraphs and in light of the law laid down by this Court in Gaya Prasad Pandey (supra).

16. The adverse entries were not liable to be considered as adverse against the petitioner while determining his entitlement for the ACP. By declining the ACP to the petitioner on the foot of the said entries, the respondents have acted contrary to the Rules of 1995.

17. The impugned order dated 07.12.2017 is liable to be set aside and is set aside.

18. Since no other adverse material against grant of ACP has been produced before the Court and in view of the fact that the petitioner has retired in the year 2012 it will be in the interest of justice to bring a closure to the controversy. Hence, the matter is not being remitted to the authorities. The petitioner is accordingly held to be entitled to the ACP benefits which were denied by the impugned order.

19. The ACP benefits shall be paid to the petitioner within a period of four months from the date of submission of a certified copy of this order. In the event of failure to pay the amount within four months, costs of Rs. 50,000/- and interest @ 8% p.a. shall be payable by the respondent Corporation. It is open to the Managing Director, UPSRTC to order recovery of the sum of Rs. 50,000/- towards penalty and penal interest @ 8% from the concerned officials.

20. Before parting one more issue needs to be adverted to.

21. As far as the issue of applicability of the ACP is concerned, two circulars have been brought to the notice of the Court. One circular of the year 2017 contemplates withdrawal of ACP benefits to employees of the UPSRTC. The second circular dated 05.03.2020 reinstates the ACP benefits to the employees of the UPSRTC.

22. The Court is not going into the issue since the petitioner was entitled to ACP benefits in view of the provisions applicable at the relevant points in time. Subsequent changes in the service rules cannot deny him the aforesaid service benefits.

23. The writ petition is allowed. Order Date :- 6.5.2025/Vandit VANDIT AGRAWAL High Court of Judicature at Allahabad

3. Shri Samir Sharma, learned Senior Counsel assisted by Shri Himanshu Agrawal, learned counsel for the petitioner submits: i. That the three entries on which reliance was placed were not liable to be considered as adverse since the representations of the petitioner against the said entries were not decided in the time frame contemplated in Rule 5 of the U.P. Government Servants (Disposal of Representation Against Adverse Annual Confidential Reports and Allied Matters Rules), 1995. ii. As far as the fourth adverse entry was not liable to be considered as it did not pertain to the relevant period for grant of ACP. iii. The petitioner was exonerated of the charges enumerated in the chargesheet after a disciplinary enquiry. The fourth entry was advisory in nature.

4. Shri Girish Chandra Yadav, learned counsel for the respondent submits that: i. The petitioner did not have an unblemished record of service. ii. He had earned successive bad entries for the period of four years. iii. In view of the aforesaid record of service it cannot be stated that the petitioner had a satisfactory record of service. iv. The ACP scheme is not applicable to the respondent in view of the departmental order dated 17.10.2017.

5. Rejoining the issue Shri Sameer Sharma, learned Senior Counsel assisted by Shri Himanshu Agrawal, learned counsel for the petitioner contends that the aforesaid circular of the year 2017 has been recalled by circular dated 05.03.2020.

6. Heard learned counsel for the parties.

7. These facts are established from the pleadings and from the records. The petitioner became entitled for grant of second ACP on 01.11.2012. The record of service including the ACRs awarded to the petitioner up to the aforesaid date alone were liable to be considered for grant of second ACP benefits. The petitioner was awarded an adverse entry in the year 2009-10 which was served upon him on 11.01.2011. The petitioner appealed against the said entry by instituting a departmental appeal on

25.02.2011. The aforesaid appeal was decided on

01.01.2013. The petitioner was awarded an adverse entry for the year 2010-11 in January, 2012 which was carried in appeal on 10.02.2012. The said appeal has not been decided till date. Lastly, the petitioner was awarded an adverse entry for the year 2011-12. The same was served upon him in July, 2012. The petitioner took the aforesaid entry in appeal before the competent authority on

30.07.2012. The aforesaid appeal was rejected on

01.01.2013.

8. A chargesheet was drawn up against the petitioner on

30.03.2012. The chargesheet pertains to the charges which were the subject matter of the adverse entry made in the month of July, 2012. The enquiry officer absolved the petitioner of the aforesaid charges. The disciplinary authority agreed with the findings of the enquiry officer and dropped the proceedings against the petitioner by order dated 26.02.2013.

