# Ram Sumer v. State of U.P. & Ors

- **Citation:** (2021) 11 ILRA 298
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-06
- **Case number:** Service Single No. 28975 of 2019
- **Bench:** Attau Rahman Masoodi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-sumer-v-state-of-u-p-ors-46506
- **Pages:** 10

## Headnote

A. Service Law - U.P. Fundamental Rules
56(2)-challenge
to-
compulsory
retirement-Petitioner
was
a
Class-IV
employee
has
an
unblemished
service
record
throughout-he
was
classified
deadwood merely on the strength of a
minor punishment inflicted in the distant
past-solitary minor punishment inflicted
upon the petitioner became irrelevant
once the annual confidential rolls for the
subsequent
period
have
remained
constantly
satisfactory
and
integrity
intact-solitary punishment awarded to the
petitioner was not decisive of treating the
petitioner as deadwood by any degree of
prudence-petitioner shall be reinstated in
service-order passed by the competent
authority being illegal and arbitrary is set
aside.(Para 1 to 28)
11 All. Ram Sumer Vs. State of U.P. & Ors.
299
The writ petition is allowed. (E-6)

List of Cases cited:

## Text

298 INDIAN LAW REPORTS ALLAHABAD SERIES
Tyagi clearly warrants the recordal of the
conclusion that the issue of equivalence must
necessarily be predetermined and cannot be left
to the vagaries of the recruiting or selecting
body taking a decision in that regard either after
the commencement of the selection or not taking
a view on that question at all.

K. DIRECTIONS

59. Accordingly and for the reasons
aforenoted all these writ petitions fail and shall
stand dismissed.

60. In light of the conclusions recorded
above, a direction is hereby issued to the
respondent
Department
as
well
as
the
Commission that henceforth the issue of
equivalence of qualifications, if sanctioned and
envisaged under the relevant rules, shall be
determined and made known prior to the
commencement of the selection process.

61. The stand of the Department of
Personnel has already been noticed and recorded
in these proceedings. The Court finds no
justification
for
other
departments
and
constituents of the State not following and
adopting an identical practice. In view of the
above, let a copy of this judgment be placed
before the Chief Secretary of the Government of
U.P. to instruct all other departments, agencies
and entities of the State to henceforth ensure that
the question of equivalence of qualifications,
where the rules of recruitment so envisage as
conferring eligibility, shall be determined prior
to the commencement of any recruitment
exercise. The Chief Secretary shall place an
affidavit of compliance in this respect on the
record of this writ petition within a period of 1
month from today.

62. The U.P. Public Service Commission is
also directed to ensure that where the
recruitment rules contemplate the acceptance of
a higher qualification for the purposes of
determining eligibility, that issue shall be
decided and settled in consultation with the
recruiting agency before the commencement of
any recruitment exercise that may be initiated
henceforth. The Secretary of the Commission
shall place an affidavit of compliance in this
respect on the record of this writ petition within
a period of 1 month from today.
----------
(2021)11ILR A298
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.10.2021

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.

Service Single No. 28975 of 2019

Ram Sumer ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Mohd. Shujauddin Waris

Counsel for the Respondents:
C.S.C.

A. Service Law - U.P. Fundamental Rules
56(2)-challenge
to-
compulsory
retirement-Petitioner
was
a
Class-IV
employee
has
an
unblemished
service
record
throughout-he
was
classified
deadwood merely on the strength of a
minor punishment inflicted in the distant
past-solitary minor punishment inflicted
upon the petitioner became irrelevant
once the annual confidential rolls for the
subsequent
period
have
remained
constantly
satisfactory
and
integrity
intact-solitary punishment awarded to the
petitioner was not decisive of treating the
petitioner as deadwood by any degree of
prudence-petitioner shall be reinstated in
service-order passed by the competent
authority being illegal and arbitrary is set
aside.(Para 1 to 28)
11 All. Ram Sumer Vs. State of U.P. & Ors.
299
The writ petition is allowed. (E-6)

List of Cases cited:

1. Shyam Lal Vs St. of U.P. (1955) SCR 26: AIR 1954
SC 369 : (1954) 2 LLJ 139

2. St. of Guj. Vs Umedbhai M. Patel (2001) 3 SCC
314: 2001 SCC (L&S) 576: 2001 SCC OnLine SC 474

3. St. of Punj. Vs Gurdas Singh, St. of U.P. & ors. Vs
Raj Kishore Goyal & Nawal Singh Vs St. of U.P. & ors.
1998(4) SCC 92 , 2001(10) SCC 183 and 2003(8) SCC
117

4. Baikuntha Nath Das Vs Chief District Medical
Officer Baripada (1992) 2 SCC 299: 1993 SCC (L&S)
521:1992 21 ATC 649

5. H.G. Venkatachaliah Setty Vs U.O.I .(1997) 11 SCC
366

6. Nawal Singh Vs St. of U.P.(2003) 8 SCC 117 : 2003
SCC (L&S) 1212 : 2003 SCC OnLine SC 1064

7. Pyare Mohan Lal Vs St. of Jharkhand (2010) 10 SCC
693 : 2011 1 SCC (L&S) 550 : 2010 SCC OnLine SC
1010

8. Ram Murti Yadav Vs St. of U.P. (2020) 1 SCC 801 :
2020 1 SCC (L&S) 245 : 2019 SCC OnLine SC 1589

9. St. of U.P. Vs Vijay Kumar Jain (2002) 3 SCC 641 :
2002 SCC (L&S) 455 : 2002 SCC OnLine SC 341

10. Rajeev Kumar Khare Vs St. of U.P. thru the Princ.
Secy. Youth Deptt. Govt. of U.P., Civil Secretariat &
ors. (2019) SCC OnLine All 5670 : (2019) 6 All L.J 369
(Delivered by Hon'ble Attau Rahman Masoodi, J.)

1. Heard Sri Amit Bose learned Senior
Counsel assisted by Sri Abhishek Bose learned
counsel for the petitioner and Sri R.P.S.
Chauhan learned Additional Chief Standing
Counsel for the State.

2. This writ petition is directed against the
order of compulsory retirement passed by the
Superintendent of Police Railways, Lucknow on
9.7.2019 whereby the petitioner having been
treated to be deadwood was retired compulsorily
from service by invoking the power under Rule
56 of the fundamental rules contained in
Financial Hand Book(Volume II, Part II to IV).
The material relevant to be considered is
prescribed under Rule 56(2) of the U.P.
Fundamental Rules and the same for ready
reference is extracted here under :-

"(2) In order to be satisfied whether it
will be in the public interest to require a
Government servant to retire under clause (c)
the
appointing
authority
may
take
into
consideration any material relating to the
Government
servant
and
nothing
herein
contained shall be construed to exclude from
consideration--

(a) any entries relating to any period
before such Government servant was allowed to
cross any efficiency bar or before he was
promoted to any post in an officiating or
substantive capacity or on an ad-hoc basis; or
(b) any entry against which a representation is
pending, provided that the representation is also
taken into consideration along with the entry; or
(c) any report of the Vigilance Establishment
constituted under the Uttar Pradesh Vigilance
Establishment Act, 1965."

3. The record reveals that the screening
committee has considered the service record
pertaining to the years from 2009 to 2018. The
annual confidential rolls for the entire period
mentioned above record as under :-

Sl No.
Year

Remarks
1.
2009
Satisfactory
2.
2010
Satisfactory
3.
2011
Good
4.
2012
Satisfactory
5.
2013
Satisfactory
300 INDIAN LAW REPORTS ALLAHABAD SERIES
6.
2014
Satisfactory
7.
2015
Satisfactory
8.
2016
Satisfactory
9.
2017
Satisfactory
10.
2018
Satisfactory

4. In the column under punishment, one
minor punishment has been recorded which was
inflicted upon the petitioner on 13.11.2010. This
punishment is in the nature of censure
punishment subsequent whereto the annual
entries awarded to the petitioner was 'Good' for
the year 2011 and consistently satisfactory
thereafter.

5. Before coming to the assessment of factual
position, it is necessary to note the position of law
in respect of Compulsory Retirement and scope of
Judicial Review. Inarguably, every premature
termination of service is not dismissal or removal.
Contrary to Dismisssal or Removal, Compulsory
retirement is not a punishment, as an established
legal principle, but a mechanism for the Employer
State
to
maintain
the
efficiency
of
its
administration, departments and agencies by
putting an end to the services of the employees
who have become and are proved to be deadwood
to it and to put such mechanism in process is the
prerogative of the Employer State [Shyam Lal v.
State of U.P., (1955) 1 SCR 26 : AIR 1954 SC
369 : (1954) 2 LLJ 139].

6. The wide principles relating to
Compulsory Retirement were settled by a threejudges bench of the Supreme Court in Baikuntha
Nath Das case [(1992) 2 SCC 299 : 1993 SCC
(L&S) 521 : (1992) 21 ATC 649]:

"34. The following principles emerge
from the above discussion:

(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 form the
requisite opinion on the given material; in short,
if it is found to be a perverse order.

(iv) The government (or the Review
Committee, as the case may be) shall have to
consider the entire record of service before
taking a decision in the matter -- of course
attaching more importance to record of and
performance during the later years. The record
to be so considered would naturally include the
entries in the confidential 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."

7. The Principles were further reiterated in
State of Gujarat v. Umedbhai M. Patel, (2001)
3 SCC 314 : 2001 SCC (L&S) 576 : 2001 SCC
OnLine SC 474, as below:

"11.The law relating to compulsory
retirement has now crystallised into definite
11 All. Ram Sumer Vs. State of U.P. & Ors.
301
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.

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

8. The primary consideration for screening
the public servant as deadwood is to sub-serve
the public interest by maintaining administrative
efficiency. Further, it is logically settled that the
evaluation of efficiency, employability and
performance of the employee is very subjective
and can be best made by the employer itself.

9. Where a decision is taken in adherence
to the procedure and having regard to the
factors, prescribed by law, the judicial scrutiny
of the same gets highly confined but not
excluded altogether. The limited judicial review
cannot allow courts to sit in appeal to the
subjective satisfaction of the employer State, but
it may examine: (1) the existence or nonexistence of material to base such satisfaction;
(2) the satisfaction standing on extraneous
grounds i.e. Malafide and (3) the perversity of
the order i.e. whether any reasonable person
would form the requisite opinion on the basis of
the material on record.

10. In the matter in hand, the petitioner has
pressed on the latter two grounds, namely: (i)
That the impugned order is passed malafide (ii)
That the order is perverse insofar as it is based
only on single censure entry.

11. Firstly, it is desirable to have a look on
the aspect of mala fide which is stated to have
influenced the action impugned herein this writ
petition. The petitioner has traced the genesis of
the impugned action to a point of time in the
year 2009 when some members of Group-D
proposed to form an Association of Group-D
employees. It is evident from the pleadings on
record that some of the Group-D employees who
had played a front role for formation of the
employees Association were dismissed from
service and the orders so passed were set aside
by this Court. Even the criminal proceedings
were resorted to by the departmental authorities
when a peaceful march was carried out by 40-50
employees on 12.7.2009 on the ground of threat
to law and order situation. Although the
petitioner was not a member of the Association
but his role and participation was suspected. The
impugned order has been passed after an elapse
of 10 years from the said incident. Neither the
letter dated 12-8-2009 by Director General of
Police, Uttar Pradesh to Inspector General of
Police (Telecommunication), Uttar Pradesh nor
the FIR dated 12-7-2009 expressly named the
petitioner. Connecting this incident of distant
past to the impugned order of compulsory
retirement passed on 9-7-2019 would be an
extrapolation. This stretches the string of the
302 INDIAN LAW REPORTS ALLAHABAD SERIES
imputation of malafide to an extent that it breaks
down itself. Therefore the ground of mala fide
distance vitiated.

12. Now the claim of the Petitioner lies on
the question whether an order of compulsory
retirement can be justified on the basis of
material present against the Petitioner i.e. single
censure entry.

13. Learned Additional Chief Standing
Counsel has argued that even a single punishment
howsoever minor it may be, is a sufficient reason
for classifying a public servant as deadwood,
therefore, the impugned order does not suffer from
any illegality. The exercise of power has been
defended on the strength of the judgments passed
by the Hon'ble Apex Court in the case of State of
Punjab versus Gurdas Singh, State of U.P. and
others versus Raj Kishore Goyal and Nawal
Singh versus State of U.P. and others reported in
1998(4) SCC 92, 2001(10) SCC 183 and 2003(8)
SCC 117 respectively.

14. In State of Punjab v. Gurdas Singh
(SUPRA), the apex Court, relying on the principles
enunciated in Baikuntha Nath
Das case
(SUPRA), observed:

"....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 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."

15. In State of U.P. v. Raj Kishore Goel,
(SUPRA), the order of Compulsory Retirement
under Rule 56 of the Uttar Pradesh Fundamental
Rules against the respondent employee was
passed apparently on the basis of three warnings
and one censure entry. The Supreme Court
observed as below:

"2. From the proceedings of the
Review Committee report, which examined the
cases of several engineers including the case of
the respondent to decide the question as to
whether it would be in the public interest to
compulsorily retire the employee concerned, it
appears apart from the warnings and censure
referred to earlier, there were some adverse
entries also for the year 1995-96. That apart, the
High Court committed a mistake by coming to
the conclusion that an uncommunicated entry
could not have been taken into consideration by
the appropriate authority, the same being
contrary to a three-Judge Bench decision in
Baikuntha Nath Das v. Chief District Medical
Officer, Baripada [(1992) 2 SCC 299 : 1993
SCC (L&S) 521 : (1992) 21 ATC 649] . The
very Rule under which the respondent has been
compulsorily retired came up for consideration
recently in the case of State of U.P. v. Lalsa Ram
[(2001) 3 SCC 389 : 2001 SCC (L&S) 593 :
(2001) 2 Scale 221] . The entire case-law and
parameters for exercise of power by the High
Court under Article 226 against an order of
compulsory retirement have been considered
therein and applying the test laid therein to the
facts and circumstances of the present case and
on examining the impugned judgment, we are of
the considered opinion that the High Court erred
in law in interfering with the order of the
compulsory retirement passed against the
respondent. In our view, the conclusion arrived
at by the appropriate authority on the materials
concerned cannot be held to be a conclusion of
an unreasonable man or arbitrary conclusion
which could confer jurisdiction on a court to
interfere with the same."

16. The issue of single censure entry was
specifically considered in the case of H.G.
11 All. Ram Sumer Vs. State of U.P. & Ors.
303
Venkatachaliah Setty v. Union of India, (1997)
11 SCC 366. The Bench constituting S.C.
Agarwal and G.T. Nanavati JJ. observed:

"4. It has been further urged by Shri
Sundaravardan that the order of compulsory
retirement could not be passed on the basis of a
solitary adverse entry contained in the annual
confidential report because the earlier record of
the appellant was clean. Merely because till his
promotion to the post of Deputy Chief
Mechanical Engineer on 20-11-1974, there was
nothing adverse in the service record of the
appellant, does not mean that the action for
compulsory retirement of the appellant could not
be taken after such promotion if it is found that
after
such
promotion
there
has
been
deterioration in his performance and an adverse
remark about his integrity has been made. The
contention of Shri Sundaravardan that an order
for compulsory retirement cannot be passed on
the basis of a solitary adverse entry in the
service record cannot be accepted. The question
whether action for compulsory retirement should
be taken on the basis of a solitary adverse entry
has to be considered in the facts of each case.
Having regard to the facts of the present case, it
cannot be said that action for compulsory
retirement could not be taken against the
appellant."

17. The case of Nawal Singh v. State of
U.P., (2003) 8 SCC 117 : 2003 SCC (L&S)
1212 : 2003 SCC OnLine SC 1064 particularly
relates to Judicial Officers. The Apex Court has
also taken note of the same:

"2. At the outset, it is to be reiterated
that the judicial service is not a service in the
sense of an employment. Judges are discharging
their functions while exercising the sovereign
judicial power of the State. Their honesty and
integrity is expected to be beyond doubt. It
should be reflected in their overall reputation.
Further, the nature of judicial service is such that
it cannot afford to suffer continuance in service
of persons of doubtful integrity or who have lost
their utility. If such evaluation is done by the
Committee of the High Court Judges and is
affirmed in the writ petition, except in very
exceptional circumstances, this Court would not
interfere with the same, particularly because the
order of compulsory retirement is based on the
subjective satisfaction of the authority."

With the above observation, the
Supreme Court has shown degree of reluctance
to sit in appeal to the subjective satisfaction of
the High Court. The Supreme Court held:

"12. From the facts narrated above,
even if we were to sit in appeal against the
subjective satisfaction of the High Court, it
cannot be said that the orders of compulsory
retirement of the appellants are, in any way,
erroneous or unjustified. Further, it is impossible
to prove by positive evidence the basis for
doubting the integrity of the judicial officer. In
the present-day system, reliance is required to be
placed on the opinion of the higher officer who
had the opportunity to watch the performance of
the officer concerned from close quarters and
formation of his opinion with regard to the
overall reputation enjoyed by the officer
concerned would be the basis."

18. Similar to Nawal Singh (Supra), the
case of Pyare Mohan Lal v. State of
Jharkhand, (2010) 10 SCC 693 : (2011) 1 SCC
(L&S) 550 : 2010 SCC OnLine SC 1010
relates to Judicial Officer. The impugned order,
in the case, had relied on adverse entry relating
to integrity of the officer. The Supreme Court
upheld the impugned order in following terms:

"29. The law requires the authority to
consider the "entire service record" of the
employee while assessing whether he can be
given compulsory retirement irrespective of the
fact that the adverse entries had not been
communicated to him and the officer had been
promoted earlier in spite of those adverse
304 INDIAN LAW REPORTS ALLAHABAD SERIES
entries. More so, a single adverse entry
regarding the integrity of an officer even in
remote past is sufficient to award compulsory
retirement. The case of a judicial officer is
required to be examined, treating him to be
different from other wings of the society, as he
is serving the State in a different capacity. The
case of a judicial officer is considered by a
committee of Judges of the High Court duly
constituted by the Hon'ble the Chief Justice and
then the report of the Committee is placed
before the Full Court. A decision is taken by the
Full Court after due deliberation on the matter.
Therefore, there is hardly any chance to make
the allegations of non-application of mind or
mala fides.

30. Be that as it may, the service
record of the petitioner revealed that he had not
been promoted in the regular cadre of the
District Judge as he was not found fit for the
same because of the adverse entries. The
petitioner was promoted as Additional District
Judge on ad hoc basis and posted in the Fast
Track Court. It was definitely not a promotion
on merit (selection). The High Court had
objectively
decided
to
recommend
his
compulsory retirement and the State authorities
acted accordingly. No fault can be found with
the decision-making process or with the
decision."

Needless to reiterate that the case of
Judicial Officers stands on different footing
from the other services as Administration of
Justice is not an ordinary service. Justice should
not only be done, but should manifestly and
undoubtedly be seen to be done. The special case
of Judicial Officers has been explained at length
in the case of Ram Murti Yadav v. State of U.P.,
(2020) 1 SCC 801 : (2020) 1 SCC (L&S) 245 :
2019 SCC OnLine SC 1589:

"14. A person entering the judicial
service no doubt has career aspirations including
promotions. An order of compulsory retirement
undoubtedly affects the career aspirations. Having
said so, we must also sound a caution that judicial
service is not like any other service. A person
discharging judicial duties acts on behalf of the
State in discharge of its sovereign functions.
Dispensation of justice is not only an onerous duty
but has been considered as akin to discharge of a
pious duty, and therefore, is a very serious matter.
The standards of probity, conduct, integrity that
may be relevant for discharge of duties by a
careerist in another job cannot be the same for a
judicial officer. A Judge holds the office of a
public trust. Impeccable integrity, unimpeachable
independence with moral values embodied to the
core are absolute imperatives which brooks no
compromise. A Judge is the pillar of the entire
justice system and the public has a right to demand
virtually irreproachable conduct from anyone
performing a judicial function. Judges must strive
for the highest standards of integrity in both their
professional and personal lives.

15. It has to be kept in mind that a
person seeking justice, has the first exposure to
the justice delivery system at the level of
subordinate judiciary, and thus a sense of
injustice can have serious repercussions not only
on that individual but can have its fall out in the
society as well. It is, therefore, absolutely
necessary that the ordinary litigant must have
complete faith at this level and no impression
can be afforded to be given to a litigant which
may even create a perception to the contrary as
the consequences can be very damaging. The
standard or yardstick for judging the conduct of
the judicial officer, therefore, has necessarily to
be strict. Having said so, we must also observe
that it is not every inadvertent flaw or error that
will make a judicial officer culpable. The State
Judicial Academies undoubtedly has a stellar
role to perform in this regard. A bona fide error
may need correction and counselling. But a
conduct which creates a perception beyond the
ordinary cannot be countenanced. For a trained
legal mind, a judicial order speaks for itself."

19. It is worthy to note that the services of
a Grade D employee in State Police Department,
11 All. Ram Sumer Vs. State of U.P. & Ors.
305
in the capacity of Cook, can certainly not be
scaled with the same yardstick as that of the
services of a Judicial Officer. The Service of
Petitioner did not involve any public interaction,
which could directly or indirectly bring any
good or bad name to the concerned Department.

20.In State of U.P. v. Vijay Kumar Jain,
(2002) 3 SCC 641 : 2002 SCC (L&S) 455 :
2002 SCC OnLine SC 341, the impugned order
relied on four grounds. The Supreme Court,
while upholding the impugned order has
emphasized on the ground of integrity:

16. Withholding of integrity of a
government employee is a serious matter. In the
present case, what we find is that the integrity of
the respondent was withheld by an order dated
13-6-1997 and the said entry in the character roll
of the respondent was well within ten years of
passing of the order of compulsory retirement.
During pendency of the writ petition in the High
Court, the U.P. Services Tribunal on a claim
petition filed by the respondent, shifted the entry
from 1997-98 to 1983-84. Shifting of the said
entry to a different period or entry going beyond
ten years of passing of the order of compulsory
retirement does not mean that vigour and sting
of the adverse entry is lost. Vigour or sting of an
adverse entry is not wiped out, merely it is
relatable to 11th or 12th year of passing of the
order of compulsory retirement. The aforesaid
adverse entry which could have been taken into
account while considering the case of the
respondent for his compulsory retirement from
service, was duly considered by the State
Government and the said single adverse entry in
itself was sufficient to compulsorily retire the
respondent from service. We are, therefore, of
the
view
that
entire
service
record
or
confidential report with emphasis on the later
entries in the character roll can be taken into
account by the Government while considering a
case for compulsory retirement of a government
servant.

21. The issue was also contested in the
case of Rajeev Kumar Khare v. State of U.P.
through the Principal Secretary Youth
Department, Government of U.P., Civil
Secretariat and Others reported in 2019 SCC
OnLine All 5670 : (2019) 6 All LJ 369, where
the Single Bench of this Court had refused to
interfere with the impugned order. Again, that
matter can also be similarly distinguished from
the present case on the ground that the integrity
of the Petitioner in the said case had been
withheld:

"9. Impeaching the aforesaid order
dated 10.8.2017, learned counsel for the
petitioner has submitted that single order of
punishment in more than 29 years of service
cannot, under any circumstances, be made the
basis of order for compulsory retirement and if
such action is taken, such order of compulsory
retirement would be patently illegal and
arbitrary. Sri. Amit Bose has also submitted that
other than said punishment, no other punishment
has been imposed upon the petitioner, therefore,
on the basis of single punishment, the petitioner
may not be retired compulsorily......

.....11. Per contra, Dr. Udai Veer
Singh, learned Addl. Chief Standing Counsel
has submitted that even if the entries for the
aforesaid period were not available with the
Screening
Committee,
even
then
the
recommendation for compulsory retirement of
the petitioner could have been issued only on the
basis of punishment awarded to the petitioner on
29.6.2010 whereby not only the petitioner has
been awarded the punishment of withholding of
two increments of salary permanently and
censure entry but also the integrity of the
petitioner was found doubtful and the same was
withheld. As per Dr. Udai Veer Singh, if the
entries of the petitioner for that years i.e. for the
years 2013-14 to 2016-17 are found satisfactory,
for the argument's sake, even then the order of
compulsory retirement could have been issued
against the petitioner."
306 INDIAN LAW REPORTS ALLAHABAD SERIES

22. In the case of State of Gujarat v.
Umedbhai M. Patel, (2001) 3 SCC 314 : 2001
SCC (L&S) 576 : 2001 SCC OnLine SC 474,
the impugned order was not based on any
material other than a pending enquiry. The apex
court, having regard to particular facts of the
case, dismissed the appeal of State against the
order of the High Court setting aside the order of
compulsory retirement:

"12. In the instant case, there were
absolutely no adverse entries in the respondent's
confidential record. In the rejoinder filed in this
Court also, nothing has been averred that the
respondent's service record revealed any adverse
entries. The respondent had successfully crossed
the efficiency bar at the age of 50 as well as at
55. He was placed under suspension on 22-51986 pending disciplinary proceedings. The
State Government had sufficient time to
complete the enquiry against him but the enquiry
was not completed within a reasonable time.
Even the Review Committee did not recommend
the compulsory retirement of the respondent.
The respondent had only less than two years to
retire from service. If the impugned order is
viewed in the light of these facts, it could be said
that the order of compulsory retirement was
passed for extraneous reasons. As the authorities
did not wait for the conclusion of the enquiry
and decided to dispense with the services of the
respondent merely on the basis of the allegations
which had not been proved and in the absence of
any adverse entries in his service record to
support the order of compulsory retirement, we
are of the view that the Division Bench was right
in holding that the impugned order was liable to
be set aside. We find no merit in the appeal,
which is dismissed accordingly. However, three
months' time is given to the appellant State to
comply with the directions of the Division
Bench, failing which the respondent would be
entitled to get interest at the rate of 18% for the
delayed payment of the pecuniary benefits due
to him."

23. The logical appreciation of the
judgments discussed above shows that the
Courts are required to observe judicial restraint
in sitting in appeal with the subjective
satisfaction of the authority. The Courts,
however, have examined the existence and
adequacy of the material forming the basis of
such satisfaction. In none of the cases above, the
Order of Compulsory Retirement is solely based
on Single Censure Entry, it is supplemented by
uncommunicated adverse entries or the special
nature of service which cannot sustain any dent
in its reputation.

24. Learned counsel for the petitioner in
the backdrop of the aforementioned character
roll has argued that the service record under
consideration by the screening committee is not
such which may be classified as adverse.
According to him, it is the service record in the
nature of adverse that may authorize the
screening committee to recommend the public
servant for having become deadwood and
consequently he may be recommended for
compulsory retirement within the scope of the
Rule 56 extracted above.

