Nishith Verma vs Registrar General, High Court Of ...

1. The petitioner Nishith Verma aggrieved by order dated 11th January, 2007 (Annexure 3 to the writ petition) issued by Registrar General communicating decision of Hon'ble Chief Justice compulsorily retiring him in exercise of power under Fundamental Rule 56(c) from the post or Review Officer has sought a writ of certiorari quashing the aforesaid order in this writ petition filed under Article 226 of the Constitution of India.

2. The brief facts, as averred in the writ petition, are that the petitioner was appointed as Routine Grade Assistant on 26th July, 1976, confirmed on the said post on 11th January, 1980, promoted as Lower Division Assistant on 1st August, 1983 and confirmed on the promoted post on 1st August, 1987. The petitioner's conditions of service are governed by Allahabad High Court Officers and Staff Rules, 1976 (hereinafter referred to as "1976 Rules"). He was further promoted to the post of Upper Division Assistant on 14th August, 1996.

3. During the aforesaid period, he was elected and functioned as General Secretary, High Court Employees Association, from 1983 to 1996 and thereafter from 2003 to 2006. He is also holding the office of President, High Court IVth Class Employee Association since 1986. He was also elected as Secretary General of All India High Court Employee Association for the period of 1983 to 1986, 1988 to 1990, 1992 to 1994, 1994 to 1996, 1997 to 1999 and 2003 to 2007. He alleges that during this period being an office bearer of Association of Employees, for representing others, he used to met the officials of this Court and faced harassment in the hands of respondents. An enquiry was initiated against him on the allegation of entering the chamber of the then Hon'ble Senior Judge B.N.Katju on 8th July, 1988 in respect whereto a charge sheet was issued to him and enquiry commenced in 1988. The alleged enquiry was not completed soon showing his harassment for last eighteen years.

4. He was awarded adverse entry by Registrar in 1991-92 illegally. In 1994, departmental enquiry was initiated against him on the allegation of impersonation as a Hon'ble Judge of this Court (Anshuman Singh J as His Lordship then was). It is said that this enquiry was dropped on 17th January, 2007, as communicated by Registrar General's letter dated 18th January, 2007. In the aforesaid enquiry, however, he was placed under suspension on 03.11.1999 which continued till the dropping of proceedings.

5. There is no adverse entry in service record of petitioner since 1996 when he was promoted as Upper Division Assistant and in these circumstances the order of compulsory retirement is wholly arbitrary, illegal, unreasonable. It is not in public interest, unsustainable in the eyes of law, lacks objective consideration and without there being any material adverse to the petitioner justifying said order. No Screening Committee was constituted to examine the case of petitioner and compulsory retirement in effect is punishment having been awarded without any opportunity and is violative of Article 14 of Constitution of India. The order of compulsory retirement is vitiated on account of mala fide and suffers from malice in law and fact. It is also discriminatory, inasmuch as, other officers, against whom enquiry was initiated, but dropped, have been promoted but the petitioner has been discriminated by ordering premature retirement. There exists no adverse entry against petitioner since 1996 and hence no person of reasonable prudence would come to the conclusion arrived at by the respondents, hence, the impugned order is arbitrary, disproportionate, unsustainable in law, cryptic, without application of mind, based on erroneous assumption, capricious exercise of power, result of adoption of wholly erroneous and illegal procedure and has resulted in manifest injustice, contrary to law.

6. The respondents have filed counter affidavit stating that the order of compulsory retirement has been passed after assessment of performance of petitioner and finding that his continuance is not in "public interest". The respondents have formed opinion bona fide. The principles of natural justice are not attracted since compulsory retirement under fundamental rule 56 is not a punishment. It is said that in first promotion to the post of Lower Division Assistant, petitioner was considered by Selection Committee. Vide report dated 09.12.1982, it found petitioner unfit, therefore he was not given promotion from due date while juniors were promoted w.e.f. 28.12.1982.

7. He was promoted subsequently by order dated 28.07.1983 w.e.f. 01.08.1983 and was confirmed accordingly.

8. Similarly, before promotion to the post of Upper Division Assistant, the matter was considered by a Committee comprising of Hon'ble Justice A.K.Banerji, who submitted report on 10.07.1995, approved by the then Chief Justice on 22.07.1995, that work and conduct of petitioner should be watched for at least one year before considering him for promotion. Accordingly, he was promoted on 14.08.1996 but has not been confirmed on the said post.

9. With respect to departmental enquiry initiated on the allegation of entering the Chamber of Hon'ble Justice B.N.Katju on 08.07.1998, it is said that proceedings were initiated in view of the order of Hon'ble B.N.Katju, J. passed on 03.08.1988, as under:

"Registrar On 08.07.1988 I had directed you to obtain a written explanation from Sri Nishith Verma for entering my chamber during lunch without my permission, and to place it before me. This has not been done so far. It must be done within a week."

10. Thereupon explanation was obtained from petitioner, which he submitted on 08.08.1988. The same was place before the Hon'ble Senior Judge who passed order on 08.08.1988 as under:

"The explanation furnished by Sri Nishit Verma that he obtained permission from one of my Private Secretaries to enter my chambers on 08.07.1988 during lunch appears to be incorrect as this has been denied by my Private Secretaries. Necessary inquiry may be made and suitable action may be taken against Sri Nishith Verma for entering my chamber on 08.07.1988 during lunch without my permission."

11. Thereafter a preliminary enquiry was conducted and a preliminary enquiry report was submitted on 25.08.1988. The Registrar passed an order for regular enquiry on 15.11.1988 appointing Joint Registrar as enquiry officer authorising him to issue a charge sheet and hold enquiry in accordance with rules. The charge sheet approved by Registrar on 08.07.1992 was issued to the petitioner in respect whereto he sent a letter dated 13.10.1992 demanding authenticated typed version.

12. Thereafter departmental enquiry commenced wherein the petitioner submitted an application requesting to summon Hon'ble B.N.Katju J. for cross examination, besides the two Private Secretaries of the Hon'ble Judge as also the Joint Registrar, who conducted preliminary enquiry i.e. Sri Umeshwar Pandey (as he then was). The statements of two Private Secretaries were recorded. The Enquiry Officer declined petitioner's request for summoning Hon'ble B.N.Katju J and Umeshwar Pandey, the then Joint Registrar for cross examination. The enquiry report was submitted on 06.06.2002. The Registrar General, holding petitioner guilty, imposed punishment of "Censure" which was communicated to the petitioner vide letter dated 08.01.2003. The same was received by him on 11.03.2003. These facts have been stated in paras 23 and 24 of counter affidavit and in para 12 of the rejoinder affidavit, the same have not been denied.

13. Further, in 1991-92, an adverse entry was recorded in his character roll by the then Registrar on 01.04.1992 and this was communicated to the petitioner also. The entry reads as under:

"From the record it appears that Sri Nishith Verma misbehaved with the then Registrar Sri A.S.Tripathi (now Hon'ble Judge of this Court) and manhandled him. He was removed from service but later, on his apology order of removal was recalled and following warning was issued to him:

He is warned that any further act or indiscipline would attract immediate disciplinary action."

14. The petitioner's matter of promotion on the post of Upper Division Assistant was considered by a Committee comprising of Hon'ble A.K.Banerji J, who made following recommendations in its report dated 10.07.1995:

"....in view of the entry dated 01.04.1992 in his Character Roll and the warning dated 03.10.1991 issued by the Chief Justice as referred to above, on an over all assessment of entries in the Character roll and the records the committee is of the opinion that, the work and conduct of Nishith Verma should be watched for at least one more year before his case is considered for promotion."

15. Consequently, petitioner's promotion was deferred and it was made later on. The petitioner was promoted on 14.08.1996 as Upper Division Assistant (the post was re-designated as Review Officer).

