# Ratan Kumar Yadav v. State of U.P. & Ors

- **Citation:** (2024) 5 ILRA 1154
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-06
- **Case number:** Writ-A No. 20215 of 2019
- **Bench:** Prakash Padia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ratan-kumar-yadav-v-state-of-u-p-ors-51990
- **Pages:** 15

## Headnote

(A) Service Law - U.P. Government Servant
(Disciplinary & Appeal), Rules, 1999 - Rules
3 - compulsory retiring - U.P. Financial
Handbook Part II-IV - Fundamental Rules
56(c) - Uttar Pradesh Police Officer
Subordinate Rank (Punishment & Appeal),
Rules 1991 - Rule 14(2) - order of
compulsory retirement is not to be passed
as short cut to avoid departmental enquiry
- order is to be passed after having due
regard to the entire service record of the
officer - an order has to be tested on the
touchstone that no reasonable person
would form requisite opinion on the given
material - order should not smack of
perversity or based on no material or prima
facie malafide . (Para - 24)

(B) Service Law - Principles regarding the
Order of Compulsory retirement in public
interest - (i) Compulsory retirement is not
a punishment and implies no stigma or
misbehavior. (ii) The government must
form
the
opinion
that
compulsory
retirement is in the public interest, based
on subjective satisfaction. (iii) Principles of
natural justice do not apply, but judicial
scrutiny is allowed if the order is: - Mala
fide - Based on no evidence - Arbitrary (no
reasonable person would form the same
opinion)
(iv)
The
government
must
consider
the
entire
service
record,
emphasizing later years, including both
favorable and adverse entries. (v) An order
cannot
be
quashed
solely
because
uncommunicated adverse remarks were
considered;
interference
is
only
permissible on grounds mentioned in (iii).
(Para -23)

State government order - compulsory retirement
order - punishment awarded to petitioner - cast
stigma - quashing of - which awarded petitioner
a major penalty of two increments for 5 years
with temporary effect and a minor penalty of
censure under Rules - also challenges order
passed by Director General of Police - non
speaking order - Only punishment order and
censure entry mentioned - Screening Committee
considered no subjective satisfaction -
5 All. Ratan Kumar Yadav Vs. State of U.P. & Ors.
1155
Respondent did not consider petitioner's service
record or appreciation letters - No finding that
petitioner's continued public service is not in
public interest. (Para - 2, 11 ,26)

HELD: - Order of compulsory retirement
quashed due to lack of subjective satisfaction and
failure to consider individual cases and service
records. Order casts stigma and amounts to
double punishment. Liberty granted to petitioner
to file representation/appeal against previous
punishment orders. compulsory retirement order
was unlawful and directed the respondents to
reinstate the petitioner with full benefits.(Para -
27,28)

Writ Petition partly allowed. (E-7)

List of Cases cited:

## Text

_Characters 0–39,051 of 49,097. This is a partial read: ask again with offset=39051 for what follows._

1154 INDIAN LAW REPORTS ALLAHABAD SERIES
he is not an employee of the U.P. Khadi
Gramodyog Board, and the provisions of
U.P. Khadi and Village Industries Board Act
1960 are not applicable to the petitioner. The
Khadi Ashram Seva Niyamawali is not a set
of statutory rules which can be enforced by
a writ petition. In view of this once services
of petitioner are governed by Khadi Ashram
Seva Niyamawali, writ petition is not
maintainable and petitioner has been
transferred by his employer, then this Court
refuses to interfere with the same."

16. Upon a perusal of the writ
petition, this Court does not find that there is
any such violation of a public duty or public
obligation, cast upon the Kshetriya Shri
Gandhi Ashram, Meerut, as may make it
amenable to the writ jurisdiction of this
Court under Article 226 of the Constitution.

17. In the result, this petition fails
and is dismissed.

18. There shall be no order as to costs.
----------
(2024) 5 ILRA 1154
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.05.2024

BEFORE

THE HON'BLE PRAKASH PADIA, J.

Writ-A No. 20215 of 2019

Ratan Kumar Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ashish Kumar, Sri Bharat Pratap Singh,
Sri Gaurav Singh, Sri Prem Narayan Tiwari,
Sri Vijay Gautam (Sr. Advocate), Sri Saurabh
Singh,
Sri
Kripa
Shankar
Singh
(Sr.
Advocate)
Counsel for the Respondent:
C.S.C.

(A) Service Law - U.P. Government Servant
(Disciplinary & Appeal), Rules, 1999 - Rules
3 - compulsory retiring - U.P. Financial
Handbook Part II-IV - Fundamental Rules
56(c) - Uttar Pradesh Police Officer
Subordinate Rank (Punishment & Appeal),
Rules 1991 - Rule 14(2) - order of
compulsory retirement is not to be passed
as short cut to avoid departmental enquiry
- order is to be passed after having due
regard to the entire service record of the
officer - an order has to be tested on the
touchstone that no reasonable person
would form requisite opinion on the given
material - order should not smack of
perversity or based on no material or prima
facie malafide . (Para - 24)

(B) Service Law - Principles regarding the
Order of Compulsory retirement in public
interest - (i) Compulsory retirement is not
a punishment and implies no stigma or
misbehavior. (ii) The government must
form
the
opinion
that
compulsory
retirement is in the public interest, based
on subjective satisfaction. (iii) Principles of
natural justice do not apply, but judicial
scrutiny is allowed if the order is: - Mala
fide - Based on no evidence - Arbitrary (no
reasonable person would form the same
opinion)
(iv)
The
government
must
consider
the
entire
service
record,
emphasizing later years, including both
favorable and adverse entries. (v) An order
cannot
be
quashed
solely
because
uncommunicated adverse remarks were
considered;
interference
is
only
permissible on grounds mentioned in (iii).
(Para -23)

State government order - compulsory retirement
order - punishment awarded to petitioner - cast
stigma - quashing of - which awarded petitioner
a major penalty of two increments for 5 years
with temporary effect and a minor penalty of
censure under Rules - also challenges order
passed by Director General of Police - non
speaking order - Only punishment order and
censure entry mentioned - Screening Committee
considered no subjective satisfaction -
5 All. Ratan Kumar Yadav Vs. State of U.P. & Ors.
1155
Respondent did not consider petitioner's service
record or appreciation letters - No finding that
petitioner's continued public service is not in
public interest. (Para - 2, 11 ,26)

HELD: - Order of compulsory retirement
quashed due to lack of subjective satisfaction and
failure to consider individual cases and service
records. Order casts stigma and amounts to
double punishment. Liberty granted to petitioner
to file representation/appeal against previous
punishment orders. compulsory retirement order
was unlawful and directed the respondents to
reinstate the petitioner with full benefits.(Para -
27,28)

Writ Petition partly allowed. (E-7)

List of Cases cited:

1. Mahesh Chand Agarwal Vs St. of U.P. & ors.,
Writ-A No. 1888 of 2005

2. Brijesh Kumar Vs St. of U.P. & ors., Special
Appeal (Defective) No. 496 of 2018

3. Ghanshyam Mishra Vs St. of U.P. & ors., WritA No. 45254 of 2017

4. St. of Orissa Vs Ram Chandra Das, (1996) 5
SCC 331

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

6. Pyare Mohan Lal Vs St. of Jharkh. & Ors.
(2010) 10 SCC 693

7. Rajasthan SRTC Vs Babulal Jangir, (2013) 10
SCC 551

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

9. Alld. Bank Officer Assoc. Vs Alld. Bank & ors.,
AIR 1996 SC (2030)

10. Nand Kishore Verma Vs St. of Jharkh. & ors.,
AIR 2012 SCW 1791

11. Rizvan Ahmad Vs St. of U.P. & ors., Special
Appeal (Defective) No. 24 of 2018

12. St. of U.P. Vs Lalsa Ram, (2001) 3 SCC 383

(Delivered by Hon'ble Prakash Padia, J.)

1. Heard Sri Kripa Shankar Singh,
learned Senior Counsel assisted by Sri
Saurabh Singh, learned counsel for the
petitioner and Sri Vijay Shankar Prasad,
learned Additional Chief Standing Counsel
for respondents.

2. The present writ petition has been
filed by the petitioner, with a prayer to quash
the order dated 7.11.2019 passed by the
State Government, compulsory retiring the
petitioner and also quash the order dated
22.10.2019, by which the petitioner was
awarded major penalty, i.e., stoppage of two
increments for 5 years with temporary effect
and one minor penalty of censure in terms of
Rules 3 of U.P. Government Servant
(Disciplinary & Appeal), Rules, 1999
(hereinafter referred to as "Rules of 1999").
The petitioner has further challenged the
order dated 20.9.2018 passed by the
Director General of Police, by which the
penalty of censure has been imposed upon
the petitioner under Rule 3 of aforesaid
Rules of 1999 as well as appellate order
dated 1.5.2019.

3. The facts as stated by the
petitioner in the writ petition are that the
petitioner was directly recruited in the year
1998 on the post of Sub-Inspector of Police.
During the course of duty in an encounter
with Munna Bajrangi gang, the petitioner
received five AK-47 bullet injuries. After
recovering from the said injuries the
petitioner was granted promotion to the post
of Inspector in 2001 and he was also
awarded with Presidential Medal.

4. The petitioner was subsequently
promoted as Deputy Superintendent of
1156 INDIAN LAW REPORTS ALLAHABAD SERIES
Police on 11.7.2016 and was posted at
Zamania District Ghazipur on 18.7.2016. He
was suspended on 15.11.2016 on the basis of
some enquiry conducted by Shri Anil Kumar
Singh, Additional Superintendent of Police
(Rural) Ghazipur. However, the said
suspension was revoked on 3.1.2017.
Thereafter he was served a charge-sheet
dated 9.9.2017. In the said charge-sheet,
following charges were levelled against the
petitioner :-

"यह दक वषम 2016 र्ें आप द्वररर क्षेत्रदिकररी
जर्रदनयर, जनपि गरजीपुर के पि पर करयमिरर ग्रहण करते ही जनपि
के सिी थरनों से र्रनक के दवपरीत जरकर िो-िो आरक्षी अपने हर्ररही
बुिर दिये गये और जनपिीय पुदिस बि कर् होने के बरि िी दबनर
उच्चरदिकरररयों के सांज्ञरन र्ें िरये 12 पुदिस कदर्मयों को अपने सरथ
ड्यूद टी र्ें िगर दियर गयर। आपके द्वररर क्षेत् र्ें भ्रर्ण करने के सर्य
सरकररी गरडी कर उपयोग न कर, प्ररइवेट वरहन (स्करदपमयो) कर प्रयोग
दकयर गयर है तथर पीछे के वरहन र्ें 12-13 हर्ररही बैठरकर चि
रहे थे। कई जर्ीनी दववरि के प्रकरणों र्ें अनरवश्यक हस्तक्षेप कर
एकपक्षीय करयमवरही कर प्रयरस दकयर जरनर पररिदक्षत हुआ है। श्रीर्ती
र्रयर दसांह, पूवम दजिर पांचरयत सिस्य एवां दहन्िू पी.जी. कॉिेज,
छरत्सांघ की पूवम अध्यक्ष कर आवरस खरिी कररने के सम्बन्ि र्ें
गरिी-गिौज करने एवां उनके घर पर जरकर अनरवश्यक िबरव बनरने
आदि के सांबांि र्ें ररजकीय कतमव्यपरिन के प्रदत की गई घोर
िरपरवरही, उिरसीनतर एवां अकर्मण्यतर/स्वेच्छरचरररतर बरतने के
आरोप र्ें आपको िोषी परयर गयर है।"

5. The petitioner submitted his reply
to the said charge- sheet on 11.1.2018. The
Enquiry Officer, i.e., Deputy Inspector
General of Police, Azamgarh Zone, Azamgarh
submitted his enquiry report on 5.7.2018. It is
mentioned in paragraph 10 of the writ petition
that the Enquiry Officer, while recording its
finding in paragraph 9 of the enquiry report,
has not at all considered the evidence adduced
by the petitioner. The enquiry report dated
5.7.2018 was served upon the petitioner on
27.11.2018, directing him to submit his reply,
which was submitted by the petitioner on
5.2.2019. The respondent no. 1 by an order
dated 22.10.2019, imposed penalties, i.e.,
stoppage of two increments for 5 years with
temporary effect along with censure entry.

6. It is further stated in the writ
petition that in the preliminary enquiry
conducted by Shri Keshav Chandra Goswami,
ASP, City, Ghazipur, it was held that no charge
has been proved against the petitioner.
However, inspite of the same without any
basis or disagreeing with the preliminary
report dated 31.12.2016, the said enquiry
report dated 31.12.2016 was forwarded to two
officers, i.e., Sri Kamlesh Dixit, ASP and Dr.
Anil Kumar Pandey, ASP who were of the
equivalent rank i.e., ASP, for reviewing the
report dated 31.12.2016. There is no provision
for reviewing the preliminary enquiry report
under the law. It is important to point out here
that both the officers namely Sri Kamlesh
Dixit and Dr. Anil Kumar Pandey did not
make any enquiry independently rather
reviewed the report submitted by Shri Keshav
Chandra Goswami dated 31.12.2016 and
formed their opinion. The said preliminary
enquiry conducted by Shri Keshav Chandra
Goswami, A.S.P., City, Ghazipur has not been
considered. It is stated that the petitioner has
been awarded double punishment i.e. stoppage
of increments and censure entry for one and
same charge.

7. By an order dated 20.9.2018, the
petitioner was granted censure entry under
Rule 3(1) of Rules of 1999. It is further
stated that for awarding the said censure
entry, no reason has been recorded by the
Disciplinary Authority and there was no
material before him or before the authority,
conducting the preliminary enquiry for
awarding punishment of censure entry.

8. It is further stated that the
petitioner was awarded appreciation letter
dated
12.11.2015
by
the
Senior
5 All. Ratan Kumar Yadav Vs. State of U.P. & Ors.
1157
Superintendent
of
Police
regarding
successfully organizing the event during
visit of Shri Rajnath Singh, the then Home
Minister.

9. The appeal filed by the petitioner
against the said censure entry has been
rejected by order dated 01.05.2019 by a nonspeaking order. It is further stated that while
passing the order dated 7.11.2019. whereby
the petitioner has been compulsory retired,
censure entry of 2017, which was imposed
by order dated 2.11.2017 was also
considered. However, the said order was
never communicated to the petitioner. It is
further stated that while passing the order of
compulsory retirement, the respondent no.1
has considered the three orders, i.e.

(I) censure entry awarded on
2.11.2017;
(II) censure entry awarded on
20.9.2018; and
(III) the order dated 22.10.2019, by
which the censure entry and stoppage of two
increments for 5 years was imposed.

The petitioner in paragraph 38 of the
writ petition has stated that since 1999 till
2019, all the entries in service-record are
outstanding.
Based
on
the
aforesaid
outstanding entries, it is stated that the
petitioner is not a deadwood.

10. It is further stated in the writ
petition that as per Fundamental Rules 56,
before compulsory retiring a government
servant, an opinion has to be framed by the
concerned authority that it is in public
interest to retire a person, after considering
his entire service record. In the impugned
order,
there
is
no
mention
about
consideration of service record of the
petitioner
and only
three
orders
of
punishment has been considered.
11. The petitioner also filed two
supplementary affidavits dated 12.12.2019
& 16.3.2021. In 1st supplementary affidavit,
it is stated that the compulsory retirement of
the petitioner is against the provisions of
Fundamental Rules 56(c) of U.P. Financial
Handbook Part II-IV, as it has been passed
without following the provisions contained
under the said rules. It is further stated that
the Screening Committee has not been
properly constituted as per the provisions
contained in the Government Orders dated
26.10.1985, 6.7.2017. 8.9.2017. 21.6.2019
& 1.7.2019. It is further stated in the
supplementary affidavit that since the
compulsory retirement order refers to the
punishment awarded to the petitioner, as
such, the said order cast stigma upon the
petitioner, and as such, the order being
passed without notice and opportunity to the
petitioner, is bad in the eyes of law and is
liable to be quashed. It is further stated that
without considering the annual confidential
report/character role of the petitioner, the
impugned order has been passed and while
passing the said order, efficiency of the
petitioner has not been considered.

12. In 2nd supplementary affidavit,
it is stated that the Screening Committee has
fixed the criteria for retiring a person
compulsory who has attained the age of 50
years and who have been charged three or
more than three minor penalties and other
penalties. It is further stated that the
Screening Committee has considered the
censure entry awarded on 22.10.2019,
which was awarded just a week earlier
before meeting of the Screening Committee.
The
Screening
Committee
has
not
considered last 10 years annual confidential
report in the service record of the petitioner.
The petitioner in 2nd supplementary
affidavit has also made averment regarding
the communication of the approval of U.P.
1158 INDIAN LAW REPORTS ALLAHABAD SERIES
Public Service Commission for award of
punishment and with the said averment he
has stated that the commission was not
informed properly and was infact forced to
approve the punishment awarded to the
petitioner by order dated 22.10.2019.

13. A counter affidavit has been
filed on behalf of respondent by Shri
Rajdhari Saroj, Deputy Superintendent of
Police, Police Head Quarter, Prayagraj. In
the counter affidavit it is stated that as per
the Government Order dated 26.10.1985,
any government servant who has completed
50 years of his age, may be retired by the
Appointing Authority by giving 3 months
notice without assigning any reason. The
Screening
Committee,
as
per
the
government order dated 26.10.1985 has
considered the service record of the
petitioner
and
in
pursuance
of
the
punishment order passed time to time on
1.11.2019,
the
Screening
Committee
recommended for compulsory retirement of
the petitioner.

14. It is further stated in the counter
affidavit that no representation has been
moved by the petitioner against the
punishment order dated 22.10.2019. So far
as censure entry of 20.9.2018 is concerned,
the appeal against the said censure entry has
been rejected. In supplementary counter
affidavit it is stated that in the government
order
dated
26.10.1985.
exclusive
guidelines and provisions had been made for
the Screening Committee to examine and
assesse the entire service record and formed
opinion objectively as to whether an
employee is fit to be retained in service or
not and subsequently various government
orders have also been issued being
government
orders
dated
6.2.1989,
21.5.1998.
23.9.2000,
25.1.2007
&
6.7.2017.
15. It is further stated that the
Screening Committee has scrutinized the
entire service record of the petitioner and
other employee. The petitioner was awarded
4 punishments under Rule 14(2) of Uttar
Pradesh Police Officer Subordinate Rank
(Punishment & Appeal), Rules 1991. The
Screening Committee has submitted its
report on 1.11.2019, wherein it has
recommended that the petitioner should not be
continued in service in public interest and he
has been compulsory retired. In pursuance of
the
recommendation
of
the
Screening
Committee, an office-memorandum dated
7.11.2019 under Uttar Pradesh Fundamental
Rules 56-C of Financial Handbook Vol. 2
(Part-II-IV) was issued. Since the services of
the petitioner was not found satisfactory by the
Screening
Committee,
therefore,
the
Screening Committee recommended that the
petitioner should not be continued in service in
public interest and he should be compulsory
retired.

16. It is further stated that the order
of compulsory retirement is not an
punishment. Copy of the report of Screening
Committee has also been annexed as
annexure-1 to the supplementary counter
affidavit. The said report of Screening
Committee, in description, there is reference
of punishment order dated 20.10.2019 and
censure entries dated 2.11.2017 & 20.9.2018
and in recommendation column, the details
of punishment and censure entry has been
mentioned. The Screening Committee has
recommended that to maintain the efficiency
in State Police Service, the recommendation
for compulsory retirement has been passed.
In recommendation of the Screening
Committee, it is nowhere mentioned the
compulsory retirement is in public interest.

17. Heard learned counsel for the
petitioner and learned Standing Counsel for
5 All. Ratan Kumar Yadav Vs. State of U.P. & Ors.
1159
the respondents. With the consent of learned
counsel for the parties the present writ
petition is being disposed of at the stage of
admission.

18. Learned counsel for the
petitioner has argued that the order of
compulsory retirement has been passed only
on the basis of punishment order dated
22.10.2019 and two censure entries dated
2.11.2017 & 20.9.2018, whereas the service
record of the petitioner from 2009 to 2019 is
outstanding and this fact has not been denied
by the respondents in their counter affidavit.
The report of Screening Committee filed
along with supplementary counter affidavit,
clearly demonstrate that only consideration
before the Screening Committee was order
dated 22.10.2019. 2.11.2017 & 20.9.2018.
The service record of the petitioner and
other appreciation in performance of the
petitioner has not at all been considered by
the Screening Committee.

19. The petitioner for the said
proposition has relied upon a judgment
rendered by Lucknow Bench of this Court in
Writ-A No. 1888 of 2005 (S/B) (Mahesh
Chand Agarwal Vs. State of U.P. & others)
decided on 27.03.2006. In the aforesaid
judgment, the Division Bench of this Court
has held as under:

"While considering the case of a
public servant it is not only the Character
Roll which would be relevant either for
retaining the officer or public servant in
service or for screening him out, but such
consideration would also go to the other
materials in the service record namely;
e.g. appreciation letters or certificates of
commendable work by higher or superior
authorities or to say of the competent
authority of if there is material which
though does not find mention in the
Character
Roll
entry
but
either
appreciates or deprecates the work and
conduct of the public servant or shows his
or her shortcomings or in any other way
reflects his or her character, integrity and
reputation. All such material cannot be
lost sight by the Screening Committee and
has to be considered while making an
assessment. Thus, relying only upon the
award of marks as against the annual
remarks on the basis of criteria of
promotion strictly on the basis of 'merit
cannot be supported to, under the
aforesaid provision."

20. For the proposition that once
the order of compulsory retirement
contain the details of punishment awarded
earlier, it cast stigma and for this, the
learned counsel for the petitioner has
relied upon a judgment of this Court dated
7.8.2018 in Special Appeal (Defective)
No. 496 of 2018 (Brijesh Kumar Vs. State
of U.P. & others).

21. Coordinate Bench of this
Court in Writ-A No. 45254 of 2017
(Ghanshyam Mishra Vs. State of U.P. &
others)
decided
on
09.05.2019
has
considered the law, pertaining to the
compulsory retirement . The relevant
portion of the aforesaid judgement reads
as follows:

"In the ultimate analysis, the Court
must be satisfied that the formation of
opinion is neither whimsical nor arbitrary
but in fact based purely upon an objective
assessment of the suitability of the employee.
It is to be remembered that Courts will not
interfere merely because another view could
possibly be taken. After all the exercise of
power to compulsorily retire is an outcome
of the subjective satisfaction so arrived at. It
would however, be justified in posing to
1160 INDIAN LAW REPORTS ALLAHABAD SERIES
itself the question whether a reasonable and
prudent person would have arrived at the
same conclusion as the employer upon an
assessment of the entire record.
Often
orders
of
compulsorily
retirement are assailed on the ground that
they came to be made in order to obviate the
requirement
to
prove
allegations
of
misconduct levelled against an employee.
Such a challenge is raised often where the
power
of
compulsorily
retirement
is
exercised either during the pendency of
disciplinary proceedings or before a
punishment
is
ultimately
inflicted. A
challenge on these lines may also be raised
whether though a decision to initiate
disciplinary proceedings is taken, an
enquiry need not have commenced. In such
situations the Courts are called upon to
consider whether the power of compulsorily
retirement was in fact invoked as a ruse and
veils the true intent of the employer to avoid
the necessity of holding a departmental
enquiry. These issues very often call upon
the
Court
to
consider
whether
the
misdemeanor alleged and yet to be proven
or acted upon formed the motive or
foundation of the order of compulsorily
retirement.
Reiterating the settled legal position
of the power to compulsorily retire and the
obligation of the employer to scan the entire
service record of a government servant, the
Supreme Court in Punjab State Power
Corporation held thus:-
"14. In State of Orissa v. Ram
Chandra Das: (1996) 5 SCC 331 a threeJudge Bench has emphatically held that
object behind compulsory retirement is
public interest and, therefore, even if an
employee has been subsequently promoted,
the previous entries do not melt into
insignificance. To quote:
7...Merely because a promotion has
been given even after adverse entries were
made, cannot be a ground to note that
compulsory retirement of the government
servant could not be ordered. The evidence
does not become inadmissible or irrelevant
as opined by the Tribunal. What would be
relevant is whether upon that state of record
as a reasonable prudent man would the
Government or competent officer reach that
decision. We find that selfsame material
after promotion may not be taken into
consideration only to deny him further
promotion, if any. But that material
undoubtedly would be available to the
Government
to
consider
the
overall
expediency or necessity to continue the
government servant in service after he
attained the required length of service or
qualified period of service for pension.
15. The aforesaid dictum has been
approved and followed in State of Gujarat
v. Umedbhai M. Patel: (2001) 3 SCC 314,
wherein emphasis has been laid on the
factum that entire service record of the
government servant is to be examined. Same
principle has also been followed in another
three-Judge Bench decision in Pyare
Mohan Lal v. State of Jharkhand and Ors.
(2010) 10 SCC 693. Slightly recently, a
Division Bench in Rajasthan SRTC v.
Babulal Jangir (2013) 10 SCC 551, after
discussing number of authorities, has held
thus:
22. It clearly follows from the above
that the clarification given by a two-Judge
Bench judgment in Badrinath v. State of
Tamil Nadu is not correct and the
observations of this Court in State of Punjab
v. Gurdas Singh: (1998) 4 SCC 92 to the
effect that the adverse entries prior to the
promotion or crossing of efficiency bar or
picking up higher rank are not wiped off and
can be taken into account while considering
the overall performance of the employee
when it comes to the consideration of case
of that employee for premature retirement.
5 All. Ratan Kumar Yadav Vs. State of U.P. & Ors.
1161
23. The principle of law which is
clarified and stands crystallised after the
judgment in Pyare Mohan Lal v. State of
Jharkhand is that after the promotion of an
employee the adverse entries prior thereto
would have no relevance and can be treated
as wiped off when the case of the
government employee is to be considered for
further promotion. However, this "washedoff theory" will have no application when
the case of an employee is being assessed to
determine whether he is fit to be retained in
service or requires to be given compulsory
retirement. The rationale given is that since
such an assessment is based on "entire
service record", there is no question of not
taking into consideration the earlier old
adverse entries or record of the old period.
We may hasten to add that while such a
record can be taken into consideration, at
the same time, the service record of the
immediate past period will have to be given
due credence and weightage. For example,
as against some very old adverse entries
where the immediate past record shows
exemplary performance, ignoring such a
record of recent past and acting only on the
basis of old adverse entries, to retire a
person will be a clear example of arbitrary
exercise of power. However, if old record
pertains to integrity of a person then that
may be sufficient to justify the order of
premature retirement of the government
servant."
Dealing with a case where an order
of compulsorily retirement comes to be
made during the pendency of disciplinary
proceedings, the Supreme Court in State of
U.P. And another Vs. Abhai Kishore Masta
made the following pertinent observations:
"7. So far as the order of compulsory
retirement under Fundamental Rule 56-J is
concerned, we are of the opinion that the
principle enunciated by the High Court in
J.N. Bajpai and followed in the Judgment
under appeal is unsustainable in law. It
cannot be said as a matter of law nor can it
be stated as invariable rule, that any and
every order of compulsory retirement made
under Fundamental Rule 56-J (or other
provision corresponding thereto) during the
pendency of disciplinary proceedings is
necessarily penal. It may be or it may not be.
It is a matter to be decided on a verification
of the relevant record or the material on
which the order is based.
8. In the State of Uttar Pradesh v.
Madan Mohan Nagar (1967)IILLJ63SC it
has been held by a Constitution Bench that
the test to be applied in such matters is "does
the order of compulsory retirement cast an
aspersion or attach a stigma to the officer
when it purports to retire him compulsory?"
It was observed that if the charge or
imputation against the officer is made the
condition of the exercise of the power it must
be held to be by way of punishmentotherwise not. In other words if it is found
that the authority has adopted an easier
course of retiring the employee under Rule
56-J instead of proceeding with and
concluding the enquiry or where it is found
that the main reason for compulsorily
retiring the employee is the pendency of the
disciplinary proceeding or the levelling of
the charges, as the case may be, it would be
a case for holding it to be penal. But there
may also be a case where the order of
compulsory retirement is not really or
mainly based upon the charges or the
pendency of disciplinary enquiry. As a
matter of fact, in many cases, it may happen
that the authority competent to retire
compulsorily under Rule 56-J and authority
competent to impose the punishment in the
disciplinary enquiry are different. It may
also be that the charges communicated or
the pendency of the disciplinary enquiry is
only one of the several circumstances taken
into consideration. In such cases it cannot
1162 INDIAN LAW REPORTS ALLAHABAD SERIES
be said that merely because the order of
compulsory retirement is made after the
charges are communicated or during the
pendency of disciplinary enquiry, it is penal
in nature.
9. It is true that merely because the
order of compulsory retirement is couched
in innocuous language without making
imputations against the government servant,
the Court need not conclude that it is not
penal in nature. In appropriate cases the
Court can lift the veil to find out whether, in
truth, the order is penal in nature vide Ram
Ekbal Sharma v. State of Bihar."

It ultimately held:-
12. We are, therefore, of the opinion
that the High Court was in error in holding
that merely because the order of compulsory
retirement was passed during the pendency
of a disciplinary enquiry, it must be
necessarily deemed to be penal in nature, is
unsustainable in law. The Judgment of the
High Court is accordingly set aside and the
matter is remitted to the High Court to
determine, in the light of the observations
made herein,
whether
the
order
of
compulsory retirement is, in truth, penal in
nature? There shall be no order as to costs."
Dealing with the decision rendered
by a learned Judge of the Court in Mukesh
Bhatnagar and upon which great emphasis
was laid by Sri Mishra, this Court finds itself
unable to either adopt or subscribe to the
proposition as broadly formulated by the
learned Judge in that decision. In Mukesh
Bhatnagar, the learned Judge noticing the
fact that two disciplinary proceedings were
pending prior to the order of compulsorily
retirement being passed proceeded to
observe that compulsorily retirement must
not be imposed as a punitive measure and as
a short cut to avoid a departmental enquiry
when such course is more desirable. While
noting thus, the learned Judge sought to
draw sustenance from the principles as
formulated by the Supreme Court in State of
Gujarat Vs. Umedbhai M Patel reported in
(2001) 3 SCC 314. Firstly, no such absolute
proposition was culled out or propounded in
Umedhai M. Patel. Secondly and with due
respect to the learned Judge, this Court finds
itself unable to tread this path bearing in
mind the principles as enunciated by the
Supreme Court in State of U.P. As was
observed there, the Supreme Court held that
it cannot be said as a matter of law or as an
invariable rule that an order of compulsorily
retirement made during the pendency of
disciplinary proceedings is necessarily
penal. It held that whether it was penal or
not would be a matter to be decided on
verification of the relevant record. The
position was then further elaborated with
the Court observing that only in a case
where it is found that the main reason for
compulsorily retiring the employee was the
charge which formed the subject matter of
the disciplinary proceedings could it be said
to be penal. It held that even in a case where
the pendency of disciplinary proceedings is
only one of several circumstances which are
taken into consideration by the employer, in
such a situation it could not be said that the
order of compulsorily retirement was penal
in
nature.
The
above
exposition
is
necessitated only in light of the great
emphasis laid by Sri Mishra upon the
decision in Mukesh Bhatnagar. However
the above observations are not to be
construed as an expression of any opinion
on the correctness of the ultimate conclusion
arrived at by the learned Judge in that
matter. Ultimately it would be for this Court
to consider whether in the facts of the
present case, the order of compulsory
retirement was based solely upon the
pendency
of
disciplinary
proceedings
against the petitioner or whether it was
founded upon other relevant considerations.
5 All. Ratan Kumar Yadav Vs. State of U.P. & Ors.
1163
In the present case as this Court
reads the reasons recorded by the Screening
Committee
while
recommending
the
compulsory retirement of the petitioner, it
does not find that the same was based solely
upon the charges which formed the subject
matter of the disciplinary proceedings. The
Screening Committee while framing its
recommendations
has
taken
into
consideration
the
annual
confidential
entries, disciplinary proceedings, orders of
punishment, reports of the Vigilance
Department cumulatively. At least that is
what the recommendation recites and
records. No other material was relied upon
to establish that the ultimate conclusion
recorded by the Screening Committee
hinged
and
rested
solely
on
the
departmental enquiries stated to be pending.
The fact that this opinion was formed
without the Screening Committee taking into
consideration the fact that the petitioner
stood exonerated of all the charges levelled
against him by the Enquiry Officer and its
ultimate impact on the order of compulsorily
retirement itself is an aspect which is left
over to be considered in the subsequent
passages of this decision. The Court in the
facts of this case finds itself, therefore,
unable to hold that the order of compulsorily
retirement was penal in character. The
record as prepared by the Screening
Committee does not establish that the
recommendation came to be formulated
solely on the basis of the enquiry
proceedings which were stated to be
pending.

