# Mohammed Naseem Ali v. State of U.P. & Ors

- **Citation:** (2022) 2 ILRA 870
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-18
- **Case number:** Writ-A No. 17421 of 2020
- **Bench:** Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohammed-naseem-ali-v-state-of-u-p-ors-48163
- **Pages:** 7

## Headnote

A. Service Law - Compulsory retirementPetitioner was working as Administrative
Officer
in
Zila
Panchayat-Screening
committee recorded that the petitioner is
indolent, quarrelsome and has become
'dead wood' in the organization-Petitioner
obtained interim order on the basis of
false
and
misleading
averments
and
concealing material facts-petitioner work
and conduct was found unsatisfactory-he
has been compulsorily retired by adopting
due procedure of law-no illegality of any
procedural or substantive law in passing
the impugned order-Petiitoner has not
approached
this
Court
with
clean
hands.(Para 1 to 19)

B.
To
obtain
favourable
order
the
petitioner misguided the Hon'ble Court.
Truth of the matter is that the screening
committee was duly constituted and
reported
the
matter
to
authorities.
Administrative
Committee
also
recommended compulsory retirement in
its meeting. In the instant case the
petitioner approached the Court stating
that no such procedure was adopted.(Para
5)
The writ petition is dismissed. (E-6)

List of Cases cited:

## Text

870 INDIAN LAW REPORTS ALLAHABAD SERIES

"16. But at this stage once again a strong
appeal is made to let the appellant continue on
the post where he has already worked for over
17 years. Mr Patil, learned Senior Counsel,
appearing for the appellant, submitted that
throwing him out after more than 17 years
would be very hard and unfair to him since now
he cannot even go back to the college where he
worked as Lecturer and from where he had
resigned to join to this post.

17. We are unimpressed. In service law
there is no place for the concepts of adverse
possession or holding over. Helped by some
University authorities and the gratuitous
circumstances of the interim orders passed by
the Court and the delay in final disposal of the
matter, the appellant has been occupying the
post, for all these years that lawfully belonged
to someone else. The equitable considerations
are, thus, actually against him rather than in his
favour."

15. The case relied on by the petitioner
(2016) 12 SCC 342 (Md Zamil Ahmed Vs.
State of Bihar and others) is distinguishable
inasmuch in the said case the Supreme Court
did not find that the appellant had committed
any fraud for securing appointment. Paragraph15 of the said judgment, which has been relied
on by the petitioner, reads as under:-

"15. In these circumstances, we are of the
view that there was no justification on the part
of the State to wake up after the lapse of 15
years and terminate the services of the appellant
on such ground. In any case, we are of the view
that whether it was a conscious decision of the
State to give appointment to the appellant as we
have held above or a case of mistake on the part
of the State in giving appointment to the
appellant which now as per the State was
contrary to the policy as held by the learned
Single Judge, the State by their own conduct
having condoned their lapse due to passage of
time of 15 years, it was too late on the part of
the State to have raised such ground for
cancelling the appellant's appointment and
terminating his services. It was more so because
the appellant was not responsible for making
any false declaration nor he suppressed any
material fact for securing the appointment. The
State was, therefore, not entitled to take
advantage of their own mistake if they felt it to
be so. The position would have been different if
the appellant had committed some kind of fraud
or manipulation or suppression of material fact
for securing the appointment. As mentioned
above such was not the case of the State."

16. In the present case, from perusal of
petitioner's application, it is evident that the
petitioner has suppressed the material fact and
played fraud for securing public employment
and, therefore, his long continuation (15 years)
would not be of any help to him to continue to
hold his post inasmuch as his appointment was
void ab initio.

17. In view of aforesaid discussions, this
Court does not find that the impugned order
suffers from any illegality or from gross
inaccuracy and, therefore, this writ petition fails
and is, accordingly, dismissed at this stage
itself.
----------
(2022)02ILR A870
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.02.2022

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Writ-A No. 17421 of 2020

Mohammed Naseem Ali ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ravi Shanker Tewari, Sheo Pal singh
2 All. Mohammed Naseem Ali Vs. State of U.P. & Ors.
871
Counsel for the Respondents:
C.S.C., Dibyam Mishra, Gajendra Kumar Mishra,
Sudhir Pande, Umesh Kumar Srivastava