9. The consideration of adverse entries is governed and regulated by the U.P. Government Servants (Disposal of Representation Against Adverse Annual Confidential Reports and Allied Matters Rules), 1995 (hereinafter the Rules of 1995). The aforesaid Rules of 1995 were duly adopted by the respondent corporation by resolution dated

11.06.1996. The decision was thereafter circulated by circular dated 13.11.1997.

10. Rule 4 of the Rules of 1995 which prescribes the time period and manner of disposal of ACRs is reproduced below:

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 accep0itng 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 - (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 a 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.

11. Rule 5 of the Rules of 1995 forbids the authorities to consider an entry as adverse in certain circumstances 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."

12. Admittedly the time period prescribed in Rule 4 for deciding ACRs is of a directory nature. Ipso facto exceeding the time limit prescribed in the said rule may not vitiate the order passed on the representations against the annual adverse entry. In facts and circumstances of a case the delay may be curable if there is a satisfactory explanation for the same. In such cases, the delay may not have a vitiating consequence and the order deciding the representation may not be treated as illegal and beyond recall. However, in absence of good explanation for the aforesaid delay in deciding the representation beyond the period prescribed in Rule 4 of the 1995 Rules, the authorities will be precluded from treating the report as adverse under Rule 5 of the Rules of 1995. A directory provision does not mean that the authorities can flout the mandate of legislature with impunity. Rule 4 has to operate in consonance with Rule 5 extracted above.

13. Absent a satisfactory cause or good explanation for failure to decide the representation against the ACR in the time frame under Rule 4, the provisions of Rule 5 will trigger and preclude the authorities from considering the order passed under Rule 4 of the Rules of 1995. In the facts of this case no good and satisfactory cause has been disclosed for the failure to decide the applications of the petitioner against adverse entries within the time period prescribed under the Rule 4. In this wake by virtue of operation of Rule 5 of the 1995 Rules, the respondents are barred from considering the adverse entries against the petitioner for the assessment years in question for purpose of grant of the ACP.

14. The aforesaid Rule arose for consideration before a learned Single Judge of this Court in Gaya Prasad Pandey vs. State of U.P. and 11 Others (Writ A No. 2630 of 2020). Ajit Kumar, J. while examining the import of the aforesaid Rules held as under: "18. From the aforesaid Rule, it is clear that if representation remains undisposed of beyond the period prescribed for its disposal, then such adverse entry would not be a bar for the purposes of consideration for promotion."

15. In the facts of this case, it is admitted that the appeals against the adverse entries were not decided in accordance with the mandate of Rule 4 and 5 of the Rules of 1995 as discussed in the preceding paragraphs and in light of the law laid down by this Court in Gaya Prasad Pandey (supra).

16. The adverse entries were not liable to be considered as adverse against the petitioner while determining his entitlement for the ACP. By declining the ACP to the petitioner on the foot of the said entries, the respondents have acted contrary to the Rules of 1995.

17. The impugned order dated 07.12.2017 is liable to be set aside and is set aside.

18. Since no other adverse material against grant of ACP has been produced before the Court and in view of the fact that the petitioner has retired in the year 2012 it will be in the interest of justice to bring a closure to the controversy. Hence, the matter is not being remitted to the authorities. The petitioner is accordingly held to be entitled to the ACP benefits which were denied by the impugned order.

19. The ACP benefits shall be paid to the petitioner within a period of four months from the date of submission of a certified copy of this order. In the event of failure to pay the amount within four months, costs of Rs. 50,000/- and interest @ 8% p.a. shall be payable by the respondent Corporation. It is open to the Managing Director, UPSRTC to order recovery of the sum of Rs. 50,000/- towards penalty and penal interest @ 8% from the concerned officials.

20. Before parting one more issue needs to be adverted to.

21. As far as the issue of applicability of the ACP is concerned, two circulars have been brought to the notice of the Court. One circular of the year 2017 contemplates withdrawal of ACP benefits to employees of the UPSRTC. The second circular dated 05.03.2020 reinstates the ACP benefits to the employees of the UPSRTC.

22. The Court is not going into the issue since the petitioner was entitled to ACP benefits in view of the provisions applicable at the relevant points in time. Subsequent changes in the service rules cannot deny him the aforesaid service benefits.

23. The writ petition is allowed. Order Date :- 6.5.2025/Vandit VANDIT AGRAWAL High Court of Judicature at Allahabad