Durga Prasad Sharma vs State of U.P. and Others

Paritosh K. Mukherjee, J.—This writ petition was filed by Durga Prasad Sharma, the Petitioner herein, inter alia, challenging the impugned order of compulsory retirement dated 30.3.1990, set out at Annexure-8 to the writ petition.

The said order written in Hindi, if reproduced in English, will reveal that in exercise of powers contained in Fundamental Rule 56 (c) of the Financial Hand Book Vol. II to IV, I.R.C. Tolia, Milk Commissioner, Dairy Milk Development, U.P., Lucknow, who is the appointing authority of the category and post on which Sri Durga Prasad Sharma, Government Milk Supervisor Is posted is hereby directed that Sri Durga Prasad Sharma shall be deemed to be compulsorily retired with effect from afternoon from the date of passing of the order dated 30.3.1990 and he will be entitled for the salary for the period of three months in lieu of service and other allowances which he was drawing immediately before proceeding to his retirement.

The aforesaid impugned order of compulsory retirement has been challenged by the Petitioner, inter alia, on following grounds:

(i) Because, the retirement order has been passed illegally, arbitrarily and in colourable exercise of powers. As such the same is liable to be set aside.

(ii) Because, while passing the retirement order, adverse entry against which the representation is pending was taken into consideration which should not have been taken into account. As such the retirement order was passed illegally, arbitrarily and is liable to be set aside.

Sri V. K. Singh, learned Counsel appearing for the Petitioner drew attention to the contents of paragraph 8 of counter affidavit, in which the adverse entry with effect from 21.7.1987 to 31.12.1987 for the assessment year 1987-1988 has not been disputed. As such, according to learned Counsel the adverse entry in the year 1987-88 has been wrongly treated as it has been given for the year 1986-87.

The representation filed by the Petitioner for the adverse entry for the period 21.7.1987 to 31.12.1987 has been rejected by the order dated 8.2.1990 as being time-barred.

When this writ petition was moved before Hon''ble V. N. Khare, and Hon''ble H. C. Mittal, JJ. on 17.4.1990 as at that time this petition was cognizable by a Division Bench, their Lordships granted no interim order, staying the operation of the impugned order of compulsory retirement dated 30.3.1990.

When this writ petition came up for hearing before me on 12.9.1996, this Court supplied references of two decisions, namely, the decision of Hon''ble Supreme Court in the case of T. Ramegowda Vs. R. Krishnamurthy and others, and the decision of this Court in the case of Uma Kant Tripathi v. State of U.P. and Ors. 1996 (1) AWC 422 (DB) : (1996) 1 UPLBEC 417.

In the case of S. Ramachandra Raju (supra), the Supreme Court, inter alia, observed as follows:

In the instant case, the exercise of power by the Government falls in the category of arbitrary exercise of power for failure to take the total record of service into consideration. The Government has taken only the solitary adverse report for the year 1987-88 as a foundation to compulsorily retire the Appellant from service. The Review Committee as well considered only that report, neither earlier reports nor subsequent reports were considered. Admittedly the Appellant was promoted as a Reader after the adverse report and the adverse comments were communicated to him and in a mechanical way they rejected the representation to expunge the adverse remarks, even without going into the contention of the Appellant that the then Principal was actuated with mala fides by submitting wrongly or falsely in confidential reports which appear to have some foundation or suspicion for such a contention. Consistent record earlier and later periods would establish that the Appellant has meritorious record of service as a teacher and that his devotion to the service is good and fair and that he maintains discipline, good relations with the students and imparts teaching to the students fairly with good knowledge as a teacher. Therefore, in that background the exercise of power of compulsory retirement is illegal.

The judgment rendered in the case of Uma Kant Tripathi (supra), which was based on the doctrine of washing off, however, cannot come in the aid to the present Petitioner, as the Petitioner''s representation against the adverse entry has been subsequently rejected in the month of June, 1990 after passing of the impugned order of compulsory retirement dated 30.3.1990.

Be that as it may, the doctrine of washing off, which has been relied on the basis of a decision by the Apex Court in the case of The State of Punjab Vs. Dewan Chuni Lal, , applies in full force in the present case, as in this case, the Petitioner had been given monetary awards twice for the commendable work done by him, firstly by order dated 31.3.1987 and secondly by order dated 30.3.1988, subsequent to the solitary adverse entry.

On the other hand Sri U. K. Pandey, learned standing counsel, however, on the basis of the facts stated in the writ petition and the principle laid down by Supreme Court as well as by this Court from time to time is not in position to support the said order of compulsory retirement dated 30.3.1990, as admittedly the Petitioner has been awarded solitary adverse entry, referred to hereinabove, on the basis of which the impugned order of compulsory retirement has been passed.

Having heard the learned Counsel for the parties, this Court is of the view that indeed the power to pass compulsory retirement vests with the Respondents, if it is exercised bonafidely in public interest, and in accordance with the provisions laid down in Financial Hand Book Vol. II to IV and Fundamental Rules.

In the instant case, in view of this Court such power has not been exercised according to the rules in view of the decision of Supreme Court, referred to hereinabove.

Accordingly, this Court is of the view that the compulsory retirement dated 30.3.1990 which was taken to have been passed in public interest cannot be upheld, and is, therefore, liable to be quashed.

The Petitioner who is due to retire in the end of December, 1996 will be entitled to join his services, and will be entitled to full back salary and other consequential benefits, treating that the order of compulsory retirement dated 30.3.1990 has been never passed.

The writ petition is allowed to the extent indicated above. There will be no order as to costs.