# Supreme Court in Kallu v. State decided

- **Citation:** (2007) 2 ILRA 555
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-05-22
- **Case number:** Civil Misc. Writ Petition No. 11156 of 2002
- **Bench:** Vineet Saran
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/supreme-court-in-kallu-v-state-decided-40934
- **Pages:** 5

## Headnote

U.P. Fundamental Rules-Rule 56 (c)-
Compulsorily
retirement-service
performance find good, very good and
excellent-order suffers from perversity-
the
petitioner
while
working
as
Inspector refused to give undue favour
to the relative of Police officer- can not
be imposed as punitve measure.

Held: Para 11

As such, passing of the impugned order
of
compulsory
retirement
of
the
petitioner in the aforesaid circumstances
is nothing but an act which suffers from
perversity, as it is clear that the said
order has been passed on extraneous
considerations and not on the basis of
the relevant service record and other
material on perusal of which a rational
mind may conceivably be satisfied that
compulsory retirement of the officer
concerned
was
necessary
in
public
interest.
Case law discussed:
AIR 1979 SC-49
1980 (4) SCC-321
2001 (3) SCC-314
556 INDIAN LAW REPORTS ALLAHABAD SERIES [2007

## Text

2 All] Balbir Singh V. State of U.P. and others
555
argued that the said report was not
available. Even if the said report is
completely ignored, position remains the
same. The findings are based upon entries
of Khasras 1378 to 1380 fasli and that is
what is required by section 4-A of the
Act.

5. The findings recorded by the
courts below are not at all against the
judgment of Jaswant Singh Vs. State
1978 AWC 577. In the said authority, it
was mentioned that under section 4-A of
the Act, it was not permissible for the
prescribed authority to make use of any
oral evidence in the course of enquiry.
Prescribed authority has not placed
reliance upon any oral evidence. Even if
the report of Naib Tehsildar, Lekhpal etc
is completely ignored, the Khasras of
1378 to 1380 fasli completely proved that
the plots in dispute were irrigated.

6. Moreover, the division bench
authority of this court reported in Kallu
Vs. State 1979 ALJ 1113 held that if part
of a plot was irrigated in any of the
relevant years then it could be assumed
that the nature of the soil of whole plot
was such that if efforts had been made
then the whole plot could have been
irrigated and used for growing corps. The
said authority has been approved by the
Supreme Court in Kallu Vs. State decided
along with Abiaram Singh Vs. State AIR
1990 SC 477.

Accordingly I do not find any error
in the impugned orders; writ petition is
therefore dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.05.2007

BEFORE
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No. 11156 of 2002

Balbir Singh

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

Counsel for the Petitioner:
Sri Prem Prakash
Sri Ramendra Pratap Singh
Sri Gajendra Pratap
Sri C.B. Yadav

Counsel for the Respondents:
S.C.

U.P. Fundamental Rules-Rule 56 (c)-
Compulsorily
retirement-service
performance find good, very good and
excellent-order suffers from perversity-
the
petitioner
while
working
as
Inspector refused to give undue favour
to the relative of Police officer- can not
be imposed as punitve measure.

Held: Para 11

As such, passing of the impugned order
of
compulsory
retirement
of
the
petitioner in the aforesaid circumstances
is nothing but an act which suffers from
perversity, as it is clear that the said
order has been passed on extraneous
considerations and not on the basis of
the relevant service record and other
material on perusal of which a rational
mind may conceivably be satisfied that
compulsory retirement of the officer
concerned
was
necessary
in
public
interest.
Case law discussed:
AIR 1979 SC-49
1980 (4) SCC-321
2001 (3) SCC-314
556 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
(Delivered by Hon'ble Vineet Saran, J.)

1. The petitioner was selected as a
Sub Inspector in the Civil Police on
7.3.1974. By an order dated 7.2.2002
passed by the Deputy Inspector General
of Police, Bareilly Range, Bareilly, the
petitioner was compulsorily retired under
Rule 56 (c) of the Fundamental Rules.
Aggrieved by the said order, this writ
petition has been filed. A further prayer
has been made for issuance of a writ in
the nature of mandamus commanding the
respondents to permit the petitioner to
work till completing the age of retirement
and to pay him salary and other
emoluments admissible to him.

2. I have heard Sri R.P. Singh,
learned counsel for the petitioner as well
as learned Standing Counsel appearing for
the respondents. Pleadings have been
exchanged and with consent of the
learned counsel for the parties this writ
petition is being disposed of at this stage.

3. The submission of the learned
counsel for the petitioner is that the
impugned order has been passed on
extraneous
considerations
without
assigning any reason or giving any
opportunity of hearing to the petitioner.
The contention of the learned counsel for
the petitioner is that the service record of
the petitioner has been very good and
only because of the petitioner having
made an entry in the General Diary on
13.4.2000 with regard to pressure exerted
on him by the senior officers for
submitting a final report in a particular
case, a vigilance enquiry was directed
against the petitioner on 17.4.2000.
Thereafter on 11.5.2000 and 4.7.2000 the
petitioner was repeatedly transferred.
When nothing was found against the
petitioner in the vigilance enquiry, in
order to punish and harm the petitioner,
without
assigning
any
reason
the
impugned order of compulsory retirement
has been passed by the respondents.

4. Learned Standing Counsel has,
however,
justified
the
action
of
compulsorily retiring the petitioner and
has stated that no notice to the petitioner
was required to be given nor any reason
was required to be assigned in the order
compulsorily retiring the petitioner and as
such the same does not call for any
interference.

5. In paragraph 3 of the writ petition
it has been stated that "The service career
of the petitioner is found to be satisfactory
and the entire service role of the
petitioner contains good, very good and
excellent also". In reply to the said
paragraph of the writ petition, it has
merely been stated in paragraph 6 of the
counter affidavit that such averments are
wrong and denied. No explanation as to
why the said averments are wrong, has
been given in the counter affidavit. It has
also not been stated that there has ever
been any adverse entry awarded to the
petitioner. In paragraph 11 of the writ
petition it has been stated that ".......the
impugned order has been passed without
taking into account the entire relevant
material, history and service record of the
petitioner.
The
petitioner
is
quite
physically fit to discharge the duties
assigned to the post of Sub Inspector of
Police and from the service record of the
petitioner, no reasonable person would
form the requisite opinion on the given
material about the retirement of the
petitioner. Therefore, the order impugned
suffers from perversity". In paragraph 12
of the writ petition the petitioner has
2 All] Balbir Singh V. State of U.P. and others
557
stated that "There is nothing adverse in
service record of the petitioner which may
entitle the respondents to pass the
impugned order in the event when the
petitioner has been finally exonerated by
the Vigilance Department." In paragraph
13 of the writ petition it has been averred
that no opportunity of hearing was given
to the petitioner prior to the passing of the
impugned order and that the subjective
satisfaction of the respondents must be
verified by independent material and the
service record of the petitioner.

6.

The
reply
to
paragraphs
no.10,11,12 and 13 of the writ petition has
been given paragraph 13 of the counter
affidavit and it has merely been stated that
the averments of the said paragraphs are
wrong and that the petitioner was given
sufficient opportunity of hearing. Except
for that, nothing has been stated in reply
to the specific averments made by the
petitioner in paragraphs no. 11 and 12 of
the writ petition, relevant extract of which
have been quoted above. As such, from
the record it does not appear that there
was any material against the petitioner so
as to warrant an order of compulsory
retirement. Merely because a Vigilance
enquiry had been initiated against the
petitioner would not be a sufficient
ground to take such action against the
petitioner. In the vigilance enquiry report
also nothing material has been found
against him, as the property which was
sold by the wife of the petitioner was
inherited by her from her parents. The
only remark against the petitioner in the
said report is that prior permission of such
sale had not been obtained by the
petitioner.

7. The Apex Court in the case of
Smt. S.R.Venkataraman vs. Union of India
AIR 1979 SC 49 has held that "An
administrative order which is based on
reasons of fact which do not exist must,
therefore, be held to be infected with an
abuse of power." In the present case, the
impugned order appears to be infected
with abuse of power as it is based on no
reason of fact.

8. While dealing with a case of
compulsory
retirement,
the
Supreme
Court in the case of Baldev Raj Chadha
vs. Union of India (1980) 4 SCC 321 has
held that onus lies on the State to furnish
material before the Court to justify its
action in public interest. In paragraph 8 of
the judgment the Court has observed as
under:-

