# Const. Ravindra Mishra (P No. 810630129) v. State of U.P. & Anr

- **Citation:** (2021) 11 ILRA 976
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-08
- **Case number:** Writ A No. 55436 of 2017
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/const-ravindra-mishra-p-no-810630129-v-state-of-u-p-anr-46689
- **Pages:** 10

## Headnote

A. Service Law - Compulsory retirement -
Constitution of India - Article 226, 311 - The
order of compulsory retirement is neither
punitive nor stigmatic. It is based on subjective
11 All. Head Const. Ravindra Mishra (P No. 810630129) Vs. State of U.P. & Anr.
977
satisfaction of the employer and a very limited
scope of judicial review is available in such
cases. Interference is permissible only on the
ground of non-application of mind, mala fide,
perverse, or arbitrary or if there is noncompliance
with
statutory
duty
by
the
statutory
authority.
Power
to
retire
compulsorily the government servant in terms
of service rule is absolute, provided the
authority concerned forms a bona fide opinion
that
compulsory
retirement
is
in
public
interest. (Para 15, 20)

In the case in hand, the record reflects that the
petitioner has been awarded several punishments
during the entire tenure of service. Though, they
have not been categorically denied by the petitioner,
but he has tried to explain that those punishment or
adverse entries are not sufficient material based on
which the committee could form an opinion that his
continuance in service is not in the public interest.
(Para 17, 18)

B.
Adverse
entries
and
un-communicated
entries in the confidential record shall be taken
into consideration in forming an opinion as to
whether service of the petitioner is required
and continuance of petitioner is for the benefit
of the department and is in the public interest.
(Para 25)

It is true that authority while considering as to
whether petitioner is deadwood and his continuance
in the department is not in the public interest should
give due weightage to the record of the last 10
years, but it does not mean that authorities are
precluded from looking into the entire service
record of the petitioner in forming the opinion.

In the present case, even the service record of the
last 10 years of the petitioner is not clean and this
fact has not specifically been denied by the petitioner.
However, the petitioner had tried to demonstrate that
punishment awarded to him has been condoned on
the ground that he had been granted time pay scale,
grade pay, and A.C.P. which could be extended to
him only when the authorities are satisfied that his
past service had been satisfactory. (Para 19, 22, 23,
24)

Principles governing the grant of certain
benefits i.e. pay scales and other benefits are
different than the assessment of service record
of the petitioner to assess his suitability for
continuance in the department, therefore, grant
of the promotional pay scale, etc. may be one factor
which may be in favour of the petitioner, but it does
not mean that authority while assessing the suitability
of the petitioner is under obligation to ignore other
factors. (Para 26)

In the instant case, right from the joining of service
by the petitioner, it is evident that the petitioner has
been awarded advers

## Text

976 INDIAN LAW REPORTS ALLAHABAD SERIES
confronting the society, as society could not
long endure and develop under serious threats of
crime and disharmony. It is therefore, necessary
to avoid undue leniency in imposition of
sentence.
Thus,
the
criminal
justice
jurisprudence adopted in the country is not
retributive but reformative and corrective. At the
same time, undue harshness should also be
avoided keeping in view the reformative
approach underlying in our criminal justice
system.

17. Keeping in view the facts and
circumstances of the case and also keeping in view
criminal jurisprudence in our country which is
reformative and corrective and not retributive, this
Court considers that no accused person is
incapable of being reformed and therefore, all
measures should be applied to give them an
opportunity of reformation in order to bring them
in the social stream.

18. Since the learned counsel for the
appellant has not pressed the appeal on its merit,
however, after perusal of entire evidence on record
and judgment of the trial court, we consider that
the appeal is devoid of merit and is liable to be
dismissed. Hence, the conviction of the appellant is
upheld.

19. As discussed above, 'reformative theory
of punishment' is to be adopted and for that reason,
it is necessary to impose punishment keeping in
view the 'doctrine of proportionality'. It appears
from perusal of impugned judgment that sentence
awarded by learned trial court for life term is very
harsh keeping in view the entirety of facts and
circumstances of the case and gravity of offence.
Hon'ble Apex Court, as discussed above, has held
that undue harshness should be avoided taking into
account the reformative approach underlying in
criminal justice system.

20. Learned AGA also admitted the fact
which is cited by learned counsel for the
appellants that appellants are languishing in jail
for the last 11 years. Keeping in view the facts
and evidence of this case, we are of considered
opinion that ends of justice would be met if
sentence for the offence under Section 376 IPC
is converted from life

21. Hence, the sentence awarded to the
appellants by the learned trial-court is modified
and converted from life imprisonment to period
of 10 years rigorous imprisonment and fine of
Rs.5,000/-. Accused persons shall undergo
additional one year simple imprisonment in case
of default of fine. Sentence under Section 354 of
IPC shall remain intact. All the sentences shall
run concurrently as directed by learned trial
court.

22. Accordingly, the appeal is partly
allowed with the modification of the sentence,
as above.
----------
(2021)12ILR A976
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.10.2021

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Writ A No. 55436 of 2017

Head
Const.
Ravindra
Mishra
(P
No.
810630129) ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Satya Prakash Pandey

Counsel for the Respondents:
C.S.C.

A. Service Law - Compulsory retirement -
Constitution of India - Article 226, 311 - The
order of compulsory retirement is neither
punitive nor stigmatic. It is based on subjective
11 All. Head Const. Ravindra Mishra (P No. 810630129) Vs. State of U.P. & Anr.
977
satisfaction of the employer and a very limited
scope of judicial review is available in such
cases. Interference is permissible only on the
ground of non-application of mind, mala fide,
perverse, or arbitrary or if there is noncompliance
with
statutory
duty
by
the
statutory
authority.
Power
to
retire
compulsorily the government servant in terms
of service rule is absolute, provided the
authority concerned forms a bona fide opinion
that
compulsory
retirement
is
in
public
interest. (Para 15, 20)

In the case in hand, the record reflects that the
petitioner has been awarded several punishments
during the entire tenure of service. Though, they
have not been categorically denied by the petitioner,
but he has tried to explain that those punishment or
adverse entries are not sufficient material based on
which the committee could form an opinion that his
continuance in service is not in the public interest.
(Para 17, 18)

B.
Adverse
entries
and
un-communicated
entries in the confidential record shall be taken
into consideration in forming an opinion as to
whether service of the petitioner is required
and continuance of petitioner is for the benefit
of the department and is in the public interest.
(Para 25)

It is true that authority while considering as to
whether petitioner is deadwood and his continuance
in the department is not in the public interest should
give due weightage to the record of the last 10
years, but it does not mean that authorities are
precluded from looking into the entire service
record of the petitioner in forming the opinion.

In the present case, even the service record of the
last 10 years of the petitioner is not clean and this
fact has not specifically been denied by the petitioner.
However, the petitioner had tried to demonstrate that
punishment awarded to him has been condoned on
the ground that he had been granted time pay scale,
grade pay, and A.C.P. which could be extended to
him only when the authorities are satisfied that his
past service had been satisfactory. (Para 19, 22, 23,
24)

Principles governing the grant of certain
benefits i.e. pay scales and other benefits are
different than the assessment of service record
of the petitioner to assess his suitability for
continuance in the department, therefore, grant
of the promotional pay scale, etc. may be one factor
which may be in favour of the petitioner, but it does
not mean that authority while assessing the suitability
of the petitioner is under obligation to ignore other
factors. (Para 26)

In the instant case, right from the joining of service
by the petitioner, it is evident that the petitioner has
been awarded adverse entries or punishment. The
committee is competent to broadly look into the
entire service record of the petitioner to form an
opinion. (Para 27)

Writ petition dismissed. (E-4)

Precedent followed:

1. Dinesh Chandra Vs St. of U.P. & anr., Writ-A No.
52623 of 2017 (Para 14)

2. Shiv Charan Vs St. of U.P. & ors., Writ-A No. 11828
of 2018 (Para 14)

3. Rajesh Kumar Gupta Vs St. of Jammu & Kashmir &
ors., (2013) 3 SCC 514 (Para 15)

4. St. of Guj.Vs Umedbhai M. Patel, (2001) 3 SCC 314
(Para 16)

Precedent distinguished:

1. St. of Guj. & anr. Vs Suryakant Chunilal Shah,
(1999) 1 SCC 529 (Para 13)

2.
Madhya
Pradesh
State
Cooperative
Dairy
Federation Ltd. & anr. Vs Rajnesh Kumar Jamindar &
ors., (2009) 15 SCC 221 (Para 13)

3. Avinash Chandra Tripathi Vs St.of U.P. & anr., 2018
(7) ADJ 582 (DB) (Para 13)

Present
petition
assails
orders
dated
31.07.2017
and
10.11.2017,
passed
by
Commandant,
12th
Bn.
P.A.C.,
DistrictFatehpur.

(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard Sri Satya Prakash Pandey, learned
counsel for the petitioner and Dr. Amar Nath
978 INDIAN LAW REPORTS ALLAHABAD SERIES
Singh, learned Standing Counsel for the
respondents.

2. The petitioner by means of the present
writ petition has assailed the orders dated
31.07.2017
and
10.11.2017
passed
by
respondent no.2 by which the petitioner has been
compulsorily retired from service.

3. The petitioner was appointed as
Constable in P.A.C. on 15.08.1981 and was
promoted as Head Constable in the year 1992.
The date of birth of the petitioner is 25.06.1962
and the date of retirement is 30.06.2022.

4. It appears that a decision was taken by
the Government to assess the suitability of about
203
Constables
belonging
to
Class-III
employees and 36 employees of Class-IV
working
in
the
P.A.C.
Department
for
continuing in service.

5. Pursuant to the said decision, a
Committee was constituted to assess the
suitability of employees. Accordingly, the
committee
constituted
for
such
purpose,
assessed the suitability of employees. The
Committee on the assessment of service record
of the petitioner found that in the last 10 years
the service of the petitioner was not satisfactory,
and accordingly, his services are no longer
required in the public interest. Consequently, the
committee
recommended
the
compulsory
retirement of the petitioner by order dated
31.07.2017.

6. The case of the petitioner is that the
service record of the petitioner has not been
properly assessed by the committee, yet he has
been recommended for compulsory retirement.

7. A counter affidavit has been filed by the
respondent-state stating that the petitioner was
awarded five minor punishments in the years
1984, 1989, 1998, 2001, and 2015. It was further
stated that the petitioner was awarded three
censure entries in the years 2002, 2007, and
2010 and adverse annual remarks in the years
2002, 2010, 2013, and 2015. Thus, the service of
the
petitioner
is
not
satisfactory.
The
respondents also enclosed a chart based on the
service book of the petitioner demonstrating the
punishment awarded to the petitioner. The chart
enclosed as Annexure 4 to the counter affidavit
is being extracted herein-below:-

"उद्वरण धचरत्र पांधजक मुख्य आरक्षी पीएन० ओ नां०
810630129 रवीन्द्र धमश्रा

दि का
प्रकार

दि
की
सांख्या
दि
प्रदान
धकये
जाने का
वषम
चररत्र पांधजका का पेज
सांख्या
छुद्र दि

01
1984
पेज सां०- 82 पर
अांधकत है।

01
1989
पेज सां०- 82 पर
अांधकत है।

01
1998
पेज सां०- 82 पर
अांधकत है।

01
2001
पेज सां०- 82 पर
अांधकत है।

01
2015
पेज सां०- 83 पर
अांधकत है।
पररधनन्दा
प्रधवधष्ट

02
2002
पेज सां०- 77,78 पर
अांधकत है।

01
2007
पेज सां०- 79 पर
अांधकत है।

01
2010
पेज सां०- 80 पर
अांधकत है।
प्रधतकूल
मन्तव्य

01
2002
पेज
सां०-51
पर
अांधकत है।

01
2010
पेज सां०- 55 पर
अांधकत है।

01
2013
पेज सां०- 56-57 पर
अांधकत है।

01
2014
पेज सां०- 57 पर
अांधकत है।
11 All. Head Const. Ravindra Mishra (P No. 810630129) Vs. State of U.P. & Anr.
979

8. The further averment in the counter
affidavit is that the screening committee after
scrutinizing the service record of the petitioner
found that five minor punishments, three censure
entries, and four annual remarks had been
awarded to the petitioner, accordingly, it
recommended for compulsory retirement of the
petitioner as the continuance of the petitioner in
service would not be in the public interest.

