# Kashi Ram Ahirwar v. State of U.P. through Collector/ D.D.D.C., Lalitpur and others

- **Citation:** (2001) 2 ILRA 169
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1999-07-29
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kashi-ram-ahirwar-v-state-of-u-p-through-collector-d-d-d-c-lalitpur-and-others-39452
- **Pages:** 7

## Text

2All] Kashi Ram Ahirwar V. State of U.P. through Collector/ D.D.D.C., Lalitpur and others 169
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1992 (2) SCC - 299
1998 (7) SCC - 310
(1980) 4 SCC - 321
(1987) 2 SCC - 188
By the Court

1. This writ Petition under Article
226 of the Constitution seeks quashing of
the order dated 29.07.1999 passed by
respondent no. 2 thereby compulsorily
retiring the petitioner with immediate
effect from service by giving him pay in
lieu of three months notice.

2. I have heard Dr. R. Dwivedi,
Senior
Advocate
representing
the
petitioner
and
Standing
Counsel
appearing for State.

3. The petitioner was appointed
Junior
Clerk
in
the
Consolidation
Department in the year 1977. By order
dated 31.03.1997 he was promoted to the
post of Senior Clerk. A screening
committee was constituted by the Joint
Director of Consolidation, Jhansi pursuant
to the order dated 21.07.1998 of the
Consolidation
Commissioner,
Uttar
Pradesh
to
evaluate
efficiencies
of
employees with a view to screen out the
dead wood by compulsorily retiring such
employees
in
public
interest.
The
Screening Committee prepared a précis of
the
A.C.Rs.
in
respect
of
various
employees including the petitioner and
recommended
that
the
petitioner be
compulsorily retired.

4. The précis of A.C.R.'s, in so far
as the petitioner is concerned, would
indicate that the entries in the year 198889, 1989-90, 1990-91 and 1991-92 were
satisfactory;
Sri
R.B.
Bhaskar,
Consolidation
Commissioner
Uttar
Pradesh is, however, said to have made
certain adverse entry in March, 1992; in
1992-93 and adverse entry is said to have
been made by Deputy Director of
Consolidation and integrity was also not
certified; entry in the year 1993-94 was
satisfactory and entries for the year 199495, 1995-96 and 1996-97 was reported to
be missing; entry in the year 1997-98
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
170
were satisfactory but by order dated
29.5.1998, Sri R.D. Tripathi, the Assistant
Settlement Officer, Lalitpur (c) gave a
special adverse entry categorising the
petitioner as inefficient, irresponsible and
careless to duty. It is also mentioned
therein that while the petitioner was
working as Reader, complaints were
received from the public in respect of
corruption on the basis of which he was
removed from the post of Reader and the
petitioner was found to be indulging in
corruption, his integrity was not certified.
Category of work was found to be poor.
In the year 1998-99 also Sri R.D. Tripathi,
Settlement Officer Consolidation, Lalitpur
described the petitioner as most corrupt
employee.

5. On the basis of the above
evaluation
and
recommendation,
the
petitioner was compulsorily retired with
immediate effect vide impugned order.
The question is whether the impugned
order is sustainable? Clause (c) of
Fundamental Rules 56 of the Financial
Hand Book Vol. II Parts II to IV provides
that the 'appointing authority' may at any
time by notice to any Government servant
(whether
permanent
or
temporary),
without assigning any reason, require him
to retire after he attains the age of fifty
years or such Government servant may by
notice
to
the
appointing
authority'
voluntarily retire at any time after
attaining the age of forty five years or
after he has completed qualifying service
of twenty years. The period of such notice
shall be three months. Fundamental Rule
56 in so far as it is relevant for the
purpose of this case is quoted below:

"56 (a)

xx
xx
xx

(b)

xx
xx
xx
(c) Notwithstanding
anything
contained in clause (a) or clause (b) the
appointing authority may, at any time, by
notice
to
any
Government
servant
(whether
permanent
or
temporary)
without assigning any reason, require him
to retire after he attains the age of 50
years, or such Government servant may,
by notice to the appointing authority,
voluntary retire at any time after attaining
the age of 45 years or after he has
completed qualifying service of 20 years.

(d) The period of such notice shall
be three months:
Provided that -

(i)
any such Government servant
may, by order of the appointing authority,
without such notice or by a shorter notice,
be retired forthwith at any time after
attaining the age of 50 years, and on such
retirement the Government servant shall
be entitled to claim a sum equivalent to
the amount of his pay plus allowances, if
any, for the period of the notice or, as the
case may be, for the period by which such
notice falls short of three months, at any
rates at which he was drawing them
immediately before his retirement;
(ii)
it
shall
be
open
to
the
appointing
authority
to
allow
a
Government servant to retire without any
notice or by a shorter notice without
requiring the Government servant to pay
any penalty in lieu of notice:

Provided further that
xx xx xx

Provided also that
xx xx xx

(e)

xx xx xx

Explanation - (1) The decision of the
appointing authority under clause (c) to
2All] Kashi Ram Ahirwar V. State of U.P. through Collector/ D.D.D.C., Lalitpur and others 171
require the Government servant to retire
as specified therein shall be taken if it
appears to the said authority to be in the
public
interest,
but
nothing
herein
contained shall be construed to require
any recital, in the order, of such decision
having been taken in the public interest.

(2) In order to be satisfied whether
it will be in the public interest to require a
Government servant to retire under clause
(c) the appointing authority may take into
consideration any material relating to the
Government servant and nothing herein
contained shall be construed to exclude
form consideration -
(a) any entries relating to any
period before such Government servant
was allowed to cross any efficiency bar or
before he was promoted to any post in an
officiating or substantive capacity or on
ad-hoc basis; or
(b) any entry against which a
representation is pending, provided that
the representation is also taken into
consideration along with the entry; or
(c)
any report of the Vigilance
Establishment constituted under the Uttar
Pradesh Vigilance Establishment Act,
1965.
(2-A)
Every such decision shall
be deemed to have been taken in the
public interest.
(3) The
expression
"appointing
authority" means the authority which for
the time being has the power to make
substantive appointments to the post or
service from which the Government is
required or wants to retire, and the
expression "qualifying service" shall have
the same meaning as in the relevant rules
relating to retiring pension.
(4)
xx
xx
xx"

6. Though the power of appointing
authority under the Fundamental Rule
56(1)(c) to require a government servant
to retire after he attains the age of 50
years is couched in absolute language, the
Explanation (1) provides in no uncertain
words, and it is settled by a catena of
decisions, the decision to compulsorily
retire
a
Government
servant
under
Fundamental Rule 56(c) shall be taken on
forming an opinion that it would be in the
'public interest' to retire such government
servant
compulsorily.
The
order
of
premature
retirement
is
passed
on
subjective satisfaction of the appointing
authority and principles of natural justice
have no application in the context of an
order of compulsory retirement. Judicial
review of such an order under Article 226
of the Constitution is permissible only on
limited grounds of malafide or absence of
any evidence on which the necessary
opinion could be formed or arbitrariness
in the sense that no reasonable person
could have formed the requisite opinion
on the given material1. Explanation (2) of
the Fundamental Rule 56 as it stands
amended by U.P. Act No. 24 of 1975
provides that in order to satisfy whether it
will be in public interest to require a
Government servant to retire under clause
(c), the appointing authority may take into
consideration any material relating to the
government servant and nothing therein
contained shall be construed to exclude
from consideration -

(a) any entry relating to any period
before such Government servant was
allowed to cross any efficiency bar or
before he was promoted to any post in

1 Baikuntha Nath Das & another Vs. Chief
District Medical Officer, (1992) 2 SCC 299
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
172
officiating
capacity
or
substantive
capacity or on ad-hoc basis; or

(b) any
entry
against
which
a
representation is pending, provide that the
representation
is
also
taking
into
consideration along with the entry; or

(c) any report of vigilance establishment
constituted under the Uttar Pradesh
Vigilance Establishment Act, 1965

Clause
(2-A)
inserted
by
U.P.
Fundamental Rule 56 (Amendment) Act,
1976
provides
that
every
decision
requiring a Government servant to retire
under clause (c) shall be deemed to have
been taken in public interest.

7. In Baikunkuntha Nath Das the
Hon'ble Supreme Court has laid down the
following principles touching the question
of compulsory retirement:

"(i) An order of compulsory retirement is
not a punishment. It implied 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
record of and performance during the later
years. The record to be so considered
would naturally include the entries in the
confidential record/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."

8. The observation that principles of
natural justice have no place in the
context of compulsory retirement made in
Baikuntha Nath Das case "does not mean
that if the version of the delinquent
officer is necessary to reach the correct
conclusion the same can be obviated on
the assumptions that other materials
alone need be looked into"2. Similarly
though an order of compulsory retirement
'implies no stigma nor any suggestion of
misbehaviour' but where an order of
premature retirement in the guise of

2 M.S. Bindra Vs. Union of Inida (1998) 7
SCC 310.
2All] Kashi Ram Ahirwar V. State of U.P. through Collector/ D.D.D.C., Lalitpur and others 173
"public interest" is found to be a
"disguised dismissal"3, it cannot be
allowed to stand. Further the observation
that an order of compulsory retirement is
not a punishment should not be construed
to mean that is no case an order of
compulsory retirement can be termed as
punitive. In my opinion Baikunth Nath
Das does not put any embargo on the
power of the Court to lift the veil and find
out the true nature of the order. It depends
on the facts and circumstances of each
case.
The
language
in
which
the
impugned order in the instant case if
formulated clearly shows that the order of
compulsory retirement is in fact a
'disguised dismissal' on the charge of
'financial irregularity' referred to in the
order
impugned
herein.
The
order
impugned herein has been passed not only
on the basis of general evaluation of the
ACRs but also on account of financial
irregularity in the matter of G.P.F.
accounts of the employees which aspect
was not considered even by the Screening
Committee. The impugned order being
punitive and stigmatic, the petitioner was
entitled to be heard at least about the
alleged misconduct involving financial
irregularity in respect of G.P.F. accounts
of the employees. The impugned order is
ex-facie punitive and having been passed
sans any opportunity of hearing is liable
to be quashed.

9. Apart from the fact that the
impugned order of compulsory retirement
in the instant case is punitive in nature,
the decision to compulsory retire the
petitioner is vitiated by malice in law. It
may be pertinent to observe that special
adverse entry for the year 1998-99 was

3 Baldev Raj Cjadha vs. Union of India,
(1980) 4 SCC 321
given to the petitioner vide order dated
29.05.1998
by
Sri
R.D.
Tripathi,
Settlement Officer Consolidation, Lalitpur
who acted as Chairman of the Screening
Committee. The report of the Settlement
Officer Consolidation, Jalaun at Orai
given
to
the
Settlement
Officer
Consolidation, Lalitpur vide letter dated
18.12.1998 being annexure no. 1 to the
supplementary rejoinder affidavit does not
appear to have been taken into account by
the appointing authority. In the said report
it had been stated that though the entry for
the year 1995-96, 1996-97 are not
available, a perusal of the personal file of
the petitioner would indicate that no
departmental proceeding was initiated
against him during the year 1995-96 and
1996-97 in which period the work of the
petitioner was good. In the report of the
screening
committee
it
has
been
mentioned that the character roll entry of
1994-95 too was missing. In fact the
character roll entry for the year 1994-95
was sent by the Settlement Officer
Consolidation, Jalaun at Orai to the
Settlement Officer Consolidation, Lalitpur
vide letter dated 18.12.1998 (annexure
no.1 to the supplementary affidavit). Sri
R.D. Tripathi, the then Settlement Officer
Consolidation, Lalitpur presided over the
meeting of the screening committee and it
was he who gave the special adverse entry
for the year 1998-99 vide order dated
29.5.1998 and ultimately it is he who
passed the impugned order compulsorily
retiring the petitioner being of the view
that
the
petitioner's
retention
in
government service would be contrary to
the 'government in interests' (INKO
SARKARI
SEVA
MEIN
RAKHNA
RAJYA SARKAR KE HITON KE
VIRUDDH HAI). It may be observed that
'public interest' is not synonymous to
government interest. Albeit recital of
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
174
'public
interest'
in
the
order
of
compulsory retirement is not necessary
but the recital of 'government interest' in
the impugned order clearly shows that the
appointing authority passed the impugned
order on a wrong perception of the vital
issue on which it was required to form its
opinion in order to pass an order of
premature retirement. The correct legal
position is that albeit the appointing
authority is not obliged to record reason
for its decision to prematurely retire a
government servant under Fundamental
Rule 56 (C) and it is not permissible to
infer on that ground alone that the
premature retirement was is not in public
interest, but if the grounds or reasons
stated in the order 'disclose a clearly
erroneous legal approach, the decision
will be quashed"4. In the fact situation of
the case it is clear that the impugned order
suffers also from malice in law. The
officer who passed the impugned order of
compulsory
retirement
had
himself
awarded the special adverse entry and
presided the screening committee. This is
contrary to principles of fairness. That
apart the allegation made in para 16 of the
writ Petition that 2nd respondent had illwill and caste bias against the petitioner
has not been denied by the 2nd respondent
even though he has been impleaded
eonomine a party to the writ Petition.

10. Next question that requires
consideration is whether in the fact
situation of the case the special adverse
entry ought to have been communicated
to the petitioner. Admittedly, the special
adverse entry recorded vide order dated
29.05.1998 was not communicated to the

4
De
Smith's
Judicial
Review
of
Administrative Action (4th Edn.) By Evans P.
406
petitioner. In Baikunth Nath Das though it
has been held that an order of compulsory
retirement will not be rendered illegal
merely because uncommunicated adverse
entries have been relied on but this
holding
preceeds
the
following
observation:

"......We may reiterate that not only
the
Review
Committee
is
generally
composed of high and responsible officers
a, the power is vested in government
alone and not in a minor official, it is
unlikely that adverse remarks over a
number of years remain uncommunicated
and yet they are made the primary basis of
action. Such an unlikely situation, if
indeed present, may be indicative of
malice in law. We may mention in this
connection that the remedy provided by
Article 226 of the Constitution is no less
an important safeguard. Even with its well
known constraints, the remedy is an
effective
check
against
mala
fide,
perverse or arbitrary action."

11. Clause (b) of Explanation (2) to
Fundamental Rule 56 clearly visualises
that mere pendency of representation
against the adverse entry is no ground to
exclude from consideration such adverse
entry provided that representation is also
taken into consideration along with the
entry. This necessarily enjoins a duty on
the appointing authority to take into
consideration the representation, if any
filed by the Government servant against
an adverse entry. This provision impliedly
confers a right in the government servant
to get his representation considered along
with the adverse entry while taking
decision under the Fundamental Rule 56
(c). A government servant will stand
deprived of this right if the adverse entry
is not communicated to him. Exposition
2All] Mohd. Salim alias Salim Uddin V. 4th A.D.J., Allahabad and others
175
of law laid down in Brij Mohan Singh
Chopra Versus State of Punjab5 that
unless adverse report is communicated
and representation, if any made by
employee is considered, it should not be
acted upon in retiring an employee
prematurely
from
service
under
Fundamental Rule 56 (c) is in tune with
clause
(b)
of
Explanation
(2)
to
Fundamental rule 56. The aforesaid
decision was no doubt noticed by the
Supreme Court in Baikuntha Nath Das
wherein
it
has
held
that
mere
circumstance that uncommunicated entry
was taken into account while passing and
order of compulsory retirement cannot be
a basis for interference. But there is
nothing to show that the rule therein
contained any provision like the one
contained in clause (b) of Explanation (2)
to Fundamental Rule 56. In my opinion,
in order to reach a correct conclusion,
version of the petitioner with regard to the
entry regarding his alleged indulgence in
corruption as also in respect of the alleged
'financial irregularity' regarding G.P.F.
accounts of the employees was necessary
particularly when soon before the special
adverse
entry
and
alleged
financial
irregularity, the petitioner was promoted
to the post of Senior Clerk.

In view of the above discussion the
petition succeeds and is allowed. The
impugned order is quashed.

5 (1987) 2 SCC 188
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