# Hakim Singh v. State of U.P. and another

- **Citation:** (2006) 3 ILRA 1179
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-09-01
- **Case number:** Civil Misc. Writ Petition No. 3104 of 2004
- **Bench:** Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hakim-singh-v-state-of-u-p-and-another-40780
- **Pages:** 6

## Headnote

Constitution
of
India
Art.
226Compulsory retirement-committee found
not properly constituted-No sufficient
material before the screening committee
to form an objective opinion-justifying
the stand of compulsory retirementorder quashed.

Held: Para 11 & 12

The facts on record also do support the
case on the petitioner that the censure
entry
dated
25.7.2002
was
not
communicated to the petitioner but even
if it is accepted for argument shake that
the
said
censure
entry
was
communicated
to
the
petitioner
compulsory retirement on so censure
entry is not justified. Thus it is held that
there was no sufficient material before
the Screening Committee to form an
objective opinion that the petitioner was
fit to be compulsorily retired.

In the aforesaid judgment this Court has
held that the report of the Screening
Committee was vitiated since the District
Magistrate who was the appointing
authority has not participated in the
1180 INDIAN LAW REPORT ALLAHABAD SERIES [2006
proceedings rather has only written on
the report as "approved". In the present
case the District Magistrate himself was
chairman of the Screening Committee
and had signed the report and had
passed the order for compulsory retiring
the petitioner.
Case law discussed:
W.P. No. 7789/04 decided on 18.11.05
1998 (7) SCC-748
AIR 1995 SC-III
AIR 1992 SC-1020

## Text

3All] Hakim Singh V. State of U.P. and another 1179
under some misapprehension. Hence the
order
passed
by
the
Magistrate
summoning the accused under section 354
I.P.C. is liable to be set aside.

26. The position in this way is that
the application under section 482 Cr.P.C.
deserves to be partly allowed to the extent
of quashing of the summoning order
under section 354 I.P.C. only. The rest of
the summoning order passed by the
Magistrate in respect of the remaining
offences is valid.

27. Accordingly, the application
under section 482 Cr. P. C. is partly
allowed only to the extent it relates to
quashing of the summoning order under
section 354 I.P.C. and the summoning
order to that extent is quashed. The
remaining portion of the summoning
order passed by the Magistrate is valid
and is maintained. The accused are,
however, allowed one month's time to
appear before the Magistrate and during
this period the execution of non bailable
warrant against the accused applicant
shall remain stayed so as to enable him to
appear before the court concerned. The
accused
applicant,
after
putting
in
appearance before the court, may apply
for bail and their bail application shall be
decided by the Courts expeditiously, if
possible on the same day, taking into
consideration the directions of this Court
in the case of Amrawati Devi Vs. State of
U. P. [2004(ACJ) 1846].

With the above observations the
application under section 482 Cr.P.C.
stands disposed of. Petition Disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.09.2006

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No. 3104 of 2004

Hakim Singh

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Sant Sharan Upadhyaya
Mrs. Sadhna Upadhyaya january

Counsel for the Respondents:
Sri M.R. Jaiswal
Sri J.S. Tomar
S.C.

Constitution
of
India
Art.
226Compulsory retirement-committee found
not properly constituted-No sufficient
material before the screening committee
to form an objective opinion-justifying
the stand of compulsory retirementorder quashed.

Held: Para 11 & 12

The facts on record also do support the
case on the petitioner that the censure
entry
dated
25.7.2002
was
not
communicated to the petitioner but even
if it is accepted for argument shake that
the
said
censure
entry
was
communicated
to
the
petitioner
compulsory retirement on so censure
entry is not justified. Thus it is held that
there was no sufficient material before
the Screening Committee to form an
objective opinion that the petitioner was
fit to be compulsorily retired.

