# Mahesh Kumar v. U.P. Power Corporation Ltd

- **Citation:** (2011) 2 ILRA 807
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-07-22
- **Case number:** Writ Petition No. 671 (SB) of 2008
- **Bench:** Pradeep Kant, Ritu Raj Awasthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahesh-kumar-v-u-p-power-corporation-ltd-41954
- **Pages:** 8

## Text

2 All] Mahesh Kumar V. U.P. Power Corporation Ltd.
807
allotment of another accommodation to
run his business but he simply filed an
affidavit before court below indicating
therein that he had moved an application
for allotment that too indicating therein
the shop/building in respect to which
allotment application has been moved. In
view of the said facts, I am of the opinion
that the said act on the part of
tenant/petitioner cannot said to be a a
sincere effort made by him to search for
an alternate accommodation since the date
of moving of release application by
landlord/respondent. Coupled with the
fact in the present era in every City
several commercial complex/shops are
built and soft loans are also provided by
banks to aspirants and in case if
petitioner/tenant has made an effort in this
regard then he might have get a shop to
run his business which he running from
the shop in dispute.

82. In view of the abovesaid facts, I
do not find any illegality or irregularity in
the judgment and order passed by
appellate court.

83. For the foregoing reasons, writ
petition lacks merit and is dismissed.

No order as to costs.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.07.2011

BEFORE
THE HON'BLE PRADEEP KANT, J.
THE HON'BLE RITU RAJ AWASTHI, J.

Writ Petition No. 671 (SB) of 2008

Mahesh Kumar

 ...Petitioner
Versus
U.P. Power Corporation Ltd. ...Respondent

Constitution
of
India-Article
226Compulsory Retirement-petition being
senior Asst. Engineer had worked as
officiating
Ex
Engineer-Screening
committee on 25.01.2008 decided to
retire those who get 100 or more than
hundred
marks
in
their
service
performance-petitioner
got
only
30
marks-held-decision
of
compulsory
retirement declaring petitioner as dead
word
based
on
no
consideration-if
petitioner
could
not
get
regular
promotion
on
post
of
Executive
Engineer-can not be made basis for such
undesired
decision-as
the
petitioner
already
achieve
the
age
of
superannuation-direction to treat the
petitioner in continuous in servicearrears of salary and other consequential
benefits be given within 3 month.

Held: Para 25

Such
a
criterion
itself
was
wholly
unjustifiable
and
unreasonable,
and
merely because the screening committee
had included such a criterion in its
resolution, it will not give a right to the
Corporation to compulsorily retire an
officer on a ground which does not get
support from sub-regulations 2(b) and
2(c) of Regulation 1 of the U.P. State
Electricity
Board
(Retirement
of
Employees) Regulations, 1975.
Case law discussed:
[2007(25) LCD 910]; [2007(25) LCD 1299]
808 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
(Delivered by Hon'ble Pradeep Kant, J. )

1. Heard the learned counsel for the
petitioner Sri Pankaj Nath and Sri
Sanchit S. Asthana for the respondent
Corporation.

2. The petitioner challenges the
order of his compulsory retirement dated
25.3.08
passed
by
the
Managing
Director, U.P. Power Corporation Ltd.

3. The petitioner joined the services
of the then U.P. State Electricity Board,
now
U.P.
Power
Corporation
Ltd.
(hereinafter
referred
to
as
the
'Corporation') on 30.1.73 as Assistant
Engineer
in
the
Electrical
and
Mechanical cadre. While working as
such, he was allowed to work as
temporary
Executive
Engineer
in
officiating
capacity
on
22.10.88.
Thereafter he was designated as Senior
Assistant Engineer (Special Grade) on
completion of 14 years of service on
7.12.88. Later on, he was given the pay
scale of Superintending Engineer on
26.9.98.

4. The Corporation decided to weed
out the dead woods and, therefore, it
constituted a screening committee for
considering the case of such officers,
who fell within the mischief of the rule
of compulsory retirement, which was
governed by the rules known as U.P.
State Electricity Board (Retirement of
Employees) Regulations, 1975.

5. The petitioner's specific case is
that there was no adverse material again
him, on which any opinion could have
been
formed
objectively
that
the
petitioner has become dead wood or that
his integrity was doubtful or he was not
fit for being retained in service but even
then on consideration, which cannot be
said to be relevant, the order of
compulsory retirement has been passed.

6.

Elaborating
the
aforesaid
argument,
learned
counsel
for
the
petitioner has submitted that there were
no adverse entries against the petitioner,
barring adverse entries of the year 198283, 1983-84 (for a period of six months)
and 1989-90. So far the entry of the year
1982-83 is concerned, that has been
expunged and against the adverse entries
of the years 1983-84 and 1989-90,
representations are still pending which
have not been decided.

7. Apart from the plea that there
was no material for compulsory retiring
the petitioner, the learned counsel has
also submitted that the very criteria
adopted by the Corporation for retiring
an officer compulsorily was per se
illegal, bad and arbitrary and that even
according to the said criteria, the
petitioner did not fall within the mischief
of the said criteria, so as to be considered
for compulsory retirement.

8. The criteria which was adopted
by the screening committee was that
marks be awarded for every warning,
adverse entry, supersession etc. and if
such marks, in total, are 100 or more
than 100, then such an officer would be
considered for compulsory retirement,
whereas the petitioner was awarded only
30 marks under the said criteria but even
then his case was considered for
compulsory retirement.

9. Alternative argument is that mere
supersession of the petitioner at three
occasions for being regularly promoted
2 All] Mahesh Kumar V. U.P. Power Corporation Ltd.
809
on the post of Superintending Engineer
would not constitute a ground for
compulsory retirement, as he was already
given the pay scale of Superintending
Engineer though was working on the
substantive post of Executive Engineer,
therefore, his work and conduct as
Executive Engineer was to be seen and
the result of the selection for the next
higher post could not have been made the
basis for compulsory retirement.

Sri Sanchit S. Asthana appearing for
the Corporation has defended the order
vehemently and has produced the record.

10. From the record it is clear that
the screening committee decided the
procedure and criteria to be adopted in
its meeting held on 25.1.08, wherein it
was decided that the punishments which
have been awarded to an officer during
his entire service period would be valued
in accordance with the criteria given
therein and thereafter on the basis of the
marks obtained, coupled with the service
record and his health and also if he has
made pretexts for not going on transfer
for which he has put pressure, the matter
regarding compulsory retirement be
considered alongwith annual entries of
past ten years.

11. The marks which were to be
assigned to various punishments were as
under:

(1) For every warning - 5 marks

(2) For every censure entry - 10
marks

(3) For every increment withheld
with non-cumulative effect - 10 marks

(4) For every increment withheld
with cumulative effect - 20 marks

(5) For every doubtful integrity - 50
marks

(6) For every adverse entry - 20
marks

(7)
For every
supersession
in
promotion - 10 marks

(8)
For
sanction
of
criminal
prosecution - 20 marks

(9) For medical unfitness - 20 to 50
marks

(10) Apart from above, for every
minor punishment like stoppage of
efficiency bar, recovery of financial loss,
partly or fully from salary etc. - 10 marks

(11) For every major punishment
like reversion on lower post or grade or
time bound scale or lower stage of time
bound scale etc. - 40 marks.

12. In the meeting dated 5.3.08, the
screening committee was constituted and
it was provided that the service record of
all
the
Executive
Engineers
be
scrutinized and those officers who are
awarded 100 or more than 100 marks on
the criteria as discussed above, be
considered for compulsory retirement.
Compulsory retirement was also directed
to be considered with respect to those
officers for whom the Managing Director
had made any such recommendation or
such a recommendation has been made
from the higher level. The term 'higher
level' has not been defined nor explained
in the said meeting but presumably, it
may relate to the recommendation, if at
810 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
all made by the officer superior than the
Managing Director.

13. The relevant portion of the
minutes of meeting dated 5.3.08 reads as
under:

"Samiti ki dwitiye baithak dinank
05.03.2008 ko sampann hui jisme nimn
adhikariyon dwara bhaag liya gaya :-

(1) Sri Avnish Kumar Awasthi,
Prabandh
Nideshak,
U.P.
Power
Corporation
Ltd.,
Shakti
Bhawan,
Lucknow.

(2)
Sri
Harishchandra
Singh,
Nideshak (ka.Prab. evam Prasha. evam
vitt), U.P. Power Corporation Ltd. Shakti
Bhawan, Lucknow.

(3) Sri Arun, Nideshak (virtan), U.P.
Power Corporation Ltd., Shakti Bhawan,
Lucknow.

Baithak mein samiti ke samaksh 20
varsh ki aharkari sewa poorn evam 50
varsh ki aayu prapt kar chuke adhishasi
abhiyantaon ki soochi pradatt dandon ke
aadhar par arjit ankon ke vivran ke
saath prastut ki gayi.

Samiti dwara is soochi ka avlokan
karne ke uprant un sabhi adhishasi
abhiyantaon ke abhilekhon ki gahan
samiksha/adhyayan kiya gaya jinko 100
athwa 100 se adhik ank prapt hain athwa
anivarya
sewanivratti
ki
sanstuti
prabandh nideshak/uchh star se ki gayi
hai."

14. The minutes of the committee
aforesaid as well as the resolution passed
on 25.1.08 clearly show that only those
Executive Engineers/officers could have
been
considered
for
compulsory
retirement, who had to their credit or so
to say, discredit, 100 or more marks.
Admittedly, the petitioner was awarded
only 30 marks and, therefore, on the
aforesaid criteria, his case could not have
been
considered
for
compulsory
retirement.

15. There is nothing on record nor
anything has been placed before us to
show that there was any recommendation
made by the Managing Director or from
higher level for compulsorily retiring the
petitioner. The petitioner thus, not falling
under any of the aforesaid two criteria,
was not liable to be considered for
compulsory retirement, in the wake of its
own criteria as determined by the
Corporation in its various meetings.

16. This apart, the supersession of
the petitioner three times for regular
promotion to the post of Superintending
Engineer in itself could not be a ground
for compulsory retirement.

17. There is nothing on record nor
it has been urged by the respondent that
the
petitioner's
work
as
Executive
Engineer was not satisfactory or that he
lacked in any respect in performing his
duties as Executive Engineer. May be,
that he was not found fit for being
regularly promoted on the post of
Superintending Engineer but that would
not be a ground for ousting him from
service from a post where his work has
not been questioned and he has not been
apprised
of
any
shortcoming
in
performance of his duties.

18. When compulsory retirement of
an officer is considered, his work and
conduct on the post on which he is
2 All] Mahesh Kumar V. U.P. Power Corporation Ltd.
811
working and from where he is to retire,
has to be considered. Future promotions
or his being unsuccessful in getting
promotion to the higher post would not
be
a
relevant
consideration
for
compulsorily retiring an officer, as it
would amount to curtailment of his
tenure of the post on which there is no
grievance about his working.

19. Why the petitioner was not
promoted or could not be promoted on
the post of Executive Engineer and the
criteria of promotion being seniority
subject to rejection of unfit since are the
questions which are not before us,
therefore, we need not enter into these
questions.

20. The screening committee report
has been produced before us, which
shows that, in fact, there was no adverse
entry against the petitioner for the last
ten years and, therefore, rightly, no
adverse entry was shown against his
name nor was considered by the
Committee. The shortcomings which
have been shown are that (i) he was
awarded
30
marks
because
of
supersession; and (ii) he has made
requests consistently for not being posted
out of Lucknow.

21. The report says that out of his
34 years of service, he has remained in
Lucknow for 20 years barring his posting
at
Panki
(Kanpur),
Varanasi
and
Faizabad at different intervals. Whenever
he was posted out of Lucknow, he had
given reasons of his health and other
reasons for staying at Lucknow. After
making
the
aforesaid
recital,
the
committee has taken into consideration
the letter dated 15.10.03 by means of
which he has given an excuse for being
posted at Agra and likewise the letters
dated
10.12.04,
7.12.05,
17.2.06,
19.6.06, 26.12.06 and 16.6.07.

22. True, that the petitioner had
made requests on one ground or the other
for retaining him at Lucknow but it was
the discretion of the Corporation either to
accept his request or to reject the same.
Once the Corporation accepted his
request
on
reasons
given
by
the
petitioner and allowed him to stay at
Lucknow, it is presumed that the reasons
given by him appealed to the conscience
of the Corporation and, therefore, the
Corporation cannot take advantage of its
own act nor the petitioner can be
punished for that. In fact, ordering
compulsory retirement because of the
petitioner's various requests to stay at
Lucknow would amount to punishing
him for making such requests.

23. Compulsory retirement cannot
be ordered by way of punishment and,
therefore,
the
order
also
becomes
punitive, which is not permissible under
law.

24. We also take note of the fact
that the criteria determined by the
screening committee in its meeting dated
25.1.08, wherein the act of an officer in
getting over the transfer orders was made
a basis for his compulsory retirement,
appears
to
have
been
deliberately
provided only for getting rid of the
petitioner, as counsel for the Corporation
Sri Sanchit S. Asthana after looking to
the record, very fairly stated that there
was no other officer whose case fell
under the said category. It was only the
petitioner
who
consistently
made
requests for staying at Lucknow.
812 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

25. Such a criterion itself was
wholly unjustifiable and unreasonable,
and
merely
because
the
screening
committee had included such a criterion
in its resolution, it will not give a right to
the Corporation to compulsorily retire an
officer on a ground which does not get
support from sub-regulations 2(b) and
2(c) of Regulation 1 of the U.P. State
Electricity
Board
(Retirement
of
Employees) Regulations, 1975.

26. It is also to be noticed that
every officer/employee has a right to
make a representation against his transfer
to his superior authority, namely, the
transferring
authority
or
appointing
authority and it is the discretion of such
authority to accept the representation or
not. By merely making a request that the
officer be not transferred out of Lucknow
or to say, from his present place of
posting, he does not commit any
misconduct nor it adversely affects the
functioning of his office, unless, of
course, such a request has been rejected
or even if not rejected, it is not accepted
and the officer continues without any
authority at his original place of posting.

27. The Corporation in its wisdom
accepted the request of the petitioner,
whenever it was made and, therefore, no
ill motive can be attributed to the
petitioner nor he can be subjected to any
punishment for making such a request,
which
the
Corporation
had
itself
accepted.

28. The report also says that the
annual entries for the last ten years show
that his work was satisfactory but again
on some information received from the
Chief Engineer (Distribution), Faizabad
Region, Faizabad vide letter dated
1.1.207, it has been said that because of
his illness, he is not regularly present at
Faizabad and, therefore, he is not in a
position to discharge his functions
properly as he goes to his permanent
residence very frequently.

29. Learned counsel for the
petitioner has submitted that so far the
aforesaid observation in the report is
concerned, that is not the whole version
of the Chief Engineer. In fact, the
petitioner was issued a show cause notice
for termination on 16.6.07 on the same
very ground to which the petitioner
replied and thereafter the Chief Engineer
forwarded the same and recommended
that he may be transferred to Lucknow
but that portion of the recommendations
of the Chief Engineer has not been
considered and obviously has not been
quoted by the screening committee in its
report, though there is no reason that
when the letter of the Chief Engineer was
before the Committee, then why the
whole contents thereof were not noted by
the Committee.

30. In case an officer is found
guilty of some misconduct, he can be
subjected to disciplinary proceedings and
for that matter he can be suspended also,
but
compulsory
retirement
on
the
aforesaid facts and circumstances, could
not have been ordered. The order of
compulsory retirement of the petitioner
thus, to sum up, is per se bad, illegal and
without authority for the reason (i) he did
not
fall
within
the
criteria
of
consideration of compulsory retirement
as per the criteria determined by the
screening committee itself, he having
secured only 30 marks, whereas he
should have been awarded at least 100
marks for such a consideration; (ii) there
2 All] Mahesh Kumar V. U.P. Power Corporation Ltd.
813
was no adverse material against him in
regard to his functioning and working on
the post of Executive Engineer; (iii) there
was no adverse entry, as has also been
found by the Committee itself, for the
last ten years; (iv) his work was found
satisfactory; (v) mere non-promotion to
the next higher post of Superintending
Engineer would not make him a dead
wood for a post on which he was
working substantively, unless, of course,
there were reports of inefficiency and
doubtful integrity against him; (vi)
making request for allowing him to stay
at Lucknow at times when transfer orders
were passed in itself alone could not
have been a ground for compulsory
retirement, moreso, when such requests
were accepted by the Corporation itself;
(vii) the letter of the Chief Engineer was
not seen in toto and a portion of the same
was placed for making out a case for
compulsory retirement, so as to give an
impression that the petitioner was a
habitual absentee at Faizabad and,
therefore, he can be retired compulsorily;
and (viii) the conclusion drawn by the
screening committee that efficiency and
performance of the petitioner was below
standard and his services would not be of
any use to the department, cannot be said
to be based on any material, much less
any relevant material.

31. Counsel for the petitioner has
also argued that the very basis of award
of marks for determining as to whether
an officer should be compulsorily retired
or not, was per se illegal, for which he
placed reliance on the cases of Ram
Vidyarthi vs. Chairman, U.P. Jal
Nigam, Lucknow [2007(25) LCD 910],
Ram Bharat Verma vs. State of U.P.
and others [2007(25) LCD 1299] and
Dev Dutt vs. Union of India and others
(2008) 8 SCC 725.

32. Sri Sanchit S. Asthana, in
response, submitted that the aforesaid
criterion is not under challenge and,
therefore, it is not open for the petitioner
to raise such an issue.

33. We also feel that the criteria for
compulsory retirement not being under
challenge, we need not interfere with the
same and, therefore, we leave this issue
open.

34. For the reasons aforesaid, the
order of compulsory retirement of the
petitioner dated 25.3.08 is set aside.
Since the petitioner has already crossed
the age of superannuation, therefore, he
shall be deemed to have been in
continuous service till the date of his
retirement and shall be given all
consequential benefits of salary etc.
accordingly. The amount of arrears of
salary and other dues shall be paid to the
petitioner within a maximum period of
three months from the date of receipt of a
certified copy of this order.

35. The writ petition is allowed. No
order as to costs.
---------
814 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 12.07.2011

BEFORE
THE HON'BLE RAJIV SHARMA, J.
THE HON'BLE S.C. CHAURASIA, J.

Criminal Appeal No. - 836 of 2006

Santosh Kumar

 ...Petitioner
Versus
State of U.P.

 ...Respondent

Counsel for the Petitioner:
Sri Nagendra Mohan

Counsel for the Respondent:
Govt. Advocate
Sri Rajesh Pandey

Code of Criminal Procedure-Section-389suspension
of
conviction-on
ground
compassionate
appointment
deniedbecause of conviction-although appeal
against
conviction-although
appeal
against
conviction
U/S
302/32
IPC
already admitted and bail granted-held
there can be automatic suspension of
conviction
on
grant
of
bail
unless
soundful reason recorded-case of Navjot
Siddhu Singh case quite distinguishableno good ground for suspension made
out.

Held: Para 11

There is a distinction between bail and
suspension of sentence. One of the
essential ingredients of Section 389 is
the requirement for the appellate Court
to record reasons in writing for ordering
suspension of execution of the sentence
or
order
appealed.
If
he
is
in
confinement, the said court can direct
that he be released on bail or on his own
bond. The requirement of recording
reasons in writing clearly indicates that
there has to be careful consideration of
the relevant aspects and the order
directing suspension of sentence and
grant of bail should not be passed as a
matter of routine.
Case law discussed:
[2007 Crl.L.J. 1427]; [2009 (2) SCC (Cri.)
920]; [(2001) 6 SCC 584]; [(2004) 6 SCC 175]

(Delivered by Hon'ble Rajiv Sharma,J.)

1. Heard Mr.R.N.S. Chauhan,
learned Counsel for the applicant and Mr.
Umesh
Verma,
learned
Additional
Government Advocate.

2. The applicant-appellant has been
convicted under Sections 302/34 IPC and
sentenced to imprisonment for life and a
fine of Rs.10,000/- vide judgment and
order
dated
29.4.2006.
A
default
stipulation has also been mentioned
therein.

3. On an appeal being preferred,
under
Section
374
(2)
CrPC,
an
application for releasing the appellant,
during the pendency of appeal, on bail
was filed. The said application for grant
of bail was considered and the bail was
granted and in pursuance of the said order
dated 3.5.2006, the appellant was released
on furnishing bail bonds as directed by
this Court.

4. Subsequently, the appellant's
father while, working in the Prayogshala
Sahayak (Prani Vigynan Vibhag) at MLK
(PG)
College,
Balrampur,
died
on
15.2.2010 and as such, he moved an
application for appointment under the
provisions of Dying-in-Harness Rules,
1974 on 6.4.2010, on which the mother
and younger brother of appellant endorsed
that they have no objection in case the
appellant is appointed in place of his
father under the aforesaid Rules. The said
application
was
considered
by
the
Appointing Authority, i.e. Principal of the