Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Spl. Adverse Entry Should Relate To Particular Instance/work On Application Of Mind Thereto.
JUDGEMENT TITLE : Bajrang Bahadur Singh Vs. State Of U.P. Thru' Principal Secy. P.W.D. & Anr. On 30/03/2006 By Allahabad High Court
CASE NO : WRIT - A NO. 15078 OF 2002
CORAM : Hon'ble R.K. Agrawal,J. And Hon'ble Ravindra Nath Misra,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No.37

Civil Misc. Writ Petition No.15078 Of 2002
Bajrang Bahadur Singh V. State Of U.P. And Another


Hon'ble R.K.Agrawal, J.
Hon'ble R.N.Misra, J.

(Delivered By R.K.Agrawal, J.)

By Means Of The Present Writ Petition Filed Under Article 226 Of The Constitution Of India, The Petitioner, Bajrang Bahadur Singh, Seeks The Following Reliefs:-
"(i) Issue A Writ, Order Or Direction In The Nature Of Certiorari Quashing The Impugned Order Dated 14.11.2000 Passed By The Respondent No.1 Awarding Special Adverse Entry To The Petitioner And The Order Dated 12.10.2001 Passed By The Respondent No.1 Rejecting The Representation Of The Petitioner (filed As Annexure "4" And "7" Respectively To The Writ Petition);
(ii) Issue A Writ, Order Or Direction In The Nature Of Mandamus Commanding The Respondent No.1 To Expunge The Special Adverse Entry Awarded To The Petitioner Vide The Order Dated 14.11.2000 (Annexure "4" To The Writ Petition);
(iii) Issue Any Other Suitable Writ, Order Or Direction Which This Hon'ble Court May Deem Fit And Proper And To Which The Petitioner May Be Found Entitled To In The Circumstances Of The Case;
(iv) Award Costs Of This Petition To The Petitioner."

According To The Petitioner, In The Year 1971 He Was Posted As Executive Engineer, Provincial Division, Public Works Department, U.P., In The District Of Varanasi. A Pontoon Bridge Is Erected On The River Ganga Every Year By The Public Works Department. The Said Bridge Consists Of 127 Pontoons And It Connects Ram Nagar With The City Of Varanasi. The Minister, Public Works Department, Government Of Uttar Pradesh, Had Issued Some Instructions That All The Pontoon Bridges In The State Of U.P. Be Made Ready And Opened For Traffic On 31.10.2000 Otherwise The Adverse Entry Will Be Made Against The Executive Engineer Concerned. According To The Petitioner, Varanasi Is A City Of Cultural Heritage. Every Year, Dev Deepawali Programme Which Is An Important Cultural Programme, Is Celebrated In The First/second Week Of November On The Banks Of River Ganges. For Holding This Cultural Programme, A Floating Platform Is Erected On River Ganges For Which About 14-15 Pontoons Are Required. The Said Festival Is Attended By The High Dignitaries Of The State And Artists Of International Repute Participate In The Said Programme. According To The Petitioner, An Application Dated 13.9.2001 Was Made By The President, Ma Ganga Sewa Samiti, Before The District Magistrate, Varanasi Who On The Same Day Directed The Executive Engineer, Public Works Department, Provincial Division To Extend All Possible Cooperation Like Previous Years. The Commissioner, Varanasi Division, Varanasi, Vide Order Dated 16.10.2001 Directed The Chief Engineer, Public Works Department, Varanasi Division, Varanasi To Make Available 8 Pontoons Alongwith Decking For The Purpose Of Dev Deepawali Programme To Be Organised On 11.11.2000 At Dashashwamedh Ghat. In Compliance With The Aforesaid Directions, The Petitioner Who Was Posted As The Executive Engineer In Public Works Department, Varanasi Division, Varanasi, Provided The Requisite Number Of Pontoons For Dev Deepawali Programme. It Is The Case Of The Petitioner That A Major Portion Of Ram Nagar Pontoon Bridge Was Constructed By 25.10.2000 But As Some Of The Pontoons Had Been Provided To The District Administration For Dev Deepawali Programme, The Pontoon Bridge Could Not Be Completed Within The Deadline Set By The Minister, I.e., 31.10.2000. After The Dev Deepawali Programme Came To An End On 11.11.2000, The Pontoon Bridge Was Got Completed On 14.11.2000 And It Was Opened For Traffic On 15.11.2000. As The Ram Nagar Pontoon Bridge Could Not Be Ready And Opened For Traffic By 31.10.2000, The Minister Got Enraged And Directed For Awarding Special Adverse Entry To The Petitioner. When He Came To Know About The Special Adverse Entry Having Been Awarded, He Approached The District Magistrate, Varanasi Who Immediately Wrote A Letter On 12.11.2000 To The Principal Secretary, Public Works Department, Lucknow, Explaining The Entire Situation And Disclosing The Reason For The Delay In Completion Of The Pontoon Bridge. The District Magistrate Has Specifically Stated That 14 Pontoons Were Used In The Construction Of Floating Platform For Holding The Dev Deepawali Programme As A Result Of Which The Pontoon Bridge Could Not Be Completed By 31.10.2000 And There Was No Laxity On The Part Of The Petitioner. The State Government, However, Gave A Special Adverse Entry On 14.11.2000 On The Ground That The Petitioner Did Not Make Available The Pontoon Bridge For Traffic By 31.10.2000. Feeling Aggrieved The Petitioner Made A Representation To The State Government On 11-12.12.2000 Explaining Therein The Entire Facts And Circumstances And Requesting For The Expunction Of The Special Adverse Entry. Comments Were Called For From The Chief Engineer, Public Works Department, Varanasi Who, Vide Letter Dated 18.4.2001, Sent His Detailed Comments To The Engineer-in-Chief, Public Works Department, U.P., Lucknow. In His Comments Sent By The Chief Engineer, It Was Specifically Mentioned That The Petitioner Was Not Guilty Of Any Negligence Or Slackness In Completing The Pontoon Bridge. The Delay Occurred On Account Of The Requisition Sent By The District Authorities, Namely, The District Magistrate And The Commissioner, Varanasi Division, Varanasi, For Making Available Sufficient Number Of Pontoons For Erection Of A Floating Platform For Dev Deepawali Programme And After The Festival Was Over When 14 Pontoons Were Returned Back, The Same Was Used And Within Two Days The Pontoon Bridge Was Opened For Traffic. If The Pontoon Would Not Have Been Requisitioned By The District Administration, The Pontoon Bridge Would Have Been Ready By 28.10.2000 And The Petitioner Is Not Liable To Be Blamed For The Delay. The State Government, Vide Order Dated 12.10.2001, However, Rejected The Petitioner's Representation. It Has Been Alleged By The Petitioner That He Personally Met The Minister Concerned And Apprised Him About Every Thing Whereupon He Was Asked To Make A Fresh Representation, Which Was Made By Him On 19.12.2001. When The Representation Was Not Being Disposed Of, The Petitioner Was Left With No Other Alternative But To Approach This Court By Filing The Present Petition.
In The Counter Affidavit Filed By Shailendra Kumar, Assistant Engineer, Public Works Department, Construction Division, Varanasi, On Behalf Of The Respondent Nos.1 And 2, It Has Been Stated That As The Petitioner Had Not Got The Pontoon Bridge Completed By 31.10.2000, Special Adverse Entry Had Rightly Been Awarded And If There Was Any Difficulty In Getting The Pontoon Bridge Completed By The Due Date, The Petitioner Ought To Have Brought The Difficulty To The Knowledge Of The Superior Authority So That Remedial Action Could Have Been Taken. However, The Letter Written By The District Magistrate, Varanasi, Has Not Been Denied.
In The Rejoinder Affidavit Filed By The Petitioner, The Averments Made In The Writ Petition Have Been Reiterated To Be Correct.
We Have Heard Sri Chandan Sharma, Learned Counsel Appearing On Behalf Of The Petitioner, And The Learned Standing Counsel Appearing For The Respondents.
