UDAI KUMAR Vs. KAPIL DEV

JUDGEMENT

(1.) Heard the learned counsel for the petitioner Sri Kapil Dev and Sri Harshvardhan, learned counsel for the State. The petitioner, an appointee of Group 'B' Service in the Agriculture Department, feeling aggrieved by his non promotion to the Group 'A' Service on the post of Deputy Director, approached this court for consideration of his promotion on the aforesaid post. Initially the petitioner had filed a writ petition (Writ Petition No.578 (SB) of 1997) but the same was dismissed on the ground of availability of alternative remedy before the U.P.Public Services Tribunal. The claim petition was, however, dismissed on 12/12/2000. Challenging the aforesaid order passed by the Tribunal, Writ Petition No.48 (SB) of 2001 has been filed. There is already an order of this court that this petition be listed alongwith the aforesaid writ petition.

(2.) In short, the petitioner's case is that in the DPC held in the month of March/April, 1997 for making promotion to the post of Deputy Director, petitioner's candidature was also considered but since there was an adverse entry for the year 1995-96, he was not promoted. The Tribunal has rejected the claim petition against the claim of promotion of the petitioner in the aforesaid DPC of 1997 on the ground that since there was an adverse entry in the character roll of the petitioner and, therefore, he was rightly rejected or found unsuitable. We would consider the effect of this entry after a short while in this judgment.

(3.) The aforesaid adverse entry for the year 1995-96 was communicated to the petitioner on 14/11/1996, which was said to have been recorded on 23/10/1995. The petitioner had preferred a representation on 16/12/1996 and thereafter a reminder on 18/6/1997. The representation was considered and the adverse entry was expunged on 28/11/1998. The order expunging the entry has been brought on record. It is thus clear that on the date of consideration of promotion of the petitioner in 1997, the representation against the adverse entry was pending and in view of the provisions of Rule 5 of the 1995 Rules, the said entry could not have been taken into consideration for considering his promotion.