# Ramesh Kumar Srivastava v. State of U.P. and another

- **Citation:** (2006) 2 ILRA 636
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-01-04
- **Case number:** Civil Misc. Writ Petition No. 7424 of 2001
- **Bench:** Shishir Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramesh-kumar-srivastava-v-state-of-u-p-and-another-40628
- **Pages:** 7

## Headnote

U.P. Fundamental Rules-Rule 56 (C)-
Compulsory retirement-Order passed by
the
competent
authority-after
scrutinizing the entire service recordCourt itself perused the original service
record-held order compulsory retirement
is
perfectally
justified-can
not
be
interfered.

Held: Para 20

In view of the aforesaid fact the
controversy regarding an order passing
the compulsory retirement cannot be
said to be illegal, malafide, if the same
has been passed by the competent
authority after scrutinizing the entire
service record of an employee. As
mentioned above, the Court has perused
the complete service record of the
petitioner, therefore, the contention of
the petitioner to this effect cannot be
accepted that the order of compulsory
retirement against the petitioner is in
any way illegal, punitive and has been
passed without taking into consideration
the performance of the petitioner.
Case law discussed:
AIR 1995 SC-111
1992 SCD-155
AIR 1992 SC-1020
AIR 1995 SC-1161
2005 A.D.J. IX ?
AIR 1999 SC-1661
AIR 1973 SC-1065
1999 (5) SCC-529
AIR 1995 SC-1161

## Text

636 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
are to proceed according to the altered
mode, without exception, unless there is a
different stipulation."

10. In view of the aforesaid settled
position of law, an order directing issue of
notice
on
a
temporary
injunction
application under Order XXXIX, Rule 1
C.P.C. is definitely not an order, which
though may come within the ambit of
'case decided' but it would not amount to
dispose of the injunction application or
terminate
the
proceedings
of
the
temporary injunction. Obviously, as the
law is settled on this point, the revision as
was preferred before the District Judge by
the plaintiff on the order passed by the
trial court issuing notice on temporary
injunction application, was definitely not
maintainable and any order directing
admission of such revision and granting
interim relief to the revisionist is, thus,
unsustainable and requires to be quashed.

11. In the aforesaid facts and
circumstances,
this
writ
petition
is
allowed and the impugned order dated
23.12.2005 is hereby quashed.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.01.2006

BEFORE
THE HON'BLE SHISHIR KUMAR, J.

Civil Misc. Writ Petition No. 7424 of 2001

Ramesh Kumar Srivastava ...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri B.G. Yadav
Sri R.K. Nigam
Counsel for the Respondents:
Sri K.R. Sirohi
Sri Amit Sthalekar
S.C.

U.P. Fundamental Rules-Rule 56 (C)-
Compulsory retirement-Order passed by
the
competent
authority-after
scrutinizing the entire service recordCourt itself perused the original service
record-held order compulsory retirement
is
perfectally
justified-can
not
be
interfered.

Held: Para 20

In view of the aforesaid fact the
controversy regarding an order passing
the compulsory retirement cannot be
said to be illegal, malafide, if the same
has been passed by the competent
authority after scrutinizing the entire
service record of an employee. As
mentioned above, the Court has perused
the complete service record of the
petitioner, therefore, the contention of
the petitioner to this effect cannot be
accepted that the order of compulsory
retirement against the petitioner is in
any way illegal, punitive and has been
passed without taking into consideration
the performance of the petitioner.
Case law discussed:
AIR 1995 SC-111
1992 SCD-155
AIR 1992 SC-1020
AIR 1995 SC-1161
2005 A.D.J. IX ?
AIR 1999 SC-1661
AIR 1973 SC-1065
1999 (5) SCC-529
AIR 1995 SC-1161

(Delivered by Hon'ble Shishir Kumar, J.)

1. The present writ petition has been
filed
for
quashing
the
order-dated
3.2.2001; Annexure-1 to the writ petition
passed by respondent no.2 and further for
quashing the Government Order dated
2 All] Ramesh Kumar Srivastava V. State of U.P. and another
637
24.8.1977,
Annexure-2
issued
by
respondent no.1.

