# Naresh Chandra Sharma v. State of U.P. & another

- **Citation:** (2005) 4 ILRA 1189
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-11-18
- **Case number:** Civil Misc. Writ Petition No. 7789 of 2004
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/naresh-chandra-sharma-v-state-of-u-p-another-40594
- **Pages:** 6

## Headnote

U.P. Fundamental Rules- Rule-56 (c)
Compulsory
Retirement-mere
acceptance of the report of screening
committee-by
endorsement
of
word
"Anumodit"
cannot
be
termed
as
application
of
mind-the
District
Magistrate not exercised its jurisdiction
strict in accordance with the Rule 56(6)-
order
compulsory
retirement
of
petitioner liable to quashed.
Held: Para-11 and 15

From the records of the proceedings as
aforesaid this Court is satisfied that
there has been non application of mind
by the District Magistrate with regards to
the
character
roll
entries
of
the
petitioner as well as to the fact as to
whether the nature of entries in the
character roll was such so as to come to
the conclusion that the petitioner was a
fit person to be compulsorily retired. The
District Magistrate has only approved the
proposal of the Screening Committee to
the effect that the petitioner may be
compulsorily
retired.
The
recommendation
of
the
Screening
Committee is only an opinion. It is the
satisfaction of the appointing authority
which should determine as to whether
powers under Section 56 (c) of the
fundamental rules are to be exercised.
Such a satisfaction must be arrived at
after due application of mind to the
service record of concerned government
servant. The Appointing authority has to
decide that the employee has become a
dead wood and it is in public interest to
retire him compulsorily. Mere acceptance
of the report of Screening Committee in
the facts of the case by endorsement of
the word 'Anumodit' by the appointing
authority (District Magistrate) cannot
beheld to a decision to compulsorily
retire the petitioner after due application
of mind as required under Fundamental
Rules 56 (c).

With
reference
to
aforesaid
legal
principles
enunciated,
this
Court
is
satisfied, that the facts of the present
case
the
order
of
compulsorily
retirement
passed
by
the
District
Magistrate dated 12.1.2004 is legally not
justified as he as not exercised his
jurisdiction in accordance with the Rule
56( c) and, therefore, is hereby quashed.
Case law discussed:
2005 (5) ESC-2431
1190 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
1993 HVD (Ahd) Vol.II-131

## Text

4 All] Naresh Chandra Sharma V. State of U.P. and another
1189
6. Considering the aforesaid facts
and circumstances and keeping in view
that the subsequent advertisement has
been issued on the basis on the guidelines
issued by the State Government and also
considering that the petitioner does not
posses the essential qualification for
appointment on the post of T.B.H.V. even
according to the guidelines of the Central
Government as have been relied by the
petitioner and also keeping in view the
law laid down by the Supreme court in the
aforesaid two cases relied upon by the
learned counsel for the respondents, the
prayer made in this writ petition is not
liable to be granted.

7. The writ petition lacks merit and
is, accordingly, dismissed. No order as to
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.11.2005

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 7789 of 2004

Naresh Chandra Sharma
...Petitioner
Versus
State of U.P. & another ..Opposite parties

Counsel for the Petitioner:
Sri M.D. Singh "Shekhar"

Counsel for the Opposite Parties:
Sri Pushoendra Singh
S.C.

U.P. Fundamental Rules- Rule-56 (c)
Compulsory
Retirement-mere
acceptance of the report of screening
committee-by
endorsement
of
word
"Anumodit"
cannot
be
termed
as
application
of
mind-the
District
Magistrate not exercised its jurisdiction
strict in accordance with the Rule 56(6)-
order
compulsory
retirement
of
petitioner liable to quashed.
Held: Para-11 and 15