In the aforesaid judgment this Court has
held that the report of the Screening
Committee was vitiated since the District
Magistrate who was the appointing
authority has not participated in the
1180 INDIAN LAW REPORT ALLAHABAD SERIES [2006
proceedings rather has only written on
the report as "approved". In the present
case the District Magistrate himself was
chairman of the Screening Committee
and had signed the report and had
passed the order for compulsory retiring
the petitioner.
Case law discussed:
W.P. No. 7789/04 decided on 18.11.05
1998 (7) SCC-748
AIR 1995 SC-III
AIR 1992 SC-1020

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard counsel for the petitioner,
Sri S.S. Upadhyay and Sri M. R. Jaiswal
standing
counsel
appearing
for
the
respondents.
Counter
and
rejoinder
affidavits have been exchanged. With the
consent of counsel for the parties the writ
petition is being finally decided.

2. By this writ petition the petitioner
has prayed for quashing the order dated
31.12.2003
compulsory
retiring
the
petitioner. By an earlier order passed on
28.8.2006 learned standing counsel was
directed to produce the original service
record of the writ petitioner for perusal of
the Court which has been produced and
looked into.

3. Brief facts necessary for deciding
the writ petition are:

The petitioner Hakim Singh was
appointed on 22.4.1969 as Lekhpal and
was subsequently promoted as Revenue
Inspector on 24.2.1999. By an order dated
31.12.2003
passed
by
the
District
Magistrate the petitioner was compulsory
retired.

4. Learned counsel for the petitioner
challenging the order of compulsory
retirement raised following submissions:-
1.
The compulsory retirement of the
petitioner was discriminatory in view
of the fact that along with the
petitioner fifteen other employees
were compulsorily retired on the
same date i.e. 31.12.2003 and with
regard to thirteen employees the
State Government itself has passed
an order re-instating them in service
by order dated 27.12.2004 on the
basis
of
the
report
of
the
Commissioner dated 3.3.2004, he
submits
that
there
was
no
distinguishing
feature
in
the
petitioner's case with those thirteen
employees who are re-instated hence
the action with regard to the
petitioner
is
discriminatory
and
arbitrary.

2.
Learned counsel for the petitioner
next submitted that there was no
material with the respondents to take
a decision for compulsory retirement;
referring
to
the
supplementary
counter affidavit of the respondents
where the materials have been
mentioned against the petitioner. he
submits that there are only two
entries with regard to years 20002001 and 2001-2002 which have
been made as "santoshjanak" with
the remark that improvement is
required. With regard to censure
entry for the year 2002-2003 dated
25.7.2002 he submit that whereas the
entry of 2002-2003 is mentioned as
"Aprapt". The censure entry dated
25.7.2002
had
never
been
communicated and the petitioner first
time came to know about the censure
entry from the counter affidavit filed
in the writ petition.
3All] Hakim Singh V. State of U.P. and another 1181
3.
Learned counsel for the petitioner
further submitted that the Screening
Committee
was
not
properly
constituted. He has placed reliance
on the judgment of this Court passed
in writ petition No. 7789 of 2004
decided
on
18.11.2005
Naresh
Chandra Sharma Versus State of
U.P. & others. Learned counsel for
the petitioner further placed reliance
on the judgment of the apex Court
reported in 1998 (7) S.C.C. 310 M.S.
Bindra Versus Union of India and
others; 2005 (9) S.C.C. 748 Pritam
Singh Versus Union of India and
other and A.I.R. 1995 S.C. 111 Ram
Chandra Raju Versus State of
Orissa.

5. The learned counsel for the
respondents refuting contentions of the
counsel for the petitioner contended that
there was no discrimination qua the
petitioner.
Learned
standing
counsel
referring to the Screening Committee
report, letter dated 3.3.2004 submitted
that thirteen persons were reinstated on
valid reasons which are apparent from the
report
of
the
Commissioner
dated
3.3.2004 and there was no discrimination
in not reinstating the petitioner. He further
submits
that
censure
entry
dated
25.7.2002 was duly served on the
petitioner. He has so stated in the
supplementary counter affidavit and has
submitted that the said entry was received
by the petitioner and there is endorsement
of the receipt also. Learned counsel for
the respondents further submits that there
was
sufficient
materials
with
the
respondents for compulsory retiring the
petitioner.

6. I have considered the submissions
of counsel for the parties and perused the
record.

7. The first submission of counsel
for
the
petitioner
is
discrimination
violating the rights under Articles 14 and
16 of the Constitution. Learned standing
counsel has placed the report of the
Screening Committee and the letter of the
Commissioner dated 3.3.2004 by which
the
report
was
sent
to
the
State
Government
referring
retirement
of
sixteen persons on 31.3.2003. From the
report of the Commissioner it is clear that
two
persons
with
whom
the
recommendation for retiring the twenty
persons
was
sent
from
regular
establishment, they were less than fifty
years of age and their compulsory
retirement was illegal. The retirement
with regard to Kailash Behari (peon),
Jahani Ram
(peon),
Randhir Singh
(driver) details were given with regard to
them and it has been further observed that
with regard to those persons there was no
adverse entry in the last ten years.
Learned standing counsel stated that their
case were different from the petitioner.
With
regard
to
the
Collection
establishment, it has been mentioned by
the Commissioner that the reports were
mentioned with regard to nine employees
by the Screening Committee and in the
said report they have been recommended
to retire on the basis of poor recovery but
neither the details of the demand and the
recovery nor any annual chart was placed
on record. With regard to Ram Narain
Dube an adverse entry was mentioned.
Learned Standing counsel stated that said
Ram Narain Dube was not reinstated. He
has further stated that Ram Narain Dube
has not challenged the order. The counsel
for the petitioner submitted that Ram
1182 INDIAN LAW REPORT ALLAHABAD SERIES [2006
Narain Dube was ill and he has left the
service. From perusal of the Screening
Committee report and the letter of the
Commissioner dated 3.3.2004 I am
satisfied that there is no discrimination for
not reinstating the petitioner by the State
Government and the submission of
discrimination cannot be accepted.

8. The second submission of counsel
for the petitioner is that the compulsory
retirement can only be ordered when there
are sufficient material to form an opinion
to compulsory retire an employee. The
judgment in the case of M. S. Bindra
Versus Union of India and others
(supra) has been relied. The apex Court
laid down the principle after reiterating
the earlier judgment in the case reported
in A.I.R. 1992 S. C. 1020 Baikuntha
Nath Das and another Versus Chief
District Medical Officer and another
and observed that the High Court can only
interfere with the compulsory retirement
order when either it was mala fide or
based on no evidence or it is arbitrary in
the sense that no reasonable person would
form the requisite opinion on the given
material. Paragraph 7 of the judgment is
extracted below:-

''7. Approving the above principle, a
three Judge Bench of this Court has laid
down in Baikuntha Nath Das; and
another v. Chief District Medical Officer
and another, MANU/SC/0193/1992, AIR
1992 Screening Committee 1020, JTI
1992 (2) Screening Committee 1, (1992)
ILLJ 784 Screening Committee, 1992 (1)
SCALE 428, (1992) 2 SCC 299, (1992) 1
SCR 436, 1992 (1) SLJ177 (Screening
Committee), (1992) 2 UPLBEC816 that
five principles should be borne in mind
while considering a case of compulsory
premature retirement. It is not necessary
to extract all the five principles here
except No. (iii) which reads thus:

"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".

9. With regard to Hakim Singh the
Screening Committee relied on three
materials, namely, that he was asked to
improve his work in the year 2000-2001
and 2001-2002 and further there was a
censure entry made on 25.7.2002. I have
perused the entries of the year 2000-2001
and 2001-2002. From the perusal of said
entries it is clear that general grading
which has been given by the reporting
Officer as "Good" the accepting officer
has graded him as "satisfactory" with the
remark that the work needs to be
improved. The entries of 2000-2001 and
2001-2002, they cannot be treated to be
adverse when the accepting officer
himself graded him as "satisfactory". after
observing that work needed improvement.
With regard to censure entry dated
25.7.2002 the petitioner's specific case in
the writ petition is that the said entry was
never served to the petitioner. Learned
standing counsel has submitted that the
entry was duly served. He has filed a copy
of the censure order dated 25.7.2002
issued to the petitioner on which there are
claimed to be short initials of the
3All] Hakim Singh V. State of U.P. and another 1183
petitioner dated 30.7.2002 but it does not
appeal to reason as to if the petitioner had
received
the
censure
entry
dated
25.7.2002 why he kept mum and did not
even submit any representation or filed
any objection. The petitioner's case is that
he has not been served with the censure
entry, he could not even give his
explanation on the allegations against him
in censure entry. The Commissioner in his
letter dated 3.3.2004 as well as the State
Government in its order has mentioned
that the entire service record of an
employee was required to be seen. From
perusal of service record of petitioner it is
clear that there are no entries after 19951996 till 2000-2001. According to the
supplementary
counter
affidavit
the
entries for the years 1997-98, 1998-99,
1999-2000 and the last year 2002.2003
were not received.

10. As noted above after observing
in annual remarks of 2000-2001 and
2001-2002
that
the
work
needs
improvement, the next crucial entry for
the year 2002-2003 was not available.
The annual remark of the year 2002-2003
could have disclosed as to whether there
was over all improvement in the working
of the petitioner but the said entry was not
available as per chart annexed with the
supplementary counter affidavit. In the
last ten years entries looked into by the
Screening Committee there were at least
four entries which were not available as
per
chart
filed
along
with
the
supplementary counter affidavit. In the
facts of the present case where four
entries out of ten entries which were
being looked into by the Screening
Committee
being
not
available
the
Screening Committee ought to have
looked into the entire service record of the
petitioner. The apex Court in Baikuntha
Nath Das and another Versus Chief
District Medical Officer and another
(supra) has laid down in paragraph 34 that
the Screening Committee ought to have
considered the entire service record
before taking a decision in the matter, - of
course attaching more importance to
record of and performance during the later
years. Paragraph 34 is extracted below:-

"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 attaching more importance to
1184 INDIAN LAW REPORT ALLAHABAD SERIES [2006
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 un-communicated
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."

11. The facts on record also do
support the case on the petitioner that the
censure entry dated 25.7.2002 was not
communicated to the petitioner but even if
it is accepted for argument shake that the
said censure entry was communicated to
the petitioner compulsory retirement on
so censure entry is not justified. Thus it is
held that there was no sufficient material
before the Screening Committee to form
an objective opinion that the petitioner
was fit to be compulsorily retired.

12. The next submission of the
petitioner's counsel is that the Screening
Committee
was
also
not
properly
constituted. Reliance has been placed on
the judgment of the learned Single Judge
passed in writ petition No. 7789 of 2004
Naresh Chandra Sharma Versus State
of U.P. & others (supra). In the aforesaid
judgment this Court has held that the
report of the Screening Committee was
vitiated since the District Magistrate who
was the appointing authority has not
participated in the proceedings rather has
only written on the report as "approved".
In the present case the District Magistrate
himself was chairman of the Screening
Committee and had signed the report and
had passed the order for compulsory
retiring the petitioner.

In view of foregoing discussions the
writ petition is allowed. The order dated
31.12.2003 is quashed. The petitioner is
entitled to all consequential benefits.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.02.2006

BEFORE
THE HON'BLE AMITAVA LALA, J.
THE HON'BLE SHIV SHANKER, J.

Criminal Misc. Writ Petition No. 10413 of
2005

Gaurav Dewan and another ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri Vivek Chaudhary

Counsel for the Respondents:
Sri U.N. Shukla
A.G.A.

Constitution of India, Art. 226-Qashing
of
F.I.R.-offence
under
section
420/468/471 I.P.C.-from bare perusal of
allegation-prima-facie case made out-it
is erroneous to assess the material
before conclusion-of investigation-even
under Art. 226 or 482 Cr.P.C. the power