2. The brief facts arising out of the
present writ petition are that by means of
the present writ petition the petitioner has
challenged the order-dated 23.2.2001 by
which the petitioner was compulsory
retired. The petitioner was appointed as a
clerk in the Court of District Judge,
Hamirpur by order-dated 9.2.1971 and the
petitioner joined his duties on 18.2.1971.
After creation of new Mahoba district, the
petitioner's services were transferred to
judgeship of Mahoba. The petitioner was
promoted on the post of Administrative
Clerk on 16.8.1997. The work and
conduct of the petitioner was always
satisfactory and he was working to his
best ability and integrity since his
appointment. There was no complaint
whatsoever against the petitioner and the
work and conduct of the petitioner was
always
appreciated
by
the
higher
authorities. The petitioner was served
with an order on 3.2.2001 by which the
petitioner has been retired compulsorily
on the said date and in lieu thereof the
petitioner was awarded three months'
salary. It is clear from the order that
respondent no.2 has passed the impugned
order under Section 56-C of the Financial
Hand Book. Under Rule 56 an employee
can be compulsory retired after attaining
the age of 55 years but by the
Government Order dated 24.8.1977, the
State Government has substituted the age
of compulsory retirement as 50 years in
place of 55 years. The petitioner submits
that the said Government Order dated
24.8.1977 is absolutely illegal. The
Government Order cannot be given
precedence over the statutory rules.
Before passing the aforesaid order no
notice or opportunity has been given to
the petitioner, as such the order is against
the principles of natural justice. The
persons aged than the petitioner are being
retained in service though the work and
conduct
of
those
persons
are
not
satisfactory
in
comparison
to
the
petitioner. In normal course the petitioner
would
have
attained
the
age
of
superannuation in the year 2007 but the
respondents without any justification has
passed an order compulsorily retiring the
petitioner in a most arbitrary manner.

3. The submission raised on behalf
of the petitioner is that according to the
Fundamental Rule 56-C, there is no
dispute to this effect that the State
Government has been conferred power to
retire its employee compulsorily but the
decision of the government to compulsory
retire its employee should be bonafide and
should not be malicious and should be
based upon over all performance and
assessment of the work and conduct of the
employee, that has not been done as such
the order passed by the respondent is
liable to be set aside. Further submission
made on behalf of the petitioner is that
there was no adverse entry and if some
adverse
entry
was
awarded
and
subsequently, the petitioner has been
promoted on a higher post. As such for
the purpose of consideration of order
compulsory retiring the petitioner, the
same cannot be taken into consideration.
Reliance
has
been
placed
upon
a
judgment reported in AIR 1995 SC 111 S.
Ram Chandran Raju Vs. State of
Orissa and has submitted that though the
order of compulsory retirement is not a
punishment but the Government must
exercise its power only in the public
interest to effectuate the efficiency of the
service. The entire service record or
character roll or confidential reports
638 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
maintained would furnish the backdrop
material
for
consideration
by
the
Government or the Review Committee or
the appropriate authority and the same
cannot be passed only on a solitary entry
or
taking
into
consideration
the
performance of one year. Further reliance
has been placed by the counsel for the
petitioner upon the two judgments of this
Court reported in 1992 Selected Civil
Decisions Page 155 Santosh Kumar
Gaur Vs. State of U.P. and others and
another judgment 1992 Selected Civil
Decisions Page 165 Committee of
Management Uchchattar Madhyamik
Viddyalaya Newaria, District Jaunpur
Vs. Deputy Director of Education,
Varanasi. Further reliance has been
placed by the counsel for the petitioner on
the Apex Court judgment reported in
A.I.R. 1992 SC Page 1020, Baikunth
Nath Das and others Vs. Chief District
Medical Officer and others and has
submitted that if the order is passed
malafide or in the arbitrary manner and is
against the principles of natural justice,
the order of compulsory retirement will be
treated to be bad in law and is liable to be
set aside.