9. To meet the averments made in the
counter affidavit, a second supplementary
affidavit has been filed by the petitioner stating
therein that petitioner on completing 8 years of
satisfactory service as Head Constable was
given the benefit of selection grade w.e.f
09.07.2000, and on completing 14 years of
service, he was granted super selection grade on
09.07.2006. It is further stated that vide Hindi
Order Book (HOB) No.408 dated 15.07.2014,
the petitioner was granted Grade Pay of
Rs.4600/- under Assured Career Progression
(ACP) Scheme by providing two increments
w.e.f 30.03.2013. The arrears of salary was also
paid to the petitioner. It is further stated that
none of the adverse entries awarded to the
petitioner in the last 10 years have been
communicated to the petitioner, particularly
entries of the years 2010, 2013 & 2014 were
never communicated to the petitioner. The
integrity of the petitioner was always certified
by the concerned officer.

10. Respondent no.2 filed a supplementary
counter affidavit wherein he did not deny the
fact of granting time pay scale to the petitioner
on 07.09.2000, but it was pleaded that petitioner
was placed under suspension on being engaged
in a scuffle with one Indrapal during the Parade
at 42nd Battalion P.A.C., Allahabad. It is further
pleaded that from the service record, it is also
evident that the petitioner was awarded adverse
entries in the years 2013 & 2014, however, it is
not clear from the record as to whether these
entries were communicated to the petitioner or
not. The petitioner was punished in the year
2015 at Orderly Room and was awarded adverse
entry by order dated 08.01.2018. The petitioner
was punished with a penalty of Rs.500 by order
dated 30.03.2010.

11. In the rejoinder affidavit filed to the
counter affidavit petitioner did not deny the fact
of various punishments awarded to the petitioner
but has tried to explain in paragraph 5 of the
rejoinder affidavit why they are not relevant
while assessing and scrutinizing the past service
record of the petitioner for consideration to
recommend the petitioner for compulsory
retirement.

12. The petitioner filed a supplementary
rejoinder affidavit to the supplementary counter
affidavit wherein the averments made in the
supplementary counter affidavit have not been
specifically denied. However, in paragraph 5 of
the rejoinder affidavit, he has stated that the date
08.01.2018
has
been
wrongly
mentioned
whereas the correct date is 08.01.2008, but he
did not deny the fact that he was awarded
adverse entry by the said order.

13. Challenging the order of compulsory
retirement, learned counsel for the petitioner has
submitted that
the
order
of
compulsory
retirement has been passed without correctly
assessing and scrutinizing the service record of
the petitioner. He submits that there was no
material or evidence against the petitioner before
the committee based on which the committee
could form an opinion that continuance of
petitioner in service is not in the public interest.
He further submits the fact that the petitioner has
been extended the benefit of the time pay scale
and benefit of ACP by granting two increments
w.e.f 30.03.2013 implies that whatever adverse
entries or order of punishment are recorded in
the service record of the petitioner have been
condoned as the benefit of the time pay scale
and ACP are granted on the basis of satisfaction
980 INDIAN LAW REPORTS ALLAHABAD SERIES
of past service of an employee, and thus, it
proves that recommendation of the committee
recommending the petitioner to compulsory
retirement is not based upon proper appreciation
of record of past service of the petitioner. It is
further submitted that since the recommendation
for compulsory retirement has been made
without application of mind, therefore, order of
compulsory retirement is not sustainable in law
and deserves to be set aside. In support of his
aforesaid submissions, he has placed reliance
upon the following judgments:-

i. State of Gujarat and Another Vs.
Suryakant Chunilal Shah (1999) 1 SCC 529;

ii. Madhya Pradesh State Cooperative
Dairy Federation Limited and Another Vs.
Rajnesh Kumar Jamindar and Others (2009)
15 SCC 221;

iii. Avinash Chandra Tripathi Vs. State of
U.P. and Another 2018 (7) ADJ 582 (DB).

14. Per contra, learned counsel for the
respondents has submitted that specific case of
the respondents in the counter affidavit is that
petitioner has been awarded punishment and
adverse entry several times in the entire service,
and the committee after scrutinizing the service
record of the petitioner rightly formed opinion
that continuance of petitioner is not in the public
interest and accordingly, the committee has
rightly
recommended
the
petitioner
for
compulsory retirement. He submits that the
Court under Article 226 of Constitution of India
may not interfere with the order of compulsory
retirement except where the order has been
passed malafidely, capriciously, and based upon
extraneous consideration and as none of the
conditions in which this Court can interfere with
the order of compulsory retirement are present,
the writ petition being devoid of merit deserves
to be dismissed. In support of his aforesaid
contention, he has placed reliance upon the
judgment of this Court in Writ-A No.52623 of
2017 (Dinesh Chandra Vs. State of U.P. &
Another) & Writ-A No.11828 of 2018 (Shiv
Charan Vs. State of U.P. And 3 Others).

