# Radha Charan Yadava v. The Chairman, Town Area Committee, Mathura

- **Citation:** (2003) 3 ILRA 899
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-07-21
- **Case number:** Civil Misc. Writ Petition No. 19966 of 1989
- **Bench:** R.B. Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/radha-charan-yadava-v-the-chairman-town-area-committee-mathura-40228
- **Pages:** 10

## Headnote

(A) U.P. Fundamental Rule 1956, Rule
56 (68 CJ) readwith Constitution of India
Article 226-whether order of compulsory
retirement-passed in public interest can
not be interfered under writ jurisdiction.

Held- Para 27

Case law relied on:
2001 (2) AWC 1445, AIR 1971 SC 40 (1971) 1
SCR 791, 1987 SC 948, (1987) 2 SCR 583, AIR
1977 SC 2411, (1977) 9 SCC 345, (1977) 2
SCR 365, AIR 1977 SC 854, (1981) 1 SCR 507,
AIR 1980 SC 1894, (1971) 1 SCR 791, AIR
1971 SC 40, (1987) 2 SCR 583, AIR 1987 SC
948, AIR 1977 SC 2411, (1977) 4 SCC 345,
(1977) 2 SCR 365, AIR 1977 SC 854, (1981) 1
SCR 507, (AIR 1980 SC 1894), (1971) 1 SCR
791, (AIR 1971 SC 40), (1992) 1 SCR 836, AIR
1992 SC 1020, (1020), (1992) 2 SCC 299,
(1970) 2 SCC 876, 1993 AIR SCW 1008, 2001
(3) SCC 314, AIR 1979 SC 193, AIR 1975 SC
1487, AIR 1976 SC 1841, AIR 1980 SC 953,
(1980) 1 SLR 847, AIR 1971 SC 2151, AIR
1965 All 142, (1967) 2 SCR 333, AIR 1967 SC
1260, AIR 1971 SC 2151, AIR 1976 SC 2547,
(1973) 2 MLJ 485, AIR 1974 SC 423, AIR 1971
SC 1011, (1979 SLJ 517) (1955) 1 SCR 26, AIR
1981 SC 70, (1971) SCR 791, (1975) 1 SCR
814, AIR 1974 SC 2192, (1984) 2 SCR 453,
AIR 1980 SC 1095, (1980) Supp. SCC 229, AIR
1989 SC 72, AIR 1994 SC 1261, AIR 1993 SC
383, AIR 1984 SC 630, AIR 1991 SC 534, 1973
SC 698, (1990) 1 SCC 783, AIR (1990) SC
1004, 1994 SUPP. (3) SCC 424, (1995) SUPP.
1 SCC 184, 1995 SCC (L & S) 375, 1995 ATC
146, (1995) II LLJ 757, (1995) 6 SCC 165,
1995 SCC ( L& S) 1361, 1995 31 ATC 479,
(1996) 5 SCC 111, 1996 SCC (L & S) 1144,
AIR 1996 SC 2436, (1996) 5 SCC 231, 1996
SCC (L & S) 1169, 1996 LAB IC 2062, (1997)
11 SCC 366, 1997 SCC (L &S) 1764, (1997) 6
SCC 228, 1997 SCC ( L& S) 1654, 1997 LAB.
IC 2866, AIR 1998 SC 1661, (1998)4 SCC 92,
1998 SCC (L &S) 1004, (1998) Lab IC 1401,
(1998) II LLJ 324, (1998) 3 LLN 94, (1996)
3SCC 672, 1996 SCC (L & S) 799, AIR 1996 SC
1736, (2001) 2 SCC 305, AIR 1954 SC 369,
(1955) 1 SCR 26, 1987 2 SCC 188, (1987) 3
ATC 496, 1994 SUPP. (3) SCC (L & S) 521,
(1992) 21 ATC 649 (1994) SUPP(3) SCC 424,
1995 SCC (L & S) 74, (1994) 28 ATC 445 (
SCC PAGE 430 PARA 9), (2002) 3 SCC 641,
(1992) 2 SCC 299, 1993 SCC (L&S) 521,
(1992) 21 ATC 649( SCC PAGE 315-16 PARA
34), 1998 4 SCC 92, 1998 SCC (L & S) 1004(
SCC P. 99 PARA 11), (1992) 2 SCC 317, AIR
1994 SC 1261, (1998) 4 SCC 92, 1998 (9) SCC
220, (1997) 7 SCC 483, 1997 (6) SCC 381.