22. The counsel for the petitioner
has also relied upon the case of Allahabad
Bank Officer Association Vs. Allahabad
Bank and others reported in AIR 1996 SC
(2030) for the proposition that once the
order of compulsory retirement cast stigma,
it is not sustainable. The relevant paragraph
is as follows :-

"The above discussion of case law
makes it clear that if the order of compulsory
retirement casts a stigma on the Government
servant in the sense that it contains a
statement casting aspersion on his conduct
or character, then the court will treat that
order as an order of punishment, attracting
provisions
of
Article
311(2)
of
the
Constitution. The reason is that as a charge
or imputation is made the condition for
passing the order the court would infer
therefrom that the real intention of the
Government was to punish the Government
servant on the basis of that charge or
imputation and not to exercise the power of
compulsory retirement. But mere reference
to the rule, even if it mentions grounds for
compulsory retirement, cannot be regarded
as sufficient for treating the order of
compulsory retirement as an order of
punishment. In such a case, the order can be
said to have been passed in terms of the rule
and, therefore, a different intention cannot
be inferred. So also, if the statement in the
order refers only to the assessment of his
work and does not at the same time cast an
aspersion on the conduct or character of the
Government servant, then it will not be
proper to hold that the order of compulsory
retirement is in reality an order of
punishment. Whether the statement in the
order is stigmatic or not will have to be
judged by adopting the test of how a
reasonable
person
would
read
or
understand it."

23. The learned counsel for the
petitioner has further relied upon a judgment,
reported in AIR 2012 SCW 1791 (Nand
Kishore Verma Vs. State of Jharkhand &
others) in which it is held that :-
1164 INDIAN LAW REPORTS ALLAHABAD SERIES
"Keeping this object in view, the
contention of the appellant has to be
appreciated on the basis of the settled law
on the subject of Compulsory retirement. In
Baikuntha Nath Das v. Chief District
Medical Officer, (1992) 2 SCC 299, three
Judge Bench of this Court has laid down the
principles
regarding
the
Order
of
Compulsory retirement in public interest:
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 the showing that while
passing it uncommunicated adverse remarks
were also taken into consideration. That
circumstance by itself cannot be a basis for
interference.
Interference is permissible only on
the grounds mentioned in (iii) above. This
aspect has been discussed in paras 30 to 32
above."

24. The learned counsel for the
petitioner has also relied upon a judgment of
this Court in Special Appeal (Defective)
No. 24 of 2018 (Rizvan Ahmad Vs. State
of U.P. & others) in which it is held that :-

"14. Before we delve into the rival
submissions raised at the bar we must deal
with the contention canvassed by learned
Standing Counsel that the committee had
recorded its subjective satisfaction and once
subjective satisfaction has been recorded the
Court should not interfere. We may hasten to
add the concept of subjective satisfaction
does not necessarily mean that there can be
no material and the competent authority can
take a flight in fancy. Subjective satisfaction
cannot be done in a manner which a prudent
man can never conceive. Satisfaction like
discretion has to be based on proper
consideration and weighment of material. In
our
considered
opinion
subjective
satisfaction cannot be scanned as if one is
sitting in an appeal, but it must meet the
requirement of appreciation expected of a
prudent man and the appreciation should be
relevant and germane to the purpose
apropos to its context. It cannot be
conceived for a moment that the subjective
satisfaction would take away the order from
5 All. Ratan Kumar Yadav Vs. State of U.P. & Ors.
1165
the purview of judicial scrutiny solely on the
basis that the Committee has been
subjectively satisfied.
15. In the case of State of Gujrat Vs.
Umedbhai M.