# / v. State of U.P. and another

- **Citation:** (2006) 1 ILRA 300
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-02-01
- **Case number:** Special Appeal No. 834 of 1998
- **Bench:** S. Rafat Alam, Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/v-state-of-u-p-and-another-40735
- **Pages:** 6

## Headnote

Constitution of India, Art. 311 (2)-Civil
Services
(classification
Control
and
Appeals
Rules-Rule-55-readwith
Constitution of India, Article 311 (2)
Service
Law-Compulsory
retirementOpportunity
to
show
cause-held-not
required-Since
neither
attaches
any
stigma-nor implies any suggestion of mis
behavior.
Held: Para 7

The contention of the learned counsel for
the appellant that he was not afforded
opportunity which vitiates the order of
compulsory
retirement,
is
entirely
untenable and contrary to decades old
settled
law.
Order
of
compulsory
retirement is not a punishment, since it
neither attaches any stigma nor it
implies any suggestion of misbehaviour.
A similar contention was advanced as
long back as more than 50 years ago in
the case of Shyam Lal vs. State of U.P.,
AIR 1954 SC 369. One of the grounds of
challenge of the order of premature
retirement was that no opportunity or
show
cause
was
afforded
to
the
employee
concerned
against
the
proposed
premature
retirement.
Rejecting
the
said
contention
the
Hon'ble
Apex
Court
held
that
the
compulsory retirement does not amount
to dismissal or removal and, therefore, it
does not attract. Article 311 of the
Constitution or Rule 55 of the Civil
Services
(Classification,
Control
and
Appeal) Rules. It was thus, held that the
order of compulsory retirement cannot
be challenged on the ground that the
employee was not afforded opportunity
of show cause against the action sought
to be taken i.e. compulsory retirement.

AIR 1954 SC-369
AIR 1971 SC-40
AIR 1992 SC-1020
1996 (5) SCC-331
2001 (3) SCC-314
AIR 2003 SC-4303

Constitution of India Art.-14 and 16Compulsory
retirement-Order
based
upon-various adverse entries in respect
of various years-guilty of embezzlementConsidering all materials-Order can not
be termed as arbitrary.

Held: Para 12 and 13

Considering the order of compulsory
retirement passed under Fundamental
Rules 56 the Hon'ble Apex Court in
1 All] Om Prakash Pawar V. State of U.P. and another
301
Nawal Singh vs. State of U.P. & another,
AIR 2003 SC 4303 upheld the orders of
compulsory retirement passed on the
basis of scrutiny of entire past record of
service,
character
roll
and
other
material. Therefore, in the present case,
besides the adverse entries awarded to
the petitioner-appellant in respect of
various years, he was also found guilty
of the charges of embezzlement.

Considering all the aforesaid aspects and
the material available, it cannot be said
that
the
decision
taken
by
the
respondent,
retiring
the
petitionerappellant compulsorily, is arbitrary or
based on no material. In this view of the
matter, we are of the view that the
Hon'ble Single Judge has rightly upheld
the order of compulsory retirement and
the
writ
petition
has
rightly
been
dismissed.

## Text

300 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
India & others, JT 1996 (8) SC 46, the
Supreme Court held-

"...Until
the
temporary
service
matures into a permanent, he has no right
to the post."

12. In view of the aforesaid, the
petitioner being appointed on a temporary
post had no right to claim an appointment
as a retrenched employee under Section
16-EE of the Act. Consequently, I do not
find any force in the writ petition and is
dismissed accordingly. However, in the
circumstances of the case, there shall be
no order as to cost.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.02.2006

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

Special Appeal No. 834 of 1998

Om Prakash Pawar

...Petitioner/Appellant
Versus
State of U.P. and another...Respondents

Counsel for the Petitioner:
Sri R.G. Padia
Sri Prakash Padia

Counsel for the Respondents:
Sri M.S. Pipersenia

Constitution of India, Art. 311 (2)-Civil
Services
(classification
Control
and
Appeals
Rules-Rule-55-readwith
Constitution of India, Article 311 (2)
Service
Law-Compulsory
retirementOpportunity
to
show
cause-held-not
required-Since
neither
attaches
any
stigma-nor implies any suggestion of mis
behavior.
Held: Para 7

The contention of the learned counsel for
the appellant that he was not afforded
opportunity which vitiates the order of
compulsory
retirement,
is
entirely
untenable and contrary to decades old
settled
law.
Order
of
compulsory
retirement is not a punishment, since it
neither attaches any stigma nor it
implies any suggestion of misbehaviour.
A similar contention was advanced as
long back as more than 50 years ago in
the case of Shyam Lal vs. State of U.P.,
AIR 1954 SC 369. One of the grounds of
challenge of the order of premature
retirement was that no opportunity or
show
cause
was
afforded
to
the
employee
concerned
against
the
proposed
premature
retirement.
Rejecting
the
said
contention
the
Hon'ble
Apex
Court
held
that
the
compulsory retirement does not amount
to dismissal or removal and, therefore, it
does not attract. Article 311 of the
Constitution or Rule 55 of the Civil
Services
(Classification,
Control
and
Appeal) Rules. It was thus, held that the
order of compulsory retirement cannot
be challenged on the ground that the
employee was not afforded opportunity
of show cause against the action sought
to be taken i.e. compulsory retirement.

AIR 1954 SC-369
AIR 1971 SC-40
AIR 1992 SC-1020
1996 (5) SCC-331
2001 (3) SCC-314
AIR 2003 SC-4303

Constitution of India Art.-14 and 16Compulsory
retirement-Order
based
upon-various adverse entries in respect
of various years-guilty of embezzlementConsidering all materials-Order can not
be termed as arbitrary.

Held: Para 12 and 13

Considering the order of compulsory
retirement passed under Fundamental
Rules 56 the Hon'ble Apex Court in
1 All] Om Prakash Pawar V. State of U.P. and another
301
Nawal Singh vs. State of U.P. & another,
AIR 2003 SC 4303 upheld the orders of
compulsory retirement passed on the
basis of scrutiny of entire past record of
service,
character
roll
and
other
material. Therefore, in the present case,
besides the adverse entries awarded to
the petitioner-appellant in respect of
various years, he was also found guilty
of the charges of embezzlement.

Considering all the aforesaid aspects and
the material available, it cannot be said
that
the
decision
taken
by
the
respondent,
retiring
the
petitionerappellant compulsorily, is arbitrary or
based on no material. In this view of the
matter, we are of the view that the
Hon'ble Single Judge has rightly upheld
the order of compulsory retirement and
the
writ
petition
has
rightly
been
dismissed.

(Delivered by Hon'ble S. Rafat Alam, J.)

1. Heard learned counsel for the
appellant and Shri M.S. Pipersenia,
learned Standing Counsel appearing for
the respondents and also perused the order
of the Hon'ble Single Judge.

2. The special appeal, under the
Rules of the Court, arises from the
judgment of the Hon'ble Single Judge
dated
27.8.1998
dismissing
the
appellant's writ petition no.3539 of 1994.

3. The petitioner-appellant was
initially
appointed
as
Senior
field
Assistant, Sugar Cane Research Station,
Shahjahanpur in the year 1960 and was
confirmed on 28.11.1981. It appears that
he
was
suspended
on
11.7.73
to
19.8.1974. Thereafter he was again
suspended during the period 1977 to 1981
and a departmental inquiry was initiated
against him which was unltimately
culminated in the order of punishment
dated
2.9.1982
as
charge
of
embezzlement were found proved against
him and he was also required to deposit a
sum of Rs.3281.30p. The order of
punishment also provide that in future he
would not be given charge of any seed
store and agriculture farm. Besides the
above adverse entries, he was awarded
two adverse entries in the year 1988-89
and 1989-90. The screening committee
considered the matter for premature
retirement under Fundamental Rules, 56
and recommended the petitioner for
compulsory retirement. Accepting the
said
recommendation
the
competent
authority issued order dated 30.3.1993
compulsorily retiring the petitioner under
Fundamental Rule 56. Challenging the
order dated 31.3.1993 whereby the
appellant was retired compulsorily, he
filed writ petition no.3539 of 1994, which
has been dismissed by the Hon'ble Single
Judge by means of the order under appeal.

4. Learned counsel for the appellant
submits that the order of compulsory
retirement was passed without giving any
opportunity to the appellant and hence the
same is in violation of the principles of
natural justice. He further submits that the
decision is arbitrary, since on the basis of
service record of the appellant, it cannot
be said that he has outlived his utility or
has become a dead not to be retained
further in public service. He further
submits that the entries, which are too old
and
stale,
have
been
taken
into
consideration, as adverse material, in
order to arrive at the decision of
compulsory retirement, which is vitiated
in law, since the entries, which are stale,
could not have been considered at all.
Lastly, learned counsel for the appellant
submits that he was granted selection
grade, which shows that he is efficient
302 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
and fit for retention in service but
ignoring the said fact he has been retired
compulsorily, which is arbitrary and
discriminatory.

5.

Learned
counsel
for
the
respondent, however, submits that the
Hon'ble Single Judge after considering
the pleadings of the parties and the
material on record has also found that the
petitioner-appellant has outlived its utility
and,
therefore,
has
rightly
been
recommended for compulsory retirement
in public interest. He further submits that
since compulsory retirement is not a
punishment the question of affording
opportunity to the appellant would not
arise and, therefore, the Hon'ble Single
Judge has rightly dismissed the writ
petition.

6. We has given anxious thought to
the submissions advanced by the learned
counsel for the parties and perused the
record.

7. The contention of the learned
counsel for the appellant that he was not
afforded opportunity which vitiates the
order of compulsory retirement, is entirely
untenable and contrary to decades old
settled
law.
Order
of
compulsory
retirement is not a punishment, since it
neither attaches any stigma nor it implies
any suggestion of misbehaviour. A similar
contention was advanced as long back as
more than 50 years ago in the case of
Shyam Lal vs. State of U.P., AIR 1954
SC 369. One of the grounds of challenge
of the order of premature retirement was
that no opportunity or show cause was
afforded to the employee concerned
against
the
proposed
premature
retirement. Rejecting the said contention
the Hon'ble Apex Court held that the
compulsory retirement does not amount to
dismissal or removal and, therefore, it
does not attract. Article 311 of the
Constitution or Rule 55 of the Civil
Services (Classification, Control and
Appeal) Rules. It was thus, held that the
order of compulsory retirement cannot be
challenged on the ground that the
employee was not afforded opportunity of
show cause against the action sought to be
taken i.e. compulsory retirement.

8. Similar argument was advanced
in the case of Union of India vs. J.N.
Sinha, AIR 1971 SC 40. It was also urged
in the said case that the provision
empowers the competent authority to
retire
the
government
servant
compulsorily before attaining the normal
age of superannuation and has to be read
in consonance with the principle of
natural justice, else the provision itself
may be arbitrary and violative of Article
14 & 16 of the Constitution of India.
Rejecting this contention the Hon'ble
Apex Court held that it is axiomatic that
the provision in a statute of statutory rules
ought to be read consistently with the
principles of natural justice. It is so
because the presumption is that the
legislatures and statutory authority intend
to act in conformity with the principles of
natural justice. It is, however, open to the
law
making
body
to
exclude
the
application of any or all the rules of
principles of natural justice. This can be
done
by
specific
provision
or
by
necessary implication. In either event the
mandate of the legislature or statutory
authority (in the case of statutory rules)
cannot be ignored. In other words, the
rules of principles of natural justice
cannot be read into the provisions
concerned. It was further held that
whether the exercise of statutory power
1 All] Om Prakash Pawar V. State of U.P. and another
303
should or should not be done in
accordance with any of the principles of
natural justice or not depends upon the
express words of the statute, which
confers power as well as nature and
purpose of power and effect of its
exercise. It was further held that since
compulsory
retirement
is
not
a
punishment and the appropriate authority
has absolute right to retire a government
servant, if it is of the opinion that it is in
the public interest to do so, it cannot be
said that the order of compulsory
retirement can be challenged on the
ground of non-affording of opportunity of
hearing. Same view has been reiterated by
the Hon'ble Apex Court in the case of
Baikunth Nath Das vs. Chief Divisional
Medical Officer, AIR 1992 SC 1020
relevant observation, as contained in para
34, may be reproduced as under:-

"34. 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, the 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
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 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 is promoted to 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."

9. Coming to the second aspect of
the matter, whether the order impugned,
in the present case, can be said to be
arbitrary on the basis of the facts and
relevant material of the case in hand, we
find that sub Rule 2 of Fundamental Rule
56 empowers the appointing authority to
take into consideration any material
relating to the Government servant and
nothing is to be excluded from this
304 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
consideration. Same material, which is
not to be excluded, has also been
specified in the aforesaid provision. For
brevity, sub Rule (2) of Fundamental Rule
56 is reproduced below:-

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

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

10. In view of the aforesaid express
provision of Fundamental Rule 56, as
applicable in the State of U.P., it is not
permissible to raise contention that certain
material cannot be considered at all or
should not be considered. Admittedly, the
appellant has several adverse entries in
the service book, as stated above. The
competent authority after considering the
entire service record of the appellant has
arrived at the conclusion that the appellant
should be retired compulsorily, as it is in
public interest. It cannot be said that the
decision has been taken by the authorities
in the absence of any material at all. The
scope of judicial review, in the matter of
compulsory retirement, is now well
settled. The judicial review is permissible
only when the decision of compulsory
retirement is taken in the absence of any
adverse material or is vitiated on account
of bias or mala fide or is otherwise
inconsistent with the statutory provision.
In State of Orissa vs. Ram Chandra
Das, (1996) 5 SCC 331 the Hon'ble Apex
Court of the judgment held as under:-

"It is needless to reiterate that the
settled
legal
position
is
that
the
Government is empowered and would be
entitled
to
compulsorily
retire
a
government servant in public interest with
a view to improve efficiency of the
administration or to weed out the people
of doubtful integrity or who are corrupt
but sufficient evidence was not available
to take disciplinary action in accordance
with the rules so as to inculcate a sense of
discipline
in
the
service.
But
the
Government, before taking such decision
to
retire
a
government
employee
compulsorily
from
service,
has
to
consider
the
entire
record
of
the
government servant including the latest
reports." (emphasis supplied) (para 3)

11. In State of Gujarat vs.
Umedbhai M. Patel, (2001) 3 SCC 314
after review of earlier law on the subject
the Hon'ble Apex Court observed that the
law relating to compulsory retirement has
now crystallized into definite principles
and broadly has summarized the said
principles as under:

"(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.
1 All] Pan Kumari V. Board of Revenue, U.P. Allahabad and others
305
(ii) Ordinarily, the order of compulsory
retirement is not to be treated as a
punishment coming under Article
311 of the Constitution.
(iii) For
better
administration,
it
is
necessary to chop off dead-wood, but
the order of compulsory retirement
can be passed after having due regard
to the entire service record of the
officer.
(iv) Any adverse entries made in the
confidential record shall be taken
note of and be given due weightage
in passing such order.
(v) Even uncommunicated entries
in the confidential record can also be
taken into consideration.
(vi) The order of compulsory retirement
shall not be passed as a short cut to
avoid departmental enquiry when
such course is more desirable.
(vii) If the officer was given a promotion
despite adverse entries made in the
confidential record that is a fact in
favour of the officer.
(viii) Compulsory retirement shall not be
imposed as a punitive measure."

12. Considering the order of
compulsory
retirement
passed
under
Fundamental Rules 56 the Hon'ble Apex
Court in Nawal Singh vs. State of U.P. &
another, AIR 2003 SC 4303 upheld the
orders of compulsory retirement passed
on the basis of scrutiny of entire past
record of service, character roll and other
material. Therefore, in the present case,
besides the adverse entries awarded to the
petitioner-appellant in respect of various
years, he was also found guilty of the
charges of embezzlement.

13. Considering all the aforesaid
aspects and the material available, it
cannot be said that the decision taken by
the respondent, retiring the petitionerappellant compulsorily, is arbitrary or
based on no material. In this view of the
matter, we are of the view that the
Hon'ble Single Judge has rightly upheld
the order of compulsory retirement and
the
writ
petition
has
rightly
been
dismissed.

Accordingly, the special appeal,
being
devoid
of
merit,
is
hereby
dismissed. There shall, however, be no
order as to costs.
 Appeal dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.08.2005

BEFORE
THE HON'BLE JANARDAN SAHAI, J.

Civil Misc. Writ Petition No. 45747 of 2000

Pan Kumari

...Petitioner
Versus
Board of Revenue, U.P. at Allahabad and
others

...Respondents

Counsel for the Petitioner:
Sri G.N. Verma
Sri R.C. Singh
Sri S.D. Pandey

Counsel for the Respondents:
Sri Anuj Kumar, A.S.C.
Sri Radhey Shyam
Sri H.R. Misra
Sri Trevini Shanker
Smt. Sarita Dubey
S.C.

U.P.Z.A. & L.R. Act-1956- 18,229-B,209
Section limitation for filing suit After
date of vesting become bhumidhar-No
limitation for institutions of Suit-except
the land covered under section 189-if
already dispossessed-suit shall be filed
under section 209.