A. Service Law - Compulsory retirementPetitioner was working as Administrative
Officer
in
Zila
Panchayat-Screening
committee recorded that the petitioner is
indolent, quarrelsome and has become
'dead wood' in the organization-Petitioner
obtained interim order on the basis of
false
and
misleading
averments
and
concealing material facts-petitioner work
and conduct was found unsatisfactory-he
has been compulsorily retired by adopting
due procedure of law-no illegality of any
procedural or substantive law in passing
the impugned order-Petiitoner has not
approached
this
Court
with
clean
hands.(Para 1 to 19)

B.
To
obtain
favourable
order
the
petitioner misguided the Hon'ble Court.
Truth of the matter is that the screening
committee was duly constituted and
reported
the
matter
to
authorities.
Administrative
Committee
also
recommended compulsory retirement in
its meeting. In the instant case the
petitioner approached the Court stating
that no such procedure was adopted.(Para
5)
The writ petition is dismissed. (E-6)

List of Cases cited:

1. MP St. Coop. Federation & anr. Vs Rajnesh
Kumar Jamindar & ors. (2009) 15 SCC 221

2. St. of Guj. Vs Umedbhai M. Patel (2001) 3
SCC 314

(Delivered by Hon'ble Dinesh Kumar
Singh, J.)

1. The petitioner, who was working as
Administrative Officer in Zila Panchayat,
Hardoi, having been compulsorily retired
from service vide order dated 15.09.2020,
has filed this writ petition, impugning the
said order of compulsorily retirement
passed by the Chairman, Zila Panchayat,
Hardoi.

2. The petitioner was selected and
appointed on the post of Second Grade
Clerk vide order dated 20.12.1989 passed
by the Uper Mukhya Adhikari, Zila
Panchayat, Hardoi; his services were
confirmed vide order dated 27.12.1990; in
1999, he was promoted as First Class Clerk
and Departmental Selection Committee in
its meeting dated 14.05.2012 recommended
him to be promoted as Section Head Clerk
(Tax) on temporary basis and, the said
recommendation was accepted by the
Chairman of the Zila Panchayat; the
petitioner assumed the charge of the
Section Head Clerk (Tax) on 17.05.2012;
the petitioner was further promoted as
Administrative Officer vide order dated
19.05.2015.

3. The petitioner's integrity was not
certified for the Financial Year 2016-17.
The Uper Mukhya Adhikari, respondent no.
4, considering service record of the
petitioner and, his work and conduct,
recommended for his premature retirement
vide order dated 15.04.2017.

4. Learned counsel for the petitioner
has
submitted
that
the
Screening
Committee constituted for assessing the
service record of Class-III and Class-IV
employees of the Zila Panchayat in the year
2017 did not assess the petitioner for being
compulsorily retired. It has been further
submitted that on 11.09.2020 a meeting of
the Board of Zila Panchayat was scheduled
for
which
agenda/karya
soochi
was
published on 28.09.2020, which was sent to
all the members of the Zila Panchayat. In
the agenda, there was no proposal to take
action against the petitioner. Despite the
872 INDIAN LAW REPORTS ALLAHABAD SERIES
premature retirement of the petitioner, not
being in the Agenda, the Zila Panchayat, in
its meeting dated 11.09.2020, approved the
resolution of the Board of Zila Panchayat
dated 11.09.2020 for petitioner's retirement
compulsorily. It has been further submitted
that neither the Agenda of compulsorily
retirement of the petitioner was published
nor served on any members of the Zila
Panchayat and, therefore, the resolution of
the Board of the Zila Panchayat dated
11.09.2020, so far as the petitioner's
compulsorily retirement is concerned, is
wholly not sustainable in law. The
Chairman of the Zila Panchayat, on the
basis of the decision taken by the Board,
has passed the impugned order dated
15.09.2020 whereby the petitioner has been
directed to be retired compulsorily.

5. Paragraphs 31, 32 and 33 of the
petition are extracted herein below in
which it has been specifically stated that no
screening committee was constituted to
assess the petitioner's service record for
taking
a decision
of
his
retirement
compulsorily from services:-

"31.That the petitioner humbly submits
that to declare an employee as deed wood
and to take further action to have his
premature retirement it was incumbent upon
the opp. parties to constitute a screening
committee which could look into the A.C.R. of
the petitioner and recommend accordingly by
forming its opinion regarding the employee
under screening, which in the instant case
nothing was done and the compulsory
retirement was sought to be doe by way of
punishment which is not sustainable under
law.

