2001 Supreme(SC) 372

2001(2) Supreme 155
SUPREME COURT OF INDIA
(From Allahabad High Court)
G.B. Pattanaik & Umesh C. Banerjee, JJ.
State of U.P. & Anr. -Appellants
versus
Lalsa Ram -Respondent
Civil Appeal No. 4040 of 1999
Decided on 23-2-2001
Counsel for the Parties :
For the Appellants : Y.P. Singh, C. Siddharth, Mukesh K. Sharma, Ajay K. Agrawal, Advocates.
For the Respondent : Shashindra Tripathi, Ms. Mridula Ray Bharadwaj, Advocates.

IMPORTANT POINTS
1. Rule 56(c) of the U.P. Fundamental Rules provides an authority to the Board with an absolute right to retire an employee on the date on which he attains the age of 50 years.
2. Adverse entries in service record do not stand extinguished by mere lapse of time but they continue 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.

Headnote:Service Law-Compulsory retirement-Uttar Pradesh Fundamental Rules-Rule 56-Absolute right given under rules to retire an employee on date on which he attains age of 50 years-Factum of doctrine of natural justice not available to such an employee-Adverse entries in service records prior to promotion-Can be considered-Adverse entries do not stand extinguished by mere lapse of time but continue to be on record-It is for employer to act and rely thereon in the event of there being a rule permitting an order of compulsory retirement-Promotion on basis of seniority-Entire service-Entire service record rightly considered-Compulsory retirement cannot be interfered with.

       The Uttar Pradesh Fundamental Rules governing the service conditions of the respondent herein, in particular, 56(c), 56(2) (a), (b) and (c) specifically provide that nothing in the rules should be construed to exclude from consideration of any entry relating to any period before a government servant was allowed to cross 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: nothing herein contained shall be construed to exclude from consideration: the exclusion thus is prohibited in terms of the rule. The concerned authority 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 s case 1992(2) SCC 299 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 9)

       The respondent herein very strongly adverted to the promotion offered and contended that even assuming there were adverse reports and remarks by reason of the promotion being made available, the adverse remarks lost its sting and as such the same does not and cannot be said to be a factor which must have weighed with the concerned authority directing compulsory retirement. Admittedly and the law being well settled on this score that in the event of there being a promotion by the Departmental Promotion Committee upon assessment of the service career and annual confidential reports the adverse entries loose its sting - in the event however, the promotion is offered only on the ground of seniority without any assessment of the entire career situation, question of adverse entries loosing its sting does not and cannot arise. In the contextual facts if it was promotion by way of a selection and not by seniority, no exception could be taken therefore but the facts in the present context depict otherwise since the respondent herein was promoted by seniority only. The fourth principle as enunciated by this Court in Baikuntha Nath s case (supra) thus cannot be of any assistance to the respondent herein. (Para 10)

       Rule 56(c) of the U.P. Fundamental Rules read with sub-rule (2) as noted herein before provides an authority to the Board with an absolute right to retire an employee on the date on which he attains the age of 50 years. The option for the government servant to voluntarily retire however has been attributed to the concerned employee at any time after attaining the age of 45 years or after he has completed qualifying service of 20 years. The fundamental rules thus confer a right absolute to retire an employee on the happening of certain event namely the latter attains 50 years of age - the right being absolute and in the event the same is not contra to the conditions as embodied in Rule 56 of the Fundamental Rules, question of violation of any legal right of the respondent herein does not and cannot arise. The factum of the doctrine of natural justice being not available to an employee so retired compulsorily stands well settled and we need not dilate thereon. (Para 11)

       The issue of mala fides has not been or even raised in the pleadings of the matter in issue and as such we are not called upon to delve into the same. 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 on the wake of the aforesaid, question of any interference of this Court does not and cannot arise. Interference in these matters by the courts in exercise of its 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 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 14)