JUDGMENT Shishir Kumar, J.
1. The present writ petition has been filed for issuing a writ of certiorari quashing the order dated 10.10.1991 (Annexure 19 to; the writ petition) passed by the respondent No. 2 and issuing a writ in the nature of mandamus directing the respondents not to interfere with the functioning of the petitioner as Khandsari Inspector and to regularize the services of the petitioner.
2. The fact arising out of the present writ petition is that the petitioner was initially appointed as Junior Clerk in the Sugar Department of the State of U.P. in the month of November, 1974. The petitioner was confirmed on 1.9.1979 vide order dated 15.9.1987. As the various posts of Khandsari Inspectors were lying vacant and the same were to be filled after selection by the Public Service Commission, the petitioner along with number of other persons were appointed as Khandsari Inspectors by direct recruitment on ad hoc basis vide its appointment letter dated 5.2.1975. The appointment of the petitioner on the said post was to continue till regular selection is made by the Commission. The petitioner has filed the order of appointment dated 5.2 1975 as Annexure 1 to the writ petition and the name of the petitioner appears at Serial No. 18. The post on which the petitioner was appointed as Khandsari Inspector on ad hoc basis was admittedly vacant and no selection was made by the Commission, therefore, the petitioner as well as various other persons were permitted to continue on ad hoc basis. The State Government in exercise of powers conferred under Article 309 of the Constitution of India took a policy decision for regularization of ad hoc appointees (on the post within the perview of Public Service Commission) without approval from the Commission and a Rule was framed called as "Uttar Pradesh Regularization of Ad hoc Appointments (on the post within the perview of Public Service Commission) Rules, 1979 published on 14 9.1979. These rules provided that all the ad hoc appointees of before 1.1.1977, who possesses the requisite qualification on the date of ad hoc appointment and has completed three years of continuous service be regularized in permanent or temporary vacancies as may be available on the basis of service record and suitability, meaning thereby that all ad hoc appointees were to be regularized subject to rejection of unfit. Relevant Rules is 4( 1). The same is being reproduced below:-
"4.(1) Any person who-
(i) was directly appointed on ad hoc basis before January 1, 1977 and is continuing in service, as such, on date of commencement of these rules;
(ii) possessed requisite qualifications prescribed for regular appointment at the time of such ad hoc appointment; and
(iii) has completed or, as the case may be, after he has completed three years continuous service, shall he considered for regular appointment in permanent or temporary vacancy as may be available on the basis of his record and suitability before any regular appointment is made in such vacancy in accordance with the relevant service rules or orders."
3. It has also been stated by the petitioner that the suitability on the basis of service record was to be seen by the Selection Committee constituted by appointing authority as provided under Rules 4 and 5 of the said Rules and the select list was to be prepared in order of seniority. Rule 7(1) provides that person appointed under these rules shall be entitled to seniority only from the date of appointment after selection and were to be placed below the persons appointed through regular selection before the appointment of such persons and Rule 8 provides that the services of a person, who is not suitable, shall be terminated. The entire scheme under the Rule shows that exercise for selection had to be taken just after framing the Rules in 1979 because according to Rule 7(1) the seniority was to be fixed from the date of appointment after selection and they were to be placed below the persons appointed through a regular selection before the appointment of said persons and the selections were to be made from available permanent or temporary vacancies on the basis of service record. In the year 1979, immediately after publication of the aforesaid Regularization Rules, the petitioner had completed more than four years since the petitioner was appointed on a permanent vacant post and the post was available. The petitioner was having unblemished service record and is entitled for regulanzation on a permanent post of Khandsari Inspector and on 5.7.1982, the petitioner was communicated an adverse entry for the year 1977-78. The petitioner filed a representation on 1.10.1982. The representation of the petitioner was rejected on 26.11.1987. The adverse entry, representation, as well as the rejection has been filed as Annexures 5, 6, and 7 to the writ petition. It appears that in the meantime, the Selection Committee has considered the case for regulanzation and has published a list of selected candidates for regulanzation on 31.12.1987. 