In
view
of
the
above
decisions
compulsory retirement order has been
passed against the petitioner in the
public interest did not indicate any
stigma and the principle of natural
justice is not attracted. Therefore, no
scope of any interference is made out.

(B) Compulsory retirement-entitles no
civil consequences can not be questioned
in writ jurisdiction.

Held-Para 19

The
compulsory
retirement
when
exercised
subject
to
the
conditions
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900 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
mentioned in the Rule, as for example,
F.R. 56 (j), one of which is that the
authority concerned must be of the
opinion that it is in the public interest to
do so, then such order of compulsory
retirement does not amount to dismissal
or removal from service within the
meaning of Art.311 of the Constitution.
It is neither a punishment nor visits with
loss of retiral benefits. It does not cause
a stigma. The officer will be entitled to
pension that is actually earned and there
is no diminution of the agreed benefits.
If the competent authority bona fide
forms that opinion the same cannot be
challenged before the courts.

(C)
Principle
of
Natural
JusticeCompulsory Retirement order without
affording an opportunity-on the basis of
approval of work of the concerned
employee whether can be questioned on
the
ground
of
Non-compliance
of
principle of Natural Justice? Held 'No'

Held- Para 13

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

## Text

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3 All] Radha Charan Yadava V. The Chairman, Town Area Committee, Mathura
899
parity for similar orders in the matter of
regularization.

6. As a result of foregoing discussion
the petition fails and is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.7.2003

BEFORE
THE HON'BLE R.B. MISRA, J.

Civil Misc. Writ Petition No. 19966 of 1989

Radha Charan Yadav

...Petitioner
Versus
Chairman,
Town
Area
Committee,
Mathura

 ...Respondent

Counsel for the Petitioner:
Sri Sanjay Goswami
Sri J.K. Sharma

Counsel for the Respondent:
Sri Merun Dey

(A) U.P. Fundamental Rule 1956, Rule
56 (68 CJ) readwith Constitution of India
Article 226-whether order of compulsory
retirement-passed in public interest can
not be interfered under writ jurisdiction.

Held- Para 27

Case law relied on:
2001 (2) AWC 1445, AIR 1971 SC 40 (1971) 1
SCR 791, 1987 SC 948, (1987) 2 SCR 583, AIR
1977 SC 2411, (1977) 9 SCC 345, (1977) 2
SCR 365, AIR 1977 SC 854, (1981) 1 SCR 507,
AIR 1980 SC 1894, (1971) 1 SCR 791, AIR
1971 SC 40, (1987) 2 SCR 583, AIR 1987 SC
948, AIR 1977 SC 2411, (1977) 4 SCC 345,
(1977) 2 SCR 365, AIR 1977 SC 854, (1981) 1
SCR 507, (AIR 1980 SC 1894), (1971) 1 SCR
791, (AIR 1971 SC 40), (1992) 1 SCR 836, AIR
1992 SC 1020, (1020), (1992) 2 SCC 299,
(1970) 2 SCC 876, 1993 AIR SCW 1008, 2001
(3) SCC 314, AIR 1979 SC 193, AIR 1975 SC
1487, AIR 1976 SC 1841, AIR 1980 SC 953,
(1980) 1 SLR 847, AIR 1971 SC 2151, AIR
1965 All 142, (1967) 2 SCR 333, AIR 1967 SC
1260, AIR 1971 SC 2151, AIR 1976 SC 2547,
(1973) 2 MLJ 485, AIR 1974 SC 423, AIR 1971
SC 1011, (1979 SLJ 517) (1955) 1 SCR 26, AIR
1981 SC 70, (1971) SCR 791, (1975) 1 SCR
814, AIR 1974 SC 2192, (1984) 2 SCR 453,
AIR 1980 SC 1095, (1980) Supp. SCC 229, AIR
1989 SC 72, AIR 1994 SC 1261, AIR 1993 SC
383, AIR 1984 SC 630, AIR 1991 SC 534, 1973
SC 698, (1990) 1 SCC 783, AIR (1990) SC
1004, 1994 SUPP. (3) SCC 424, (1995) SUPP.
1 SCC 184, 1995 SCC (L & S) 375, 1995 ATC
146, (1995) II LLJ 757, (1995) 6 SCC 165,
1995 SCC ( L& S) 1361, 1995 31 ATC 479,
(1996) 5 SCC 111, 1996 SCC (L & S) 1144,
AIR 1996 SC 2436, (1996) 5 SCC 231, 1996
SCC (L & S) 1169, 1996 LAB IC 2062, (1997)
11 SCC 366, 1997 SCC (L &S) 1764, (1997) 6
SCC 228, 1997 SCC ( L& S) 1654, 1997 LAB.
IC 2866, AIR 1998 SC 1661, (1998)4 SCC 92,
1998 SCC (L &S) 1004, (1998) Lab IC 1401,
(1998) II LLJ 324, (1998) 3 LLN 94, (1996)
3SCC 672, 1996 SCC (L & S) 799, AIR 1996 SC
1736, (2001) 2 SCC 305, AIR 1954 SC 369,
(1955) 1 SCR 26, 1987 2 SCC 188, (1987) 3
ATC 496, 1994 SUPP. (3) SCC (L & S) 521,
(1992) 21 ATC 649 (1994) SUPP(3) SCC 424,
1995 SCC (L & S) 74, (1994) 28 ATC 445 (
SCC PAGE 430 PARA 9), (2002) 3 SCC 641,
(1992) 2 SCC 299, 1993 SCC (L&S) 521,
(1992) 21 ATC 649( SCC PAGE 315-16 PARA
34), 1998 4 SCC 92, 1998 SCC (L & S) 1004(
SCC P. 99 PARA 11), (1992) 2 SCC 317, AIR
1994 SC 1261, (1998) 4 SCC 92, 1998 (9) SCC
220, (1997) 7 SCC 483, 1997 (6) SCC 381.

In
view
of
the
above
decisions
compulsory retirement order has been
passed against the petitioner in the
public interest did not indicate any
stigma and the principle of natural
justice is not attracted. Therefore, no
scope of any interference is made out.

(B) Compulsory retirement-entitles no
civil consequences can not be questioned
in writ jurisdiction.

Held-Para 19

The
compulsory
retirement
when
exercised
subject
to
the
conditions
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900 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
mentioned in the Rule, as for example,
F.R. 56 (j), one of which is that the
authority concerned must be of the
opinion that it is in the public interest to
do so, then such order of compulsory
retirement does not amount to dismissal
or removal from service within the
meaning of Art.311 of the Constitution.
It is neither a punishment nor visits with
loss of retiral benefits. It does not cause
a stigma. The officer will be entitled to
pension that is actually earned and there
is no diminution of the agreed benefits.
If the competent authority bona fide
forms that opinion the same cannot be
challenged before the courts.

(C)
Principle
of
Natural
JusticeCompulsory Retirement order without
affording an opportunity-on the basis of
approval of work of the concerned
employee whether can be questioned on
the
ground
of
Non-compliance
of
principle of Natural Justice? Held 'No'

Held- Para 13

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.

(Delivered by Hon'ble R.B. Misra, J.)

Heard Sri Jitendra Kumar Sharma
learned counsel for the petitioner and Sri
Merun Dey learned counsel for the
respondents.

1. The Miscellaneous application
dated 17.9.02 has been filed recalling the
order dated 7.7.99. The cause shown is
sufficient, therefore, the order dated
7.7.99 is recalled and the main writ
petition is heard on merits.

2. The petitioner was working as a
Collection
Moharrir
in
Town Area
Committee, Sadabad, Mathura. According
to him his service has along been
satisfactory and by an order dated 24.7.89
the petitioner's service ignoring so many
other
persons
whose
service
and
collection was inferior to the petitioner
has been compulsorily retired behind the
back.

3. According to the petitioner the
order dated 24.7.1989 has been passed
malafidely by a non speaking order of
compulsory retirement passed by way of
punishment without assigning reasons as
the petitioner's record of service is clean
and there has been no departmental
disciplinary action against him, the order
of
compulsory
retirement
is
discriminatory in derogation to the
provisions of Article 14 and 16 of
Constitution and is punitive and has been
passed in derogation to the provisions of
Article 311 of the Constitution of India
and not in public interest. As averred no
adverse
entry,
if
any,
against
the
petitioner has ever been communicated to
him. According to him if any adverse
entry exists the same cannot be made
basis of the compulsory retirement. The
petitioner was made to retire compulsorily
on 24.7.1989 without disclosing anything
to the petitioner and without affording the
petitioner opportunity of hearing. The
petitioner has claimed that the said order
is stigmatic when the circumstances are
unveiled and effect civil consequences.
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3 All] Radha Charan Yadava V. The Chairman, Town Area Committee, Mathura
901
4. The counter and rejoinder
affidavits have been filed which indicates
that the service records of the petitioner
has been seen and in according to the
prevailing rules of Uttar Pradesh Town
Area Committee and Notified Area
Committee (Centralised) Services Rules,
1976 and in reference to rule 38 (1) and
(2) of rules 1976 above, the petitioner has
been compulsory retired.

