# Girish Kumar Dwivedi v. U.P. State Public Services Tribunal, Lko & Ors

- **Citation:** (2020) 2 ILRA 1653
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2018-02-08
- **Case number:** Service Bench No. 4836 of 2020
- **Bench:** Pankaj Kumar Jaiswal, Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/girish-kumar-dwivedi-v-u-p-state-public-services-tribunal-lko-ors-45555
- **Pages:** 5

## Headnote

A. Service Law- Compulsory retirement
- Limited scope for review of the order
of compulsory retirement is that if the
evidence of arbitrariness and mala fide
is attached to it - In the present case,
evidence
for
compulsorily
retiring
the
Petitioner was placed before the Screening
Committee. Thus, allegation of mala fide and
arbitrariness does not suffice. The petitioner
has also not adduced any evidence to
establish the same. (Para 10, 11)

B. The decision of compulsorily retiring
a Government Servant depends upon
the
subjective
satisfaction
of
the
competent
authority,
which
should
however be based on objective facts. Such
an order is beyond the scope of judicial
scrutiny. (Para 9, 10, 13)

Writ petition dismissed. (E-4)

Precedent followed:

Baikuntha Nath Das and another Vs. Chief
District Medical Officer, Baripada and another,
(1992) 2 SCC 299 (Para 6, 9, 13)
1654 INDIAN LAW REPORTS ALLAHABAD SERIES
Precedent distinguished:

## Text

2 All. Girish Kumar Dwivedi Vs. U.P. State Public Services Tribunal, Lko & Ors.
1653
tribunal has further held that the
petitioner would be treated as eligible
under Rule 4(ii) (supra), however,
promotion of the petitioner shall be
subject to his seniority vis-a-vis other
candidates.

9. In regard to the legality of DPC
dated 8.2.2018, the tribunal has not
made any observation, and rightly so,
as
the
issue
has
already
been
considered and dealt with by this Court
in Writ Petition No.6426 of 2018

Rajendra Singh versus State
of U.P. vide judgment dated 28.2.2018.

10. Contention of learned counsel
for the petitioner that Hon'ble Supreme
Court in Jarnail Singh versus Lachhmi
Narain
Gupta
has
held
that
the
judgment in M. Nagraj is invalid to the
extent of asking quantifiable data for
Scheduled Caste category as being
inconsistent with 9 Judges judgment in
Indra Sawhney case and therefore,
ignoring
the
judgment
in
Rajesh
Kumar's case (supra), the petitioner is
liable to be considered for promotion
on the higher post is not sustainable for
the reason that the judgment in Rajesh
Kumar's case (supra) has not been
overruled and still holds good and this
Court is bound by the dictum of
Hon'ble Supreme Court under Art. 141
of the Constitution of India and
therefore, the plea of the petitioner is
rejected.

11. In view of the above, we do
not find any perversity or illegality in
the order passed by the tribunal. The
writ
petition
lacks
merit
and
is
accordingly dismissed.
----------
(2020)02ILR A1653

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.02.2020

BEFORE

THE HON'BLE PANKAJ KUMAR JAISWAL, J.
THE HON'BLE KARUNESH SINGH PAWAR, J.

Service Bench No. 4836 of 2020

Girish Kumar Dwivedi ...Petitioner
Versus
U.P. State Public Services Tribunal, Lko &
Ors. ...Respondents

Counsel for the Petitioner:
Paritosh Kumar Trivedi, Piyush Trivedi

Counsel for the Respondents:
C.S.C.

A. Service Law- Compulsory retirement
- Limited scope for review of the order
of compulsory retirement is that if the
evidence of arbitrariness and mala fide
is attached to it - In the present case,
evidence
for
compulsorily
retiring
the
Petitioner was placed before the Screening
Committee. Thus, allegation of mala fide and
arbitrariness does not suffice. The petitioner
has also not adduced any evidence to
establish the same. (Para 10, 11)

B. The decision of compulsorily retiring
a Government Servant depends upon
the
subjective
satisfaction
of
the
competent
authority,
which
should
however be based on objective facts. Such
an order is beyond the scope of judicial
scrutiny. (Para 9, 10, 13)

Writ petition dismissed. (E-4)

Precedent followed:

Baikuntha Nath Das and another Vs. Chief
District Medical Officer, Baripada and another,
(1992) 2 SCC 299 (Para 6, 9, 13)
1654 INDIAN LAW REPORTS ALLAHABAD SERIES
Precedent distinguished:

1. Brij Mohan Singh Chopra Vs. State of
Punjab, AIR 1987 SC 948 (Para 7)

2. R.P. Malhotra Vs. Chief Commissioner of
Income Tax, Patiala and others, 1990 (Supp)
Supreme Court Cases 771 (Para 7)

Present petition challenges orders dated
05.11.2019, 12.02.2018 and 14.08.2017,
passed and upheld respectively by U.P.
State Public Services Tribunal.

(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

(1) Heard Sri Paritosh Kumar
Trivedi, learned Counsel for the petitioner
and Sri Gopal Kumar Srivastava, learned
Standing
Counsel
for
all
respondents/State.

(2) By means of this petition, the
petitioner is praying for the following
reliefs:-

"(i) issue a writ, order or
direction in the nature of certiorari
quashing the impugned Judgment and
Order dated 5.11.2019 (Annexure No.1)
passed by the opposite party No.1.

(ii) issue a writ, order or
direction in the nature of certiorari
quashing the impugned order dated
14.8.2017 (Annexure No.2) passed by the
opposite party No.3 retiring the petitioner
compulsorily from service on the post of
Assistant Consolidation Officer (ACO)
and the report dated 5.8.2017 (Annexure
No.3) made/submitted by the Screening
Committee headed by the opposite party
No.3.

(iii) issue writ, order or direction
in the nature of certiorari quashing the
impugned
order
dated
12.2.2018
(Annexure No.4) passed by the opposite
party No.2 dismissing the appeal dated
28.8.2017 against the impugned order
dated 14.8.2017.

(iv) issue a writ, order or
direction in the nature of Mandamus
commanding the respondents and directing
them to reinstate petitioner in service
without any break providing entire service
benefits including promotion etc. and
other pecuniary benefits, due to him.

(v) issue a writ, order or
direction in the nature of Mandamus
directing the respondents to provide all the
Assured Career Promotions (A.C.P.) due
and available to petitioner as per service
rules, the arrears of salary, including
revised salary with full allowance, annual
pay increments and post retiral benefits
including pension, gratuity etc. after
proper fixation of salary due on full length
of
his
service
upto
the
age
of
superannuation in the year, 2021.

(vi) issue any other suitable writ,
order or direction which this Hon'ble
Court may deem fit and proper under the
facts and circulation of the case.

(vii) Award the cost of petition
against the respondents."

(3) In nutshell, the case of the
petitioner is that initially, the petitioner
was appointed on the post of Kanoongo in
the year 1988 and thereafter, he was
appointed on the post of Assistant
Consolidation Officer on 19.12.1997.
From 1997 to 2017, the petitioner faced
nine departmental proceedings, but he was
not charged with any allegation of
financial
irregularity,
corruption,
inefficiency
or
misconduct
including
immoral acts. Out of nine departmental
proceedings, he was exonerated in five
cases whereas admittedly, four matters still
remain pending before the State Public
Services Tribunal for its consideration.
2 All. Girish Kumar Dwivedi Vs. U.P. State Public Services Tribunal, Lko & Ors.
1655
Considering all these aspects of the matter,
the matter has been referred to the
Screening Committee. Thereafter, vide
order dated 14.8.2017, the petitioner has
been compulsorily retired from service on
the post of Assistant Consolidation Officer.
The petitioner has challenged the same
before the Appellate Authority who also
rejected it vide order dated 12.2.2018.
Consequently, the petitioner has filed a
claim petition before the State Public
Services
Tribunal
which
has
been
dismissed vide impugned order dated
5.11.2019.

(4) Learned Counsel for the
petitioner has vehemently argued that
though nine department proceedings
have
been
initiated
against
the
petitioner on frivolous charges, yet five
matters have been closed in his favour.
So far in none of the proceeding, he
has been punished. Therefore, the case
of
the
petitioner
has
not
been
considered
by
the
Screening
Committee in accordance with law.

(5) Learned Counsel for the
petitioner has extensively argued that
the entries awarded to the petitioner is
good and integrity has also been
certified.

(6) Further, learned Counsel for
the petitioner has submitted that no
evidence has been placed before the
Screening Committee for compulsorily
retiring the petitioner from service.
Therefore,
the
action
of
the
respondents
is
mala
fide
and
arbitrariness and the guidelines framed
by the Apex Cour in the case of
Baikuntha Nath Das and another v.
Chief
District
Medical
Officer,
Baripada and another, [(1992) 2 SCC
299] have not been followed in its
letter and spirit.

(7) Lastly, he submits that even the
Tribunal has not been considered the
above aspects of the matter and therefore,
the petition is liable to be allowed and in
support of his submissions, he has relied
upon the citations of Apex Court in the
cases of Brij Mohan Singh Chopra v.
State of Punjab [AIR 1987 SC 948] and
R. P. Malhotra v. Chief Commissioner of
Income Tax, Patiala and others [1990
(Supp) Supreme Court Cases 771].

(8) On the other hand, learned
Standing Counsel supports the impugned
order of the Tribunal on the ground that
the Tribunal has considered each and every
aspect of the matter minutely and
dismissed it. Therefore, the writ petition
deserves dismissal.

(9) Before entering into the rival
submissions of the parties, it is necessary
to peep into the guidelines framed by the
Apex Court in the case of Baikuntha Nath
Das (supra) which are as follows:-

"32. 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
1656 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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 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
interfere.
Interference is permissible only on the
grounds mentioned in (iii) above. This
aspect has been discussed in paras 29 to
31 above."

(10) Further, the Tribunal has
elaborately discussed and observed in
paras 16 to 19 of the order, which read as
under:-

"16. It's the clear opinion of the
Hon'ble Supreme Court that the decision
of compulsorily retiring a Government
Servant depends upon the subjective
satisfaction of the competent authority,
which should however be based on
objective facts. The Court's can review
such a decision on grounds of being either
mala-fide, based on no evidenced or
arbitrariness.

17. In the present case there is
no allegation of mala fide either on the
part of Screening Committee or the
Competent Authority and hence there is no
occasion to examine this aspect. The
petitioner has also not adduced any
evidence to establish prejudice or mala
fide in this regard. Facts also do not bear
out the contention of the petitioner that he
had 'best' or excellent annual entries
throughout. The respondents have clarified
that in the 10 years prior to compulsory
retirement the petitioner had only one
outstanding entry while 7 were Good and
one average entry. A perusal of record also
shows that there were a number of
punishments awarded to him, some of
which still continue to exist in his record.
The petitioner has himself admitted in his
petition that punishment orders dated 0302-2001, 23.08.2012, 10-03-2015 and
25.04.12 continue to exist, though they
have been challenged in the U. P. Public
Services Tribunal by way of Claim
Petitions Nos. 1862/12, 2332/16, 1628/15
and 2103/16 respectively. No stay order
exists in favour of the petitioner in any of
these Claim Petitions. Punishment order
dated 10-03-2015 also casts a shadow on
his integrity. Another punishment order
dated 02-09-2001 continues to exist on
record in a watered down form in spite of
partial modification in Appellate Order
dated 04-09-2015.

18.
The
adequacy
and
sufficiency of these grounds lies entirely
within the subjective satisfaction of the
2 All. Kameshwar Prasad Vs. State of U.P. & Ors.
1657
competent authority and beyond the scope
of judicial scrutiny.

19. In view of the above
discussion we find that the competent
authority
retired
the
petitioner
compulsorily following the procedure laid
down in law after due examination of
service record of the petitioner. We thus
find no merit in the petition which
deserves to be dismissed."

(11) In view of the guidelines
framed by the Apex Court, the limited
scope for review of the order of
compulsory retirement is that if the
evidence or arbitrariness and mala fide
is attached to it. Here in the case, the
petitioner has admitted that during his
service
period,
nine
departmental
proceedings have been initiated by the
department. Out of nine, in five
matters, favourable decision has been
taken. From perusal of Screening
Committee's
order
and
from
the
pleadings of petition, it is abundantly
clear that the evidence relied upon by
the petitioner has been placed before
the Committee. Therefore, it cannot be
said that the evidence has not been
placed
before
the
Screening
Committee.

(12) Next, learned Counsel for the
petitioner has submitted that the action
of the respondents is mala fide and
arbitrariness. By saying this, strings
cannot be attached to the impugned
order of compulsory retirement. Even
otherwise, the appeal preferred against
this order has been rejected which also
ends in dismissal of claim petition.

(13) A bare perusal of paragraphs
16 to 19 of the impugned order, dated
5.11.2019 it is evidently clear that the
Tribunal has conspicuously touched all
points
raised
by
the
petitioner
including entires of last ten years from
the date of passing of the compulsory
retirement order and gave its verdict
which need not be reviewed in the
appellate jurisdiction. Furthermore, the
guidelines framed by the Apex Court in
the case of Baikuntha Nath Das
(supra) have been followed and the
impugned
order
of
compulsory
retirement
has
been
passed
in
accordance with law.

(14) In view of above, the case
laws cited by the petitioner are not at
all
attracted
on
the
facts
and
circumstances of the instant case.
Since the petitioner's counsel is unable
to establish his claim or point out any
illegality or infirmity in the impugned
order, we are not inclined to entertain
this petition.

(15) For all the aforementioned
reasons, the writ petition filed by the
petitioner
has
no
force
and
is
accordingly dismissed.
----------
(2020)02ILR A1657

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.01.2020

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Writ A No. 11764 of 2017

Kameshwar Prasad ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner: