Back
1993 Supreme(All) 421
HIGH COURT OF ALLAHABAD
A.P. Singh, J.
Beni Madhav Upadhyay – Appellants
Versus
Inspector General (Registration) U. P. Allahabad - Respondents
Civil Misc. Writ Petition No. 34977 of 1991
Decided on : Sep 09, 1993
Satya Narain Mishra
Adverse entries awarded to a government servant prior to his promotion on merit-cum-seniority basis lose their efficacy and cannot be relied upon for passing an order of compulsory retirement under Fundamental Rule 56 (c).
Headnote:
COMPULSORY RETIREMENT - ADVERSE ENTRIES - PROMOTION - REPRESENTATION PENDING - ARBITRARINESS - ARTICLE 14 - WRIT PETITION - QUASHING OF ORDER - REINSTATEMENT - PAYMENT OF SALARY AND OTHER DUES.
Fact of the Case:
Petitioner, a Sub-Registrar, challenged the order of his compulsory retirement passed under Fundamental Rule 56 (c), Vol. II, Parts II to IV, on the ground of various adverse entries awarded to him in the last ten years of his service preceding the order. The petitioner contended that the adverse entries lost their efficacy and became meaningless due to promotions granted to him on merit-cum-seniority basis and that the order was vitiated due to pending representations against the adverse entries.
Finding of the Court:
The Court found that the adverse entries awarded to the petitioner prior to his promotions on various posts, including Sub-Registrar, lost their sting and could not be relied upon for passing the order of compulsory retirement. The Court also held that the order was arbitrary and violative of Article 14 of the Constitution as the Screening Committee and the Appointing Authority failed to consider the petitioner's service record as a whole and did not apply their minds to the material on record.
Issues: 1. Whether the adverse entries awarded to the petitioner prior to his promotions lost their efficacy and became meaningless? 2. Whether the order of compulsory retirement was vitiated due to pending representations against the adverse entries? 3. Whether the order was arbitrary and violative of Article 14 of the Constitution?
Ratio Decidendi: 1. The Court held that the adverse entries awarded to the petitioner prior to his promotions lost their sting and could not be relied upon for passing the order of compulsory retirement, as promotions are granted on the basis of merit and seniority, and adverse entries prior to promotion are considered to have been washed away. 2. The Court held that the order of compulsory retirement was vitiated due to pending representations against the adverse entries, as it is against the principles of natural justice to retire an employee prematurely on the basis of adverse entries which are either not communicated to him or if communicated, representations made against those entries are not considered and disposed of. 3. The Court held that the order was arbitrary and violative of Article 14 of the Constitution as the Screening Committee and the Appointing Authority failed to consider the petitioner's service record as a whole and did not apply their minds to the material on record.
Final Decision: The Court quashed the order of compulsory retirement and directed the reinstatement of the petitioner in service with payment of arrears of salary and other dues and benefits payable to him till the date of reinstatement.
A.P. Singh
1. BY means of present writ petition, petitioner Beni Madhav Upadhyaya, Sub-Registrar, has challenged the order of his compulsory retirement dated 13-11-1991 (annexure-8 to the writ petition) and has also sought an order in the nature of Mandamus for directing respondents to treat him in service with all service benefits.
2. BRIEF facts of the case may be stated as follows.
Petitioner was appointed initially as a Camp clerk on 31st July, 1986 on which post he was confirmed on 1-4-1962. In due course, he was promoted as junior Noter and Drafter on 22-11-1979 and was confirmed on that post on 1-8-1985. Thereafter, petitioner was promoted as senior Noter and Drafter, on which post too he was confirmed on 13-11-1990 with effect from 1-8-1986. He was also promoted as Office Superintendent with effect from 1-8-1990 by order dated 13-11-1990 itself. The petitioner was then promoted as Sub- Registrar on 5-5-1991, on which post he continued to work till the date of passing of the impugned order of compulsory retirement which was passed by the Inspector General (Registration) who happens to be his appointing authority. The order was passed in exercise of the powers under fundamental Rule, 56 (c), Vol. II, Parts II to IV. The order of compulsory retirement is stated to be in public interest. No reasons have been given for passing the order of compulsory retirement of the petitioner. Respondents have, however, filed a copy of the Screening Committee's report as annexure 1 to the Counter affidavit on the basis whereof it is stated the petitioner was retired. Para 7 of the Screening Committee's report deals with the case of petitioner. It reads as follows :
"Nibandhan vibhag me vittiya vars 1990-91 me up-nibandhak adhisthan ko ki gayi screening se sambandhit karyawahi : 1................ 2............... 3................. 4................. 5.........??...... 6................ 7 chha-Sri Beni Madhav upadhyay up-nibandhak ka karya bahut hi kharab raha hai. Gata 10 varson me sthiti nimna prakar hai- (1) Vars 1981-82 me vittiya aniyamitataon ke arop me doshi paye gaye tatha satyanistha pramanit nahi ki gayi. (2) Vars 1983-84 me saman kray karne aur chaturth shreni ke karma- chariyon ke aharan me vittiya aniyamitata ke doshi paye gaye. (3) Vars 1984-85 me bhi samagri kray aur chaturth shreni karmachariyon ke vetan aharan me bhi aniyamitata payi gayi. (4) Vars 1985-86 me cashier aur nazir ke karya me asavcihani varti tatha vittiya aniyamitata ki. Aek vars ki vetan vridhi roki gayi. (5) Vars 1990-91 me samuhik jivan vima ke prapta cheque ko apne pas rakhe rahe aur kalatit ho gaye. Is laparwahi evam kartabyahinata ke liye inhe nindit kiya gaya. Vigata 10 varson ke atirikt vars 1974-75, 1975-76, 1976-77 me kartabyahinata aur gair zimmedari ke liye pratikul pravishti di gayi. Vars 1975-76 me visesh pratikul pravisti di gayi hai. Uprokt tathyaon ke adhar par Sri Upadhyay ko sewa me bane rahane ka koi auchitya nahi hai. Inhe anivarya rup se sewa se prithak kiya jaye."
(J. P. Misra) (C. M. Srivastava) (R. K. Kunwar) Apar Mahanirikshak Nibandhan, Apar Maha- Ni. Mahanirikshak, U. P., Allahabad nirikshak, Uttar Pradesh, Allahabad Allahabad
3. A perusal of the relevant portion of the Screening Committee's report which deals with the petitioner, shows that the petitioner was retired on the ground of various adverse entries awarded to him in the last ten years of his service preceding the passing of the order of compulsory retirement, viz. between 1983-84 and 1990-91. Apart from this, it has also been noted in the said order that even before that period in the earlier ten years also petitioner had been given various adverse entries in the years 1974-75, 1975-76 and 1976-77 and, therefore, petitioner was not found fit to be retained in service.
4. IN the writ petition the petitioner has stated that the adverse entries enumerated in the Screening Committee's report were no doubt awarded to him but he filed representations against all these
