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Executive Officer And Anr. vs Kishan Singh

High Court Of Judicature at Allahabad|01 June, 2004


ORDER M. Katju, J.
1. This special appeal has been filed against the judgment of the learned single Judge dated 5.7.1999 by which the learned single Judge had allowed the writ petition against the order of compulsory retirement.
2. We have carefully perused the impugned judgment and have heard learned counsel for the parties.
3. We find no infirmity in the Judgment of the learned single Judge.
4. It appears that the only material against the petitioner was an adverse entry dated 30.6.1989 but that was not communicated to the writ petitioner.
5. Two Division Bench decisions of this Court, being State of U. P. v. M.C. Maheshwari, 1995 (71) FLR 84 and Sri Dilawar Singh Paul v. State of U. P., 1996 AWC (Suppl) 733 ; 1997 (1) ESC 324 (All) have distinguished the Supreme Court decision in Baikunth Nath Das v. Chief Medical Officer, AIR 1992 SC 1020, and have held that that decision will not apply in Uttar Pradesh because in Uttar Pradesh the law of compulsory retirement is different from that in Orissa.
6. In U. P. the law is governed by the U. P. Fundamental Rule 56 (Amendment) Act 1976 which provides 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 before he was promoted to any post in an officiating or substantive capacity or on an ad hoc basis ; or
(b) an 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."
7. A perusal of Clause (2) (b) shows that the authority which is to pass the order of compulsory retirement must consider the representation which is pending against an adverse entry. Now there can be no representation if the adverse entry is not communicated. Hence, it is Implicit in the said clause that the entry must be communicated to the concerned employee so that he has an opportunity, of making a representation against the entry. Hence an uncommunicated entry cannot be relied upon for passing an order of compulsory retirement.
8. Since the entry was uncommunicated it cannot be taken into consideration.
9. As such there is no material on the basis of which the order of compulsory retirement could have been passed. The appeal is dismissed.
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Executive Officer And Anr. vs Kishan Singh


High Court Of Judicature at Allahabad

01 June, 2004
  • M Katju
  • R Tripathi