32. That the Government of U.P. vide
G.O. dated 06 February, 1989 has mandated
to form screening committee to assess an
employee for the purposes of the premature
retirement and further it was mandated that
once a report is obtain and the employee is
not retired compulsorily, he should not be
subjected every year for being screened. The
true photo copy of the G.O. dated 06
February, 1989 is being annexed herewith as
Annexure NO. 23 to this writ petition.

33. That the petitioner craves leave of
this Hon'ble Court to State that once the opp.
parties did not take action in pursuance the
entry dated 15.04.2017 and no screening
committee was formed to assess the petitioner
for being compulsorily retired, no such action
could have been taken."

6. On behalf of the petitioner, it has
further submitted that in subsequent years i.e.
2017-18,
2018-19
and
2019-20
the
petitioner's work and conduct was found
satisfactory
as
nothing
adverse
was
communicated to the petitioner and, as such,
he had never been declared as 'dead wood'
and, therefore, the order of compulsorily
retirement of the petitioner is bad in law.

7. Considering the stand of the
petitioner that no screening committee was
constituted to consider the entire service
record
of
the
petitioner
and,
no
recommendation
was
made
by
the
screening committee for his compulsorily
retirement, this Court passed interim order
dated 19.10.2020, which reads as under:-

"Notices on behalf of opposite party
no.1 has been accepted by the office of
learned Chief Standing Counsel whereas
notices on behalf of opposite parties no.2 to
4 have been accepted by Mr. Sudhir Pande,
learned Advocate.

By means of instant writ petition, the
petitioner has sought for the following
main prayers:

"(i). To issue a writ, order or direction
in the nature of certiorari quashing the
2 All. Mohammed Naseem Ali Vs. State of U.P. & Ors.
873
order dated 15.09.2020 passed by opposite
party no.2 (contained in Annexure No.1 to
the writ petition.).

(ii). To issue a writ, order or direction
in the nature of mandamus commanding the
opposite parties not to give effect the
impugned order dated 15.09.2020 and
permit the petitioner to working on his post
as he was working before."

Learned Counsel for the petitioner has
submitted that the petitioner has been
retired compulsorily by the impugned order
dated 15.09.2020 passed by opposite party
no.2 which is illegal and arbitrary. He has
further submitted that the impugned order
has been passed without following the
procedure prescribed. The impugned order
has
been
passed
without
any
recommendation of Screening Committee.
He has further submitted that no Screening
Committee has ever been formed after 2017
when the petitioner was awarded bad entry
but he was excluded from being screened
and thereafter, no complaint whatsoever in
this nature was found against the petitioner.

Learned Additional Chief Standing
Counsel appearing on behalf of opposite
party no.1 is present whereas Mr. Sudhir
Pande appearing on behalf of opposite
parties no.2 to 4 is not present and,
therefore, this Court is left with no option
except to issue notice to the opposite
parties no. 2 to 4.

Issue notice to opposite parties no.2 to
4, returnable at an early date.

Steps be taken within a week.

List this case o n 19.11.2020.

Till the next date of listing, the
operation and implementation of order
dated 15.09.2020 passed by the Chairman,
Zila Panchayat, Hardoi (opposite party
no.2) shall be kept in abeyance."

8. Learned counsel for the petitioner
has relied on judgment in (2009) 15 SCC
221 ( Madhya Pradesh State Cooperative
Federation and another Vs. Rajnesh
Kumar Jamindar and others) to submit
that provisions for compulsory retirement is
for the purpose of weeding out 'dead wood'.
The Supreme Court placed reliance on
judgment in (2001) 3 SCC 314 ( State of
Gujarat Vs. Umedbhai M. Patel). In the
said judgment compulsory retirement was
crystallized into definite principles and
broadly summarized them as under:-

"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.

(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.
874 INDIAN LAW REPORTS ALLAHABAD SERIES

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

9. Learned counsel for the petitioner
has further submitted that since the
compulsory retirement has been imposed as
punitive measure, the same is liable to be
set-aside.

