# Surendra Prasad Misra v. Engineer-in-Chief, Irrigation Department, Lucknow and others

- **Citation:** (2003) 3 ILRA 921
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-09-16
- **Case number:** Civil Misc. Writ Petition No. 22875 of 1993
- **Bench:** R.B. Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/surendra-prasad-misra-v-engineer-in-chief-irrigation-department-lucknow-and-40236
- **Pages:** 10

## Headnote

Constitution of India Article 11,14,226 &
311
-
Service
Law
-
Compulsory
Retirement-order
passed
in
public
interest -not by way of punishment-after
considering entire records of ServiceSuch order, not violate of provisions of
Article 11, 14 and 311 of constitutioncannot interfered.

Held- Para 28

I have heard learned counsel for the
parties.
I
find
that
the
order
of
compulsory retirement was passed after
perusing and considering all the entries
available in the service book and the
records pertaining to the petitioner by
the Screening Committee and in view of
the above analysis no opportunity of
hearing is required to be given and the
provisions of Articles 14, 21 and 311 of
the Constitution are not attracted while
passing
the
order
of
compulsory
retirement, more so the said order is
passed in the public interest and not by
way of punishment. I find no illegality
and impropriety in the said impugned
order,
therefore,
this
Court
is
not
inclined to invoke its extra ordinary
discretionary jurisdiction under Article
226 of the Constitution.

(B) Service Law- Compulsory retirementafter
considering
uncommunicated
adverse
entries-though
based
upon
general
assessment
of
performancewhether non-communication of such
entries-renders the order invalid-held,
no, as the rule of andi alteram portem
does not-apply here.

Held-Para 17

Uncommunicated adverse entries but
mostly based upon general assessment
of performance shall not render an order
of compulsory retirement invalid as the
rule of audi alteram partem does not
apply. The Supreme Court has held that
their non communication of such adverse
entry could not have the effect of
vitiating
the
order
of
compulsory
retirement (Jayanti Kumar Sinha v.
Union of India AIR 1989 SC 72 and the
similar view was taken to decide the
question of compulsory retirement that
the rule of audi alteram partem does not
apply in view of the decision of Union of
India vs. V.P.Seth AIR 1994 SC 1261 and
Secretary to Government v. Nityanand
Pati AIR 1993 SC 383.
Case law discussed:
AIR 1971 SC 40, AIR 1971 SC 2151, AIR 1990
SC 1004, 2001 (2) AWC 1445 (SC), AIR 1976
SC 2547 1994 Supp. (3) SCC 424, AIR 1987
SC 948, 1973 (2) Mad 485, 1995 Suppl (1)
SCC 184, AIR 1977 SC 2411, AIR 1974 SC
423, 1995 (6) SCC 162, AIR 1977 SC 854, AIR
1971 SC 1011, 1996(5) SCC 331, AIR 1980
SC1894, 1955(1) SCR 26, 1997 (II) SCC 366,
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922 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
AIR 1971 SC 40, AIR 1981 SC 70, 1997 SCC
(L&S) 1764, AIR 1992 SC 1020, 1971 SCR
791, 1997 (6) SCC 228, 1970 (2) SCC 876, AIR
1974 SC 2192, AIR 1998 SC 1661, 1993 AIR
SCW 1008, 1984 (2) SCR 453, AIR 1996 SC
1736, 2001 (3) SCC 314, AIR 1980 SC 1095,
AIR 1954 SC 369, AIR 1979 SC 193, AIR 1989
SC 72, 1995 (1) SCR 26, AIR 1976 SC 1841,
AIR 1994 SC1261, 1987 (2) SCC188,AIR 1980
SC953, AIR 1993 SC 383, 1994 SUPPL.(3) SCC
424, AIR 1971 SC 2151, AIR 1984 SC 630,
1992 (2) SCC 299, AIR 1965 All 142, AIR 1991
SC 534, 2002 (3) SCC 641, AIR 1967 SC 1260,
1973 SC 534, 1992 (2) SCC 299, 1998 (4) SCC
92, 1992 (2) SCC 317, 1998 (4) SCC 92, 1998
(9) SCC 220, 1997 (7) SCC 483, 1997 (6) SCC
381

## Text

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3 All] S.P. Misra V. Engineer-in-Chief Irrigation Department, Lucknow and others
921
therefore, the dispute of date of birth of
the petitioner being a disputed question of
fact cannot be corrected after adjudication
in the present writ petition.

In view of the aforesaid observations
the writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.09.2003

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

Civil Misc. Writ Petition No. 22875 of 1993

Surendra Prasad Misra
...Petitioner
Versus
Engineer-in-Chief,
Irrigation
Department, Lucknow and others
 ...Respondents

Counsel for the Petitioner:
Sri V.S. Dwivedi
Sri U.S. Mishra
Sri S.K. Tripathi

Counsel for the Respondents:
Sri Raj Kumar
S.C.

Constitution of India Article 11,14,226 &
311
-
Service
Law
-
Compulsory
Retirement-order
passed
in
public
interest -not by way of punishment-after
considering entire records of ServiceSuch order, not violate of provisions of
Article 11, 14 and 311 of constitutioncannot interfered.

Held- Para 28

I have heard learned counsel for the
parties.
I
find
that
the
order
of
compulsory retirement was passed after
perusing and considering all the entries
available in the service book and the
records pertaining to the petitioner by
the Screening Committee and in view of
the above analysis no opportunity of
hearing is required to be given and the
provisions of Articles 14, 21 and 311 of
the Constitution are not attracted while
passing
the
order
of
compulsory
retirement, more so the said order is
passed in the public interest and not by
way of punishment. I find no illegality
and impropriety in the said impugned
order,
therefore,
this
Court
is
not
inclined to invoke its extra ordinary
discretionary jurisdiction under Article
226 of the Constitution.

(B) Service Law- Compulsory retirementafter
considering
uncommunicated
adverse
entries-though
based
upon
general
assessment
of
performancewhether non-communication of such
entries-renders the order invalid-held,
no, as the rule of andi alteram portem
does not-apply here.

Held-Para 17

Uncommunicated adverse entries but
mostly based upon general assessment
of performance shall not render an order
of compulsory retirement invalid as the
rule of audi alteram partem does not
apply. The Supreme Court has held that
their non communication of such adverse
entry could not have the effect of
vitiating
the
order
of
compulsory
retirement (Jayanti Kumar Sinha v.
Union of India AIR 1989 SC 72 and the
similar view was taken to decide the
question of compulsory retirement that
the rule of audi alteram partem does not
apply in view of the decision of Union of
India vs. V.P.Seth AIR 1994 SC 1261 and
Secretary to Government v. Nityanand
Pati AIR 1993 SC 383.
Case law discussed:
AIR 1971 SC 40, AIR 1971 SC 2151, AIR 1990
SC 1004, 2001 (2) AWC 1445 (SC), AIR 1976
SC 2547 1994 Supp. (3) SCC 424, AIR 1987
SC 948, 1973 (2) Mad 485, 1995 Suppl (1)
SCC 184, AIR 1977 SC 2411, AIR 1974 SC
423, 1995 (6) SCC 162, AIR 1977 SC 854, AIR
1971 SC 1011, 1996(5) SCC 331, AIR 1980
SC1894, 1955(1) SCR 26, 1997 (II) SCC 366,
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922 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
AIR 1971 SC 40, AIR 1981 SC 70, 1997 SCC
(L&S) 1764, AIR 1992 SC 1020, 1971 SCR
791, 1997 (6) SCC 228, 1970 (2) SCC 876, AIR
1974 SC 2192, AIR 1998 SC 1661, 1993 AIR
SCW 1008, 1984 (2) SCR 453, AIR 1996 SC
1736, 2001 (3) SCC 314, AIR 1980 SC 1095,
AIR 1954 SC 369, AIR 1979 SC 193, AIR 1989
SC 72, 1995 (1) SCR 26, AIR 1976 SC 1841,
AIR 1994 SC1261, 1987 (2) SCC188,AIR 1980
SC953, AIR 1993 SC 383, 1994 SUPPL.(3) SCC
424, AIR 1971 SC 2151, AIR 1984 SC 630,
1992 (2) SCC 299, AIR 1965 All 142, AIR 1991
SC 534, 2002 (3) SCC 641, AIR 1967 SC 1260,
1973 SC 534, 1992 (2) SCC 299, 1998 (4) SCC
92, 1992 (2) SCC 317, 1998 (4) SCC 92, 1998
(9) SCC 220, 1997 (7) SCC 483, 1997 (6) SCC
381

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

Heard Sri U.S. Mishra learned
counsel for the petitioner as well as Sri
Raj Kumar learned Standing counsel for
the respondents.

1. The listing application is disposed
of and the writ petition is being heard
right now with the consent of the parties
under the Second Proviso to rule 2 of
Chapter XXII of the Allahabad High
Court Rules, 1952.

2. According to the petitioner, he
was
diploma
holder
in
Mechanical
Engineering
and
was
appointed on
20.8.1964 as a Junior Engineer in the
Irrigation department and while working
as a Junior Engineer the petitioner was
compulsory
retired
on
5.5.1993.
According to the petitioner his work and
performance was satisfactory and he has
received letter of appreciation during the
service and to the best of his knowledge
he was never awarded or communicated
any adverse entries, therefore, there was
no question in making any representation
in respect of adverse entry, if any. The
petitioner was compulsory retired without
looking into the records of the case and
appreciation awarded to the petitioner
without up-holding opportunity of hearing
in derogation to the provisions of Article
311 of the Constitution and Article 14 as
well as Article 21 and without observing
the norms of principles of natural justice
that too by way of punishment. According
to the petitioner many of the Junior
Engineer have been ignored whose
performance was inferior to the petitioner
and without affording and providing any
opportunity of hearing by Screening
Committee the order of compulsorily
retirement was passed. According to the
petitioner, the said impugned order is not
in public interest and has been passed
arbitrarily by a non-speaking order
without assigning any reason.

3. The counter and rejoinder
affidavits have been exchanged. On the
other hand in the counter affidavit it has
been indicated that right from the year
1984-85 upto 1992 except for one year
1991, the service record of the petitioner
was not found satisfactory. The extract of
the service record of the petitioner as
indicated in para 4 of the counter affidavit
provides as below :-
84-85

Adverse
(12.7.84 to 3.5.85)
85-86

Adverse
(12.7.85 to 22.7.85)
87-88

Adverse
(1.9.87 to 12.3.88)
88-89
Adverse Integrity not certified
89-90
Adverse
"
"
90-91
Adverse
"
"
Censure entry was recorded in the year
88-89.

4. According to the petitioner the
Screening Committee has considered all
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923
the records, entries of service of the
petitioner and has found the petitioner not
to be kept in service, therefore, following
the provisions of the Fundamental Rule
56 (c) of Chapter-II of the Financial Hand
Book Part -2 to 4 and after considering
the report of the Screening Committee the
petitioner has been compulsory retired by
the said impugned order. According to the
respondents the said impugned order has
been passed in public interest and
providing opportunity of hearing by the
Screening Committee was not required
and there is no defiance of the provisions
of Article 14, 21 and 311 of the
Constitution while looking into the
records for arriving at the subjective
satisfaction of the Screening Committee
for passing the said order of compulsory
retirement.

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

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

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

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

9. The principle of natural justice
have no place to contest of an order of
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924 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
compulsory retirement as the order of
compulsory
retirement
is
not
a
punishment. It implies no stigma nor any
suggestion of misbehaviour. Since the
action
is
taken
on
the
subjective
satisfaction of the State Government as
such there is no room for importing the
audi alteram partem rule of natural justice
in view of (Baikuntha Nath Das v. Chief
District Medical Officer, (1992) 1 SCR
836; AIR 1992 SC 1020; (1992) 2 SCC
299).

10. The order impugned in the
present writ petition has been passed
taking into consideration the material
available in the service record and on the
subjective
satisfaction
of
the
State
Government an order of compulsory
retirement may not be passed by a
speaking order, in the light of R.L. Butail
v. Union of India, (1970) 2 SCC 876 and
in view of the decision of (Union of India
v. Dulal Dutt, 1993 AIR SCW 1008).

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

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

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

14.

The
impugned
order
of
compulsory retirement is a simplicitor and
stigma is not to be drawn out of which by
speculative process as for making the
order compulsory retirement the stigma
must stems from the order itself and the
scheme endeavoured to be derived from
the
circumstances
or
possibility
or
suspicion vide the decision in the State of
U.P. v. Shyam Lal Sharma (AIR 1971
SC 2151); State of U.P. v. Ramchandra,
AIR 1976 SC 2547 and Sreshta v.
Commissioner of Income Tax, (1973) 2
MLJ 485... it has been repeatedly
pointed out by the Supreme Court that
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3 All] S.P. Misra V. Engineer-in-Chief Irrigation Department, Lucknow and others
925
Courts cannot delve into the records and
pierce the veil of the order for discovering
a stigma. What is open to the court is that
it could find out a stigma if it is apparent
on the record or otherwise clear and
springs from the order, vide the decision
in State of U.P. v. Sughar Singh, AIR
1974
SC
423;
State
of
U.P.
v.
Ramchandra and State of Bihar v.
Shiva Bhikshuk Misra, AIR 1971 SC
1011. Unless the Court is satisfied that
such a stigma stems out from the order, an
interference with an order of compulsory
retirement
is
not
envisaged
while
exercising the extra ordinary jurisdiction
under Article 226 of the Constitution in
the
light
of
(K.
Venugopalan
v.
Government of Tamil Nadu, 1979 SLJ
517).

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

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

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

17.

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

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

19.

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

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

21.

In
another
decision
(K.
Kandaswamy v. Union of India (1995) 6
SCC 162; 1995 SCC (L& S) 1361; (1995)
31 ATC 479, the Supreme Court has
again reiterated that if the appropriate
authority forms a bona fide opinion that in
view of the doubtful integrity it would not
be desirable in public interest to retain the
officer concerned in service the action
thereof cannot be challenged before the
Courts, though it is open to the aggrieved
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3 All] S.P. Misra V. Engineer-in-Chief Irrigation Department, Lucknow and others
927
party to impugn it on the ground that
requisite opinion is based on no evidence
or has not be formed on bona fide ground
or is based on collateral grounds or
arbitrary. When the order has been
passed by the competent authority on the
basis of totality of facts and circumstances
appropriate to the case the order cannot be
held to be arbitrary, unjustified or based
on no evidence. When the adverse
remarks
in
the
confidential
reports
contained a reflection on his integrity in
discharging the duty, the decision to
compulsory retire him on such adverse
remarks is held to be in public interest.
(U.P. State Mineral Dev. Corporation
v. K.C.P. Sinha (1996) 5 SCC 111; 1996
SCC (L & S) 1144).

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

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

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

When entire service record including
the record for the period prior to 1st April
1985 i.e. prior to confirmation, which
contained adverse remark was considered
it cannot be said that there was no
sufficient material for the appropriate
authority to form the requisite opinion
that further retention of service of the
respondent was not in public interest.
(Union of India v. P.S. Dhillon (1996) 3
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928 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
SCC 672; 1996 SCC (L& S) 799; AIR
1996 SC 1736).

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

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

"Though the order of compulsory
retirement is not a punishment and the
government
servant
on
being
compulsorily retired is entitled to draw all
retiral benefits, including pension, the
Government must exercise its power in
the public interest to effectuate the
efficiency. Integrity of public service
needs to be maintained. The exercise of
power of compulsory retirement must not
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3 All] S.P. Misra V. Engineer-in-Chief Irrigation Department, Lucknow and others
929
be a haunt on public servant but act as a
check and reasonable measure to ensure
efficiency in service, and free from
corruption and incompetence. The officer
would go by reputation built around him.
In appropriate case, there may not be
sufficient evidence to take punitive act of
removal from service. But his conduct
and reputation is such that his continuance
in service would be a menace in public
service and injurious to public interest."

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

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

"34. (i) An order of compulsory
retirement is not a punishment. It implies
no
stigma
nor
any
suggestion
of
misbehaviour.

(ii) The order has to be passed by the
Government on forming the opinion that
it is in the public interest to retire a
government servant compulsorily. The
order
is
passed
on
the
subjective
satisfaction of the Government.

(iii) Principles of natural justice have
no place in the context of an order of
compulsory retirement. This does not
mean that judicial scrutiny is excluded
altogether. While the High Court or this
Court would not examine the matter as an
appellate court, they may interfere if they
are satisfied that the order is passed (a)
mala fide or (b) that it is based on no
evidence or (c) that it is arbitrary, in the
sense that no reasonable person would
from the requisite opinion on the given
material; in short, if it is found to be a
perverse order.

(iv) The Government (or the Review
Committee, as the case may be) shall have
to consider the entire record of service
before taking a decision in the matter of
course attaching more importance to
record of and performance during the later
years. The record to be so considered
would naturally include the entries in the
confidential records/ character rolls, both
favourable and adverse. If a government
servant is promoted to a higher post
notwithstanding the adverse remarks,
such remarks lose their sting, more so, if
the promotion is based upon merit
(selection) and not upon seniority.

(v)
An
order
of
compulsory
retirement is not liable to be quashed by a
court merely on showing that while
passing
it
uncommunicated
adverse
remarks
were
also
taken
into
consideration. That circumstance by itself
cannot be a basis for interference."

"14. In State of Punjab v. Gurdas
Singh (1998) 4 SCC 92: 1998 SCC (L&S)
1004, it was held thus: (SCC p. 99, para
11)-
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930 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

"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."

26.

The
present
compulsory
retirement have been passed fairly,
bonafidely free from arbitrariness, in the
public interest and in the interest of the
administration and in consonance to the
fundamental rules by way of order of
simplicitor, therefore, is in consonance to
the decision of Supreme Court (1992) 2
SCC 317 P & T. Board v. C.S.N.
Murthy and on the material available in
the service record of the petitioner and in
the light of judgment of Baikuntha Nath
(supra) and AIR 1994 SC 1261 Union of
India v. N.P. Seth, (1998) 4 SCC 92
State of Punjab v. Gurudas Singh 1998
(9) SCC 220; U.P.S.R.T.C. v. Hari Nath
Singh (1997) 7 SCC 483; Union of India
v. G. Ganayuthan and 1997 (6) SCC 381
State of Punjab v. Bakshi Singh.

27. The verdict of the Supreme
Court and different decisions of the High
Court were considered earlier also by this
Court and this Court (Single Judge)
(Hon'ble R.B.Misra, J.) has taken similar
view in Writ petition no. 19966/1989
(Radha Charan Yadav Vs. Chairman,
Town Area Committee, Mathura decided
on 21.7.03, in writ petition no. 1768/92
(Bhagwan
Singh
Vs.
Distirct
Magistrate,
Mathura
and
others)
decided on 23.7.03, in writ petition no.
17445/95 (Adya Prasad Pandey Vs.
State of U.P. and others) decided on
30.7.2003 and in writ petition no. 8365/96
(Mathura Prasad Vs. State of U.P. and
others) decided on 19.8.2003, where the
order of the compulsory retirement was
not interfered with.

28. I have heard learned counsel for
the parties. I find that the order of
compulsory retirement was passed after
perusing and considering all the entries
available in the service book and the
records pertaining to the petitioner by the
Screening Committee and in view of the
above analysis no opportunity of hearing
is required to be given and the provisions
of Articles 14, 21 and 311 of the
Constitution are not attracted while
passing
the
order
of
compulsory
retirement, more so the said order is
passed in the public interest and not by
way of punishment. I find no illegality
and impropriety in the said impugned
order, therefore, this Court is not inclined
to invoke its extra ordinary discretionary
jurisdiction under Article 226 of the
Constitution.

Therefore, writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.07.2003

BEFORE
THE HON'BLE S.N. SRIVASTAVA, J.

Civil Misc. Writ Petition No. 14269 of 1988.

Sri Arvind Kumar Chaturvedi ...Petitioner
Versus
District Inspector of Schools Jaunpur and
another

 ...Respondents