From the records of the proceedings as
aforesaid this Court is satisfied that
there has been non application of mind
by the District Magistrate with regards to
the
character
roll
entries
of
the
petitioner as well as to the fact as to
whether the nature of entries in the
character roll was such so as to come to
the conclusion that the petitioner was a
fit person to be compulsorily retired. The
District Magistrate has only approved the
proposal of the Screening Committee to
the effect that the petitioner may be
compulsorily
retired.
The
recommendation
of
the
Screening
Committee is only an opinion. It is the
satisfaction of the appointing authority
which should determine as to whether
powers under Section 56 (c) of the
fundamental rules are to be exercised.
Such a satisfaction must be arrived at
after due application of mind to the
service record of concerned government
servant. The Appointing authority has to
decide that the employee has become a
dead wood and it is in public interest to
retire him compulsorily. Mere acceptance
of the report of Screening Committee in
the facts of the case by endorsement of
the word 'Anumodit' by the appointing
authority (District Magistrate) cannot
beheld to a decision to compulsorily
retire the petitioner after due application
of mind as required under Fundamental
Rules 56 (c).

With
reference
to
aforesaid
legal
principles
enunciated,
this
Court
is
satisfied, that the facts of the present
case
the
order
of
compulsorily
retirement
passed
by
the
District
Magistrate dated 12.1.2004 is legally not
justified as he as not exercised his
jurisdiction in accordance with the Rule
56( c) and, therefore, is hereby quashed.
Case law discussed:
2005 (5) ESC-2431
1190 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
1993 HVD (Ahd) Vol.II-131

(Delivered by Hon'ble Arun Tandon, J.)

1. Heard Sri M.D. Singh 'Shekhar'
on behalf of the petitioner Standing
Counsel on behalf of respondents.

2. This writ petition is directed
against an order dated 12.1.2004 passed
by the District Magistrate, Ghaziabad (the
appointing authority of the petitioner) in
exercise of powers under fundamental
rules 56 (c) as contained in final in book
Vol. 2 part 2 to 4 as amended upto date,
compulsorily retiring the petitioner from
service w.e.f. the date of the order.

3. On behalf of the petitioner it has
been stated that except for adverse entries
awarded for the year 2000-01 and of the
year 2002-03 against which Appeals filed
by
the
petitioner
wee
pending
consideration all other annual entries of
the petitioner wee 'Utkarsh' or 'Ati
Uttam'. It is therefore submitted that the
petitioner cannot be termed as a dead
wood to be chopped of before he attains
the age of superannuation nor can it be
said that it is in public interest to retire
the petitioner. It is stated that the adverse
entries of the year 2000-01 and 2002-03
cannot be taken into consideration. In the
alternative it is submitted that the
Screening Committee constituted for the
screening of the petitioner was not
inconformity with statutory rules as it did
not include the appointing authority.
Lastly it is pointed out that the District
Magistrate has not applied his mind to the
recommendation
of
the
Screening
Committee and has not recorded his
satisfaction as required under fundamental
rules 56( c) for compulsory retiring the
petitioner.
4. On behalf of the respondents a
counter affidavit has been filed and it has
been stated that the petitioner was
awarded adverse entry in the year 199899 and 1999-00 his integrity was withheld
in the year 2000-01 besides these there
are adverse entries were recorded for the
years 2000,2001 and 2003. It has been
stated that the Appeal filed by the
petitioner against the adverse entries have
been rejected by the competent authority.
The character roll of the petitioner was
such that a conclusion was arrived at by
the disciplinary authority for compulsorily
retiring the petitioner. The decision
cannot be said to be arbitrary nor any
interference is called for under Article
226 of the Constitution of India inasmuch
as an order of compulsory retirement is
not a punishment, it implies no stigma nor
suggestion of misbehaviors, reference
AIR 1992 S.C. Page 1020(Baikunth Nath
Das Vs. Chief Medical Officer).

5. One of the basic issues to be
decided in the petition is as to whether the
Screening Committee was constituted in
accordance with the provisions applicable
and
further
as
to
whether
the
recommendations
of
the
Screening
Committee were considered by the
District Magistrate after due application
of mind to the service record of the
petitioner before taking a decision to
compulsorily retire the petitioner.

6. On records of the present writ
petition is a Government Notification No.
5/1/1975-Karmik-1 dated 26th August,
1975, providing for the constitution of
Screening Committee. Relevant Clause 2
of the same which is applicable in the
case of petitioner reads as follows:
"(2) Aise Karmchariyon Jinke Niyukti
Pradhikari Rajyapal Se Bhin Hain, Ki
4 All] Naresh Chandra Sharma V. State of U.P. and another
1191
Screening Jin Adhikariyon Se Niyukti
Pradhikari
Rajyapal
Se
Bhinn
Adhikari Hain, Unki Screening Nimn
Prakash Gathit Screening Committee
Dwara Ki Jayengi:-
(1) NiyuktiPradhikari......Adhyaksh.
(2) Niyukti
Pradhikari
Dwara
Manonit
Do
Varishtha
Adhikari.....Sadasya.
Uprokt Committeeyon Ki Sanstuti Ka
Karyanvan Niyukti Pradhikariyon Ke Stur
Par Hi Hoga.
Ukt
Dono
Screening
Committeeyon Ka Koi Vidhik Status
Nahin Hoga, Na Ve Kewal Sambandhit
Niyukti Pradhikariyon Ke Samadhan
Mein Sahayta Ke Liye Hongi, Va Unki
Karyavahiyan Bhi Unaupcharik Hongi,
Va
Unke
Gathan
Mein
Kisi
Anaupcharikta Ke Hote Hue Bhi
Niyukti pradhikari Swa Vivek Se
Upyukt Nirnnay Le Sakenga."

7. Along with counter affidavit filed
on behalf of the respondents the rport of
the
Screening
Committee
has
been
enclosed as Annexure CA-8. From the
report so enclosed it is apparent that it
comprised of three members only:
(1) J.B.
Singh,
Deputy
Collector,
Ghazibad.
(2) S.B. Tewari, Diputy Collector, Garh
Mukteshwar.
(3) Rakesh Chandra, Additional District
Magistrate(Admn.), Ghaziabad.

8. It is thus apparent that Screening
Committee did not include the District
Magistrate as one of its members. The
report of the said Screening Committee is
so far as it pertain to the etitioner Shri
Naresh Chandra Sharma reads as follows:
"Shri Naresh Chandra Sharma
(Sa.Ra.Ka.) Ki Do Varshik Pravishtiyan
Pratikool
Tatha
Do
Pratikool
Pravishthiyan Vibhagiya Ke Antargat
Nirgat Ki Gayin Hain.
Asharam (Sa.Ra.Ka.) Va Shri
Naresh Chandra Sharma (Sa.Ra.Ka.)
Ko Anivarya Sewanivrit Kiye Jane Ki
Sanstuti Ki Jati Hai.

On the said report dated 27.12.2005
there is an endorsement which reads as
fallows:

"Kya
Shri
Sharma
Va
Shri
Asharam Ke Pratikool Pravishtiyon Ke
Viruddh
Pratyavedan
Lambit
To
Nahin Hai.

Sd/-27.12.2005"

9. On the next page of the report is
another note addressed to the Additional
District Magistrate (Admn.) submitted by
the Bhulekh Adhikari dated 3.1.2004
which reads as follows:
"Apar Zila Adhikari(Pra.)
Committee Ki Karyavahi Tippri
Sankhya 3 Per Apne Aadesh Ka
Avlokan Karne Ka Kasht Karen.
Shri Naresh Chandra Sharma,
(Sa.Ra.Ka.) Ka Varsh 2000 Mein Zila
Adhikari Mahodaya Dwara Di Gai
Pratikool Pravishthi Tatha Satyanishta
Sandigdh
Ghoshit
Kiye
Jane
Ke
Viruddh
Ek
Pratyavedan
Ayukt,-
Meerut Mandal, Meerut Ke Yahan
Lambit Hai, Iske Atirikt Varsh 20022003 Ki Varshik Pratikool Pravishthi
Ke
Virudh
Shri
Naresh
Chanda
Sharma Dwara Dinank 26.12.2003. Ko
Ek Pratyavedan Aapko Prastut Kiya
Hai, Jo Abhi Lambit Hai."

On 9th January, 2004 the note put by
the A.D.M. to the District Magistrate
reads as follows:
"Avlokit Samiti Ki Aakhya Dinank
27.12.2003 Se Sahmat Zila Adhikari
1192 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
Mahodaya
Ke
Anumodanarth
Agrasarit.
9.1.2004"

10. Lastly the District Magistrate on
the same page has recorded as follows:
'Anumodit'
and has signed the same in the month of
February, 2004.

11. From the records of the
proceedings as aforesaid this Court is
satisfied
that
there
has
been
non
application of mind by the District
Magistrate with regards to the character
roll entries of the petitioner as well as to
the fact as to whether the nature of entries
in the character roll was such so as to
come to the conclusion that the petitioner
was a fit person to be compulsorily
retired. The District Magistrate has only
approved the proposal of the Screening
Committee to the effect that the petitioner
may
be
compulsorily
retired.
The
recommendation
of
the
Screening
Committee is only an opinion. It is the
satisfaction of the appointing authority
which should determine as to whether
powers under Section 56 (c) of the
fundamental rules are to be exercised.
Such a satisfaction must be arrived at
after due application of mind to the
service record of concerned government
servant. The Appointing authority has to
decide that the employee has become a
dead wood and it is in public interest to
retire him compulsorily. Mere acceptance
of the report of Screening Committee in
the facts of the case by endorsement of
the word 'Anumodit' by the appointing
authority (District Magistrate) cannot
beheld to a decision to compulsorily retire
the petitioner after due application of
mind as required under Fundamental
Rules 56 (c). The aforesaid conclusion is
further supported by the reason that the
Screening Committee did not refer to (i)
all the entries recorded into the character
roll of the petitioner in the previous
years(specifically of recent part). (ii) the
relevant period for which such adverse
entries have been recorded, (iii) the nature
of adverse entries, (iv) the effect of other
entries which were good/outstanding
available on the service records of the
petitioner.

12. Division Bench of this Court in
the case of Sri Narain Saxena Vs.
Principal Secretary, reported in 2005 Vol.
4 Education and Service Cases page 2431,
after referring to various judgments of the
Hon'ble Supreme Court in paragraph 20
of the judgment has held as follows:
"Paragraph 20 In view of the
above
there
is
no
bar
for
the
Competent Authority to appoint a
Screening Committee and consider its
recommendations by application of his
mind. This view stands fortified by the
judgment relied upon by Shri K. Ajit in
Kamta Singh Vs. State of U.P. and
another, 1993 HVD (Alld.)Vol. 2, Page
131, wherein it had been held that the
Appointing Authority has to apply his
mind
independently
on
the
recommendation
made
by
the
Screening Committee, failing which the
order impugned would stand vitiated."

13. In paragraph 23 and 24 it has
been further held as follows:

23. "Undoubtedly,
one
particular
misconduct or adverse entry unless it is
of doubtful integrity or involving moral
turpitude cannot be the basis of passing
the order of compulsorily retirement.
The entries service record is to be
examined for this purpose. Inefficiently
4 All] Naresh Chandra Sharma V. State of U.P. and another
1193
of an employee may weigh with the
authority concerned in coming to the
conclusion whether or not the employee
should be compulsorily retired and in
that case the scope of judicial review is
very limited. If on the perusal of the
service book of the employee and file of
the Department, The Court comes to
the conclusion that the order has been
passed by the competent authority in
strict
adherence
to
the
statutory
required, the order cannot be held to be
invalid. (Vide State of Rajisthan and
another Vs. Sripal Jain A.I.R. 1963 S.C.
1323).
24. "It
is
so for
the
competent
authority to examine as to whether the
Government
employee
should
be
retained in service or not, and to be
retained in service is not a fundamental
right of the employee. However, a
permanent employee has a right to hold
the post till he reaches the age of
superannuation
subjects
to
his
remaining fit and efficient and other
statutory provisions dealing with the
subject. In such circumstances other
than the question of the efficiency also.
Therefore, it is in the exclusive domain
of the Competent Authority to take a
decision after assessing the over all
services record. (Kailash Chandra Vs.
Union of India, AIR 1961 S.C. 1346; L.
Butail Vs. Union of India and others
(1970) 2 SCC 876; Gurdial Singh Fiji
Vs. State of Punjab and others AIR
1979 S.C. 1622).

14. Reference may also be made to
the Division Bench judgment of this
Court in the case of Kamta Singh Vs.
State of U.P. 1993 HVD (Alld.) Vol. II
Page 131, Paragraph 6 whereof reads as
follows:
"F.R.
56
(c)
empowers
the
appointing
authority,
the
State
Government in this case, to require the
petitioner to retire after attaining the
age of fifty years "if it appears to the
said authority to be in the public
interest." This provision supposes that
the State Government has formed the
opinion that it is in the public interest
to retire the petitioner compulsorily. If
the decision of the State Government is
based merely on the opinion of an
extraneous body like the Screening
Committee, it cannot be said that the
State Government has exercised its
jurisdiction as accordance with the said
rule. It is not shown that the Screening
Committee is a committee of the
Government
which
has
been
constituted under the Rules of Business
made
under
Article
166
of
the
Constitution. The I.G. Prisons who is
not part of the organization known as
Government, was also a member of the
Screening Committee. The Screening
Committee cannot be regarded as an
instrumentality of the Government.
The role of Screening Committee is to
assist the State Government and after a
careful examination of the relevant
materials to report whether there is a
prima
facie
case
to
require
the
Government
servant
concerned
to
retire compulsorily in public interest.
The function to do so is that of the
Government to do so is that of the
Government and the order is passed on
the
subjective
satisfaction
of
the
Government.
Subjective
satisfaction
cannot be a matter of delegation and
the
satisfaction
of
the
Screening
Committee cannot be the satisfaction of
the Government. This is not to say that
the law requires a second examination
of the materials by the Government, as
1194 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
apprehended by the learned Standing
Counsel. But, circumstances must exist
which
would
indicate
that
the
Government
(or
the
appointment
authority) has itself applied its mind to
all the relevant material and was
satisfied
that
the
concerned
government servant has become a dead
wood and public interest would suffer
more by allowing him to continue to
perform the duties and functions of his
office till superannuation in the normal
course and that it is in public interest to
order compulsorily retirement and that
in taking such action it has not merely
acted on the basis of the report of the
Screening Committee. We have come to
the conclusion after giving out most
thoughtful consideration to the facts
and circumstances of the present case
that
the
impugned
order
of
compulsorily retirement has not been
passed by the State Government after
applying its mind to all the relevant
material on record. The impugned
order is, therefore, clearly arbitrary,
the requisite opinion having not been
formed in the requisite manner as
required by law, and it is liable to be
quashed."

15. With reference to aforesaid legal
principles enunciated, this Court is
satisfied, that the facts of the present case
the order of compulsorily retirement
passed by the District Magistrate dated
12.1.2004 is legally not justified as he as
not
exercised
his
jurisdiction
in
accordance with the Rule 56 (c) and,
therefore, is hereby quashed.

16. Petitioner shall be reinstated in
services with all consequently benefits. It
will be open to the appointment authority
to
take
a
fresh
decision
under
Fundamental Rule 56 (c) qua the
petitioner in accordance with law and the
observations made hereinabove. Writ
petition is allowed.
----------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.12.2005

BEFORE
THE HON'BLE RAVINDRA SINGH, J.

Criminal Misc. Writ Petition No. 6435 of
2004

Radhey Shyam Yadav

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

Counsel for the Petitioner:
Sri A.K. Ray

Counsel for the Respondents:
A.G.A.

Constitution
of
India
Art.
226-Writ
Petition-maintainability-controversy
of
conversion of private vehicle into maxi
cab-involve if the vehicle not convertedtransport authority has no jurisdiction to
imposed
the
tax-penalty
of
Rs.1,79,809/-
Quashed-Subject
to
Payment
of
Rs.10,000/-
penalty
as
provided in section 192 of M.V. Act.

Held: Para 13 & 15

So far as the question of maintainability
of this petition is concerned, in the
present case the controversy in respect
of the assessment of the taxes is not
involved
but
the
controversy
of
conversion of a private vehicle into a
maxi cab is involved. If the vehicle is not
legally converted into a maxi cab, the
taxes
imposed
by
the
Transport
authority are not permissible in the eyes
of law. Therefore, in this case it is not
required to approach the Transport