JUDGMENT O.P. Garg, J.
1. The petitioner--Ved Prakash Joshi has approached this Court by means of the present writ petition under Article 226 of the Constitution with the prayer that the order dated 2.8.1983, Annexure 2 to the writ petition, passed by Dr. B. P. Sharma, Upper Siksha Nideshak (Madhyamik), respondent No. 2 be quashed and the respondents be directed to treat the petitioner as Assistant Teacher, English in the Government Inter College, Chakrata, District Dehradun.
2. Counter and rejoinder affidavits have been filed Heard Sri Ashok Khare, learned counsel for the petitioner and Sri Sabhajit Yadav, learned standing counsel for the respondents.
3. Admittedly, the petitioner was appointed as Assistant Teacher in English subject in the year 1971 by the Deputy Director of Education (for short 'D.D.E.') Hills. Nainital on temporary basis. The petitioner continued to work on the said post for a period of about 12 years and during this period he had earned as many as 6 or 7 adverse entries, which according to the petitioner, were awarded to him by the previous Principal on account of animosity. The work of the petitioner from 1981 onwards was appreciated. The services of the petitioner were terminated by an order dated 2.8.1987 without informing him of the reasons therefor or serving him with any charge-sheet. According to the petitioner, the order of termination, which is Annexure 2 to the writ petition is mala fide, arbitrary and against the principles of natural justice.
4. Counter-affidavit has been filed by Sri Rajendra Singh Rastogi, Assistant Director of Education I, Allahabad. It is alleged that the petitioner was appointed as temporary Lecturer in English on ad hoc basis in the year 1971 against direct recruitment quota and that the case of the petitioner for regularization of his services was considered under the provisions of Ad Hoc Appointment (Public Service Commission Purview Posts) Regulation Rules, 1979 by a Committee constituted for the purpose ; service record of the petitioner of past seven years was taken into account and the Selection Committee found that the petitioner was awarded adverse entries continuously for six years out of which entries for at least four years, i.e., for the periods 1974 to 1978 were confirmed. The petitioner was not approved for regularisation on the post of Assistant Teacher, English and, therefore, his services were terminated under the aforesaid Rules. In the rejoinder-affidavit, the petitioner has maintained that the termination order is bad in law, as the respondents could not terminate his services on the basis of extremely flimsy adverse entries out of which at least one was expunged. According to the petitioner, his services could not be terminated without initiating regular departmental enquiries and serving him with a show-cause notice.
5. After about seven years of filing of this writ petition, a Supplementary Affidavit was filed by the petitioner in which a number of pleas and new grounds have been taken to challenge the termination order. The main contention of the petitioner in the Supplementary Affidavit is that the D.D.E., Nainital allowed the petitioner to cross the efficiency bar with effect from the year 1977-78 by letter No. 6765-66/V-3 (1) 1979-80, dated 7.11.1979 and consequently, all the entries which were given prior to the crossing of the efficiency bar, stood wiped out after the said order and, therefore, adverse entries awarded to the petitioner upto the year 1978 could not be taken into consideration by the Selection Committee constituted for the purpose of regularising the services of the petitioner. The recommendation of the Selection Committee in not regularising the services of the petitioner has been challenged as being based on the material which was not in existence. After the filing of the Supplementary Affidavit by the petitioner, specific order was passed by this Court on 21.11.1996 requiring the respondents to file Supplementary Counter-Affidavit in reply within one month's time particularly clarifying whether the allegation that the petitioner crossed the efficiency bar in the year 1979 vide letter dated 7.11.1979 issued by D.D.E., Nainital is correct or not. The petitioner was also directed to file Supplementary Rejoinder-Affidavit annexing the adverse entries which were given to the petitioner after 7.11.1979. No Supplementary Counter-Affidavit was filed by the respondents in spite of the fact that another opportunity was granted by this Court on 13.3.1992. It is, therefore, presumed that the respondents are not in a position to challenge the facts as set out in the Supplementary Affidavit filed by the petitioner and that whatever has been stated by the petitioner in his Supplementary Affidavit is nothing, but truth.