16. A Vigilance Bureau Enquiry No.15/97 was instituted against the petitioner vide Chief Justice's order dated 14.06.1997. The petitioner along with certain other officer of this Court had visited Nagpur wherein he impersonated himself as Justice Anshuman Singh, sitting Judge of this Court at the relevant time and enjoyed V.I.P. Facilities during 'Sojourn' of All India High Court Employees Federation, celebrated at Nagpur on 09.04.1994. The Officer on Special Duty [Enquiry (Vigilance)] submitted report on 23.10.1997 holding petitioner prima facie guilty. Thereupon the Hon'ble Chief Justice on 01.11.1999 passed an order for placing the petitioner under suspension and also for lodging an F.I.R. against him. A departmental enquiry was initiated against petitioner. He was placed under suspension on 03.11.1999. A charge sheet (amended) was issued to the petitioner on 04.04.2001 containing four charges. Earlier, Sri A.K.Singh, Registrar (Budget) was appointed Enquiry Officer but later on Sri T.M.Khan, O.S.D. (Litigation) was appointed Enquiry Officer, who conducted regular departmental enquiry and submitted its report on 18.01.2003. The report of Enquiry Officer was not accepted by the Hon'ble Chief Justice, who, disagreeing with the enquiry report, took a view that all charges are proved against petitioner and issued a show cause notice communicating his disagreement to the petitioner vide order dated 13.09.2003. In pursuance whereto a show cause notice was issued to the petitioner and other persons.

17. In the meantime, the petitioner's case was considered under Fundamental Rule 56. The Hon'ble Chief Justice, after going through the service record of the petitioner, passed order dated 10.01.2007 as under:

"Let him be compulsorily retired with immediate effect. As soon as retirement becomes final, suspension period to be treated as on duty, with all consequences but not before."

18. Consequently, order of compulsory retirement was issued to the petitioner. Since he was compulsorily retired, there was no occasion to pass any further order on show cause notice issued to the petitioner pursuant to the departmental enquiry. Therefore, vide order dated 17.01.2007, the said proceedings were dropped.

19. It is said that there is a warning administered to the petitioner by the Chief Justice on 03.10.1991 which reads:

"The three employees are warned that any further act of indiscipline would attract immediate disciplinary action. The file may be closed for the present."

20. Another adverse entry awarded to the petitioner on 06.01.1982 reads as under:

"Found to be very careless in his work in as much as he failed to make proper and complete entries in respect of about a thousand cases in the Institution Register of Writ Petitions for the year 1981, is in the habit of remaining absent from his seat for hours together without the permission of the Section Officer and has scant regard for his superior officers. Severely warned."

21. There are certain further adverse entries which have been quoted in para 38 and are being reproduced as under:

Entry for the year 1981-82:

"An unwilling worker. Integrity Certified."

Entry for the year 1983-94:

"Keeps arrears. Often not available on seat."

Entry for the year 1985-86 "Loiters all day long after filling attendance and neglects his work. Absents himself without application."

22. The petitioner in rejoinder affidavit has virtually reiterated what he has said in writ petition. With respect to the entries of 1981 and onwards, he submits that consideration thereof itself shows that the respondents have acted arbitrarily.

23. I have heard Sri Arvind Srivastava, learned counsel appearing for the petitioner and Sri Praveen Kumar holding brief of Sri Pradeep Kumar, learned counsel for the respondents and perused the record.

24. Besides oral submissions, petitioner's counsel has also filed written arguments. He has challenged impugned order of compulsory retirement mainly on four grounds:

(i) It is unreasonable and arbitrary;

(ii) There is no "public interest" in retiring the petitioner and the orders suffers from manifest illegality;

(iii) It is by way of punishment and has been passed without affording any opportunity; and

(iv) It is mala fide exercise of power and is discriminatory.

25. In support of aforesaid submissions, he has placed reliance on various authorities of the Apex Court i.e. M.S.Bindra Vs. Union of India 1998 (7) SCC 310 (Para 11 & 13), State of Gujarat Vs. Suryakant Chunilal Shah 1999 (1) SCC 529 (Paras 19, 20, 21, 22 & 27), Madan Mohan Choudhary Vs. State of Bihar 1999(3) SCC 396 (Para 40), Rajat Baran Roy Vs. State of W.B. 1999 (4) SCC 235 (Para 16), High Court of Punjab & Haryana Vs. Ishwar Chand Jain 1999 (4) SCC 579 (Paras 24 & 30), Badrinath Vs. Govt. of T.N. 2000 (8) SCC 395 (Paras 22, 36, 40, 49, 50, 53, 54, 55, 56 & 58), State of Gujarat Vs. Umedbhai M. Patel 2001 (3) SCC 314 (Para 12), M.P. Electricity Board Vs. shree Baboo 2002 (9) SCC 704 (Para 1), R.K.Panjetha Vs. Haryana Vidyut Prasaran Nigam Ltd. (2002) 10 SCC 590 (Para 4), Union of India Vs. R.C. Mishra (2003) 9 SCC 217 (Para 5), State of U.P. Vs. Chater Sen (2005) 9 SCC 592 (Para 4), Pritam Singh Vs. Union of India (2005) 9 SCC 748 (Paras 20 & 21), Swaran Singh Chand Vs. Punjab SEB (2009) 13 SCC 758 (Paras 8 & 18) and M.P.State Coop. Dairy Federation Ltd. Vs. Rajnesh Kumar Jamindar (2009) 15 SCC 221 (Para 35).

26. Great stress has been laid by learned counsel for the petitioner that old entries before petitioner's promotion have lost their worth being stale, and, therefore ought not to have been considered. In any case, the said entries, if considered, should have been looked into with the further circumstances that the petitioner was promoted and confirmed on a higher post. The criteria for promotion was 'merit' and confirmation has also been done on 'merit', as provided in Rule 14 and 33 of 1976 Rules. It is also contended that from counter affidavit it appears that only two entries basically have been considered, one 'censure' recorded on 21.11.2002 and another 'warning'. Consideration of only those entries, ignoring entire record of the petitioner, which is favourable to him, renders consideration of the petitioner's case arbitrary and malicious in law, rendering order of compulsory retirement a punishment. Besides, it is also discriminatory since others, who have been exonerated in departmental enquiry, have not been touched while only the petitioner has been singled out. Further that the petitioner's matter has not been considered by Screening Committee and there is no material on record against him.

27. The respondents have referred to certain authorities in the counter affidavit namely S.Ramchandra Raju Vs. State of Orissa 1994 Supp (3) SCC 424, State of Punjab Vs. Gurdas Singh (1998) 4 SCC 92, State of Orissa Vs. Ramchandra Das (1996) 5 SCC 331, State of U.P. & Anr. Vs. Bihari Lal AIR 1995 SC 1161 and in view of the facts stated in the counter affidavit, supported the impugned order of compulsory retirement and contended that the writ petition deserves to be dismissed with costs.

28. The concept of compulsory retirement now is well accepted and established kind of a condition of service in service jurisprudence. Sometimes it is also called pre mature retirement. To start with, compulsory retirement was a form of cessation of an employee when employer finds that for maintenance of efficiency of department etc., his continuance may not be desirable but simultaneously, the employer also did not intend to cause any penal effect on the employee concerned and also to allow him to retain all his benefits, which he has earned after rendering service for a particular length of time, and, thus compulsory retirement used to be resorted. Later on when the statutory rules were framed, it was also included as one of the punishment but the later form is not applicable in all cases inasmuch as, in the State of Uttar Pradesh, particularly in the present case also, the disciplinary and appeal rules regulating the employees like the petitioner do not include any punishment of compulsory retirement. Therefore so far as the present case is concerned, I may clarify that under the terms and conditions applicable to the petitioner, compulsory retirement can be resorted only under fundamental rule 56 which is not by way of punishment but can be resorted to only when an opinion to this effect is formed by the appointing authority in 'public interest', otherwise compulsory retirement, as a punishment, cannot be imposed upon on employees like petitioner as no such punishment is provided under the rules.

29. The concept of compulsory retirement in the context of the employees under the British Government, I could trace to a resolution No.1085-E-A dated 15.11.1919, whereby a new set of Rules relating to Retirement and Pension of the officers other than military officers or members of Indian Civil Service, was published in the Gazette of India, Finance Department, with the approval of Secretary of State of India. Rule 4 of the said rules state that government will have an absolute right to retire any officer after he has completed 25 years without giving reason and without any claim of compensation in addition to pension.

30. When the Government of India Act, 1919 was enacted, the aforesaid notification was in operation. It thus continued by virtue of Section 96-B (4) of Government of India Act 1919 (hereinafter referred to as "GOI Act 1919"). Vide resolution No. 714-CSR dated 10.5.1920 it was made clear that Government of India intended to publish rules published in resolution dated 15.11.1919 in the form of amendment to the Civil Services Regulation (hereinafter referred to as "CSR"). Accordingly, vide gazette dated 19.6.1920 amendment in CSR was published for general information. The amendment caused insertion of Articles 465 and 465-A in CSR. A minor amendment came in 1922 but it being not of much relevance, I am not referring the same.

31. Article 465-A was considered in Shyam Lal Vs. State of U.P., AIR 1954 SC 369. The Court after tracing history of Article 465-A and power of government to retire its employees after certain length of service, held, that compulsory retirement is not a punishment offending Article 311 of Constitution of India. In England, public officer hold the office at the pleasure of the Crown. The service of civil servant could be terminated without assigning any reason and no action can be maintained in the King's Court for damages for wrongful dismissal. The said principle was applied even to East India Company and also to civil servants after the British Crown took over the territories and administration from East India Company in 1857. The said state of affairs reflected when Section 96-B of GOI Act, 1919 was enacted maintaining that the tenure was during his Majesty's pleasure. The position as such continued in the subsequent Government of India Act, 1935 and also in the Constitution in independent India where the "doctrine of pleasure" was reiterated in Article 310. However, the said reiteration was a bit narrowed down with addition of Article 311 which contains certain procedural safeguards to a civil servant before a punishment is imposed upon him. The Apex Court considered the difference between dismissal, removal and compulsory retirement. It held that dismissal or removal causes loss of certain benefits already earned by an employee. A dismissed or removed employee would not get pension, which he had earned. An officer compulsory retired, does not loose any part of benefit that he has earned. He is entitled for pension etc. provided in the rules. There is no deprivation of accrued benefits. It is true that the employee may consider himself punished, but there is a clear distinction between loss of benefits already earned and loss of prospect to earn something more. The Court therefore held that compulsory retirement is not a punishment. Article 311 of Constitution as well as Rule 55 of the Civil Servant Classification (Control and Appeal) Rules, 1930 are not attracted in case of compulsory retirement made in public interest.

32. Upto 1963, only Articles 465 and 465-A of CSR contained the provision in regard to compulsory retirement. Article 465 was applicable to a government servant in general providing that one who is permitted to retire after qualifying service of 25 years or on attaining the age of 60 years would be entitled for retiring pension. Article 465-A was applicable only to officers mentioned in Article 349-A although the substantive provision was pari materia to Article 465. Note 1 of both the Articles i.e. 465 and 465-A of CSR conferred power upon the government to retire an employee after he had completed 25 years qualifying service without assigning any reason in public interest. In brief, I may summarize the peculiar features of the aforesaid provisions, as under:

(A) The power of compulsory retirement vested only in the State Government and the appointing authorities subordinate to Government did not possess such power.

(B) It was not necessary to issue any notice to the Government servant prior to order of compulsory retirement nor any pay in lieu of notice was payable.

(C) The power was to be exercised in the "public interest".

33. The validity of Article 465 CSR on the anvil of Article 16 of the Constitution came to be considered before a Full Bench of this Court in Abdul Ahad Vs. I.G. of Police AIR 1965 Allahabad 142. Hon'ble M.C. Desai, Chief Justice, repelling the contention, in para 15 of the judgment, said:

"The rule regarding compulsory retirement does not deny equality of opportunity for employment. Compulsory retirement is to be ordered only in public interest and every servant of the State is equally liable to be compulsorily retired in public interest under the rule. The rule certainly does not distinguish between the servant who deserves to be compulsorily retired in public interest and another servant who also deserves it. In Sheo Charan Singh V. State of Mysore, Writ Petition No. 184 of 1963 decided by the Supreme Court on 13.3.1964 (AIR 1965 SC 280) Gajendragadkar, C.J. held that R. 285, note I, of the Mysore Civil Services Rules 1958, which is exactly similar to note I of Art. 465 is not hit by Art. 14 or 16 of the Constitution. Sri Kacker Challenged the observation in the judgment that "it is concluded by a long series of decisions of this Court" and contended that this question had not been decided previously. The judgment of the Supreme Court is a declaration of law binding upon this Court. In AIR 1958 SC 250 the Supreme Court had held that when Satish Chandra was discharged on completion of the term for which he had been appointed he was not denied the right guaranteed by Art. 16 because "he had been treated just like any other person to whom an officer of temporary employment under these conditions was made."

34. Fundamental Rule 56 (1), Financial Hand Book Volume II (Parts 2 to 4) contains age of retirement of Government servant. The State Government of Uttar Pradesh vide notification No. G-1-1794/X-534 (19/57) dated 19.10.1963 added a proviso to Fundamental Rule 56 that appointing authority may require a Government servant to retire after attaining the age of 55 years by giving three month's notice without assigning any reason. A corresponding right was conferred upon the Government servant also to seek voluntary retirement after attaining 55 years of age by serving three months notice to the appointing authority. The formal amendment, however, was brought vide notification dated 17.1.1968 w.e.f. 1.1.1964.

35. The validity of Fundamental Rule 56, as amended vide notification dated 19.10.1963, was considered in S.P. Nigam Vs. State of U.P. 1966 ALJ 153 on the anvil of Article 14 of the Constitution. A Division Bench of this court said, the determining factor is whether or not the government servant concerned is fit to be kept in service after he had attained the age of 55 years and that being so it can not be said that the provision is discriminatory and arbitrary. The Court therefore upheld the proviso to Fundamental Rule 56 holding that it is not hit by Article 14 of the Constitution. It said :

"We are of the opinion that there is no force in the first submission of the learned counsel for the petitioners and hold that Rule 56 is not hit by Art. 14 of the Constitution."

36. This Court also observed, whenever a person is compulsorily retired, there has to be some reason, since a good officer would not be retired premature and that fact by itself will not make an order of compulsory retirement bad since guiding principle is "public interest".

37. Subsequently, vide notification dated 17.1.1968, the State Government made formal amendment in Fundamental Rule 56 incorporating provision for three months' notice or pay in lieu thereof after the government servant has attained the age of 55 years or such lesser age as described. It appears that this amendment caused some confusion whether power of compulsory retirement could be exercised by appointing authority in public interest or not. Accordingly, an ordinance was issued i.e. "U.P. Fundamental Rule 56 (Amendment and Validation) Ordinance, 1969" which was replaced by the U.P. Fundamental (Amendment and Validation) Act, 1970 (hereinafter referred to as "1970 Act") making it clear that decision to retire an employee compulsorily shall be taken by appointing authority in the public interest. I have confined myself to consider the evolution of concept of compulsory retirement as also the statutory provisions made in this regard applicable to the Government servant under the State of Uttar Pradesh since it is only in the State of Uttar Pradesh where power to retire compulsorily under Fundamental Rule 56 for the last more than 30 years, is governed by a rule, which has been made by the State legislature. In other States, as also in the Government of India, Fundamental Rule 56 or any pari materia provision is mainly referable to proviso to Article 309 of the Constitution of India.