The Learned Counsel For The Petitioner Submits That The Petitioner Cannot Be Blamed For The Non-completion Of The Pontoon Bridge By 31.10.2001 As He Had To Comply With The Direction Issued By The District Administration For Providing Sufficient Number Of Pontoons To Be Used In Making The Floating Platform In Dev Deepawali Programme And Immediately When The Pontoons Were Returned After The Close Of The Said Programme/festival, I.e., 12.11.2000, The Pontoon Bridge Was Completed Within 2 Days And Was Opened For Public On 15.11.2000. He Further Submitted That The Special Adverse Entry Has Been Awarded Merely On The Dictates Of The Minister Concerned, Without Application Of Mind, As To Whether The Petitioner Is At All Guilty Or Not For Dereliction And Negligence In Duty. He, Thus, Submitted That The Special Adverse Entry Is Liable To Be Expunged.
The Learned Standing Counsel, However, Submitted That The Petitioner Was Under Direction To Get The Pontoon Bridge Completed By 31.10.2000 And Open It For Public, Which He Did Not Do And, Therefore, The Special Adverse Entry Had Rightly Been Awarded. He Further Submitted That The Minister Had Directed For Grant Of Special Adverse Entry To The Petitioner For Non-compliance Of The Direction Which Was As A Result Of Gross Negligence In Performing His Duties. Thus, The Order Does Not Suffer From Any Illegality.
Having Heard The Learned Counsel For The Parties, We Find That It Is Not In Dispute That In The City Of Varanasi, Dev Deepawali Programme Is Held Every Year. The District Administration Erects A Huge Floating Platform For The Purpose Of The Cultural Activities. Artists Of International Fame Are Invited To Perform On The Said Floating Platform. The Floating Platform Cannot Be Erected Without Sufficient Number Of Pontoons. Every Year These Pontoons Are Being Requisitioned From The Local Public Works Department. The Petitioner Who Was At The Relevant Time Posted As Executive Engineer, Public Works Department, Construction Division, Varanasi, Was Under An Obligation To Comply With The Direction Given By The District Administration And The Commissioner Of The Division, For Its Non-compliance Would Have Invited Trouble For Him. The Petitioner Whether Or Not Having Complied With The Directions Given By The Commissioner Of The Division And The District Administration By Providing Requisite Number Of Pontoons, I.e., 14 In Number, To The District Authorities In Connection With The Dev Deepawali Programme, Can Be Said To Be Guilty Of Negligence, Slackness Or Dereliction Of Duty In Completing The Pontoon Bridge By The Deadline Fixed By The Minister Concerned, Is The Moot Question Which Is Up For Consideration In The Present Petition.
There Is No Dispute That, Under Para 19 Of The Enclosure To The Government Order No.36/1/76-Karmik-2 Dated 30.10.1986, The Special Adverse Entry Can Be Awarded By An Authority Of The State Government. The Only Requirement Is That He Should Be An Officer Of A Rank Above To The Person To Whom The Special Adverse Entry Is Being Awarded. The Special Adverse Entry Is To Be Confined To A Particular Instance/work And Nothing More. In The Present Case, The Said Entry Has Been Awarded By The State Government. It Is An Adverse Entry In Respect Of Non-completion Of The Pontoon Bridge Within The Stipulated Period. Under The Uttar Pradesh Government Servants (Disposal Of Representation Against Adverse Annual Confidential Reports And Allied Matters) Rules, 1995, Which Has Been Framed By The Governor Under The Proviso To Article 309 Of The Constitution Of India, A Representation Against An Adverse Entry Lies To The Next Higher Authority/officer. The Same Procedure Has Also Been Made Applicable In Respect Of The Special Adverse Entry. The Representation Made By The Petitioner Has Been Rejected By The Governor. From A Perusal Of The Order Dated 12.10.2001 Passed By The Governor, Filed As Annexure 7 To The Writ Petition, We Find That While Rejecting The Representation The Facts Mentioned By The District Magistrate, Varanasi In His Letter Dated 22.11.2000 Which Was Addressed To The Principal Secretary, Public Works Department, Government Of Uttar Pradesh, Lucknow And The Engineer-in-Chief, Public Works Department, Lucknow As Also The Comments Sent By The Chief Engineer, Public Works Department, Varanasi Division, Varanasi, Dated 18.4.2001 On The Representation Made By The Petitioner Has Not Been Taken Into Consideration At All. Had The Reasons Given By The District Magistrate, Varanasi As Reiterated By The Chief Engineer, Public Works Department, Varanasi Division, Varanasi To The Effect That 14 Pontoons Were Requisitioned By The District Authorities In Connection With Dev Deepawali Programme Been Taken Into Consideration, The Conclusion Would Have Been Otherwise. For It Is Well Settled That No One Can Be Made To Suffer For No Fault Of His. The Special Adverse Entry Given By The State Government On 14.11.2000 As Also The Order Dated 12.10.2001 Rejecting The Representation Made By The Petitioner Against The Special Adverse Entry Appears To Have Been Passed Without Application Of Mind And Without Going Into The Reasons Which Led To The Non-completion Of The Pontoon Bridge Within The Stipulated Period. In This View Of The Matter, We Are Of The Considered Opinion That The Special Adverse Entry Which Has Been Awarded By The State Government To The Petitioner Under The Orders Of The Minister Concerned, Has Been Given Without Application Of Mind To The Facts And Reasons Which Existed. Thus, The Said Orders Dated 14.11.2000 And 12.10.2001, Filed As Annexures 4 And 7 To The Writ Petition, Cannot Be Sustained And Are Hereby Set Aside. As A Consequence Thereof, The Respondents Shall Expunge The Special Adverse Entry And The Petitioner Shall Be Entitled To All Consequential Benefits Which He Might Have Been Deprived Of On Account Of The Said Special Adverse Entry.
In View Of The Foregoing Discussions, The Writ Petition Succeeds And Is Allowed With The Aforesaid Directions.

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