STATE OF U P Vs. SURESH KUMAR

JUDGEMENT

(1.) This writ petition has been filed by State of U.P. through Principal Secretary, Kar Evam Nibandhan, and Commissioner of Commercial Tax U.P., Lucknow. They are aggrieved by order dated 16.04.2010 (Annexure1 to the writ petition) of State Public Service Tribunal, U.P., Lucknow (hereinafter referred to as the "Tribunal") in Claim Petition No. 287 of 2010 filed by Respondent No. 1. The Tribunal vide judgement dated 16.04.2010, impugned in this writ petition, has allowed the claim petition and directed the present Petitioners to accord benefit of Rule 5 of "U.P. Government Servants (Disposal of Representations Against Adverse Annual Confidential Reports and Allied Matters) Rules, 1995" (hereinafter referred to as the "1995 Rules") to Respondent No. 1 in respect to adverse remarks recorded for the year 200203 by Reviewing Authority and Accepting Authorities and not to treat the same adverse for the purposes of promotion, crossing of efficiency bar and other service matters of Respondent No. 1. It has further directed the present Petitioner to consider the case of Respondent No. 1 for promotion with effect from the date his junior was promoted, i.e., 19.01.2007 with all consequential benefits.

(2.) Eleven grounds have been taken to assail the order of Tribunal which are basically repetitive. In substance the general grounds of attack is that the Tribunal has passed the order unreasonably, without application of mind, in absolute mechanical and technical manner, without taking into consideration the facts and circumstances of the matter available on record, has ignored the substantial justice and lawful considerations. It is said that substantial justice and technical considerations when are pitted each other, the substantial justice has to be preferred but the Tribunal has proceeded otherwise.

(3.) When we heard this matter initially on 24.03.2011 we enquired from learned Standing Counsel, whether the view taken by Tribunal is not consistent with statutory rules, namely, Rule 5 of 1995 Rules and whether the Tribunal has committed any error in interpreting and applying Rule 5 in the present case. He could not dispute that Tribunal has simply followed the mandate of Rule 5 and has implemented the same. We enquired whether he has challenged the validity of Rule 5 to which the answer was obviously in negative. In the circumstances when we made further query whether an order of Tribunal which simply gives effect to a plain and unambiguous statutory provision, can it be said that ignoring the same, the Tribunal ought or could have passed any other order which would have resulted in breach of mandatory statutory provision, the learned Standing Counsel having no option fairly stated that Tribunal could not and ought not to have adopted such approach. Moreover despite repeated query he could not point out any error apparent on the face of record in the order of Tribunal which simply reads Rules 4 and 5 of 1995 Rules and has given effect to Rule 5 in the light of admitted facts of this case.