25. It is further argued that the solitary
minor punishment inflicted upon the petitioner
became irrelevant once the annual confidential
rolls for the subsequent period have remained
constantly satisfactory and integrity intact. The
petitioner who was a class-IV employee has an
unblemished
service
record
throughout;
therefore, merely on the strength of a minor
punishment inflicted in the distant past, the
decision so arrived at is clearly illegal and
arbitrary.

26. The petitioner was holding a Group-D
post and was not vested with any administrative
authority that may have led to any managerial
consequences to the department. The duty
discharged by the petitioner by and large was
manual. It has also come on record that out of 53
11 All. Smt. Kiran Gupta Vs. The Commissioner, Kanpur Division, Kanpur & Ors.
307
Group-D employees who were subjected to
screening alongwith the petitioner, only two
persons including the petitioner were classified
as
deadwood
and
consequently
retired
compulsorily from service.

27. It is also not in dispute that the
integrity of the petitioner for the period under
consideration as well as for rest of his service
tenure has remained beyond doubt, as such, the
argument in nutshell is to the effect that the
solitary minor punishment awarded to the
petitioner was not decisive of treating the
petitioner as deadwood by any degree of
prudence.

28. The Court finds strength in Petitioner's
case. The impugned order, being perverse, is
liable to be set aside. Thus, in my considered
opinion, the impugned order passed by the
competent authority being illegal and arbitrary is
hereby set aside, the petitioner shall be
reinstated in service with all consequential
benefits inclusive of past salary. The writ
petition is allowed with no order as to cost.
----------
(2021)11ILR A307
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.08.2021

BEFORE

THE HON'BLE DINESH PATHAK, J.

Writ B No. 8628 of 2003

Smt. Kiran Gupta ...Petitioner
Versus
The Commissioner, Kanpur Division, Kanpur &
Ors. ...Respondents

Counsel for the Petitioner:
Sri Manoj Kumar, Sri Rajesh Kr. Srivastava, Sri
Satyendra Nath Srivastava, Sri Chandra Shekhar
Srivastava, Sri Sudhanshu Srivastava

Counsel for the Respondents:
C.S.C.

A. Revenue - Indian Stamp Act, 1899 - Section 47
A/33-challenge to-evasion of stamp duty-general
power of attorney in question cannot be
considered as irrevocable and cannot be treated
as a conveyance for the purpose of imposing the
stamp duty under Article 48(ee) of schedule 1-B
of the stamp act-stamp authorities imposed the
deficiency of stamp to the tune of Rs. 75000/-
reconsider the deed in question and impose
stamp fee in accordance with the provisions as
under Article 48(c) of Schedule 1-B of the stamp
act-stamp
authorities
misread
and
misinterpreted the recital in the deed and illegally
dragged it into the clutches of the provisions as
enshrined under Article 48(ee) schedule 1-B of
the Stamp Act-from the recital of the power of
attorney in question it is not inferred that it is
irrevocable in the hands of donee-by virtue of the
clause -8 and 9 of the power of attorney in
question donee has been authorized to act on
behalf of donor and deed has been made
revocable and right to revoke is reserved with the
donor.(Para 1 to 30)

The petition is allowed. (E-6)

List of Cases cited:

1. Suraj Lamp & Indus. Pvt. Ltd. Vs. St. of Har.
(2011) Law Suit (SC) 1007

2. St. of Raj. Vs. Basant Nehata (2005) 12 SCC 77

3. Kasthuri Radhakrishnan & ors. Vs. M. Chinniyan &
anr. (2016) 3 SCC 296

4. Shiv Kumar Saxena & ors. Vs. Manishchand Sinha
& ors. (2004) 2 MPJR 269/(MANU/MP/0321/2004)

5. Joginder Kumar Goyal Vs. Govt. of NCT of Delhi &
ors. Writ-C 3012 of 2016

6. Board of Revenue, Madras Vs. Annamalai & Co.
(Pvt.) Ltd.(1968) AIR Mad 50

7. Asha M. Jain Vs. Canara Bank (2001) 94 DLT 841

(Delivered by Hon'ble Dinesh Pathak, J.)