10. On the other hand, Mr. U.K.
Srivastava, learned counsel for respondent
no. 4, has submitted that the writ petition
has been filed on falsehood and by stating
wholly incorrect and false averments of
facts, the petitioner obtained the interim
order. It has been further stated that the
petitioner has approached this Court with
unclean hands and, by misleading this
Court by making false, incorrect and wrong
statements of facts, he could obtain the
interim order. It has been further stated that
a person, who approaches this Court with
unclean hands and, has relied on falsehood,
cannot be given any indulgence by this
Court in exercise of equity jurisdiction
under Article 226 of the Constitution of
India. It has been further stated that the writ
petition is liable to be dismissed on this
ground alone.

11. Mr. U.K. Srivastava, learned
counsel for respondent no. 4, has also
sought dismissal of the writ petition on
the ground of availability of alternative
remedy to the petitioner under the
provisions
of
Government
Order
No.5/1/1976-Karmik-1 dated 12th May,
1976, which provides that all employees,
whose appointing authority is not the
Governor, may approach the higher
authority than one who has passed the
order of compulsory retirement. He,
therefore, submits that the writ petition is
not maintainable on the ground of
availability of alternative remedy and,
therefore, the same is liable to be
dismissed.

12. On behalf of respondent no. 4, it
has been further stated that the petitioner
has concealed the material facts inasmuch
as he deliberately has not filed the
proceedings dated 11.09.2020 referred to
in the impugned order, which specifically
mentions
the
screening
committee
recommendation
dated
14.07.2020,
considering case of the petitioner for
compulsory retirement. A person, who
approaches the writ-Court by concealing
the material fact is not entitled to get any
relief in exercise of writ-jurisdiction and,
therefore, he prays for dismissal of the
writ petition on this ground also. It has
been further submitted that the impugned
order dated 15.09.2020 has been passed
on the basis of the recommendation of the
screening committee dated 14.07.2020
and
minutes
of
the
Administrative
Committee Meeting held on 01.09.2020
on which the resolution dated 11.09.2020
was passed by the Board of Zila
Panchayat.

13. The petitioner's work and conduct
has been much wanting. He was given
warnings. He has been habitual of flouting
the orders of superior authorities. He has been
given warning several times, but he did not
care about those warnings and showed his
negligence in discharge of duty. Various
orders
dated
17.05.2017,
20.12.2017,
08.05.2018 and 08.08.2018 have been
annexed with the counter affidavit, warning
him of committing indiscipline and flouting
the orders passed by the superiors. It has been
further submitted that the petitioner was duly
informed about adverse entry given in 20162017 vide letter dated 14.06.2017. In case of
any grievance regarding adverse entry in his
character roll, an employee has right to
2 All. Mohammed Naseem Ali Vs. State of U.P. & Ors.
875
appeal under rule-41 of the Uttar Pradesh Zila
Panchayat Sewa Niyamawali, 1970. It has
been further submitted that the petitioner has
claimed that he had no knowledge about
entry for the 2016-2017 and, therefore, no
adverse entry was given up to 2018 is false
and incorrect. It has been further submitted
that adverse entry was given by the
competent Authority to the petitioner for the
year 2017-2018 as well and, the said entry
was
communicated
vide
letter
dated
13.07.2018, however, the petitioner refused
the accepted the said letter. It has been further
submitted that the recommendation was made
by the screening committee held in the year
2017, however, since age of the petitioner
was less than 50 years, his case was not
forwarded for compulsory retirement. The
minutes of the screening committee dated
09.08.2017 and 14.07.2020, minutes of the
Administrative Committee Meeting dated
01.09.2020 and copy of the resolution of the
Zila Panchayat dated 11.09.2020 have been
placed on record along with the counter
affidavit. The petitioner had filed an appeal
against the adverse entry given to him in the
year 2016-2017 before the Commissioner,
Lucknow Divison, Lucknow, however, the
said appeal was dismissed on 13.12.2018 and
adverse entry was confirmed. It has been
further submitted that there have been serious
complaints by several employees against the
petitioner about his indecent behaviour with
the
colleagues,
including
the
female
employees.

14. Reply of paragraphs-31, 32 and 33
of the writ petition has been given in
paragraph-34 of the counter affidavit,
which reads as under:-

"34. That the contents of paragraphs
31 to 33 of the writ petition are not only
false but are also misrepresentation of fact
with a view to misguide the Hon'ble Court
to have obtained a favourable order. Truth
of the matter is that the screening
committee was duly constituted which held
its meeting on 14.7.2020 and reported the
matter
to
authorities.
Administrative
Committee also recommended compulsory
retirement in its meeting dated 1.9.2020.
The petitioner was not compulsorily retired
in 2017 as his age was less than 50 years.
The action taken is perfectly right."