4. On the other hand the counsel for
the respondents Sri Amit Sthalekar has
submitted that the order passed by the
respondents
retiring
the
petitioner
compulsorily cannot be treated to be an
order of punishment. The decision has
been
taken
on
the
basis
of
the
consideration of the entire service record
and the same has been taken bonafide and
in public interest, therefore, on this
ground no different view can be taken.
Reliance
has
been
placed
upon
a
judgment of the Apex Court reported in
A.I.R. 1995 SC 1161 State of U.P. and
others Vs. Bihari Lal. Sri Amit
Sthalekar, Advocate has submitted that it
is not necessary in view of the aforesaid
judgment that each and every adverse
remarks should be communicated and
non-communication of the entries cannot
be taken into consideration for the
purpose of reaching a conclusion whether
the
Government
servant
should
be
compulsorily retired in public interest. In
appropriate cases there may not be
tangible material but the reputation of the
officer built around him can be such that
his further continuance would imperil the
efficiency of the public servant and would
breed indiscipline amongst other public
servants.

5. Further reliance has been placed
by the learned counsel for the respondents
on a case reported in 2005 A.D.J. IX,
Allahabad Narendra Singh Vs. High
Court of Judicature at Allahabad. A
submission has been made by the learned
counsel for the respondent that in view of
the aforesaid fact no conclusion can be
drawn that the order of compulsory
retirement of the petitioner is in any way
punitive, malafide and arbitrary as such
no interference is called for and the writ
petition is liable to be dismissed.

6. As the counter and rejoinder
affidavits have been exchanged, with the
consent of the parties, the writ petition is
being disposed of finally. The Court had
directed to produce the original service
record of the petitioner. The same was
produced by Sri Amit Sthalekar, advocate
before this Court and this Court has
perused the same. From the record it is
clear that during 1986-87 an entry was
given to the petitioner regarding that his
work is unsatisfactory and regarding his
conduct, the entry has been given
''undisciplined' and the same have been
2 All] Ramesh Kumar Srivastava V. State of U.P. and another
639
approved in the year 1989-90. His
integrity was not certified, working was
unsatisfactory and regarding his conduct
it
was
mentioned
that
he
is
an
undisciplined man though it has been
stated that the competent authority has
expunged the said adverse entry. In the
year 1993 he was again awarded an
adverse entry and a remark to that effect
was given by the District Judge "He is
incompetent, negligent in discharge of his
duties and is not acquainted with the
rules." In 1997-98 also he was not
awarded a good entry.

7. I have considered the submissions
made by the learned counsel for the
parties and have also perused the service
record produced before me.

Rule 56 (C) of the U.P. Fundamental
Rules reads as under:-

"56 (c) Notwithstanding anything
contained in clause (a) or clause (b), the
appointing authority may, at any time, by
notice
to
any
Government
servant
(whether
permanent
or
temporary),
without assigning any reason, require him
to retire after he attains the age of fifty
years or such government servant may, by
notice
to
the
appointing
authority,
voluntarily retire at any time after
attaining the age of forty five years after
he has completed qualifying service for
twenty years."

Thus, it is evident that the aforesaid Rule
empowers the Competent Authority to
compulsorily retire an Officer, if the
conditions mentioned therein are fulfilled.

8. In Baikuntha Nath Das &
Another Vs. Chief District Medical
Officer, Baripada and Another, A.I.R.
1992 SC 1020, the Hon'ble Supreme
Court has laid down certain criteria for
the Courts, on which it can interfere and
they included mala fide, order if based on
no evidence, order is arbitrary in the sense
that no reasonable person would form the
requisite opinion on the given material,
i.e. if it is found to be a perverse order.
The Hon'ble Apex Court observed that the
order of compulsory retirement is not a
punishment, it implies no stigma nor any
suggestion of misbehaviours, the order
should be passed in public interest on
subjective satisfaction of the Authority
and while reviewing the service record,
the entire service record is to be
considered. However, the record of the
later
years
should
be
given
more
importance and even un-communicated
adverse entries may be taken into
consideration. The Apex Court held as
under:

"(i)
An
order
or
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
640 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
sense that no reasonable person would
form the requisite opinion on the given
material in short, 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
or
compulsory
retirement is not liable to be quashed by a
Court merely on the showing that while
passing
it un-communicated
adverse
remarks
were
also
taken
into
consideration. That circumstance by itself
cannot be a basis for interference."

