JUDGMENT :

Sudhir Agarwal, J.

1. Heard Sri Anil Kumar Srivastava, learned counsel for petitioner and learned Standing Counsel for State-respondent.

2. Petitioner whose date of birth is 19.12.1946 was recommended for compulsory retirement on account of his illness and continuously seeking leave or absence on account of illness and, therefore, finding that he is driver and has rendered dead wood, pursuant thereto by impugned order dated 30.11.2002, he has been compulsorily retired.

3. Learned counsel for petitioner submitted that perusal of counter-affidavit filed on behalf of respondents shows that there is no adverse entry against petitioner and he has been compulsorily retired against law.

4. A brief scrutiny of counter-affidavit alongwith its enclosures shows that petitioner has been consistently seeking leave on the ground of illness and physical disability, from time to time. Scrutiny of 10 years Annual Reports shows that petitioner himself had applied for leave on the ground of his pancreas being removed by operation and he had been suffering with diabetes. It was further found that petitioner is a mischievous and indisciplined employee and was also habitual of making complaint against officers. Petitioner's own admission in his application is that sometimes he becomes unconscious and also needs insulin due to severe diabetes. In the circumstances, he was found dead wood for rendering services as a driver. The above facts are sufficient to show that petitioner's compulsory retirement is in public interest and cannot be said to be arbitrary.

5. 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.

6. Compulsory retirement is 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, 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 statutory rules were framed, it was also included as one of the punishment but later form is not applicable in all cases inasmuch as, in State of Uttar Pradesh, particularly in the present case also, Disciplinary and Appeal rules regulating employees like petitioner do not include any punishment of compulsory retirement. Therefore so far as present case is concerned, I may clarify that under the terms and conditions applicable to petitioner, compulsory retirement can be resorted to only under Fundamental Rule 56 which is not by way of punishment. It can be resorted to only when an opinion to this effect is formed by 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.

7. The historical concept of compulsory retirement, in the context of employees under 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 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.

8. When Government of India Act, 1919 (hereinafter referred to as "GI Act, 1919") was enacted, the aforesaid notification was in operation. It thus continued by virtue of Section 96-B(4) of GI 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