38. Validity of this provision, as made in 1970 in the State of U.P., again was considered in Iqbal Narain Srivastava Vs. State of U.P. AIR 1971 Alld. 178. The Court had to consider whether such a provision could be made by a Provincial legislature or not. Affirming and conceding such power to the legislature, this Court upheld Fundamental Rule 56 as inserted vide 1970 Act. It held:

"One of the conditions of the 1st respondent's service is that the Government can choose to retire him any time after he completes fifty years if it thinks that it is in public interest to do so. Because of his compulsory retirement he does not lose any of the rights acquired by him before retirement. Compulsory retirement involves no evil consequences. The aforementioned Rule 56(i) is not intended for taking any penal action against the Government servants. That rule merely embodies one of the facets of the pleasure doctrine embodied in Article 310 of the Constitution. Various consideration may weigh with the appropriate authority while exercising the power conferred under the rule. In some cases, the Government may feel that a particular post may be more usefully held in public interest by an officer more competent than the one who is holding. It may be that the officer who is holding the post is not inefficient but the appropriate authority may prefer to have a more efficient officer. It may further be that in certain key posts public interest may require that a person of undoubted ability and integrity should be there. There is no denying the fact that in all organizations and more so in Government organizations, there is good deal of dead wood. It is in public interest to chop off the same. Fundamental Rule 56 (i) holds the balance between the rights of the individual Government servant and the interests of the public. While a minimum service is guaranteed to the Government servant, the Government is given power to energise its machinery and make it more efficient by compulsorily retiring those who in its opinion should not be there in public interest.

It is true that a compulsory retirement is bound to have some adverse effect on the Government servant who is compulsorily retired but then as the rule provides that such retirements can be made only after the officer attains the prescribed age. Further, a compulsorily retired Government servant does not lose any of the benefits earned by him till the date of his retirement. Three months notice is provided so as to enable him to find out other suitable employment." (Para-22) "Mr. Venkataranga Iyenger contends that this Rule is invalid, because it contravenes Article 14 as well as Article 16(i) of the Constitution. In our opinion, this contention cannot longer be entertained because it is concluded by a long series of decisions of this Court. Recently, a Special Bench of this Court had occasion to consider the validity of Rules 148 (3) and 149 (3) contained in the Indian Railway Establishment Code in Moti Ram Deka Vs. General Manager, North East Frontier Railway, Civil Appeals Nos........In dealing with the problem raised in that case, this Court has made it perfect compulsory retirement is concerned, it must be taken to be concluded by several decisions of this Court. This Court then examined the relevant decisions on this point beginning with the case of Shyam Lal Vs. State of U.P. 1955-1 SCR 26-(AIR 1954 SC 369), and it has observed that the law in relation to the validity of the Rules permitting compulsory premature retirement of Government servants must be held to be well settled by those decisions and need not be reopened." (Para-24)

39. The State of Uttar Pradesh thereafter amended Articles 465 and 465-A of CSR vide U.P. Civil Service (Ist Amendment) Regulation 1973 published vide notification dated 1.11.1973. The two Articles were recasted and provide that government may retire a government servant on attaining the age of 50 years without assigning any reason by three months notice and pay in lieu thereof. A corresponding right was given to the government servant to seek retirement after completing qualifying service of 25 years or attain the age of 50 years. Note-I also reenacted with minor modification under Articles 465 and 465-A.

40. This resulted in making parallel powers of compulsory retirement and voluntary retirement under CSR and Fundamental Rule 56. The legislature again intervened and enacted U.P. Fundamental Rule 56 (Amendment and Validation) Act, 1975 providing for compulsory retirement of a government servant by the appointing authority after attaining the age of 50 years by giving three months' notice or pay in lieu thereof. It also provided that no reasons may be assigned for such retirement but such decision shall be presumed to have been taken in public interest. It also says that order of compulsory retirement shall have effect from the afternoon from the date of its issuance. This amendment also resulted in a lot of litigation. Ultimately, the U.P. legislature enacted U.P. Fundamental Rule 56 (Amendment and Validation) Act, 1976 (U.P. No. 33 of 1976) and substituted and inserted Fundamental Rule 56 in a much detailed form, as it stands today, and reads as under:

"56.(a) Except as otherwise provided in other clauses of this rule, the date of compulsory retirement of a Government servant, other than a Government servant in inferior service, is the date on which he attains the age of 58 years. He may be retained in service after the date of compulsory retirement with the sanction of the Government on public grounds, which must be recorded in writing, but he must not be retained after the age of 60 years except in very special circumstances.

(b) The date of compulsory retirement of a Government servant in inferior service is the date on which he attains the age of 60 years. He must not be retained in service after that date, except in very special circumstances and with the sanction of Government.

(c) Notwithstanding anything contained in clause (a) or clause (b) the appointing authority may, at any time, by notice to any Government servant (whether permanent or temporary) without assigning any reason, require him to retire after he attains the age of 50 years, or such Government servant may, by notice to the appointing authority, voluntarily retire at any time after attaining the age of 45 years or after he had completed qualifying service of 20 years.

(a)The period of such notice shall be three months:

Provided that:-

(i)any such Government servant may, by order of the appointing authority, without such notice or by a shorter notice, be retired forthwith at any time after attaining the age of 50 years, and on such retirement the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances, if any, for the period of the notice or, as the case may be, for the period by which such notice falls short of three months, at the rates at which he was drawing them immediately before his retirement;

(ii)It shall be open to the appointing authority to allow a Government servant to retire without any notice or by a shorter notice without requiring the Government servant to pay any penalty in lieu of notice:` Provided further that such notice given by the Government servant against whom a disciplinary proceeding in pending or contemplated, shall be effective only if it is accepted by the appointing authority, provided that in the case of a contemplated disciplinary proceeding the Government servant shall be informed before the expiry of his notice that it has not been accepted;

Provided also that the notice once given by a Government servant under clause (c) seeking voluntary retirement shall not be withdrawn by him except with the permission of the appointing authority;

(e) A retiring persons shall be payable and other retirement benefits, if any, shall be available in accordance with the subject to the provisions of the relevant rules to every Government servant who retires or is required or allowed to retire under this rule:

Provided that where a Government servant who voluntarily retires or is allowed voluntarily to retire under this rule the appointing authority may allow him, for the purposes of pension and gratuity, if any, the benefit of additional service of five years or such period as he would have served if he had continued till the ordinary date of his superannuation, whichever be less.

Explanation:- (1) The decision of the appointing authority under clause (c) to require the Government servant to retire as specified therein shall be taken if it appears to the said authority to be in the public interest, but nothing herein contained shall be construed to require any recital, in the order, of such decision having been taken in the public interest.

(2) In order to be satisfied whether it will be in the public interest to requires 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, (2-A) Every such decision shall be deemed to have been taken into the public interest.

(3) The expression " appointing authority' means the authority which for the time being has the power to make substantive appointments to the post or service from which the Government servant is required or wants to retire, and the expression "qualifying service" shall have the same meaning as in the relevant rules relating to retiring pension..

(4) Every order of the appointing authority requiring a Government servant to retire forthwith under the first proviso to clause (d) of the rule shall have effect from the afternoon of the date of its issue, if the Government servant concerned, bona fide and in ignorance of that order, performs the duties of his office, his acts shall b e deemed to be valid notwithstanding the fact of his having earlier retired."

41. Simultaneously, Articles 465 and 465-A were also repealed. This resulted in retaining the provision of compulsory retirement at one place in a comprehensive and scientific manner.

42. The evolution of provision pertaining to compulsory retirement in State of Uttar Pradesh have been discussed above in order to stress upon the fact in respect to the employees governed by Fundamental Rule 56 as applicable in the State of Uttar Pradesh, the Court has to confine itself with the statutory provision, as applicable hereat. Certain general observations made by various Courts as well as the Apex Court in respect to the employees of the other States or the Government of India governed by the provisions, which are not identical or pari materia to Fundamental Rule 56 as available in the State of U.P., may not provide a correct exposition of law to consider whether an order of compulsory retirement passed by an authority in the State of U.P. is valid or not. It is needless to say that validity of an order of compulsory retirement under Fundamental Rule 56, as applicable in U.P., has to be considered strictly in accordance with the aforesaid provision and to the extent the general exposition of law not inconsistent with the said statutory provision.

43. The general concept with regard to object and purpose of compulsory retirement applicable to all has been considered by Apex Court time and again. I may not refer to all such cases but it would be useful to refer some of such authorities, which may throw light on this aspect.

44. Rule 285 of Mysore Civil Service of State of Mysore, came to be considered in T.G. Shiv Charan Singh Vs. State of Mysore AIR 1965 SC 280. The Court said :

"The law in relation to the validity of the Rules permitting compulsory premature retirement of Government servant must be held to be well-settled by those decisions and need not be reopened. The only exception the majority judgment made in that behalf was that it may be necessary to consider whether such a rule of compulsory retirement would be valid if having fixed a proper age of superannuation, it permits a permanent servant to be retired at a very early stage of his career. This consideration does not arise in the present case, because, as we have already seen, note 1 to R. 285 requires that the government servant against whom an order of compulsory retirement is proposed to be passed must have completed either 25 yeas of active service or attained 50 years of age. We are, therefore, satisfied that the point which Mr. Venkataranga Iyengar wants to raise before us in the present petition is clearly concluded by decision of this Court and cannot be allowed to be reopened."

45. The applicability of principles of natural justice i.e. requirement of a show cause notice before issuing an order of compulsory retirement came to be considered in Union of India Vs. Col. J.N. Sinha and Anr. 1970 (2) SCC 458. The Court said:

"Fundamental Rule 56(j) in terms does not require that any opportunity should be given to the concerned government servant to show cause against his compulsory retirement. A government servant serving under the Union of India holds his office at the pleasure of the President as provided in Article 310 of the Constitution. But this "pleasure" doctrine is subject to the rules or law made under Article 309 as well as to the conditions prescribed under Article 311. Rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights. As observed by this Court in Kraipak and Ors. v. Union of India (1970)1 SCR 457 "the aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law but supplement it." It is true that if a statutory provision can be read consistently with the principles of natural justice, the courts should do so because it must be presumed that the legislatures and the statutory authorities intend to act in accordance with the principles of natural justice. But if on the other hand a statutory provision either specifically or by necessary implication excludes the application of any or all the principles of natural justice then the court cannot ignore the mandate of the legislature or the statutory authority and read into the concerned provision the principles of natural justice. Whether the exercise of a power conferred should be made in accordance with any of the principles of natural justice or not depends upon the express words of the provision conferring the power, the nature of the power conferred, the purpose for which it is conferred and the effect of the exercise of that power."

46. The Apex Court in Baikunth Nath Das & Anr. Vs. Chief District Medical Officer AIR 1992 SC 1020 laid down certain criteria in respect to compulsory retirement to clarify as to when it is assailable and when not; and said:

"(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, they 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 is 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 taking a 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 servant is promoted to a 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 29 to 31 above."

47. The said principles have been re-observed and reiterated with some further conditions in State of Gujrat Vs. Umed Bhai M.Patel (supra) holding:

"(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.

(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."

48. It is evident from the above that an order of compulsory retirement is actually and necessarily a prerogative of employer, in particular the Government, and, infact, in the present case, the Hon'ble Chief Justice, who is the repository of all kinds of disciplinary and other powers of the employees in the establishment of the High Court under Article 229 of the Constitution.

49. Though an order of compulsory retirement ought to be based on some material but need not be mentioned in the order itself. Whenever challenged on the ground of lack of material, employer may disclose the material to the Court. The principles of natural justice have been completely excluded in the matter of compulsory retirement under Fundamental Rule 56 and not as a punishment.

50. Further, the order of compulsory retirement need not be a speaking order as said in Union of India & Anr. Vs. Daulat Dutt 1993 (2) SCC 179 where the Court said:

"Very often, on enquiry by the Court the Government may disclose the material but it is very much different from the saying that the order should be a speaking order. No order of compulsory retirement is required to be a speaking order."

51. I may also consider some of the authorities throwing light on the object and purpose of the order of compulsory retirement. The administration to be efficient has to be manned by active, competent and prone workers. It should not be manned by drones do nothing, incompetent and unworthies. Lacking of efficiency by itself may not be a misconduct. Such incumbent thus need not be punished but may prove to be a burden on the administration, if by insensitive, insouciant, unintelligent or dubious conduct impede the floor or promote stagnation. In a developing country where speed, probity, sensitive, enthusiastic, creativity and non-brevity process are immediately required, callous cadres and paper logged are the bees setting sin on the administration. Sometimes, reputation or otherwise the information available to the superior officers reflect on the integrity of the employee but there may not be sufficient evidence available to initiate punitive action. But simultaneously conduct and reputation of such person is a menace for his continuance in a public service and is injurious to public interest. In all such cases, order of compulsory retirement may be passed by competent authority.

52. In Allahabad Bank Officers' Association & another Vs. Allahabad Bank and others (1996) 4 SCC 504, the Apex Court held:

"The object of compulsory retirement is to weed out the dead wood in order to maintain efficiency and initiative in service and also to dispense with the services of those whose integrity is doubtful so as to preserve purity in the administration." (para-5)

53. Reiterating the same, in S. Ram Chandra Raju Vs. State of Orissa AIR 1995 SC 111 the Apex Court held that "the dead wood need to be removed to augment efficiency. Integrity in public service need to be maintained.

54. In State of Orissa and others Vs. Ram Chandra Das (1996) 5 SCC 331, Apex Court held:

" ....It is needless to reiterate that the settled 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 administration or to weed out the people of doubtful integrity or 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." ( para 3)

55. When the competent authority after considering the service record of a Government Servant forms an opinion that his continuance in service is not in public interest, he being rendered dead wood or otherwise should not be allowed to continue, such decision and formation of opinion of the competent authority shall not be interfered by the Court in exercise of power of judicial review, if arrived at bona fide and on the basis of material on record. Whether the conduct of the employee is such as to justify such a conclusion is primarily for the departmental authorities to decide.

56. In Posts and Telegraphs Board Vs. C.S.N. Murthy, (1992) 2 SCC 317, the Hon'ble Apex Court considered the scope of judicial review and observed that "the nature of delinquency and whether it is of such a degree as to require the compulsory retirement of the employee are primarily for the government to decide upon."

57. In State of Gujarat & Anr. Vs. Suryakant Chunilal Shah (supra) the Court said that "public interest" is a parameter while considering an employee for compulsory retirement. The dishonest, corrupt and dead wood deserve to be dispensed with. Efficiency and honesty is to be assessed on the basis of material on record which may also be ascertained from confidential report. The only thing required is that there is something tangible material against the employee wanting his compulsory retirement.

58. In State of U.P. & Anr. Vs. Bihari Lal AIR 1995 SC 1161 (supra) the Court said, if the general reputation of an employee is not good though there may not be tangible material against him, he may be retired compulsorily in public interest.

59. In State of U.P. & Ors. Vs. Vijay Kumar Jain JT 2002 (3) SC 76 the Court said:

"Vigour or sting of an adverse entry is not wiped out merely it is relatable to 11th or 12th years of passing of the order of compulsory retirement. The aforesaid adverse entry which could have been taken into account while considering the case of the respondent for his compulsory retirement from service, was duly considered by the State Government and said single adverse entry in itself was sufficient to compulsorily retire the respondent from service."

60. In Jugal Chandra Saikia Vs. State of Assam and Anr. AIR 2003 SC 1362 the Court said, where the screening committee is consisting of responsible officers of the State and they have examined/assessed the entire service record and formed the opinion objectively as to whether any employee is fit to be retained in service or not, in the absence of any allegation of mala fides, there is no scope of a judicial review against such an order.

61. Dealing with the case of Judicial Officers in Nawal Singh v. State of U.P. and Anr. AIR 2003 SC 4303 the Court said, if such evaluation is done by the Committee of the High Court Judges and is affirmed in the writ petition, except in very exceptional circumstances, this Court would not interfere with the same particularly because order of compulsory retirement is based on the subjective satisfaction of the Authority.

62. In M.P.State Coop. Dairy Federation Ltd. (supra) a decision relied on by learned counsel for the petitioner the Court said:

"The provisions had been made principally for weeding out dead wood. An order of compulsory retirement being not penal in nature can be subject to judicial review inter alia:

(i) When it is based on no material;

(ii) When it is arbitrary;

(iii) When it is without application of mind; and

(iv) When there is no evidence in support of the case."

63. The Court also said in paras 42 and 43 which reads:

42. The broad criteria, which are not only applicable generally for the aforementioned purpose, were required to be followed but there cannot be any doubt or dispute that the criteria laid down by the State was imperative in character. Thus, the Federation adopted the rules and circulars made or issued by the State Government. The Federation itself having formulated the criteria required to be applied for passing orders of compulsory retirement was, thus, bound thereby.

43. It is now a well-settled principle of law that the employer would be bound by the rule of game. It must follow the standard laid down by itself. If procedures have been laid down for arriving at some kinds of decisions, the same should substantially be complied with even if the same are directory in nature."

64. Most of the authorities have been referred to with approval recently in Pyare Mohan Lal v. State of Jharkhand and Ors. JT 2010 (10) SC 456. The Court also considered the theory of "washing off" of earlier entries and in para 26 of the judgment, said:

"In view of the above, the law can be summarised to state that in case there is a conflict between two or more judgments of this Court, the judgment of the larger Bench is to be followed. More so, the washed off theory does not have universal application. It may have relevance while considering the case of government servant for further promotion but not in a case where the employee is being assessed by the Reviewing Authority to determine whether he is fit to be retained in service or requires to be given compulsory retirement, as the Committee is to assess his suitability taking into consideration his "entire service record"."

65. In Swaran Singh Chand Vs. Punjab State Electricity Board and others (supra) following Rajnesh Kumar Jamindar (supra) the Court further held that:

"Principles of natural justice are not required to be complied with and even adverse entries made in the confidential record including uncommunicated entries may be taken into consideration but the same should not be passed in place of or in lieu of a disciplinary proceedings. If an order of compulsory retirement is stigmatic in nature, the same would be bad in law."

66. Analysing the case of employees of the State of U.P. governed by Fundamental Rule 56, as applicable in the State of U.P., Apex Court said that matter should be considered in the light of Fundamental Rule 56, as available in U.P., without being guided by any authority dealing with a different provision. The observation was made in the context when reliance was placed in Baikunth Nath Das (supra) to the extent that one of the principles laid down therein were not applicable in view of the specific provision contain in Fundamental Rule 56 as applicable in U.P. This is what has been said in State of U.P. & Anr. Vs. Lalsa Ram, 2001 (3) SCC 389. Lalsa Ram was a Deputy Collector. At the time when he was compulsorily retired in the year 1998 the screening committee considered adverse entries of 1967-68, 1981-82, 1982-83 and 1991-92 as well as censure dated 18.1.86. Although there was no adverse entry in the preceding five years yet considering the constant deterioration in the performance of Shri Lalsa Ram, he was recommended for compulsory retirement. The writ petition filed by Lalsa Ram challenging the aforesaid order of compulsory retirement was allowed on the ground that there being no adverse entry in preceding five years and the adverse entries from 1967 to 1982 being old and stale, only on the basis of one adverse entry of the year 1991-92 it was not justified to retire him compulsorily. The Hon'ble Apex Court allowing the appeal of the State Government considering Fundamental Rule 56 held as under:

"The Uttar Pradesh Fundamental Rules governing the service conditions of the respondent herein, in particular, Rule 56(c) & Explanation 2(a), (b) specifically provide that nothing in the Rules should be construed to exclude from consideration any entry relating to any efficiency bar or he was promoted to any post in an officiating or a substantive capacity or on an ad hoc basis. The important words used are : nothing herein contained shall be construed to exclude from consideration: the exclusion thus is prohibited in terms of the rule. The authority concerned, by reason wherefor has thus a liberty to consider even entries relating to the period before the government servant was allowed to cross any efficiency bar or before he was promoted. It is true that one of the guiding principles as enunciated above in Baikuntha Nath case with regard to performance during the later years ought to be attached more importance but that does not exclude the consideration of the entire record of service." (para 11) (emphasis added.)

67. Again in para 13 of the judgment, the Hon'ble Apex Court held that Fundamental Rule 56 confers the right absolute to retire an employee on happening of certain event namely, the employee attaining 50 years of age. The only guiding factor is the public interest to retire an employee. It also held that the right being absolute, in the event it is not contrary to the condition, as embodied in Fundamental Rule 56, the question of violation of any legal right of an employee would not arise. It further held where the material is sufficient and conclusion of the authority would have been justified, it cannot be a matter of judicial review, since primarily it is for the departmental authority to decide. The delinquency of the entry and whether it is of such a degree as to reflect on the efficiency of the employees has to be decided by the authorities and the Courts have no authority or jurisdiction to interfere with such exercise of power, if arrived at bona fide on the basis of the material on record. Usurpation of authority is not only unwarranted but contrary to all norms of service jurisprudence.

68. Showing its agreement with the law laid down in State of Punjab Vs. Gurdas Singh, (1998) 4 SCC 92, the Hon'ble Apex Court in Lalsa Ram (supra) further held as follows :

"....The appointing authority upon consideration of the entire service record as required under the Rules and having formed its opinion that the compulsory retirement of the respondent being in public interest issued the order and in the wake of the aforesaid, question of any interference of this Court does not and cannot arise. Interference in these matter by the courts in exercise of their jurisdiction under the constitutional mandate is very restricted and the courts shall have to tread on the issue with utmost care and caution by reason of very limited scope of interference. The High Court has, in fact, ignored this aspect of the matter and proceeded solely on the basis of the factum of there being no adverse entry in the recent past. Needless to state that adverse entries did not stand extinguished by mere lapse of time but they continued to be on record and it is for the employer to act and rely thereon in the event of there being a rule permitting an order of compulsory retirement.

(para 16) (emphasis added.) "

69. In the case in hand, record shows that petitioner's service dossier contains adverse entries for the years 1981-82, 1983-84, 1985-86, a warning administered by the Hon'ble Chief Justice on 03.01.1991, an adverse entry for 1991-92 recorded by Registrar on 01.04.1992, and a 'Censure' dated 23.11.2002. These entries as such are not disputed. The petitioner attempt to whittle down all the entries upto 1996 by referring to his promotion on the post of Lower Division Assistant and Upper Division Assistant. However, his submission ignores Fundamental Rule 56(2)(a) which clearly authorises the competent authority to satisfy itself whether it will be in public interest to require a Government servant to retire by considering "any material" relating to the Government servant and the same shall not exclude from consideration any entry 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. Thus Fundamental Rule 56(2)(a) categorically authorises the appointing authority or the competent authority to look into entire service record including the entries prior to promotion of the concerned Government servant.

70. Once the rule empowers consideration of a material and the same has been taken into account by the competent authority, it cannot be said that the case of the Government servant has been considered by the competent authority not consistent with the statutory provision. The appointing authority of the petitioner under 1976 Rules is the Hon'ble Chief Justice. It is he, who has formed the opinion after looking into the entire service record of the petitioner that he should be compulsorily retired.

71. The aforesaid view has been reiterated in counter affidavit and in para 40 it is clearly said that the order of compulsory retirement has been passed on an over all assessment of entire record of the petitioner. It is also said that the order has been passed in interest of the administration under Fundamental Rule 56(c) and not by way of punishment.