47 persons were selected of which four persons from Serial No. 44 to 47 were juniors to the petitioner. It is submitted that the persons selected at Serial No. l Sri Gyan Prakash Ahluwalia was ultimately awarded the punishment of permanently with-holding five annual increments and his integrity was noted as doubtful. The said integrity against the aforesaid person is dated 16.11.1986. Sri Ahluwalia has been selected while the petitioner has not been shown in the select list. One Sri Pawan Kumar Jain, his integrity was also being noted as doubtful yet he has been selected and has placed at Serial No. 4 of the select list, which has been filed as Annexure 2 to the writ petition. The second select list was published on 16.6.1989. In the aforesaid list, one Sri B.D. Pandey was shown at Serial No. l and Sri Chhabi Lal at Serial No. 4 and the entries of both these persons have been marked as doubtful. The petitioner specifically submitted that a specific averment has been made in the writ petition regarding the aforesaid fact
4. The second entry against the petitioner is censure entry communicated to the petitioner vide letter dated 15.10.1981 with regard to two years i.e. 1979-80 and 1980-81. Against this, the petitioner has submitted representation on 7.1.1982, which was rejected on 30.7.1991 after expiry of more than nine years. The other adverse entry was communicated to the petitioner vide letter dated 31.5.1985, which did not disclose the year for which this entry has been made. The entry itself was vague. However, this entry was recorded for the year 1981-82 The representation dated 1.11.1985 filed by the petitioner kept pending and was rejected on 4.6.1992. The fourth adverse entry was communicated vide letter dated 16.4.1990 (Annexure 15 to the writ petition) for the year 1985-86. This entry was based on some audit report for which the petitioner was not given any opportunity. The petitioner filed a representation on 22.6.1990, which was rejected on 12.8.1992.
5. It has been submitted on behalf of the petitioner that the petitioner was allowed to cross the efficiency bar with effect from 1.4.1987 and when the order dated 10.10.1991 was passed the petitioner approached this Court and this Court was pleased to grant time to the learned Standing Counsel to file counter affidavit and the operation of the order dated 10.10.1991 was stayed. Petitioner submits that the petitioner is still working on the post of Khandsari Inspector on the basis of the interim order passed by this Court.
6. The contention on behalf of the petitioner is that the regularization Rules came in the year 1979 and at that time various permanent posts were vacant and the petitioner and other persons were appointed on ad hoc basis till regular selection was made by the Commission. As the petitioner has completed more than four years of service and there was no adverse entry in the service record of the petitioner as Rule 7(1) provides that persons regularized after selection shall be entitled to seniority from the date of appointment after selection. It appears that the selection was made sometime in the year 1987 and the select list was published on 31.12.1987. When there was one adverse entry (warning) communicated to the petitioner on 5.7.1982 for the year 1977-78 already another adverse entry was communicated to the petitioner on 15.10.1981 against which the petitioner has already submitted a representation, which was pending. Since the petitioner had been permitted to cross the efficiency bar with effect from 1.4.1987, the adverse entry for the year 1977-78 is to be washed up and second entry communicated to the petitioner of 15.10.1981, the representation of the petitioner was pending, as such, the same cannot be taken into consideration by the Selection Committee in 1987.
7. The petitioner has placed reliance upon a judgment in The State of Punjab v. Deewan Chunni Lal and Ors. and has placed reliance upon Paras 10 and 14 of the said judgment. The same is being reproduced below-
" 10. It was urged before us that the crossing of the effictency but must he regarded as giving him a clean bill up to that date and in view of this the reports of 1941 and 1942 should not have been taken into consideration against him. "
"14. In our view reports earlier than 1942 should not have been considered at all in as much as he was allowed to cross the efficiency bar in that year. It is unthinkable that if the authorities took any serious view of the charge of dishonesty and inefficiency contained in the confidential reports of 1941 and 1942 they could have overlooked the same and recommended the case of the officer as one fit for crossing the efficiency bar in 1944. It will be noted that there was no pecific complamt in either of the two years and at best there was only room for suspicion regarding his behavior. "
8. The another judgment relied by the petitioner is in Shri Baikuntha Nath Das and Anr. v. Chief District Medical Officer, Baripada and Anr., , and has placed reliance upon Paras 32 and 34 of the said judgment "32. We may not be understood as saying either tha, adverse remarks need not be communicated or that the representations, if any, submitted by the government servant (Against such remarks) need not be considered or disposed of the adverse remarks ought to be communicated in the norma course, as required by the Rules orders in that behalf. An) representations made against them would and should also he dealt with in the normal course, with reasonable promptitude. All that we are saying is that the action under F.R.56(j) (or the Rule corresponding to it) need not await the disposal or final disposal of such representation or representations, as the case may he. In some cases, it may happen that some adverse remarks of the recent years are not communicated or if communicated, the representation received in that behalf are pending consideration. On this account alone, the action under F.R.56(j) need not be held back. There is no reason to presume that the Review committee or the government, if it chooses to take into consideration such uncommunicated remarks, would not be conscious or cognizant of the fact that they are not communicated to the government servant and that he was not given an opportunity to explain or rebut the same. Similarly, if any representation made by the government servant is there, it shall also be taken into consideration. We may reiterate that not only the Review Committee is generally composed of high and responsible officers, the power is vested in government alone and not in a minor official. It is unlikely that adverse remarks over a number of years remain uncommunicated and yet they are made the primary basis of action. Such an unlikely situation, if indeed present, may be indicative of malice in law. We may mention in this connection that the remedy provided by Article 226 of the Constitution is no less an important safeguard. Even with its well-known constraints, the remedy is an effective check against malafide, perverse or arbitrary action. "
"34. The following principles emerge from the above discussions:
(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehavior.
(ii) The order has to be passed by the government on forming the opinion that it is in the public interest to retire a government servant compulsorily. the order is passed on the subjective satisfaction of the government.
(iii) principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) malafide or (b) that it is based on no evidence or(c) that it is arbitrary-in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be a perverse order.
(iv) The government (or the Review committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter-of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records character rolls, both favorable and adverse. if a government servant is promoted to a' higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.
(v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference. Interference is permissible only on the grounds mentioned in (Hi) above. This aspect has been discussed in paras 30 to 32 above. "
9. The Supreme Court has held that if adverse remark is remained uncommunicated over a number of years, it may be indicating of malice in law. Petitioner has submitted that if a person has been allowed to cross efficiency bar, adverse entries in the service record of that person for the years prior to crossing efficiency bar shall stand washed out and ceased to have effect and shall not be taken into consideration by the Selection Committee to deny the right of Regularization of service The further reliance has been placed by the Counsel for the petitioner in Ved Prakash Joshi v. State of U. P. and Ors. reported in (1997) 3 UPLBEC, Page 1937 and in Sri Hira Nand v. State of Himachal Pradesh and Ors., reported in 1981(2) SLR Page-627.