5. According to the petitioner the
compulsory retirement should not be
passed by way of punitive measure in the
light of 2001 (2) A.W.C. 1445 (SC) (M.P.
Electricity Board vs Shree Baboo). In the
case of Shree Baboo there was no
material at all in the service record for
compulsory retirement, whereas, in the
present
case
as
contended
by the
respondents large number of adverse
remarks are available and different
suggestive warnings are also available in
the service record of petitioner which was
indicated to improve and reform the
functioning
of
the
petitioner.
The
fundamental
rules
provides
for
compulsory retirement are in the interest
of public service and in the present case
retiring the petitioner in public interest is
not illegal in view of (Union of India v.
J.N.Sinha, AIR 1971 SC 40; (1971) 1
SCR 791).

6. According to the learned counsel
for the petitioner the public interest in
relation to public administration envisages
retention
of
honest
and
efficient
employees in service and dispensing with
services of those who are inefficient,
dead-wood or corrupt and dishonest in
view of (Brij Mohan Singh v. State of
Punjab, (1987) 2 SCR 583; AIR 1987 SC
948). In the present case warning have
been given to bring the improvement of
the
petitioner.
The
provisions
of
compulsory
retirement
are
constant
reminders to the government servants to
conduct themselves properly, diligently
and efficiently throughout their service
career (State of U.P. v. Chandra Mohan,
AIR 1977 SC 2411; (1977) 4 SCC 345).

7. Since the service of as many
others of the same department was
scrutinised by the screening committee
and petitioner was compulsorily retired on
the analysis of facts and records therefore,
such order cannot be treated to be
violative of Article 14 and 16 of the
Constitution in reference to the decision
of (P. Radhakrishna Naidu v. Govt. of
A.P., (1977) 2 SCR 365; AIR 1977 SC
854).

8. The retirement of the petitioner
made in the public interest shall also be
treated to have been made in the interest
of public administration and could not be
said to be illegal in the light of the
decision of (Gian Singh Mann v. The
High Court of Punjab and Haryana (1981)
1 SCR 507; (AIR 1980 SC 1894) and
Union of India v. Col. J.N. Sinha, (1971)
1 SCR 791; (AIR 1971 SC 40);

9. The principle of natural justice
have no place to contest of an order of
compulsory retirement as the order of
compulsory
retirement
is
not
a
punishment. It implies no stigma nor any
suggestion of misbehaviour. Since the
action
is
taken
on
the
subjective
satisfaction of the State Government as
such there is no room for importing the
audi alteram partem rule of natural justice
in view of (Baikuntha Nath Das v. Chief
District Medical Officer, (1992) 1 SCR
836; AIR 1992 SC 1020; (1992) 2 SCC
299).
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902 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
10. The order impugned in the
present writ petition has been passed
taking into consideration the material
available in the service record and on the
subjective
satisfaction
of
the
State
Government an order of compulsory
retirement may not be passed by a
speaking order, in the light of R.L. Butail
v. Union of India, (1970) 2 SCC 876 and
in view of the decision of (Union of India
v. Dulal Dutt, 1993 AIR SCW 1008).

11. The compulsory retirement is
not to be treated as punishment for the
purpose of Article 311 of the Constitution
(State of Gujrat v. Umedbhai M. Patel
2001
(3)
SCC
314),
the
present
compulsory retirement is simplicitor does
not amount dismissal or reduction in rank
as such is not hit by the provision of
Article 311 of the Constitution, in view of
the judgement of Andhra Pradesh v.
L.U.A. Dixitulu, AIR 1979 SC 193,
relying on judgment in 'Tara Singh v.
State of Rajasthan, AIR 1975 SC 1487
and 'State of Haryana v. Inder Prakash,
AIR 1976 SC 1841).

12. The order of compulsory
retirement in question has been passed by
exercising power of fundamental Rule
1956 where there appears no arbitrariness
as such it is not illegal in view of the
decision of (Union of India v. K.R.
Tahiliani, AIR 1980 SC 953; (1980) 1
SLR 847) by retiring the petitioner before
attaining the age of superannuation on the
basis of material available on the record
shall not tantamount stigma in view of the
decision of (State of U.P. v. Shyam Lal
Sharma, AIR 1971 SC 2151).