9. Similar view has been reiterated
in Posts and Telegraphs Board & Others
Vs. C.S.N. Murthy, A.I.R. 1992 SC 1368;
Sukhdeo Vs. Commissioner Amravati
Division, Amravati & another, (1996) 5
SCC 103; State of Orissa & Others vs.
Ram Chandra Das, AIR 19967 SC 2436;
and M.S. Bindra Vs. Union of India &
Others., AIR 1998 SC 3058.

10. In Rajat Baran Roy & Others
Vs. State of West Bengal & Others,
A.I.R. 1999 SC 1661, the Hon'ble
Supreme Court held that there is a very
limited scope of judicial review in a case
of compulsory retirement and it is
permissible only on the grounds of nonapplication of mind and want of material
particulars.

11. In Krishena Kumar Vs. S.P.
Saksena & others, AIR 1973 SC 1065,
Hon'ble Apex Court held that what is to
be seen by the Court at the time of
judicial review, as to whether the
Appointing Authority has formed its
opinion objectively and whether the order
had been passed by the Competent
Authority and for such a purpose,
constitution
of
a
Committee
is
permissible, as held by Hon'ble Apex
Court in High Court of Judicature for
Rajasthan Vs. P.P. Singh & Another,
A.I.R. 2003 SC 1029.

12. In State of Gujarat & Another
versus
Suryakant
Chunilal
Shah,
(1999) 1 SCC 529, the Hon'ble Supreme
Court held that while considering the case
of
an
employee
for
compulsory
retirement, the public interest is of
paramount
importance.
A
dishonest,
corrupt and dead-wood deserves to be
dispensed with, how much efficient and
honest an employee is, it is to be assessed
on the basis of material on record which
may also be ascertained from confidential
reports. However, there must be some
tangible material against the employee
warranting him retirement.

13. In State of U.P. & another Vs.
Bihari Lal, AIR 1995 SC 1161, the Apex
Court held that if the general reputation of
an employee is not good, though there
may not be any tangible material against
him, he may be given compulsory
retirement in public interest and judicial
review of such order is permissible only
on limited grounds. The Court further
2 All] Ramesh Kumar Srivastava V. State of U.P. and another
641
held that "what is needed to be looked
into, is the bona fide decision taken in
public interest to augment efficiency in
the public service."

14. In I.K. Mishra Vs. Union of
India & others (1997) 6 SCC 228, the
Hon'ble Supreme Court observed as
under:-

"Power to retire compulsorily a
Government servant in terms of Service
Rules is absolute, provided the authority
concerned forms an opinion bona fide
that compulsory retirement is in public
interest."

15. In Prabodh Sagar Vs. Punjab
State Electricity Board and others. AIR
2000 SC 1684, the Hon'ble Supreme
Court held that employee's unsatisfactory
performance, coupled with the tendency
to resort to litigation, most of which was
unsuccessful, rendered him a liability to
his employer, and he was rightly retired in
public interest. In the said case, allegation
of mala fide was also rejected for want of
particular material.

16. Similar view has been reiterated
in Ramesh Chandra Acharya Vs.
Registrar, High Court of Orissa &
another, AIR 2000 SC 2168 while
dealing with a case of judicial officer.

17. In State of U.P. Vs. Vijay
Kumar Jain, AIR 2002 SC 1345, the
Hon'ble Supreme Court placed reliance
upon its earlier judgments in Shyamlal
Vs. State of Uttar Pradesh, AIR 1954 SC
369, wherein it has been held that an
order of compulsory retirement is neither
a punishment nor any stigma attached to
it, rather, further services of a person are
dispensed with in public interest. The
Apex Court held that if an employee has
been given the adverse entries regarding
his integrity at any stage of his service
career, he loses the right of continuation
in service, and compulsory retirement, if
given, should not be interfered with.

18. In Union of India Vs. J.N.
Sinha & another AIR 1971 SC 40, the
Apex Court held that an employee
compulsorily retired does not lose any
right acquired by him before retirement,
as the compulsory retirement is not
intended for taking any personal action
against the Government servant, and the
order so passed can be challenged on the
ground that either the order is arbitrary or
it is not in public interest. No other
ground
can
be
available
to
the
government servant who is sought to be
compulsorily
retired
from
service.
However, it may be subject to the
conditions provided under the statutory
provisions.

19. In Jugal Chandra Saikia Vs.
State of Assam & another, AIR 2003 SC
1362, the Apex Court held that where the
screening committee is consisting of
responsible officers of the State and they
have examined/assessed the entire service
record and form the opinion objectively as
to whether any employee is fit to be
retained in service or not. In absence of
any allegation of mala fide, there is no
scope of a judicial review against such an
order. While deciding the said case,
reliance had been placed upon a large
number of judgments, particularly, upon
judgments in S. Ramachandra Raju Vs.
State of Orissa, AIR 1995 SC 111; and
M.S. Bindra Vs. Union of India & others
(Supra).
642 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
20. In view of the aforesaid fact the
controversy regarding an order passing
the compulsory retirement cannot be said
to be illegal, malafide, if the same has
been passed by the competent authority
after scrutinizing the entire service record
of an employee. As mentioned above, the
Court has perused the complete service
record of the petitioner, therefore, the
contention of the petitioner to this effect
cannot be accepted that the order of
compulsory
retirement
against
the
petitioner is in any way illegal, punitive
and has been passed without taking into
consideration the performance of the
petitioner.

21. The writ petition is devoid of
merit and is hereby dismissed. No order
as to costs.

 Petition dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.12.2005

BEFORE
THE HON'BLE S.RAFAT ALAM
THE HON'BLE SUDHIR AGARWAL

Special Appeal No. 335 of 2005

Ashok Kumar

...Appellant
Versus
D.I.G., C.R.P.F. Group Centre, phaphamau,
Allahabad and others ...Respondents

Counsel for the Appellant:
Sri Ranjit Saxena
Sri Shekhar Srivastava
Sri B.L. Verma

Counsel for the Respondent:
Sri K.C. Sinha, S.S.C.
Sri S.F.A. Naqvi
S.C.

Central Reserve Police Force Act 1949Section 11 (1) read with C.R.P.C. Rules
1955- rule-27-Dismissal from Service- on
ground of false declaration-given in
para-12-A of the form-regarding criminal
activities-On
verification
petitioner
found involved in criminal case under
section 366/376 I.P.C.- he was released
on bail by the javehill court at the age of
14 years- surrender before the court-
amounts taking the accused on judicial
custody held false declaration given in
verification form dismissal held proper.

Held: Para 18

Thus, we are of the view that the
appellant is guilty of suppression of
material fact i .e. suppressio veri and
suggestio falsi which in view of the
declaration made in verification form
rendered
him
liable
dismissal
from
service by the competent authority.
Case law discussed:
2003 (3) SCC 437
2005 (2) SCC 742
2003 ( c ) 482 BEC- 441
2003 ALJ-2962
1996 (11) SCC-605
2001 (U) E.S.C.-1837
2005 (7) SCC-177
2005 (11) 482 BEC 1684
2005 (2) 482 BEC-1682
2003 IPC BEC (1) 269

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. This special appeal has been filed
against the judgment dated 16.2.2005
dismissing appellant's writ petition No.
5718 of 2005.

2. In pursuance to the advertisement
dated for the post of constable in C.R.P.F.
the appellant was selected and appointed
by order dated 19.4.2001. Thereafter he
was required to fill in a verification form
which he submitted on 13.6.2001. In para-
' 12A of the said form the following
information was required to be furnished: