State of U.P.and another vs Mahesh Chandra Maheshwari

M. Katju, J.—This special appeal has been filed against the judgment of the learned Single Judge in Writ Petition No. 4055 of 1990, decided on 27.1.1992,

We have heard the learned Standing Counsel, for the appellants and Sri P. C Agarwal, for the respondent.

The petitioner filed the writ petition challenging the order of his compulsory retirement dated 31.3.1990. This writ petition has been allowed by the learned Single Judge on two grounds; firstly, that the entries for the years 197879 and 197980 have been taken into consideration although the petitioner crossed his efficiency bar on 1.8.1984, and secondly, that uncommunicated adverse entries for the year 198788 have been taken into consideration. For both these reasons, the learned Single Judge was of the view that the impugned order of compulsory retirement was illegal and liable to be set aside. Aggrieved, the State Government has filed this appeal before us.

As regards the first ground for setting aside the order of compulsory retirement, we are not in agreement with the learned Single Judge. In this connection, it may be mentioned that in Uttar Pradesh, the law regarding the compulsory retirement is contained in U. P. Fundamental Rules 56 (Amendment) Act, 1976. Clause (2) of the same states as follows :

"(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.

(2A) Every such decision shall be deemed to have been taken in the public interest."

A perusal of clause (2) (a) makes it clear that entries even prior to crossing of efficiency bar can be taken into consideration for passing the order of compulsory retirement.

However, we are of the opinion that the learned Single Judge was right in holding that uncommunicated entries for the year 198788 could not have been taken into consideration. In this connection, it may be mentioned that this Court in the case of K. P. Sonkar v. State of U. P. and another, (1993) 2 UPLBEC 1049, has distinguished the judgment of the Hon''ble Supreme Court in the case of Baikuntha Nath Das and another v. Chief District Medical Officer, Baripada and another, AIR 1992 SC 1020. In the case of Baikuntha Nath Das (supra) the Supreme Court held that uncommunicated entries can also be taken into consideration for passing the order of compulsory retirement. However, in the case of K. P. Sonkar (supra), this Court distinguished the judgment of the Supreme Court in Baikuntha Nath Das'' case and held as follows :

"It has no doubt been held by the Supreme Court in Baikuntha Nath Das V. Chief Medical Officer, AIR 1992 SC 1020 that even an uncommunicated adverse entry can be taken into consideration while passing an order of compulsory retirement. However, in my opinion the decision is distinguishable, and it will have no application to U. P. Government employees to the extent that it says that an uncommunicated entry can be relied upon. It may be noticed that Baikuntha Nath Das case related to an employee of the Orissa Government. The law in Orissa regarding compulsory retirement is different from the law in U. P. In U. P. the law regarding compulsory retirement was amended by the U. P. Fundamental Rule, 56 (Amendment) Act, 1976 which introduced a new Clause (2) to the U. P. Fundamental Rule 56."

The reasoning of the learned Single Judge was that since Clause (2) (b) of the aforesaid U. P. Fundamental Rule, 56 (Amendment) Act, 1976 provides that, any representation which is pending against an adverse entry is also to be taken into consideration before passing the order of compulsory retirement hence it is implicit that the entry must be communicated, otherwise there can be no representation against it. This Court in K. P. Sonkar''s case (supra) held that the decision in Baikuntha Nath Das'' case would not be applicable to U. P. Government servants because the law in U. P. regarding compulsory retirement is different from that in Orissa. It may be mentioned that Article 309 of the Constitution states that the Governor of a State can make rules regarding Government servants until provision in that behalf is made by or under an Act by the Legislature. Since in U. P., the Legislature has enacted the U. P. Fundamental Rule, 56 (Amendment) Act, 1976, hence it is obvious that the earlier rules would not be applicable and the law of compulsory retirement relating to U. P. Government servants is regulated by a U. P. Act, the relevant portion of which has already been quoted above. Thus, in our opinion, the judgment of the Supreme Court in Baikuntha Nath Das'' case (supra) is distinguishable. It may be mentioned that another Hon''ble Single Judge (Hon''ble Virendra Saran, J.) has also followed the decision of this Court in K. P. Sonkar''s case (supra) in his decision in Rajjan Lal Srivastava v. State of U. P., 1994 LCD 639. We are in agreement with the decision of this Court in K. P. Sonkar''s case (supra) and hold that uncommunicated entries cannot be relied upon for passing an order of compulsory retirement against a U. P. Government servant.

We are further of the opinion that since the order of compulsory retirement was passed taking into consideration several adverse entries and even if one of the adverse entries could not have been validly taken into consideration, then the whole order of compulsory retirement becomes bad because it is not possible for us to determine whether in the absence of such an adverse entry the order of compulsory retirement would still have been passed. Moreover, the entry for the year 198788, which was uncommunicated, was the latest entry and hence it had the maximum bearing in the matter, being the latest one. It has been held in Baikuntha Nath Das'' case (supra) that the recent entries carry more weight than the old ones. Hence it was incumbent upon the appellants to have communicated the adverse entries for the year 198788 to the respondent.

In para 3 of the writ petition, it has been alleged that the only adverse entries communicated were for the period August, 1978 to 31st March, 1979, 1st April, 1979 to June, 1979 and 1st April, 1984 to 7th July, 1984. In the counter affidavit, it has been stated in para 4 that there were adverse entries for the year 198788, but in the rejoinder affidavit it has been stated in para 4 that these were not communicated to the petitioner. The learned Single Judge has also found that the adverse entries for the year 198788 were not communicated to the respondent and we agree with his view.

For the aforesaid reasons, there is no force in the appeal and it is accordingly dismissed. No order as to costs.

(Sepcial appeal dismissed)