13. The Supreme Court held that the
charge or imputation 'that the respondent
had outlived his utility' was made the
condition of the exercise of power and
hence the order amounted to dismissal or
removal from service within the meaning
of Article 311 (2) of the Constitution. The
Supreme Court itself did not agree and
over-ruled the view taken by the Full
Bench decision in Abdul Ahad v. The
Inspector General of Police, U.P. (AIR
1965 All. 142) to the effect that
compulsory retirement will always be on
the ground that the employee can no
longer render useful service, and the
position does not become worse because
what is implied is expressed in (State of
U.P. v. Madan Mohan Nagar) (1967) 2
SCR 333; AIR 1967 SC 1260).

14.

The
impugned
order
of
compulsory retirement is a simplicitor and
stigma is not to be drawn out of which by
speculative process as for making the
order compulsory retirement the stigma
must stems from the order itself and the
scheme endeavoured to be derived from
the
circumstances
or
possibility
or
suspicion vide the decision in the State of
U.P. v. Shyam Lal Sharma (AIR 1971 SC
2151); State of U.P. v. Ramchandra, AIR
1976
SC
2547
and
Sreshta
v.
Commissioner of Income Tax, (1973) 2
MLJ 485... it has been repeatedly pointed
out by the Supreme Court that Courts
cannot delve into the records and pierce
the veil of the order for discovering a
stigma. What is open to the court is that it
could find out a stigma if it is apparent on
the record or otherwise clear and springs
from the order, vide the decision in State
of U.P. v. Sughar Singh, AIR 1974 SC
423; State of U.P. v. Ramchandra and
State of Bihar v. Shiva Bhikshuk Misra,
AIR 1971 SC 1011. Unless the Court is
satisfied that such a stigma stems out
from the order, an interference with an
order of compulsory retirement is not
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3 All] Radha Charan Yadava V. The Chairman, Town Area Committee, Mathura
903
envisaged while exercising the extra
ordinary jurisdiction under Article 226 of
the Constitution in the light of (K.
Venugopalan v. Government of Tamil
Nadu, 1979 SLJ 517).

15. The mere form of order of
compulsory retirement though not a
conclusive and the court may some times
delve into the basis of the order to lift the
veil, however, I find that after scrutiny
even the present order in question is not
stigmative or by way of punishment
therefore can not said to passed in
derogation of the decision of Shyam Lal
v. State of U.P. (1955) 1 SCR 26; Baldev
Raj Chadha v. Union of India, AIR 1981
SC 70; Union of India v. J.N. Sinha
(1971) SCR 791; Samsher Singh v. State
of Punjab (1975) 1 SCR 814; AIR 1974
SC
2192
and
Anoop
Jaiswal
v.
Government of India, (1984) 2 SCR 453,
the Supreme Court observed:

"On a consideration of the above
decision the legal position that now
emerges is that even though the order of
compulsory retirement is couched in
innocuous language without making any
imputation
against
the
Government
servant who is directed to be compulsorily
retired from service, the Court, if
challenged, in appropriate cases can lift
the veil to find out whether the order is
based
on
any
misconduct
of
the
Government servant concerned or the
order has been made bona fide and not
with any oblique or extraneous purposes.
Mere form of the order in such cases
cannot deter the Court from delving into
the basis of the order if the order in
question is challenged by the Government
servant as has been held by this Court in
Anoop Jaiswal's case."

16. The present order of compulsory
retirement has been passed in public
interest. It was not necessary to give a
detail reason in the order in exercise of
power under fundamental rule in view of
the State of Maharasthtra vs. V.S. Naik,
AIR 1980 SC 1095; (1980) Supp. SCC
229).

17.

Uncommunicated
adverse
entries but mostly based upon general
assessment of performance shall not
render an order of compulsory retirement
invalid as the rule of audi alteram partem
does not apply. The Supreme Court has
held that their non communication of such
adverse entry could not have the effect of
vitiating
the
order
of
compulsory
retirement (Jayanti Kumar Sinha v. Union
of India AIR 1989 SC 72 and the similar
view was taken to decide the question of
compulsory retirement that the rule of
audi alteram partem does not apply in
view of the decision of Union of India vs.
V.P. Seth AIR 1994 SC 1261 and
Secretary to Government v. Nityanand
Pati AIR 1993 SC 383.

18. The compulsory retirement in
question is not based on remote and stale
adverse entries but is based on two latest
entries as such is not in derogation AIR
1984 SC 630 (J.D. Srivastava v. State of
M.P.). The said compulsory retirement is
not based on the basis of reports written
by a bias officer and the order of
compulsory retirement is not hit by the
provisions
of
Article
21
of
the
Constitution in view to the (State of
Sikkim v. Sonam Lama) AIR 1991 SC
534 and order of compulsory retirement
does not involve civil consequences hence
no show cause notice was necessary in
view of decision in (E. Venkateswararao
v. Union of India) 1973 SC 698. Since the
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904 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
decision in the present compulsory
retirement by the present order is based
on clean and bona fide exercise and as a
placid of the doctrine of the State
Government in legitimate exercise of
power under fundamental rule is not
illegal as such compulsory retirement
based on material on record can not be
interfered with in view of the C.D.
Ailawadi v Union of India AIR (1990) 1
SCR 783; AIR (1990) SC 1004.

19.
Compulsory
retirement
involves no civil consequences:- The
compulsory retirement when exercised
subject to the conditions mentioned in the
Rule, as for example, F.R. 56 (j), one of
which is that the authority concerned must
be of the opinion that it is in the public
interest to do so, then such order of
compulsory retirement does not amount to
dismissal or removal from service within
the
meaning
of
Art.311
of
the
Constitution. It is neither a punishment
nor visits with loss of retiral benefits. It
does not cause a stigma. The officer will
be entitled to pension that is actually
earned and there is no diminution of the
agreed benefits. If the competent authority
bona fide forms that opinion the same
cannot be challenged before the courts.
But it is open to the aggrieved party to
contend that the requisite opinion has not
been formed or that the decision is based
on collateral ground or that it is an
arbitrary
decision.
However,
the
compulsory retirement involves no civil
consequences.
While
exercising
the
power
various
considerations
would
weigh with the appropriate authority. In
some cases, the Government may feel that
a particular post may be usefully held in
public interest by an officer more
competent than the one who is holding the
office. That does not mean that the
concerned officer is inefficient but the
appropriate authority may prefer a more
efficient officer or in certain key posts,
public interest may require that a person
of undoubted integrity and ability should
be there. (S. Rama Chandra Raju v. State
of Orrisa, 1994 Supp (3) SCC 424).

20. When the charge against the
Government servant has been proved by
the departmental enquiry and punishment
has been awarded and the entry to that
effect has been entered in the confidential
report compulsory retirement on the basis
of that entry is valid and cannot be held to
be in the nature of punishment. (Collector
v. Chottelal (1995) Supp (1) SCC 184;
1995 SCC (L&S) 375; (1995) 29 ATC
146; (1995) II L.L.J. 757.)

21.

In
another
decision
(K.
Kandaswamy v. Union of India (1995) 6
SCC 162; 1995 SCC (L& S) 1361; (1995)
31 ATC 479, the Supreme Court has
again reiterated that if the appropriate
authority forms a bona fide opinion that in
view of the doubtful integrity it would not
be desirable in public interest to retain the
officer concerned in service the action
thereof cannot be challenged before the
Courts, though it is open to the aggrieved
party to impugn it on the ground that
requisite opinion is based on no evidence
or has not be formed on bona fide ground
or is based on collateral grounds or
arbitrary. When the order has been passed
by the competent authority on the basis of
totality
of
facts
and
circumstances
appropriate to the case the order cannot be
held to be arbitrary, unjustified or based
on no evidence. When the adverse
remarks
in
the
confidential
reports
contained a reflection on his integrity in
discharging the duty, the decision to
compulsory retire him on such adverse
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3 All] Radha Charan Yadava V. The Chairman, Town Area Committee, Mathura
905
remarks is held to be in public interest.
(U.P. State Mineral Dev. Corporation v.
K.C.P. Sinha (1996) 5 SCC 111; 1996
SCC (L & S) 1144).

22. The competent authority can
also take into consideration record of
pending disciplinary enquiry against the
Government servant along with other
relevant record for formation of opinion
to compulsorily retire a Government
servant in public interest even if such
departmental enquiry resulted in imposing
a minor penalty. (State of Orissa v. Ram
Chandra Das AIR 1996 SC 2436; (1996)5
SCC 331; 1996 SCC (L&S)1169: 1996
Lab IC 2062.)

23. Bad service record. Adverse
remark made in the confidential report
although
preceded
by
promotion
constituted a material on the basis of
which the opinion could be formed to
compulsorily
retire
the
employee
concerned in public interest. (H.G.
Venkatachaliah v. Union of India (1997)
11 SCC 366). The employee concerned
out of last ten years was graded in ACRs
for part of one year and for three other
years as "average". He was punished by
three warnings in respect of various lapses
in pre-promotion and post-promotion
period. In view of such average gradings
and
punishment
order
compulsory
retirement passed against him has been
upheld by the Supreme Court. (Satya
Prakash Gupta v State of Haryana 1997
SCC (L& S) 1764).

When the entire service record of the
concerned employee was placed before
the Review Committee and the Review
Committee on considering the adverse
entries and punishment imposed on the
Government
servant
recommended
compulsory retirement and the competent
authority on the basis thereof passed the
order of compulsory retirement. It cannot
be held that the order of compulsory
retirement was arbitrary or illegal. (I.K.
Mishra v. Union of Indian (1997) 6 SCC
228; 1997 SCC (L& S) 1654; 1997 Lab
IC 2866). While considering the entire
service record of the employee the
authority took into consideration an
adverse entry even prior to his promotion.
The order passed bona fide cannot be
faulted because such adverse remarks
even prior to promotion is not wiped out
by promotion of the concerned employee.
(State of Punjab v. Gurdas Singh AIR
1998 SC 1661; (1998) 4 SCC 92; 1998
SCC (L&S)1004; 1998 Lab IC 1401;
(1998) II L.L.J. 324; (1998) 3 LLN 94.

When entire service record including
the record for the period prior to 1st April
1985 i.e. prior to confirmation, which
contained adverse remark was considered
it cannot be said that there was no
sufficient material for the appropriate
authority to form the requisite opinion
that further retention of service of the
respondent was not in public interest.
(Union of India v. P.S. Dhillon (1996) 3
SCC 672; 1996 SCC (L& S) 799; AIR
1996 SC 1736).

(24) In Bishwanath Prasad Singh v. State
of Bihar and others (2001) 2 Supreme
Court Cases 305 the Supreme Court has
observed in para 12 as below:-

"12.
Compulsory
retirement
in
service jurisprudence has two meanings.
Under the various disciplinary rules,
compulsory retirement is one of the
penalties
inflicted
on
a
delinquent
government servant consequent upon a
finding of guilt being recorded in
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906 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
disciplinary proceedings. Such penalty
involves stigma and cannot be inflicted
except by following procedure prescribed
by the relevant rules or consistently with
the principle of natural justice if the field
for inflicting such penalty be not occupied
by any rules. Such compulsory retirement
in the case of a government servant must
also withstand the scrutiny of Article 311
of the Constitution. Then there are service
rules, such as Rule 56 (j) of the
Fundamental Rules, which confer on the
Government or the appropriate authority,
an absolute (but not arbitrary) right to
retire a government servant on his
attaining a particular age or on his having
completing a certain number of years of
service on formation of an opinion that in
public interest it was necessary to
compulsorily retire a government servant.
In that case, it is neither a punishment nor
a penalty with loss of retiral benefits.(see
Shyamlal v. State of U.P. AIR 1954 SC
369; (1955) 1 SCR 26), (Birj Mohan
Singh Chopra v. State of Punjab (1987) 2
SCC 188; (1987 3 ATC 496), (S
Ramachandra Raju v. State of Orissa
1994 Supp (3) SCC 424; 1995 SCC ( L&
S) 74; (1994) 28 ATC 443), (Baikuntha
Nath Das v. Chief District Medical
Officer, Baripada (1992) 2 SCC299; 1993
SCC (L& S) 521; (1992) 21 ATC 649).
More appropriately, it is like premature
retirement. It does not cast any stigma.
The government servant shall be entitled
to the pension actually earned and other
retiral benefits. So long as the opinion
forming basis of the order for compulsory
retirement in public interest is formed
bona
fide,
the
opinion
cannot
be
ordinarily interfered with by a judicial
forum. Such an order may be subjected to
judicial review on very limited grounds
such as the order being mala fide, based
on no material or on collateral grounds or
having been passed by an authority not
competent to do so. The object of such
compulsory retirement is not to punish or
penalise the government servant but to
weed out the worthless who have lost
their utility for the administration by their
insensitive,
unintelligent
or
dubious
conduct
impeding
the
flow
of
administration or promoting stagnation.
The country needs speed, sensitivity,
probity, non-irritative public relation and
enthusiastic creativity which can be
achieved by eliminating the dead wood,
the paper logged and callous (see S.
Ramachandra Raju v. State of Orissa
(1994 Supp (3) SCC 424; 1995 SCC (L&
S) 74; (1994) 28 ATC 443). We may with
advantage quote the following passage
from this decision; (SCC p.430, para 9)

"Though the order of compulsory
retirement is not a punishment and the
government
servant
on
being
compulsorily retired is entitled to draw all
retiral benefits, including pension, the
Government must exercise its power in
the public interest to effectuate the
efficiency. Integrity of public service
needs to be maintained. The exercise of
power of compulsory retirement must not
be a haunt on public servant but act as a
check and reasonable measure to ensure
efficiency in service, and free from
corruption and incompetence. The officer
would go by reputation built around him.
In appropriate case, there may not be
sufficient evidence to take punitive act of
removal from service. But his conduct
and
reputation
in
such
that
his
continuance in service would be a menace
in public service and injurious to public
interest."

25. The order of compulsory
retirement
is
neither
punitive
nor
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3 All] Radha Charan Yadava V. The Chairman, Town Area Committee, Mathura
907
stigmatic and in the formation of opinion
while passing order of compulsory
retirement the entire service records,
character roll or confidential report with
the emphasis cannot be taken into account
along with the relevant period and the
contention that the consideration of
adverse material older than ten years
vitiated
the
order
of
compulsory
retirement was rejected by the Supreme
Court in the State of U.P. and others v.
Vijay Kumar Jain (2002) 3 SCC 641 and
order of withholding integrity certificate
and censor entry are sufficient entries for
compulsory retirement under Rule 56 (c)
and (j) of U.P. Fundamental Rules. In
Vijay Kumar Jain (supra) the court in para
no.13 and 14 had noted below:

"13. In Baikuntha Nath Das v. Chief
District Medical Officer, Baripada (1992)
2 SCC 299: 1993 SCC (L&S) 521: (1992)
21 ATC 649, this Court laid down certain
principles which are as under: (SCC pp.
315-16, para 34).

"34. (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
from 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 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 showing that while
passing
it
uncommunicated
adverse
remarks
were
also
taken
into
consideration. That circumstance by itself
cannot be a basis for interference."

"14. In State of Punjab v. Gurdas
Singh (1998) 4 SCC 92: 1998 SCC (L&S)
1004, it was held thus: (SCC p. 99, para
11)-

"Before the decision to retire a
government servant prematurely is taken
the authorities are required to consider
the whole record of service. Any adverse
entry prior to earning of promotion or
crossing of efficiency bar or picking up
higher rank is not wiped out and can be
taken
into
consideration
while
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908 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
considering the overall performance of
the employee during whole of his tenure
of service whether it is in public interest
to retain him in the service. The whole
record of service of the employee will
include any uncommunicated adverse
entries as well."

26. In the present case the relevant
records, character roll, confidential report
and service book have been seen and the
order in question is not passed arbitrarily
and is made in public interest in
compliance to the fundamental Rules 56
as such judicial review is not possible in
view Vijay Kumar (supra). The present
compulsory retirement have been passed
fairly, bonafidely free from arbitrariness,
in the public interest and in the interest of
the administration and in consonance to
the fundamental rules by way of order of
simplicitor, therefore, is in consonance to
the decision of Supreme Court (1992 ) 2
SCC 317 P & T. Board v. C.S.N. Murthy
and on the material available in the
service record of the petitioner and in the
light of judgment of Baikuntha Nath
(supra) and AIR 1994 SC 1261 Union of
India v. N.P. Seth, (1998) 4 SCC 92 State
of Punjab v. Gurudas Singh 1998 (9) SCC
220; U.P.S.R.T.C. v. Hari Nath Singh
(1997) 7 SCC 483; Union of India v. G.
Ganayuthan and 1997 (6) SCC 381 State
of Punjab v. Bakshi Singh.

27. In view of the above decisions
compulsory retirement order has been
passed against the petitioner in the public
interest did not indicate any stigma and
the principle of natural justice is not
attracted. Therefore, no scope of any
interference is made out.

Writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.08.2003

BEFORE
THE HON'BLE R.B. MISRA, J.

Civil Misc. Writ Petition No. 20219 of
1998

Mohammad Ayub

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

Counsel for the Petitioner:
Sri R.S. Shukla
Sri Surendra Prasad
Sri B.C. Naik

Counsel for the Respondents:
Sri S.S. Sharma
S.C.

(A) Constitution of India Article 226
readwith
U.P.
Recruitment
(Determination date of birth) Rules
1974-Date of Birth in absence of High
School certificate-Date of birth recorded
in service book duly acknowledged by
the
concerned
employee-Alteration
claimed
on
the
basis
of
medical
certificate-Disputed question relating to
date of birth can not be decided in writ
jurisdiction-Petition Dismissed.

Held- Para 47

Date of birth entered into service book,
duly verified by the petitioner and
competent authority, is taken as correct
date of birth of the petitioner.

Dispute regarding date of birth-being a
disputed question of fact cannot be
adjudicated in writ petition.

(B) U.P. Recruitment (Determination of
Date of Birth) Rules 1974-Correction of
Date of Birth-date of Birth once entered
in service book remain untouched for a
long period can not be questioned.