72. Though petitioner has tried to allege that the order is malicious or mala fide but whose mala fide he is alleging has not been indicated. None has been impleaded eo nomine. In the circumstances, the plea of mala fide cannot be entertained. Even otherwise the plea of malice in law or in fact cannot be considered unless substantiated by the petitioner. Having gone through the entire writ petition and the averments contained therein, I am clearly of the view that the petitioner has miserably failed to substantiate the submission. The various authorities in general, whether cited in pleadings or relied during arguments are bereft of the statutory provision with which the petitioner is governed. When enquired, in fact learned counsel for the petitioner himself could not tell as to how the entire service record of the petitioner could not have been considered by the competent authority in view of the specific provision of Fundamental Rule 56. The entries prior to promotion are not totally barred, as I have already demonstrated. It is specifically provided and permitted vide Fundamental Rule 56(2)(a).

73. Now I come to authorities cited on behalf of the petitioner.

74. In State of Punjab Vs. Gurdas Singh (supra), in para 11, after referring to Baikuntha Nath Das (supra), the Court said:

"Before the decision to retire a Government servant prematurely is taken the authorities are required to consider the whole record of service. Any adverse entry prior to earning of promotion or crossing of efficiency bar or picking up higher rank is not wiped out and can be taken into consideration while considering the overall performance of the employee during whole of his tenure of service whether it is in public interest to retain him in the service. The whole record of service of the employee will include any uncommunicated adverse entries as well."

75. The petitioner has relied on the observation made by Apex Court in para 11 and 13 of his judgment in M.S.Bindra (supra). The proposition laid down therein has no exception. However, in para 13 the Court said:

"The maxim "Nemo Finit Repente Turpissimus" (no one becomes dishonest all of a sudden) is not unexceptional but still it is a salutary guideline to judge human conduct, particularly in the field of Administrative Law."

76. If it is applied in the case in hand, it is evident that from 1981 and onwards, the petitioner has continuously earned adverse entries and has shown a deteriorating conduct which time and again has been observed adversely by higher authorities. It also includes punishment of 'Censure' awarded by Hon'ble the Chief Justice. The competent authority found his conduct objectionable, time and again. It is thus not a case where compulsory retirement is resorted to on no evidence or no material. Per contra, the position is otherwise. In M.S.Bindra (supra), the Court found that order of compulsory retirement was bad for want of evidence or material to reach such a conclusion, which is not the case in hand.

77. In S.R. Venkataraman v. Union of India (UOI) and Anr. 1979 (2) SCC 491 the Court found order of compulsory retirement based on no material and thus a gross abuse of power. Nothing was available on record to support the order therein. Again this case has no application to the facts of the present case.

78. In Baldev Raj Chadha Vs. Union of India 1980 (4) SCC 321 the order of compulsory retirement was found to have been passed for collateral purpose and not in "public interest".

79. In State of Gujarat Vs. Suryakant Chunilal Shah (supra) the Court considered the validity of order of compulsory retirement in the light of Rule 161 of Bombay Civil Services Rules, 1959 which did not have any provision akin to Fundamental Rule 56(2) as available in State of U.P.. In the light of aforesaid provision, the Court found from record that the employee was promoted in 1981, character roll entries for the next two years were not available on record. There was no adverse entry in his character roll including integrity though he was involved in two criminal cases in which final report was submitted in one and in the another a charge sheet was filed. Despite absence of any adverse entry, his integrity was shown doubtful by the Review Committee. The Committee on its own formed opinion that the employee was a person of "doubtful integrity" based merely on the FIR lodged against him. The Court observed that it was not the function of Review Committee to brand an employee as a person of doubtful integrity, if such remarks have not been recorded by the competent authority in his character roll. The reasons for setting aside the compulsory retirement, I find mention in para 28 of the judgment, which reads as under:

"There being no material before the Review Committee, inasmuch as there were no adverse remarks in the character roll entries, the integrity was not doubted at any time, the character roll entries subsequent to the respondent's promotion to the post of Assistant Food Controller (Class II) were not available, it could not come to the conclusion that the respondent was a man of doubtful integrity nor could have anyone else come to the conclusion that the respondent was a fit person to be retired compulsorily from service. The order, in the circumstances of the case, was punitive having been passed for the collateral purpose of his immediate removal, rather than in public interest. The Division Bench, in our opinion, was justified in setting aside the order passed by the Single Judge and directing reinstatement of the respondent."

80. Evidently, this decision also would not help the petitioner who has not only a punishment of censure awarded in 2002 but also several adverse entries, as are already disclosed above.

81. In Madan Mohan Choudhary Vs. State of Bihar & Ors. (supra) a Judicial Officer, who was compulsorily retired in purported exercise of power under Rule 74 of Bihar Service Code was considered. The Court relying on the Apex Court's decisions in Brij Mohan Singh Chopra Vs. State of Punjab (1987) 2 SCC 188 and Baidyanath Mahapatra Vs. State of Orissa (1989) 4 SCC 664 as also Baikuntha Nath Das (supra) observed that three adverse remarks of 1991-92, 1992-93 and 1993-94 were not recorded in "normal course" but were recorded "at one go" and that too when the Standing Committee had already formed an opinion to compulsorily retire the said officer. This is what is evident from para 40 of the judgment. Accordingly, these three entries were not justified and ignoring the same nothing remains to justify on record his order of compulsory retirement. The said decision also in my view lends no credence to the petitioner at all.

82. Rajat Baran Roy & Ors. Vs. State of W.P. & Ors (Supra) was a case where Judicial Officer's age of retirement was extended by the Apex Court upto 60 years in All India Judges Association Vs. Union of India (1992) 1 SCC 119 yet the incumbent was retired at the age of 58 years and action sought to be justified on the ground of power of compulsory retirement under Rule 75 (aa) of West Bengal Service Rules, Part I. The relevant rule has been quoted in para 15 of the judgment, which requires exercise of power in "public interest". The Court found that the said rule was not found to have been invoked as a matter of fact in retiring the incumbent at the age of 58 years. This judgment is wholly devoid of any assistance to the petitioner and in my view has been relied mistakingly.

83. In High Court of Punjab & Haryana Vs. Ishwar Chand Jain & Anr. (Supra) the Court found that the order of compulsory retirement was invoked to cut short the disciplinary proceedings and therefore amounts to removal from service. The Court found that the action of the High Court in retiring Sri Jain was based on the allegations of misconduct. However, in the case in hand, I do not find that such fact has been substantiated by the petitioner.

84. It is true that at the time when the order of compulsory retirement was passed the petitioner was under suspension. A disciplinary enquiry had already concluded, and, Hon'ble the Chief Justice taking a view that the charges levelled against the petitioner are proved, had already directed to issue show cause notice to him. It could have been easily possible to Hon'ble Chief Justice to pass an order of punishment whereby the petitioner would have been deprived of his benefits, he had already earned in service if a major punishment would have been imposed. However, the Hon'ble Chief Justice after taking into consideration service record of the petitioner decided to retire him compulsorily which decision is not shown to be guided in any manner by the departmental enquiry in respect whereto final decision was pending. On the contrary the Hon'ble Chief Justice has also not deprived the petitioner of any benefit but the period of suspension has been directed to be treated as on duty. Meaning thereby, whatever benefit the petitioner has earned till the order of compulsory retirement so passed, that would be available to him. In absence to correlate the disciplinary matter with the impugned order of compulsory retirement, it cannot be said that the power has been exercised as a short cut of departmental proceedings. It may be noted hereat that F.R. 56 would not be attracted at all time. It would come to apply only when an employee fulfills certain conditions precedent i.e. the employee completed 50 years of age. Thus the consideration as applicable to hold an order of termination simplicitor would not apply in a case of compulsory retirement.

