Chandrika Rai vs State of U.P.and Others

I. S. Mathnr, J.—The petitioner prays for a writ in the nature of certiorari quashing the order dated 1611993 (Annexure1 to the petition), retiring the petitioner compulsorily.

The petitioner was appointed on the post of Consolidation Lekhpal and joined the service on 681967. He has been compulsorily retired by order dated 1611993. According to the petitioner he was never communicated any adverse confidential remark and his work and conduct was satisfactory. He was also allowed to cross the efficiency bar with effect from the due dates and was also give increments. His integrity was also always certified. There was no material against the petitioner warranting compulsory retirement and, accordingly, the order is arbitrary and has been passed in mala fide exercise of power.

A counteraffidavit has been filed on behalf of the opposite parties. It is alleged that the petitioner was awarded adverse entry in the year 196970, 199192 and in the year 197980 .his work was found to be ordinary. It is stated that the petitioner has been compulsorily retired on the basis of the entry recorded in 199192 and his work being not satisfactory presently, The allegations of the petitioner that no adverse entry was ever communicated to him and that he was allowed to crossefficiency bar and was also given due increments, have not been controverted.

The petitioner has filed a rejoinder affidavit wherein the allegations of the writ petition have reiterated.

I have heard the learned counsel for the petitioner and learned Standing Counsel and in, my opinion, the impugned order cannot be sustained. The opposite parties were repeatedly asked to produce record relating the service of the petitioner ; this record was not produced in spite of repeated opportunities being given. Accordingly, there is no option but to draw an adverse inference against the opposite parties.

It is settled law that in considering the question of compulsory retirement entries of remote past cannot be seen and the entries of later years only should be taken into considerationBaikunath Das v. Chief Medical Officer, AIR S992 SC 1020. It has been held in this case that while considering the record of the petitioner more importance should be attached to the performance of the later years. In Baldev Chadda v. Union of India and others, AIR 1981 SC 70 Hon''ble Supreme Court has observed that entries of five years should be seen and it is unjust to see the entries of remote past.

In the present case, the opposite parties have stated in Para 5 of the counter affidavit that there were adverse entries in the years 196970, and 199192, It is also stated that in the year 197980, the work of the petitioner was found to be average. The entry of 196970 is quite obviously of remote past. The entry for the year 197980 cannot be considered to be adverse and should not be taken into consideration for the reason that it was an entry of remote past. In fact, it would appear from the allegations in Para 8 of the counteraffidavit that the only entry taken into consideration is the entry of 199192. As indicated above, the opposite patties did not produce the service record of the petitioner and accordingly it is difficult to accept the bare submission of the opposite parties particularly in view of categorical statement of the petitioner that no adverse entry was ever communicated to him. As stated above, this fact, has not been controverted at all. Accordingly, there would appear to be no material against the petitioner on the basis of which an order of compulsory retirement could have been passed.

The learned counsel for the petitioner also placed before me a copy of the judgement and order dated 19121995 in W. P. No. 1673 (S/S) If 1993, Devi Shankar Lai v. The Consolidation Commissioner and others with the submission that in that case also similar order, passed by the same authority, was challenged and was quashed by this Court in similar circumstance, it was submitted by the learned counsel that similar orders of compulsory retirement were passed against 20 officers on the same day. In that case, there was an adverse entry in 198485 categorising the petitioner as average and in the year 198990 his work was categorisesd as bad. This court observed that the record of the remaining period from 1982 to 1992 was good; Integrity of the petitioner was certified. Considering the entire facts the court held that the record of the petitioner cannot be said to be of such kind for which he could be retired compulsorily in public interest.

Considering the facts and legal position stated above, the order of compulsory retirement passed against the petitioner is clearly arbitrary and is violative of Article 14 of the Constitution. There was obviously no admissible material before the concerned appointing authority to come to the conclusion that the petitioner is a deadwood and needs to be retired. The writ petition is accordingly liable to be allowed.

The writ petition is allowed. A writ Jin the nature of certiorari is issued quashing the order dated 1611993. The petitioner will be deemed to be continuing in service and will be entitled to all consequential benefits, including arrears of salary. The arrears of salary, as may be found due in accordance with rules, shall be paid within three months of the date a certified copy of this order is produced before the concerned opposite party.