15. Before proceeding to appreciate the
argument of learned counsel for the petitioner, it
would be apposite to refer to the judgment of
Apex Court in the case of Rajesh Kumar Gupta
Vs. State of Jammu & Kashmir and Others
(2013) 3 SCC 514 wherein Apex Court has
succinctly explained the law on compulsory
retirement. Paragraphs 20 & 21 of the said
judgment are being extracted herein below:-

"20. The principles on which a government
servant can be ordered to be compulsorily retired
were authoritatively laid down by this Court in
Baikuntha Nath Das Vs. District Medical Officer
(1992) 2 SCC 299. In para 34, the principles
have been summed up as follows:-

"34. The following principles emerge from
the above discussion:

(i) An order of compulsory retirement is not
a punishment. It implies no stigma nor any
suggestion of misbehaviour.

(ii) The order has to be passed by the
Government on forming the opinion that it is in
the public interest to retire a government servant
compulsorily. The order is passed on the
subjective satisfaction of the Government.

(iii) Principles of natural justice have no
place in the context of an order of compulsory
retirement. This does not mean that judicial
scrutiny is excluded altogether. While the High
Court or this Court would not examine the
matter as an appellate court, they may interfere
if they are satisfied that the order is passed (a)
mala fide or (b) that it is based on no evidence
or (c) that it is arbitrary -- in the sense that no
reasonable person would form the requisite
opinion on the given material; in short, if it is
found to be a perverse order.

(iv) The Government (or the Review
Committee, as the case may be) shall have to
consider the entire record of service before
taking a decision in the matter -- of course
11 All. Head Const. Ravindra Mishra (P No. 810630129) Vs. State of U.P. & Anr.
981
attaching more importance to record of and
performance during the later years. The record
to be so considered would naturally include the
entries in the confidential records/character
rolls, both favourable and adverse. If a
government servant is promoted to a higher post
notwithstanding the adverse remarks, such
remarks lose their sting, more so, if the
promotion is based upon merit (selection) and
not upon seniority.

(v). An order of compulsory retirement is
not liable to be quashed by a court merely on the
showing that while passing it uncommunicated
adverse
remarks
were
also
taken
into
consideration. That circumstance by itself
cannot be a basis for interference.

Interference is permissible only on the
grounds mentioned in (iii) above. This aspect
has been discussed in paras 30 to 32 above."

21. The aforesaid principles have been reexamined and reiterated by this Court in Nand
Kumar Verma Vs. State of Jharkhand (2012) 3
SCC 580. The principles have been restated as
follows:-

"34. It is also well settled that the
formation
of
opinion
for
compulsory
retirement is based on the subjective
satisfaction of the authority concerned but
such satisfaction must be based on a valid
material. It is permissible for the courts to
ascertain whether a valid material exists or
otherwise,
on
which
the
subjective
satisfaction of the administrative authority
is based. In the present matter, what we see
is that the High Court, while holding that
the track record and service record of the
appellant was unsatisfactory, has selectively
taken into consideration the service record
for certain years only while making extracts
of those contents of the ACRs. There
appears to be some discrepancy. We say so
for the reason that the appellant has
produced the copies of the ACRs which were
obtained by him from the High Court under
the Right to Information Act, 2005 and a
comparison of these two would positively
indicate that the High Court has not
faithfully extracted the contents of the ACRs.

36. The material on which the
decision of the compulsory retirement was
based, as extracted by the High Court in the
impugned judgment, and material furnished
by the appellant would reflect that totality of
relevant materials were not considered or
completely ignored by the High Court. This
leads to only one conclusion that the
subjective satisfaction of the High Court was
not based on the sufficient or relevant
material. In this view of the matter, we
cannot say that the service record of the
appellant was unsatisfactory which would
warrant premature retirement from service.
Therefore, there was no justification to
retire the appellant compulsorily from
service."

16. In the case of State of Gujarat Vs.
Umedbhai M. Patel (2001) 3 SCC 314 the Apex
Court has broadly summarised the principles
relating to compulsory retirement. Paragraph 11
of the said judgment is being extracted herein
below:-

"11. The law relating to compulsory
retirement has now crystallised into definite
principles, which could be broadly summarised
thus:

(i) Whenever the services of a public
servant are no longer useful to the general
administration, the officer can be compulsorily
retired for the sake of public interest.

(ii)
Ordinarily,
the
order
of
compulsory retirement is not to be treated as a
punishment coming under Article 311 of the
Constitution.

(iii) For better administration, it is
necessary to chop off dead wood, but the order
of compulsory retirement can be passed after
having due regard to the entire service record of
the officer.
982 INDIAN LAW REPORTS ALLAHABAD SERIES

(iv) Any adverse entries made in the
confidential record shall be taken note of and be
given due weightage in passing such order.

(v) Even uncommunicated entries in
the confidential record can also be taken into
consideration.

(vi)
The
order
of
compulsory
retirement shall not be passed as a short cut to
avoid departmental enquiry when such course is
more desirable.

(vii) If the officer was given a
promotion despite adverse entries made in the
confidential record, that is a fact in favour of the
officer.

(viii) Compulsory retirement shall not
be imposed as a punitive measure."

17. In the light of parameters laid down by
the Apex Court in the aforesaid two judgments,
the Court proceeds to analyse the challenge to
the order of compulsory retirement. In the case
in hand, the record reflects that the petitioner has
been awarded several punishments during the
entire tenure of service which has been detailed
in the earlier part of the judgment.

18. The fact that the petitioner has been
awarded
so
many
adverse
entries
and
punishment as stated in the counter affidavit,
which has been detailed above, has not been
categorically denied by the petitioner. Though,
the petitioner has tried to explain in rejoinder
affidavit that those punishment or adverse
entries are not sufficient material based on
which the committee could form an opinion that
continuance of petitioner in service is not in the
public interest.

19. It is also urged by the learned counsel
for the petitioner that whatever adverse entry or
punishment has been awarded in the past are
condoned by the respondents for the reasons that
petitioner has been awarded time pay scale and
grade pay etc. and had been granted ACP which
can be granted only when in the opinion of the
department, service of the petitioner had been
satisfactory.

20. At this point, it would be worth notice
the judgment of this Court in the case of Dinesh
Chandra (supra) wherein order of compulsory
retirement has been assailed on the ground that it
was based upon annual confidential remarks for
the years 2011-12 and 2013-14, and an
'Excellent' entry awarded by the Tehsildar for
the year 2016-17 was ignored, thus, order of
compulsory retirement is illegal; while repelling
the said contention, this Court held that the order
of compulsory retirement is based upon
subjective satisfaction of the employer and a
very limited scope of judicial review is available
in such cases. It is further held that the order of
compulsory retirement is neither punitive nor
stigmatic. Paragraph 8 of the said judgment is
being extracted herein below:-

"8. Constitution Bench of Supreme Court in
Shyamlal v. State of U.P., AIR 1954 SC 369,
held that the two requirements for compulsory
retirement are that the officer has completed
twenty-five years service and that it is in the
public interest to dispense with his further
services. It is true that this power of compulsory
retirement may be used when the authority
exercising this power cannot substantiate the
misconduct which may be the real cause for
taking the action but what is important to note is
that the directions in the last sentence in Note 1
to Article 465-A make it abundantly clear that
an imputation or charge is not in terms made a
condition for the exercise of the power. In other
words, a compulsory retirement has no stigma
or implication of misbehaviour or incapacity. A
compulsory retirement does not amount to
dismissal or removal and, therefore, does not
attract the provisions of Article 311 of the
Constitution. In Rajasthan SRTC v. Babu Lal
Jangir, (2013) 10 SCC 551, held that it hardly
needs to be emphasised that the order of
compulsory retirement is neither punitive nor
11 All. Head Const. Ravindra Mishra (P No. 810630129) Vs. State of U.P. & Anr.
983
stigmatic. It is based on subjective satisfaction
of the employer and a very limited scope of
judicial review is available in such cases.
Interference is permissible only on the ground of
non-application of mind, mala fide, perverse, or
arbitrary or if there is non-compliance with
statutory duty by the statutory authority. Power
to retire compulsorily the government servant in
terms of service rule is absolute, provided the
authority concerned forms a bona fide opinion
that compulsory retirement is in public interest."

21. Similar view has been taken by this
Court in the case of Shiv Charan (supra)
wherein the order of compulsory retirement was
challenged on the ground that the order is
stigmatic and has been passed in violation of
Article 311(2) of the Constitution of India.

22. Applying the parameters elucidated by
the Apex Court in considering the challenge to
the order of compulsory retirement, this Court
finds that recommendation of the committee to
compulsorily retire the petitioner is based upon
consideration of the entire service record of the
petitioner.

23. It is true that authority while
considering as to whether petitioner is deadwood
and his continuance in the department is not in
the public interest should give due weightage to
the record of the last 10 years, but it does not
mean that authorities are precluded from looking
into the entire service record of the petitioner in
forming the opinion that an employee is
deadwood and his continuance in the department
is not in the public interest.

24. In the present case, even the service
record of the last 10 years of the petitioner is not
clean which is evident from the chart given in
the counter affidavit, extracted above, and this
fact has not specifically been denied by the
petitioner. However, the petitioner had tried to
demonstrate that punishment awarded to him has
been condoned on the ground that he had been
granted time pay scale, grade pay, and A.C.P.
which could be extended to him only when the
authorities are satisfied that his past service had
been satisfactory.

25. It is true that in the case of Umedebhai
M. Patel (supra) the Apex Court has held that if
the officer was given a promotion despite
adverse entries in his confidential record, that is
a fact in his favour, but at the same time, Apex
Court has also held that adverse entries and
uncommunicated entries in the confidential
record shall be taken into consideration in
forming an opinion as to whether service of the
petitioner is required and continuance of
petitioner is for the benefit of the department
and is in the public interest.

26. At this point, it is worth noticing that
principles governing the grant of certain benefits
i.e. pay scales and other benefits are different
than the assessment of service record of the
petitioner to assess the suitability of the
petitioner whether his continuance in the
department is for the public good or not,
therefore, grant of the promotional pay scale,
etc. may be one factor which may be in favour
of the petitioner, but it does not mean that
authority while assessing the suitability of the
petitioner is under obligation to ignore other
factors to consider whether the continuance of
petitioner in the department is in the public
interest or not.

27. In the instant case, right from the
joining of service by the petitioner, it is evident
that the petitioner has been awarded adverse
entries or punishment. The committee is
competent to broadly look into the entire service
record of the petitioner to form an opinion as to
whether the employee should be recommended
for compulsory retirement as the object of the
compulsory retirement is to weed out the
deadwood and making a healthy working
984 INDIAN LAW REPORTS ALLAHABAD SERIES
environment in the department for the public
good.

28. So far as the judgment of this Court in
the case of Avinash Chandra Tripathi (supra)
relied upon by the learned counsel for the
petitioner is concerned, it was a case where the
service record of the petitioner did not reflect
any adverse entry against him and one adverse
entry, which was awarded to him, was set aside
and upon consideration of entire service record,
this Court found that opinion formed by the
committee for recommending the case of the
petitioner for compulsory retirement was not
based upon material on record, and accordingly,
this Court interfered with the order of
compulsory retirement.

29. In the case of Suryakant Chunilal
Shah
(supra),
the
order
of
compulsory
retirement was based upon the involvement of
the employee in two criminal cases, and the
department based on the involvement of the
employee in two criminal cases formed an
opinion that the continuance of the employee in
the department was not in the public interest.
The apex court set aside the order of compulsory
retirement holding that involvement of an
employee in a criminal case does not imply that
he is guilty. Paragraph 27 of the said judgment is
being extracted herein-below:-

"27. The whole exercise described above
would, therefore, indicate that although there
was no material on the basis of which a
reasonable opinion could be formed that the
respondent had outlived his utility as a
government servant or that he had lost his
efficiency and had become a dead wood, he was
compulsorily retired merely because of his
involvement in two criminal cases pertaining to
the grant of permits in favour of fake and bogus
institutions. The involvement of a person in a
criminal case does not mean that he is guilty. He
is still to be tried in a court of law and the truth
has to be found out ultimately by the court where
the prosecution is ultimately conducted. But
before that stage is reached, it would be highly
improper to deprive a person of his livelihood
merely on the basis of his involvement. We may,
however, hasten to add that mere involvement in
a criminal case would constitute relevant
material for compulsory retirement or not would
depend upon the circumstances of each case and
the nature of offence allegedly committed by the
employee."

30. As the judgment of Suryakant
Chunilal Shah (supra) has been rendered in a
different fact situation, therefore, this judgment
does not come in aid to the petitioner.

31. In the case of Madhya Pradesh State
Cooperative Dairy Federation Limited (supra),
Apex Court affirmed the order of High Court
quashing the order of compulsory retirement as
no consideration has been given to the
performance of the employee for the last five
years and order of compulsory retirement had
been passed ignoring the rules and circulars
made by the Federation to assess the suitability
of an employee whether he is dead wood for the
department and should be compulsory retired.
Paragraphs 41 & 42 of the judgment are being
extracted herein-below:-

"41. We have noticed hereinbefore that
although criteria adopted by the State were
required to be considered for the purpose of
determining the suitability or otherwise of the
employees to continue in service, the necessity to
give special consideration to the performance of
the employees for the last five years before the
order was passed had been given a complete goby. The learned Single Judge as also the
Division Bench, as noticed hereinbefore, clearly
held that for the purpose of weeding out the
dead wood, it was absolutely necessary to take
into consideration the performance of each of
the employees at least for the last two years.
11 All. Kaushal Kishore Chaubey & Ors. Vs. State of U.P. & Ors.
985
Each case, thus, was required to be considered
on its merit.

42. The broad criteria, which are not only
applicable generally for the aforementioned
purpose, were required to be followed but there
cannot be any doubt or dispute that the criteria
laid down by the State was imperative in
character. Thus, the Federation adopted the
rules and circulars made or issued by the State
Government. The Federation itself having
formulated the criteria required to be applied
for passing orders of compulsory retirement
was, thus, bound thereby."

32. This judgment is also of no help to the
petitioner as the facts in which order of
compulsory retirement was quashed by the High
Court and affirmed by the Apex Court are
entirely different and not akin to the facts in the
present case.

33. Thus, for the reasons given above, the
writ petition lacks merit and is accordingly,
dismissed with no order as to costs.
----------
(2021)12ILR A985
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.10.2021

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Writ-A No. 5817 of 2020

Kaushal Kishore Chaubey & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Syed Wajid Ali

Counsel for the Respondents:
C.S.C.

A. Service Law - Pension/Retiral Benefits -
U.P. Civil Service Regulations - Regulation -
368 & 370 - Uttar Pradesh Retirement
Benefits (Amendment) Rules, 2005 - U.P.
Retirement
Benefit
Rules,
1961
-
The
services rendered by an employee either as
work
charged
employee
or
Seasonal
Collection Amin are to be counted for
granting the pensionary benefit to them, and
the nomenclature of their appointment, be a
daily wager, temporary or whatever, is not
material to consider their claim for grant of
pensionary and retiral benefits. (Para 22)

The pensionary provisions must be given a
liberal construction being a social welfare
measure; it does not mean that something can
be given contrary to rules, but the purpose of
grant of such pension must be kept in mind
while interpreting pensionary provision. The
grant of pension is to facilitate a retired
Government employee to live with dignity in
his winter of life, therefore, such benefit should
not be denied to an employee unreasonably on
mere technicalities. (Para 16 to 20)

In the instant case is that the petitioners have
been
engaged
as
Seasonal
Collection
Amin
between the year 1976 to 1990 and their services
have been regularized between the years 2011 to
2016 and they have been extended all the benefits
like the revision of pay with the approval of the
competent authority as paid to the regular
Collection Amin. The duties which have been
discharged by the petitioners while working as
Seasonal Collection Amin was similar to the duties
discharged by regular Collection Amin, and on
continuance and satisfactory services rendered by
them as Seasonal Collection Amin, they have been
regularized in service as per Rules. Thus, it is
evident that though the nomenclature and
nature of appointment to the petitioners
were Seasonal Collection Amin, but as a
matter
of
fact,
they
meet
all
the
requirements to be treated as temporary
employees. (Para 21)

The services rendered by the petitioners as Seasonal
Collection Amin cannot be ignored for extending the
benefits of pension and other retiral benefits to them
on the pretext that their appointment is to be treated
from the date of regularization and not from the date
of their engagement as work charged employee.
(Para 24)