15. Mr. U.K. Srivastava, learned
counsel for respondent no. 4, has further
submitted that earlier an adverse entry was
also awarded in 2017-18 and in 2018-19
yearly entry was not given, but yearly
increment was not given to the petitioner in
2019-20 for the petitioner's work and
conduct was found unsatisfactory and, was
recommended for compulsory retirement. It
has been further submitted that the
petitioner has been compulsorily retired by
adopting due procedure of law and, there is
no illegality or infarction of any procedural
or substantive law in passing the impugned
order. It has been further submitted that the
petitioner has been in habit of flouting the
orders passed by his superiors. The
petitioner was directed to deposit all the
records in the office but, he did not do the
same and, as a result thereof, public work
has been suffering.

16. In rejoinder, while giving reply to
the paragraph-34 of the counter affidavit,
the petitioner has stated that the meeting of
the screening committee dated 14.07.2020
and
minutes
of
the
Administrative
Committee Meeting dated 01.09.2020 are
forged documents and, have been antedated
only to fill up the lacunae.

17.

Except
for
making
bald
allegations,
the
petitioner
has
not
substantiated the said allegation of forging
876 INDIAN LAW REPORTS ALLAHABAD SERIES
or antedating the official records. From
perusal of the recommendation of the
screening committee dated 14.07.2020, it is
evident that after considering the work and
conduct of the petitioner, the screening
committee had recorded that the petitioner
is indolent, quarrelsome, disturber of peace,
religious bigot, harasser of females and
scheduled caste people, malignant and
wholly useless employee and, the same has
been confirmed by the Commissioner,
Lucknow Division, Lucknow.

18. The petitioner's misconduct has
been taken note of in detail in the minutes
and, need not to be further dwelled upon by
this Court. From the pleadings, it is evident
that the petitioner had approached this Court
for exercising its extraordinary jurisdiction
by adopting falsehood, misrepresentation
and concealing the material facts and, thus,
abusing the process of the Court. He
obtained the interim order on the basis of
false
and
misleading
averments
and
concealing
material
facts.
One,
who
approaches this Court, is expected to come
with clean hands inasmuch this Court
exercises writ jurisdiction to maintain rule of
law. The petitioner has not approached this
Court with clean hands and, thus, the writ
petition is liable to be dismissed on this
ground alone. Further, from looking at the
service record of the petitioner, the
petitioner has become 'dead wood' in the
organization and, is wholly unuseful. The
employer is entitled to remove the dead
woods from service, if on consideration of
the service record, it is found that the work
of such an employee has not been upto the
mark or he has become 'dead wood' for the
organization. This Court does not find from
the pleadings that the order has been passed
as punishment and, therefore, the sole
ground, urged by the petitioner, has no
substance.

19. In view of aforesaid, for making
false
and
incorrect
averments
and
misrepresenting this Court, concealing
material facts from the Court, the writ
petition is dismissed and a cost of Rs.
25,000/- (Rupees twenty five thousand) is
imposed
upon
the
petitioner
to
be
deposited in the 'Army Battle Casualties
Welfare Fund' within a period of four
weeks, failing which the District Magistrate
concerned shall recover the same, as arrears
of land revenue and, deposit in the account
of Army Battle Causalities Welfare Fund.

20. Let a copy of this order be
forwarded
to
the
District
Magistrate
concerned for compliance.
----------
(2022)02ILR A876
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.02.2022

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Writ-A No. 4215 of 2019

C/M Sri Shanker Junior High School & Ors.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Pt. S. Chandra, Manoj Kumar Pandey

Counsel for the Respondents:
C.S.C., Ajay Kumar, Dwijendra Nath Pandey

A. Service Law - U.P. Basic Education
(Teachers) Service Rules, 1981-challenge
to-forged appointment-petitioners did not
fulfill
the
eligibility
condition
for
appointment on the post of Head Master
and Asst. Teacher-if the petitioners do not
have essential qualification as prescribed
under the statute, their appointment is
void ab initio and they cannot claim any