Heard learned counsel for the petitioner and Sri Sameer Sharma, learned counsel for respondents.
The petitioner herein was considered for grant of first financial upgradation under the Assured Career Progression Scheme and based on the recommendation of the committee constituted for the said purpose he was granted first upgradation vide order dated 28.2.2011.
However, subsequently by another order dated 29.3.2011, the said order was cancelled and the benefit grated earlier was taken away .
Being aggrieved petitioner filed recall application but when that was not decided he approached this court by means of Writ A No. 52658 of 201, which was disposed of with adirection to the District Judge Chadauli to consider and decide the recall application of the petitioner.
The said application was rejected by the District Judge vide his order dated 30th November, 2011.
In these circumstances the petitioner filed this writ petition challenging the aforesaid orders dated 29.3.2011 and 30th November, 2011.
The contention of the learned counsel for the petitioner is firstly that the District Judge who had given adverse entry in question had seen the work of the petitioner only for 80 days, therefore, the committee was right in allowing the benefit of 1st financial up gradation under the A.C.P. Scheme to the petitioner on the ground that the said entry could not have been awarded and could not be taken into consideration for the said purpose.
Second contention of the learned counsel for the petitioner is that the adverse entry which is the basis for recalling the earlier order was in fact never communicated to the petitioner, therefore, in view of the Government Order dated 4.5.1995, the same cannot be taken into consideration for the purpose of consideration for grant of financial up gradation under the A.C.P. Scheme.
On the other hand Sri Sameer Sharma submits that the adverse entry was given by the then District Judge Chandauli as he had seen the work of the petitioner for more than 90 days. He further invites the attention of the Court to the relevant extract of the impugned order dated 30th November, 2011 wherein the District Judge has considered the issue of communication of the adverse entry to the petitioner and has referred to a report dated 29.7.2011 submitted by the then Senior Administrative Officer to the effect that the said adverse entry was communicated to the petitioner and a photo copy was provided to him with the request that he should make endorsement of receipt by putting his signature on the relevant document in his service record but he excused himself by stating that he will do so after completing his administrative work. Thereafter he kept on delaying the matter for one reason or another and did not put his signature therein. The report states that in fact while replying to the show cause notice dated 17.3.2011, vide his representation dated 24.3.201, the petitioner had admitted to having knowledge of the aforesaid entry awarded in the year 2007 and has also explained the circumstances which led to the said action, therefore, the District Judge based on the aforesaid report said that this plea has been raised by the petitioner as an afterthought and he was well aware about the said entry but did not raise any objection in respect thereof.
The representation dated 24.3.2011, referred above, was not filed by the petitioner with the writ petition but the same was produced by the learned counsel for the petitioner during course of arguments for perusal of the Court.
After hearing learned counsel for the petitioner and perusing the record, I am firstly of the view that the adverse entry in question was awarded to the petitioner for the period 28.7.2007 to 30.11.2007 which is more than 90 days. The fact that the petitioner was on medical leave for a short period of 9/10 days during this period it can be said that his work was seen for less than 90 days period, as has been rightly held by the District Judge in his order dated 29.3.2011.
So far communication of the adverse entry is concerned no doubt there is no documentary proof of receipt of the said entry by the petitioner but considering the peculiar facts and circumstances of the case specially the recital made in the order of the District Judge dated 30th November, 2011, based on the report of the Senior Administrative Officer Chandauli dated 29.7.2011 and the recital contained in the petitioner's own representation dated 24.3.2011 submitted in response to the show cause notice dated 17.3.2011, it can be reasonably concluded that the petitioner was served a photocopy of the said adverse entry but avoided putting his signature in proof of receipt of the same and is now raising this plea of non service as an afterthought. His representation dated 24.3.2011 not only contains reference to the background in which the said entry was given but also the explanation of the petitioner in this regard. There is no murmur in the said representation about the entry not having been communicated to him. If it was so, the petitioner would have raised this plea at the first instance, but he did not do so, obviously, because he was aware of the entry . It is only in the recall application dated 20th July, 2011 that this plea has been taken for the first time, therefore, the contention of learned counsel for the petitioner in this regard cannot be accepted.
In view of the aforesaid adverse entry, respondents have rightly recalled the order dated 28.2.2011 as he was not entitled to the said benefits, his service not being satisfactory.
In view of the aforesaid, I do not find any valid ground for interference with the impugned order. However, as more than five year has passed since the said entry was awarded to the petitioner, his case may be considered for grant of requisite financial upgradation as per the terms and conditions of the Assured Progression Scheme with effect from the next date on which he was eligible for the said purpose With the aforesaid observation, this writ petition is dismissed.
Order Date :- 10.11.2014 M.A.A.