10. The petitioner submits that order of the respondents is also violative to Article 14 as the petitioner has been discriminated as one Parasnath Tewari was denied promotion and his juniors had been promoted because of successive adverse entries in his record but as Sri Parasnath Tewari had been allowed to cross the efficiency bar, the U.P. Public Service Tribunal allowed the claim petition of Sri Paras Nath Tewan for promotion on the ground that adverse entries prior to crossing efficiency bar have been washed out. Sri Paras Nath Tewari has been regularized in spite of successive adverse entries in this service record on the post of Khandsari Inspector and his name appears at Serial No. 8 in the first list that has been filed as Annexure 2 to the writ petition. But the petitioner in spite of the aforesaid fact, has not been selected and promoted. The further submission made on behalf of the petitioner is that the adverse entries, which have been given to the petitioner cannot be taken into consideration as in view of the Government Order dated 31.3.1997, provides that the adverse entry shall be communicated to a person concerned within six weeks of recording entry and the employee concerned was required to submit his representation within six weeks thereafter of receipt of communication and the authority concerned was to decide the representation within three months from the date of receipt. The State Government has framed Rules regarding adverse annual confidential reports and disposal of representations known as "The U.P. Government Servants' (Disposal of Representation against Adverse Annual Confidential Reports and Allied Matters) Rules, 1995, which provides that adverse report shall be communicated to the employee within 45 days of its reporting and within 45 days, the aggrieved person may filed a representation. The appropriate authority concerned, who has recorded the adverse report was to submit his comments to the competent authority within 45 days and the competent authority is required to decide the representation within 120 days thereafter.
11. It has further been argued on behalf of the petitioner that for the purposes of compulsory retirement under Fundamental Rules, 56, the Screening Committee has to examine the service record of the employee concerned and the Court has held that for the purposes of compulsory retirement an entry against which a representation is pending, the said adverse entry is to be excluded from consideration.
12. The reliance has been placed upon a judgment in Narendra Singh v. State of U.P. and Ors. reported in 1993 (1) UPLBEC, Page 347, and in Nand Lal v. State of U.P. and Ors. reported in 1996(1) ECC, 65 (Allahabad). It has further been submitted on behalf of the petitioner that a specific allegation in Paras 12 and 13 has been made regarding the stoppage of five annual increments and regarding with-holding the increments of Gyan Prakash Ahluwalia and similarly Pawan Kumar Jain and regarding regularization of one B.D. Pandey and Chabilal, who are at serial Nos. l and 5 respectively were regularized. Though their integrity are withheld earlier. The allegation to this effect in the said paragraph has not been controverted by the respondents in the counter affidavit. In such a way, the petitioner submits that the adverse entries communicated after a lapse of few years are not in accordance with the Government Orders and Rules. The entries before crossing the efficiency bar cannot be taken into consideration and the representation, which was pending, the said entry cannot be taken into consideration. The submission of the petitioner is that it is not the number of adverse entries, which matter but it is the gravity of the adverse entry. In the case of the petitioner, the entries are of general in nature and at the time of consideration by the Selection Committee the same was washed off because of crossing of efficiency bar. The representation of the petitioner was pending, which was decided after 1990 but the persons who have been awarded punishment and persons whose integrity have been recorded as doubtful has been selected for regularization way back in 1987 and 1989 but the services of the petitioner has been terminated on the ground that he has not been selected by two Selection Committees. Petitioner submits that the aforesaid Act of the Selection Committee is wholly illegal, arbitrary and violative to Articles 14 and 16 of the Constitution of India.
13. On the other hand, the Learned Standing Counsel submits that the petitioner was suspended and the adverse entries have also been awarded against the petitioner for the years 1977-78, 1978-79, 1979-80, 1980-81 and 1981-82 and for the year 1987-88 special adverse entries have been entered in his character roll, as such, the petitioner services have been terminated on 10.10.1991. The representation of the petitioner has also been rejected and that has not been challenged, therefore, that has become final. The respondents have submitted that the adverse entries for the year 1977-78, which was recorded on 5.7.1982 and informed to the petitioner on the same day will not be treated as time barred. It has been submitted that as soon as the entry was recorded, it was informed to the petitioner and as the petitioner has already submitted the representation, the same . was considered and rejected, therefore, the petitioner cannot claim that there was no adverse entry and taking into consideration the adverse entry by the Selection Committee, the Selection Committee has committed an illegality. The reliance has been placed by the respondents in judgment reported in 1974 in All India Service Law Journal page-106 Sri Kant Chand Jain v. State of U.P. and has ' submitted that in view of the aforesaid judgment, the contention that adverse entry has to be communicated. There is no statutory rules and it is difficult to accept the right proposition that adverse entry which is not communicated may never be taken into consideration. The further reliance has been placed by the respondents in case of R.L. Butail v. Union of India and Ors. reported in 1970 Supreme Court SCC Page- 876, and has submitted that rules regarding preparation and maintenance of confidential rules or by way of departmental, are neither statutory rules nor rules made under Article 309 of the Constitution of India. As the petitioner right from 1977 to 1987 continuously awarded entries as such, his case has been rejected. It has further been submitted that if certain junior persons have been given promotion or confirmed that will not give any right to the petitioner. Reliance has been placed in Union of India and Anr. v. International Trading Company and Anr. . The further submission of the respondents is that similar controversy has been raised and decided by the Full Bench decision of the Orissa High Court in Ramesh Prasad Mahapatra v. State of Orissa and Ors. reported in 1980 (2) SLR Page 417. As the petitioner was not found suitable in view of the adverse entries awarded against the petitioner, as such, his services have been terminated.
14. I have heard learned counsel for the petitioner and learned Standing Counsel and have perused the record.
15. The petitioner was given appointment as a junior clerk in the year 1974 and was promoted on the post of Khandsari Inspector on ad hoc basis on 5.2.1975. The name of the petitioner is in the list at serial No. 18, which has been filed as Annexure 1 to the writ petition When the regularization Rules of 1979 was published on 14.5.1979, the petitioner was completed three years of ad hoc service on the post of Khandsari Inspector. As regards, the adverse entries for the year 1977-78 and the representation of the petitioner is of 1.10.1982. According to the Government Order, the adverse entries has to be communicated to the person concerned within a period of six weeks. Admittedly, the same has been communicated to the petitioner after lapse of about four years and the representation of the petitioner was rejected in the year 1987 after a lapse of five years, which is a clear violation of the government order, which has been issued on 31.3.1977. That UP. Government has framed Rules regarding disposal and communication of the adverse entry against an employee. In the present case, admittedly, the adverse entries against the petitioner have not been communicated as provided under the government order and rules Admittedly, the petitioner has cross the efficiency bar on 1 4.1987, therefore, in view of the judgments cited above, all the adverse entries before 1.4.1987 will be treated to be washed out. The respondents have also not denied the allegations made in Paras 12 and 13 of the writ petition, which clearly states that the persons, who have been awarded adverse entries and their integrity was also withheld vide its order dated 16.11.1986, has been regularized and his name is at serial No. 1 of the list dated 31.12.1987. The case of Pawan Kumar Jain, who is at Serial No. 4 of the said list, his integrity is also withheld on 16.11.1986 but both the persons were regularized by the Selection Committee. It has also come from the record that one Sri Dhoom Singh, who is admittedly, junior to the petitioner in the list of ad hoc promotion dated 5.2.1975 have been regularized. Similarly, one Paras Nath Tewari, who is at Serial No. 8 of the select list of regularization dated 31st December, 1987, has been given benefit on the basis of the judgment passed by the Tribunal only on the ground that Sri Paras Nath Tewari was permitted to cross the efficiency bar therefore, the earlier adverse entries awarded against Sri Paras Nath was treated to be washed out. The said judgment of the Tribunal has become final and Sri Paras Nath Tewari has been regularized on the post of Khandsari Inspector. The Court has also considered the judgment of Ved Prakash Joshi and Sri Hira Lal (Supra). The Court has taken a view that if a person has been allowed to cross efficiency bar, the adverse entries in the service record of that person was prior to crossing efficiency bar shall be treated to be washed out and shall ceased to effect and shall not be taken into consideration by the Selection Committee to deny the right of regularization of his service. The Court has also perused the adverse entries, which has been awarded against the petitioner. It clearly goes to show that the same has been given to the petitioner only to deprive the petitioner from regularization on the post of Khandsari Inspector. If the working of an employee is not up to the mark for a particular yea, the immediate authority has to record the performance of that particular employee within a reasonable time in the service record of the person concerned and if there is something adverse, that has to be communicated immediately as there is a provision that in case of communication of the adverse entry to an employee has right to make representation to the competent authority to satisfy the authority that the adverse entry, which has been awarded that is not correct and if that authority is satisfied the same can be washed out But in the present case, the adverse entries of 1977-78 has been communicated to the petitioner in the year 1982 after a lapse of four years and the representation of the petitioner has been rejected after a lapse of five years on 26.11.1987. Only about one month before of the consideration of various employees similarly situated to the petitioner, for the purposes of regularization by the Selection Committee according to Regularization Rules. The said action of the respondents appears to be intentional and malafide. From the perusal of the list dated 31.12.1987 of the selected candidates for regularization, 47 persons were selected and admittedly persons mentioned at serial numbers 44 to 47 were junior to the petitioner and certain persons have been regularized in spite of the fact that their integrity were doubtful and that was not expunged on the date when the Selection Committee was constituted for consideration of the cases of those persons. Further it is noted that censure entry, which was given to the petitioner with regard to the years 1979-80 and 1980-81 was communicated on 15.10.1981 and the representation which was filed by the petitioner on 7.1.1982 was rejected on 30.7.1991, therefore, in view of the various judgments of the Court and the Apex Court, the said censor entry "for the years 1979-80 and 1980-81 cannot be taken into consideration as on the date when the Selection Committee was considering the cases of various employees, the representation of the petitioner was pending. The adverse entry dated 31.5.1985 does not disclose the adverse entry of any year. The representation dated 1.11.1985 was rejected on 4.6.1992 meaning thereby the said adverse entry should not have been taken into consideration at the time of consideration on 31st December, 1987. The adverse entry for the year 1985-86 was communicated to the petitioner on 16.4.1990, therefore, in my view, in view of the Government Order, the same should not be treated to be a adverse entry, which has been communicated after four years. From the record, it is also clear that on the day when the selections Committee has considered the other persons for regularization according to Rules, there was nothing against the petitioner as the petitioner was permitted to cross the efficiency bar. In case of State of Punjab v. Dewan Chunni Lal, the Apex Court has held that crossing of the efficiency bar must be recorded as giving him a clean chit up to that date and the same should not be taken into consideration against him. In case of Baikunth Nath (Supra) the Apex Court has observed "It is unlikely that adverse remarks over a number of years remain uncommunicalea and yet they are made the primary basis of action. Such an unlikely situation, if needed present, may be indicative of malice in law.
" It is also not disputed by the respondents that the persons having bad service record and whose integrity were doubtful have been regularized by the Selection Committee on 3.12.1987 and even it is not the case of the respondents that their representation against the adverse entries were pending on the day when they were considered for regularization.
16. In such a way, I find that action of the respondents is illegal and the order dated 10.10.1991 cannot be sustained in eye of law As the order dated 10.10.1991 (Annexure 19 to the writ petition) has been set aside, the petitioner is entitled for regularization on the post of Khandsari Inspector at least immediately on the day when his immediate junior to the petitioner mentioned at Serial No. 19 of the list dated 5th February, 1975 has been regularized. It is also to be noted that this Court vide order dated 28.10.1991 was pleased to stay the order dated 10.10.1991. The petitioner is working on the basis of the interim order on the post of Khandsari Inspector.
17. As the order dated 10.10.1991 has been quashed, the respondent No. 2 is directed to pass appropriate orders regarding regularization of the petitioner on the post of Khandsari Inspector from 31st December, 1987 when the junior persons to the petitioner have been regularized by the Selection Committee. It is also made clear that the petitioner will be entitled for all the consequential promotional benefits for which the petitioner is entitled according to law.
18. The writ petition is allowed. There shall be no order as to costs.