D. R. CHAUDHARY, J.

( 1 ) DR. Phool Chand Yadav, the petitioner herein, while working on the post of District Social welfare Officer, Sidharthnagar was served with an order dated 28. 9. 2000 (Annexure-8) issued by the State Government in exercise of its power under Rule 56 (c) of the Fundamental Rules, retiring him prematurely with immediately effect and three months salary was directed to be paid in lieu of the notice. The legality and validity of the order dated 28. 9. 2000 has been questioned by means of this writ petition.

( 2 ) THE facts, as borne out of the pleadings, are that the petitioner, while posted in the district ghazipur as District Social Welfare Officer, he went on medical leave from 25. 9. 1997. During leave period, his wife developed lever cancer which resulted in her death. When he went to join his duties, he was not allowed as one Ratan Kumar had been posted in his place by the Director, social Welfare. U. P. Lucknow. Aggrieved, the petitioner made a representation, which annoyed the Director Sri Kapil Dev who attached the petitioner to the office of the Director, Directorate of Social Welfare. U. P. . Lucknow. His attachment continued from January, 1999 up to 5th May. 1999 and during this period, as stated in para 10 of the writ petition, the Director became revengeful to the petitioner. In para 11 of the writ petition, It has been stated that right from the date of joining, i. e. . in the year. 1984 up to the year 1996-97 no adverse entry has ever been made against the petitioner. The work and conduct of the petitioner was always found to be excellent and no grudge of any kind was ever shown with regard to his work and conduct; he has always been given good entries by his superiors and by no stretch of imagination, the petitioner could be considered unfit for the services of the State. He further alleged in para 12 that Sri kapil Dev took a decision dated 7. 4. 1998 awarding special entry condemning the action of petitioner in respect of the act done within the period from 25. 9. 1997 to 30th June, 1998. It has been averred that the representations dated 16. 4. 1998 and 23. 4. 1998 (Annexure-6 to the writ petition) against the aforesaid adverse entry is still pending ; there was no material before the respondent No. 2 to form an opinion to retire the petitioner pre-maturely under Rule 56 (c) of the fundamental Rules Financial Hand Book Vol. 2 Part II to IV except that of a single adverse entry for the year 1997-98 against which representation was pending as has been stated in paragraph No. 17 of the writ petition. On the strength of these pleadings the order impugned is sought to be quashed.

( 3 ) NO counter-affidavit has been filed by the respondents though by order dated 16. 10. 2000 of this Court, four weeks time was granted to the learned standing counsel and the case was ordered to be listed on 30. 11. 2000.

( 4 ) HEARD Sri Rajiv Mishra and Sri R. C. Yadav, the learned counsel appearing for the petitioner and the learned standing counsel for the respondents.

( 5 ) WITH the aid of uncontroverted pleadings, Sri Rajiv Misra submitted that the order impugned dated 28. 9. 2000 retiring the petitioner compulsorily is patently illegal, without jurisdiction and suffers from mala fide inasmuch as entire service record has not been considered and the sole foundation for the exercise of the power of retiring the petitioner compulsorily from service is the adverse remark for the year 1997-98. He further contended that the impugned decision is based on collateral grounds and is arbitrary and, therefore, cannot be sustained in the eye of law.

( 6 ) THE learned standing counsel, on the other hand submitted that there was sufficient material before the authorities for invoking the provisions of Fundamental Rule 56 (c) Vol. 2 Part II to IV of Financial Hand Book, the order impugned herein, therefore, is justified. He also urged that annexure-6 cannot be said to be the representation against adverse entry as by the a

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