"8. This takes us to the meat of the
matter, viz., whether the appellant was
retired because and only because it was
necessary in the public interest so to do. It
is an affirmative action, not a negative
disposition, a positive conclusion, not a
neutral attitude. It is terminal step to
justify which the onus is on the
Administration, not a matter where the
victim must make out the contrary.
Security of tenure is the condition of
efficiency of service. The Administration,
to be competent, must have servants who
are not plagued by uncertainty about
tomorrow. At the age of 50 when you have
family responsibility and the sombre
problems of one's own life's evening, your
experience, accomplishments and fullness
of fitness become an asset to the
Administration, if and only if you are not
harried or worried by 'what will happen
to me and my family?' 'Where will I go if
cashiered?' 'How will I survive when I am
too old to be newly employed and too
young to be superannuated?' These
considerations become all the more
558 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
important
in
departments
where
functional
independence,
fearless
scrutiny, and freedom to expose evil or
error in high places is the talk............. So
it is that we must emphatically state that
under the guise of 'public interest' if
unlimited
discretion
is
regarded
acceptable for making an order of
premature retirement, it will be the surest
menace to public interest and must fail for
unreasonableness,
arbitrariness
and
disguised dismissal. To constitutionalise
the rule, we must so read it as to free it
from the potential for the mischiefs we
have just projected. The exercise of power
must be bona fide and promote public
interest. There is no demonstrable ground
to infer mala fides here and the only
infirmity alleged which deserves serious
notice is as to whether the order has been
made in public interest. When an order is
challenged and its validity depends on its
being supported b public interest the State
must disclose the material so that the
court may be satisfied that the order is not
bad for want of any material whatever
which, to a reasonable man reasonably
instructed in the law, is sufficient to
sustain the grounds of 'public interest'
justifying forced retirement of the public
servant. Judges cannot substitute their
judgment for that of the Administrator but
they are not absolved from the minimal
review well settled in administrative law
and founded on constitutional obligations.
The limitations on judicial power in this
area are well known and we are confined
to an examination of the material merely
to see whether a rational mind may
conceivably
be
satisfied
that
the
compulsory retirement of the officer
concerned is necessary in public interest."
(Emphasis supplied).

9. In a more recent case of State of
Gujarat vs. Umedbhai M. Patel (2001) 3
SCC 314 the Apex Court has summarised
the principles relating to compulsory
retirement in paragraph 11, which is
quoted below:-

"11. The law relating to compulsory
retirement has now crystallised into
definite
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 administrative, 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."
2 All] Union of India and others V. Smt. Mithauli Devi
559
10. As such it is clear that an order
of compulsory retirement cannot be
imposed as a punitive measure or as a
short cut measure to avoid departmental
enquiry. The same can be passed for valid
reasons after taking into account the
confidential records which may include
uncommunicated
entries
also.
The
purpose of the same is to chop off the
dead wood but cannot be done without
having due regard to the entire service
record of the officer.

11. In the present case it is not
denied by the respondents that the
confidential reports of the petitioner
contained entries of good, very good and
excellent. It has also not been denied that
the petitioner is physically fit to discharge
duties as Sub Inspector of Police. The fact
that the petitioner has already been
exonerated in the vigilance enquiry is also
not denied. As such, passing of the
impugned order of compulsory retirement
of
the
petitioner
in
the
aforesaid
circumstances is nothing but an act which
suffers from perversity, as it is clear that
the said order has been passed on
extraneous considerations and not on the
basis of the relevant service record and
other material on perusal of which a
rational
mind
may
conceivably
be
satisfied that compulsory retirement of the
officer concerned was necessary in public
interest.

12. Accordingly, for the foregoing
reasons, the impugned order by which the
petitioner has been compulsorily retired,
deserves to be set aside.

13. This writ petition, thus, stands
allowed. The impugned order dated
7.2.2002 passed by Deputy Inspector
General
of
Police,
Bareilly
Range,
Bareilly, Respondent no.2 is quashed. The
petitioner
shall
be
entitled
to
all
consequential benefits. No order as to
cost.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.06.2007

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 26910 Of
2007

Union of India and others ...Petitioners
Versus
Smt Mithauli Devi
...Respondent

Counsel for the Petitioner:
Sri Piyush Mishra

Counsel for the Respondent:

Constitution of India-Art. 226-Payment
of Interest-amount withheld illegally-the
affected person to be compensatedpayment of interest is neither penality
nor punitive action but a compensation
for deprivation of principal amount be
awarded on equitable ground.

Held: Para 18

Thus, the law can be summarised that
the interest, being compensatory in
nature, should be awarded if it is
provided in the contract/agreement, or
the statutory provisions provide for it. It
may also be awarded on equitable
ground,
provided
the
facts
and
circumstances of the case justify it and
the law does not prohibit it.
Case law discussed:
AIR 1997 SC-3559
1998 (3) SCC-376
AIR 1938 P.C.-67
AIR 1961 SC-908
AIR 1975 SC-1303