85. Though an attempt has been made by learned counsel for the petitioner to show that it is penal in nature. The impugned order of compulsory retirement has been passed after the conclusion of departmental enquiry where the Hon'ble Chief Justice formed an opinion that charges are proved against petitioner and issued a show cause notice accordingly as to why a major penalty may not be imposed upon him and thereafter all of a sudden an order of compulsory retirement has been passed. But the submission, in my view, lacks substance though at first flush appears to be quite attractive. After the departmental oral enquiry against petitioner is over, the competent authority formed an opinion of imposing a punishment and issued a show cause notice. Nothing prevented the competent authority to do so. That would have resulted in depriving the employee concerned from his accrued benefits. The competent authority, in a different proceedings, considering the matter in different context and different statutory provision, formed an opinion which admittedly is not a punishment. More so, since the petitioner had already completed 50 years of age, ex facie, it is clear that the competent authority had taken an independent decision without being prejudiced in any manner from the any other proceedings and has not denied the employee, his accrued benefits, which otherwise he could have lost. Moreover, neither from the pleadings nor from any other material he could show that the Hon'ble Chief Justice formed opinion for compulsory retirement as a result of short cut so as to not penalize him by passing an order of major penalty despite having issued a show cause notice after completion of departmental enquiry in different proceedings. Except of bare submission to co-relate these two different proceedings, nothing could be shown. On mere conjuncture and surmises different proceedings governed by different provisions cannot be said to be bad merely for the reason that both have continued parallel unless there is some bar in the statute which as a matter of fact has not been shown.

86. In Badrinath (supra) censure was imposed upon the person concerned who was a member of Indian Administrative Service and his appeal was also rejected. This order was taken into consideration for passing an order of compulsory retirement. The Court found 'censure' unsustainable and as a result thereof the order of compulsory retirement also could not sustain. Here the order of 'censure' is not under challenge. Therefore it cannot be said that the material taken into consideration by competent authority becoming impermissible for consideration, renders compulsory retirement unsustainable.

87. The observations made in Brij Behari Lal Agarwal Vs. High Court of M.P. (1981) 1 SCC 490 relied by the petitioner are also inapplicable, inasmuch as, there also Fundamental Rule 56 (2) as available in U.P. was not available. In any case the Court has observed that compulsory retirement may not totally base on sole entry but the authorities should also consider the entries of recent past or later years. In the case in hand, even in the later years i.e. in 2002 the petitioner has been punished by 'censure' and therefore it cannot be said that there is no material justifying the order of compulsory retirement. Same is the position in J.D. Srivastava Vs. State of M.P. (1984) 2 SCC 8 and Brij Mohan Singh Chopra (supra).

88. In State of Gujarat Vs. Umedbhai M.Patel (Supra) the Court found that there was no adverse entry on record to support the order of compulsory retirement which is not the case in hand.

89. In M.P. Electricity Board Vs. Shree Baboo (supra), the order of compulsory retirement in the light of Rule 42 of M.P. Civil Services Pension Rules which is pari materia to Fundamental Rule 56 (j) (Central Rule) was considered but it is not pari materia to fundamental rule 56 and in particular sub rule (2) as available in the State of Uttar Pradesh. Therefore it would not be of any relevance in this case.

90. Same is the position in respect to other decisions namely R.K. Panjetha Vs. Haryana Vidyut Prasaran Nigam Ltd. (supra) and Union of India Vs. R.C. Mishra (supra). Moreover, in R.C.Mishra (supra) the Court said, if the incumbent had officiated in higher post and was found not fit to continue thereon, he could have been considered for being posted on a lower post which is not the case in hand. The Court also found that the allegations of mala fide against the appellant No.3 therein were not denied or refuted. Therefore the Tribunal was right in quashing the order of compulsory retirement. No such allegation has been levelled against any one hereat. None is impleaded eo nomine as is the requirement under law for entertaining the plea of mala fide.

91. It is well settled that a person against whom plea of mala fide is taken shall be impleaded eo nomine since plea of mala fide is not available against unnatural person. The Apex Court has gone to the extent that in absence of impleadment of a person eo nomine, against whom plea of mala fide is alleged, Court cannot not even entertain the plea of mala fide.

92. The Apex Court in State of Bihar Vs. P.P. Sharma, 1992 Supp (1) SCC 222 in para 55 of the judgment, held: -

"It is a settled law that the person against whom mala fides or bias was imputed should be impleaded eo nomine as a party respondent to the proceedings and given an opportunity to meet those allegations. In his/her absence no enquiry into those allegations would be made. Otherwise it itself is violative of the principles of natural justice as it amounts to condemning a person without an opportunity. Admittedly, both R.K. Singh and G.N. Sharma were not impleaded. On this ground alone the High Court should have stopped enquiry into the allegation of mala fides or bias alleged against them." (emphasis added)

93. In AIR 1996 Supreme Court 326, J.N. Banavalikar Vs. Municipal Corporation of Delhi, in para 21 of the judgment, it has been held:

"Further in the absence of impleadment of the..........the person who had allegedly passed mala fide order in order to favour such junior doctor, any contention of mala fide action in fact i.e. malice in fact should not be countenanced by the Court."

94. In JT 1996 (8) S.C. 550, A.I.S.B. Officers Federation and others Vs. Union of India and others, in para 23, the Hon'ble Apex Court has said where a person, who has passed the order and against whom the plea of mala fide has been taken has not been impleaded, the petitioner cannot be allowed to raise the allegations of mala fide. The relevant observation of the Apex Court relevant are reproduced as under:

"The person against whom mala fides are alleged must be made a party to the proceeding. Board of Directors of the Bank sought to favour respondents 4 and 5 and, therefore, agreed to the proposal put before it. Neither the Chairman nor the Directors, who were present in the said meeting, have been impleaded as respondents. This being so the petitioners cannot be allowed to raise the allegations of mala fide, which allegations, in fact, are without merit." (emphasis added)

95. In AIR 2003 Supreme Court 1344, Federation of Railway Officers Association Vs. Union of India it has been held:

"That allegations regarding mala fides cannot be vaguely made and it must be specified and clear. In this context, the concerned Minister who is stated to be involved in the formation of new Zone at Hazipur is not made a party who can meet the allegations."

(emphasis added)

96. The aforesaid view has been followed by various Division Benches of this Court including Dr. Harikant Mishra Vs. State of U.P. and others 2008(4) ADJ 36=2008(2) ESC 1312 and Salahuddin Vs. State of U.P. and another 2008(3) ADJ 705. In view of the above, since the person against whom the plea of mala fide has been levelled is not impleaded, I have no hesitation in declining the contention of the petitioner to assail the impugned order on the ground of mala fide.

97. In State of U.P. Vs. Chater Sen (supra) the order of compulsory retirement founded on an order of punishment which itself was set aside by the Court, therefore compulsory retirement also could not sustain. In Pritam Singh (supra) the Court found that there was no material on record to justify compulsory retirement. Hence both these authorities would not help the petitioner in any manner.

98. In Swaran Singh Chand (supra) the Court found that if an order suffers from malice in law, such an order would be bad but in order to show that the order suffers from malice in law, the incumbent has to substantiate his plea by placing relevant material. Therein the Court found the order passed not in conformity with the standards or the provisions governing such matter. This is not the case in hand.

99. I am, therefore, clearly of the view that various authorities cited by petitioner, as discussed above, considered the issues in the light of the relevant provisions applicable in those cases and in the light of peculiar facts as available therein.

100. Here the impugned order of compulsory retirement has been passed under Fundamental Rule 56(C), as applicable in Uttar Pradesh, which has been enacted by the Provincial legislature. In absence of anything to show that material, which has been considered by the authorities is prohibited under the said rules or that any part of rule has not been followed, I find no reason to interfere with the impugned order, particularly, when from the material on record, it cannot be said that the opinion formed by Hon'ble the Chief Justice for retiring the petitioner in "public interest" is based on no material on record or is not justified from the service record of the petitioner.

101. The writ petition therefore lacks merit. Dismissed.

102. The cost is made easy.

Order Date :- 05.07.2011 KA