HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 211 of 2006 (S/B) State of Uttarakhand and others. ……..Petitioners Versus Sri Prabhal Singh Butola and another. …….Respondents Mr. B.D. Uppadhyay, Addl. Advocate General for the State/petitioners. Mrs. Beena Pandey, Advocate for respondent no.1. Dated: July 20, 2011 Coram: Hon’ble Barin Ghosh, C.J. Hon’ble V.K. Bist, J. Barin Ghosh,C.J. (Oral) When the respondent no.1 was working as a Tehsildar, a charge sheet was issued and thereby a disciplinary proceeding was initiated against him. The charge sheet contained four charges. Respondent no.1 gave a reply to the charge sheet and thereby denied the charges. That led to appointment of an Inquiry Officer. Respondent no.1 participated in the inquiry proceedings. In course of inquiry, Inquiry Officer brought on record many evidences. Inquiry Officer thereupon submitted his report. In the report, he indicated that charges 1 and 4 have not been proved but charges 2 and 3 have been proved. A copy of the inquiry report was given to the respondent no.1. Respondent no.1 filed a representation against the inquiry report. Subsequent thereto, a punishment order was passed on 4th September, 1998. In that, it was stated, amongst others, that in respect of the charges, thus proved, by awarding the following adverse 2 entry, the respondent no.1 is being reinstated. The following adverse entry referred to in the order dated 4th September, 1998 was within quote. In that, it was stated, amongst others, that in view of what have been stated within the quote, respondent no.1 is being censored. The order nowhere stated that the adverse entry or the censor be recorded either in the service book of the respondent no.1 or in any of his annual confidential reports. The respondent no.1 made a representation against the said order dated 4th September, 1998, although, The Civil Services (Classification, Control and Appeal) Rules, 1930, in terms whereof the said disciplinary proceeding was initiated, authorized the respondent no.1 to file an appeal against the same. The respondent no.1 filed the representation proceedings on the basis that the order passed by the disciplinary authority, being an adverse entry, The Uttar Pradesh Government Servants (Disposal of Representation Against Adverse Annual Confidential Reports and Allied Matters) Rules, 1995, apply. A look at the 1995 Rules makes it absolutely clear that same are applicable in relation to adverse entries, recorded in annual confidential reports. The object of the said Rules was to give an opportunity to a Govt. Servant, who has suffered an adverse entry in his annual confidential report, to establish that there was no just reason for recording such adverse entry. On the other hand, the 1930 Rules, under which the disciplinary proceeding was initiated against the respondent no.1, a Govt. Servant is entitled not only to deny the charges levelled against him but is also entitled to defend the same, and only when he has not been able to successfully defend him, an order of punishment, which may be a censor, can be passed against him and not otherwise. 3 2. After having had filed such a representation, the respondent no.1 did not take any step. However, some time later, juniors to the respondent no.1 were promoted. At that stage, in 2004, the respondent no.1 filed a writ petition seeking a direction for consideration of his case for promotion. On the garb of considering the case of promotion of the respondent no.1, the representation of the respondent no.1, against the order dated 4th September, 1998 was decided on 16th November, 2004, by rejecting the same. In this background, the respondent no.1, once again, came before this court, when this Court permitted the respondent no.1 to approach the Tribunal. Respondent no.1 approached the Tribunal and filed a claim petition. In the claim petition, the respondent no.1 questioned the order dated 4th September, 1998 as well as the order dated 16th November, 2004. The Tribunal applied the provisions of the 1995 Rules to the order dated 4th September, 1998, whereby a disciplinary proceeding stood concluded under the 1930 Rules. That being the situation, the order of the Tribunal is interferable for the reasons already indicated above. Before the Tribunal, it was not contended by the respondent no.1 that the order dated 4th September, 1998, concluding the disciplinary proceeding under the 1930 Rules, was bad on any of the available grounds, on the basis whereof such an order can be interfered with. 3. We, accordingly, allow the writ petition and quash the judgment and order of the Tribunal under challenge in the writ petition. At the same time, we make it absolutely clear that since the order dated 7th April, 2001, which also stood in the way of respondent no.1 getting promotion, was not the subject matter of challenge before 4 the Tribunal, we have not gone into the validity of the said order and, accordingly, it shall be open to the respondent no.1 to take such recourse to law, as he may be advised in respect of the said order. Though, the respondent no.1 had claimed before the Tribunal that he has been wrongly denied promotion, while his juniors were given promotion in 2004, but in view of the order dated 7th April, 2001, by which, as it appears, the respondent no.1 was also punished in a disciplinary proceeding, initiated under Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999, without interfering with the said order dated 7th April, 2001, we are unable to go into the question whether non grant of promotion to the respondent no.1, at that time, was a just denial or not. 4. The writ petition is, accordingly, disposed of. (V.K. Bist, J.) (Barin Ghosh, C.J.) 20.07.2011 NCM: