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1984 DIGILAW 543 (ALL)

Oudh Narain Srivastava v. State of U. P.

1984-07-31

B.N.SAPRU

body1984
JUDGMENT B.N. Sapru, J. :- This writ petition has been filed against the decision of the U.P. Public Services Tribunal-I, Lucknow in Oudh Narain Srivatava v. The District Judge, Jaunpur Claim Petitioner No. 505 (1) 76. By its judgment and order dated 11.5.1977 the Tribunal dismissed the petitioner's claim petition. 2. The petitioner was employed in the Civil Courts at Jaunpur. Under an order the District Judge dated 30.4. 1976 the petitioner was compulsorily retired from service under Fundamental Rule 56(c). The petitioner was awarded two adverse entries in the year 1965. One on 12.1.1965 and the other on 30.1.1965. The petitioner's integrity certificate for the year 1964-65 was withheld. On 22.3.1966 the petitioner had been promoted as Reader to the court of Civil Judge and according to him on 21.1.1975 the petitioner was promoted to the Selection Grade I from Grade II. As mentioned earlier the petitioner was compulsorily retired under an order of the District Judge dated 30.4.1976. 3. The argument on behalf of the petitioner is that adverse entries awarded to him in the year 1965 stood erased as a result of his subsequent promotions and could not be used as material for making an order of compulsory retirement. In this connection the learned counsel for the petitioner has relied on certain decisions to which reference is now being made. 4. The first decision relied upon by the learaned counsel for the petitioner is the decision of the Supreme Court in the case of Baldev Raj Chadha v. Union of India AIR 1981 SC 70 : (1980) 4 SCC 321 . In that case it was held that where the Government servant has been allowed to cross the efficiency bar and there were no adverse entries in the character roll at least for five years, the order of compulsory retirement could not be sustained. 5. The next decision is the decision of the Supreme Court in the case of Brij Behari Lal Agarwal v. Hon'ble High Court of Madhya Pradesh, AIR 1981 SC 594 : (1981) 1 SCC 490 . That was a case where compulsory retirement has been ordered as a punishment. 5. The next decision is the decision of the Supreme Court in the case of Brij Behari Lal Agarwal v. Hon'ble High Court of Madhya Pradesh, AIR 1981 SC 594 : (1981) 1 SCC 490 . That was a case where compulsory retirement has been ordered as a punishment. In this case it was held as follows: "What we would like to add is that when considering the question of compulsory retirement, while it is no doubt desirable to make an overall assessment of the Government servant's record, more than ordinary value should be attached to the confidential reports pertaining to the years immediately preceding such consideration. It is possible that a Government servant may possess a somewhat erratic record in the early years of service, but with the passage of time he may have so greatly improved that it would be of advantage to continue him in service up to the statutory age of superannuation. Whatever value the confidential reports of earlier years may possess, those pertaining to the later years are not only of direct relevance but also of utmost importance." 6. The next decision relied upon by the learned counsel for the petitioner is the case of D. Ramaswami v. State of Tamil Nadu, (1982) 1 SCC 510 . It was held in this case that where a Government Official had been promoted a few months prior to the order of compulsory retirement, the order could not be sustained. The Supreme Court further held that there was no material to show that anything substantial had happened between the date of promotion of the Government servant and the order of compulsory retirement to justify the said order. 7. The last decision relied upon by the learned counsel for the petitioner is the decision of the Supreme Court in the case of State of Andhra Pradesh v. S.N. Nizamuddin Ali Khan, AIR 1976 SC 1964 : (1976) 4 SCC 745 . That was a case where an officer was compulsorily retired as a punishment. It was found that the High Court took into consideration a report which was not disclosed to the Government servant whose services were compulsorily retired. It was found that as the Government servant had no opportunity of making a representation against the said report, the order of compulsory retirement could not be sustained. 8. It was found that the High Court took into consideration a report which was not disclosed to the Government servant whose services were compulsorily retired. It was found that as the Government servant had no opportunity of making a representation against the said report, the order of compulsory retirement could not be sustained. 8. The position in Uttar Pradesh has substantially altered rafter after the enforcement of U.P. Fundamental Rule 56 (Amendment) Act, 1976. In Explanation (2) it was provided as' follows: "(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 ad hoc basis; or (b) any entry against which a representation is pending, provided that the representation is also taken into consideration alongwith the entry; or (c) ....................." (c) ................. Explanation (2-A) provides as under: "Every such decision shall be deemed to have been taken in the public interest." 9. The learned counsel for the petitioner argues that since the adverse entries awarded to the petitioner in the year 1965 were followed by the petitioner's promotion the said entries ceased to exist in law and could not have been taken into consideration. This argument cannot be accepted for the simple reason that the appointing authority is expressly authorised to take into consideration any entry relating to any period before the Government servant was allowed to cross the efficiency bar or before he was promoted. The adverse entry is taken into consideration in order to enable the appointing authority to decide whether it was in the public interest to retain the Government servant in service or not. It cannot be accepted that the entries are entirely erased. 10. The next argument of the learned counsel -for the petitioner is that according to the counter-affidavit filed by the District Judge the petitioner had been temporarily promoted to Grade I from Grade II and at best he could have been reverted but not ordered to be compulsorily retired. There is no legal basis for advancing this argument. 10. The next argument of the learned counsel -for the petitioner is that according to the counter-affidavit filed by the District Judge the petitioner had been temporarily promoted to Grade I from Grade II and at best he could have been reverted but not ordered to be compulsorily retired. There is no legal basis for advancing this argument. This argument is accordingly rejected. 11. Sri S.P. Srivastava, learned counsel for the petitioner, then argues that the adverse entries which are remote in time to the issue of order of compulsory retirement the order could become bad. As seen earlier the petitioner's integrity certificate for the year 1964-65 had been withheld. It was disclosed in the counter-affidavit that the work of the petitioner was not satisfactory despite his promotion to the II Grade. In the circumstances the Tribunal was justified in rejecting the claim petition filed by the petitioner. 12.In the result the writ petition fails and is dismissed with costs.