6. Learned counsel for the petitioner urged that the Selection Committee could not have taken into consideration and adverse entries which were recorded prior to 7.11.1979 on which date the petitioner was allowed to cross the efficiency bar as under the law, these entries shall stand wiped off or effaced. As said above. there is no denial of the fact that the petitioner was allowed to cross the efficiency bar in the year 1979 by the D.D.E. The petitioner, in his Supplementary Affidavit, has clearly mentioned that vide letter No. 6765-66/V-3 (1)-1979-80, dated 7.11.1979 the D.D.E., Nainital allowed him to cross the efficiency bar with effect from the year 1977-78. To fortify his submission, the learned counsel placed reliance on the decision of the Division Bench of this Court in Girish Behari v. State of U.P., 1982 Lab IC 1500, in which the doctrine of washing off the adverse entries was considered. It was observed that the doctrine of washing off-the adverse entries of an officer is a good doctrine which ensures Justice to the public servant. If an officer is selected and promoted to a higher post despite adverse entries against him, those adverse entries lose all value and it is not open to the authorities to consider those adverse entries against the officer again at the time of subsequent promotion. It was further observed that 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 purpose of denying him future promotion. On the analogy of the aforesaid case, learned counsel for the petitioner urged that all the adverse entries prior to 7.11.1979, the date on which the petitioner was allowed to cross the efficiency bar, ceased to have any value and could not be taken into consideration by the Selection Committee to deny the right of the petitioner to get himself regularised in service. This submission is quite weighty. In another unreported case in Civil Misc. Writ No. 20231 of 1988, Paras Nath Bhartiya, Hon'ble Mr. Justice Vijay Bahuguna (as his Lordship then was), allowed the writ petition on the ground that while considering the case of the petitioner, the Selection Committee erred in law by taking into consideration the adverse entries from 1973 to 1978. when the petitioner had admittedly crossed the efficiency bar. The doctrine of washing off adverse entries would, thus, be applicable also in the case where a Government servant is allowed to cross the efficiency bar, meaning thereby, all the adverse entries shall stand effaced or shall be of no value if subsequently the Government servant has been allowed to cross the efficiency bar. In the instant case, undisputedly, the petitioner has been allowed to cross the efficiency bar on 7.11.1979 and consequently, all his adverse entries prior to the said date could not be taken into consideration to the detriment of the petitioner. Since the year 1981, the petitioner has earned good entries. After allowing to cross the efficiency bar on 7.11.1979, the petitioner has been awarded an adverse entry for the year 1979-80 ; against which, the petitioner has made a representation which remains undisposed of and it is pending with the D.D.E. In the absence of any decision on the representation, no value or weight can be attached to the adverse entry against which a representation is pending as nobody knows whether the representation would be allowed or rejected. The Selection Committee cannot be allowed to act in an arbitrary manner in taking into consideration the material which stands wiped off. The decision of the Selection Committee not to regularise the services of the petitioner is based on the primary consideration that the petitioner has a number of adverse entries to his credit. If the adverse entries are not taken into account for the reasons stated above, namely, either they have been washed off, or against one of such entries a representation is pending, the result may be entirely different. The matter, therefore, needs reconsideration by the Selection Committee.
7. The order dated 2.8.1983 terminating the services of the petitioner has been passed on the sole ground that the Selection Committee did not find it proper to regularise the services of the petitioner. The Selection Committee has taken into consideration the material which stood effaced or against which the petitioner has made a representation. In the eyes of law, the decision of the Selection Committee is vitiated and suffers from manifest error of law as it is based on the material, which could not, at all, be taken into consideration. The services of the petitioner were terminated after he had put in 12 years of service. His case was ripe for regular! sail on under the provisions of Ad Hoc Appointment (Public Service Commission Purview Posts) Regularisation Rules. 1979. His case was required to be considered without taking into account the adverse entries recorded prior to 7.11.1979. The Selection Committee should have waited for the result on the representation made by the petitioner against adverse entry for the year 1979-80. The writ petition, therefore, deserves to be allowed, inasmuch as, the order dated 2.8.1983 terminating the services of the petitioner on account of non-regularisation of his services is illegal.
8. In the result, the writ petition succeeds and is allowed. The impugned order of termination dated 2.8.1983 passed by Upper Siksha Nideshak (Madhyamik), respondent No. 2, contained in Annexure 2 to the writ petition, is quashed. It is hereby directed that the Deputy Director of Education, respondent No. 4 shall pass appropriate orders on the representation of the petitioner made against the adverse entries for the year 1979-80 within one month from the date of production of a certified copy of this Judgment before him. After the decision of the Deputy Director of Education on the representation of the petitioner is obtained, the Selection Committee constituted for the purpose of regularisation of services under the Rules, aforesaid, shall take up the matter of regularisation of services of the petitioner afresh. While considering the matter of regularisation of the petitioner, the adverse entries which stood against him prior to 7.11.1979 shall not be taken into consideration. The proceedings relating to consideration of the case of the petitioner for regularisation of his services shall be decided by the Selection Committee again within a period of one month from the date the decision of the Deputy Director of Education on the representation against the adverse entry for the year 1979-80 is made available to the Committee.