JUDGMENT Sudhir Narain, J.
1. This writ petition is directed against the order dated 13.12.1995 passed by respondent No. 1 retiring the petitioner compulsorily.
2. The facts, in brief, are that the petitioner was appointed on the post of Store Keeper in Nagar Palika, Jaunpur on 16.11.1968. He was confirmed in the service on 18.12.1969. The petitioner was later on attached with Shahganj Nagar Palika on 9.5.1995. There has been litigation between the petitioner and the Nagar Palika. The order of suspension was passed against the petitioner on 6.1.1975. The petitioner filed Civil Suit No. 99 of 1975 for injunction in which an interim order was granted on 8.2.1975 against which the Nagar Palika, Jaunpur, filed appeal which stood abated under Section 6 of U. P. Public Services Tribunal Act and the appeal stood transferred to the Tribunal. The said appeal was decided on merits on 11.7.1977 and was dismissed. The petitioner was not paid the amount for the period he remained under suspension. He filed Claimed Petition No. 76/11/82 before the U. P. Public Services Tribunal. The claim petition was allowed on 3.8.1988 directing the respondents to decide the petitioner's prayer for leave from 19.11.1981 to 8.2.1982.
3. The petitioner was not awarded any annual increment. He filed another Claim Petition No. 59/11/86. The claim petition was dismissed on 13.3.1995 but a direction was given to the effect that if increment is due, then the same shall be sanctioned to the petitioner as per rules and he shall be paid arrears thereof. This direction, according to the petitioner, was not obeyed. He filed Contempt Case No. 496 of 1995 before the Tribunal.
4. The Chairman, Nagar Palika Parishad, respondent No. 1, passed an order on 13.12.1995 whereby the petitioner was compulsorily retired. In the writ petition, it has been alleged that the order was passed mala fide as the petitioner had filed contempt petition. It is further averred that he was never communicated any adverse entry in his character roll. The order is alleged to have been passed arbitrarily and without any material to come to the conclusion that the petitioner is unfit for service in public interest.
5. A counter-affidavit has been filed on behalf of the respondents. !n para 5 of the counter-affidavit, it has been stated that the petitioner was awarded several adverse entries during his service period. He was placed under suspension on 10.8.1982 and an order of punishment was passed by the District Magistrate reprimanding him on 25.1.1983. Thereafter he was suspended on 27.2.1985 and was reinstated on his post on 10.5.1987 by the Commissioner. The Chairman awarded adverse entries during the period 1990-91 to 1994-95. In the rejoinder-affidavit, it has been stated that the adverse entries were never communicated. As regards the order of suspension, the petitioner had filed suit. Later on the matter was decided by the Tribunal and It was found that the order of suspension was Illegal. The adverse entries were never communicated to the petitioner. This fact has not been denied by the respondents.
6. Learned counsel for the respondents urged that uncommunicated adverse entries can be taken into account while passing the order of compulsory retirement. He has placed reliance upon the decision Baikunth Nath Das v. Chief District Medical Officer. AIR 1992 SC 1020, wherein it was held that even uncommunicated adverse entries can be taken into consideration while passing order of compulsory retirement. This decision was followed in H. G. Venkatachaliah Setty v. Union of India and others. (1997) 11 SCC 366, wherein the Supreme Court relying upon the decision in Baikunth Nath Das's case and considering the provisions of Rule 2046 (h) (i) of the Indian Railway Establishment Code, held that the order of compulsory retirement can be passed relying upon uncommunicated adverse entries.
7. The decision of Baikunth Nath Das was considered by a Division Bench of this Court in Dilawar Singh Paul v. State of U. P. and others. 1997 ALJ 1419, wherein the case of Baikunth Nath Das was distinguished interpreting U. P. Fundamental Rule 56 (Amendment) Act, 1976, that no order of compulsory retirement can be passed on the basis of uncommunicated adverse entries. It relied upon the following provisions of clause (2) of U. P. Fundamental Rule 56 which reads as under :
"(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) 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."
The Court observed as under :
"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 no opportunity of making a representation against it, and an uncommunicated entry cannot be relied upon for passing an order of compulsory retirement."
8. The case of Baikunth Nath Das was based upon the Rules applicable to the Orissa Government Servants which was different from the law in Uttar Pradesh.
9. Teamed counsel for the respondents then urged that the screening committee had submitted report to respondent No. 1 and on the basis of the report of the screening committee, the impugned order of compulsory retirement was passed. A copy of the report of the screening committee dated 13.1.1994 has been annexed as Annexure-1 to the supplementary counter-affidavit. This report indicates that the petitioner does not take interest in the work of Palika, he remains absent, submits claim petition, etc. in the Court against the officers and removes various goods from the store. In the supplementary rejoinder-affidavit, it has been stated that the observation made in the report of the screening committee is not based on the material. The respondents have not placed any material to indicate that on what basis the observations have been made in the report submitted by the screening committee.
10. The respondents have failed to establish that the order of compulsory retirement was passed on the basis of any material to come to the conclusion that it will be in the public interest to retire the petitioner cpmpulsorily. The order dated 13.12.1995 cannot be sustained.
11. In view of the above, the writ petition is allowed. The order dated 13.12.1995 is hereby quashed. Considering the facts and circumstances of the case the parties shall bear their own costs.