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2001 DIGILAW 1060 (ALL)

KAMLESHWAR NATH SRIVASTAVA v. STATE OF UTTAR PRADESH

2001-11-23

D.S.SINHA

body2001
D. S. SINGH, J. ( 1 ) HEARD Sri B. P. Srivastava, learned counsel appearing for the petitioner-applicant, and Sri V. N. Agarwal, learned standing counsel of the State of U. P. , representing the respondents. ( 2 ) AFTER the lapse of an interminable period of more than eight years, the petitioner-applicant seeks to have the order and judgment of the Court dated 12th October, 1993, reviewed. ( 3 ) THE review application is accompanied by a application for condonation of delay under section 5 of the Indian Limitation Act, 1963, and is supported by an affidavit of the registered clerk of the learned counsel. ( 4 ) THE Court has perused the averments made in support of the delay condonation application and has not been able to find any tangible ground muchless sufficient to condone the delay. The ground set up is that on 24th July. 2000, the petitioner-applicant came to enquire about the case and, on inquiry from the High Court office by the aforesaid registered clerk, it was revealed that the petition had been dismissed on 12th October, 1993. On record, there is neither any application for inspection of the record nor is there any application seeking information about the status of the case. In the absence of the inspection application and the application seeking information, or any other legal source of information, the assertion that the registered clerk came to know about the order and judgment dated 12th October. 1993 from the High Court office is too good to be believed. ( 5 ) REVIEW application is highly belated and the delay in making the same cannot be condoned for want of any cogent ground. ( 6 ) IT is appropriate to notice that the order and Judgment dated 12th October, 1993, is an order and judgment passed on merits, after due consideration of the relevant material placed on record by the parties. It is true that the learned counsel of the petitioner was not present, but the factum of his absence cannot alter the character of the order and judgment from one being on merits to an ex parte order of dismissal in default. It appears that the order and judgment dated 12th october, 1993, though on merits, is perceived by the petitioner-applicant as the order dismissing the petition in default. Indeed, it is not so. It appears that the order and judgment dated 12th october, 1993, though on merits, is perceived by the petitioner-applicant as the order dismissing the petition in default. Indeed, it is not so. ( 7 ) ON merits of the prayer for review, the petitioner-applicant has not been able to point, out any legal recognised ground for reviewing the order and judgment dated 12th October, 1993. ( 8 ) THE sole ground pressed by the learned counsel for review of the order and Judgment is that the adverse entries awarded to the petitioner prior to the year 1966 when he had been promoted to senior scale were illegally taken into consideration, and this aspect escaped the notice of the court, resulting in an error apparent on the record. In substance, it appears, doctrine of condonation is being pressed into service. ( 9 ) RELIANCE upon the doctrine of condonation is misplaced inasmuch as it is well-settled that while considering the question of compulsory retirement, the concerned authority can take into account overall performance of the incumbent as mirrored by the service record, including the entries awarded to him prior to the promotion. Even uncommunicated entries also can be taken into account for the purpose of assessing the desirability of retaining the incumbent in service after he attains the age of 50 years or completes the period of qualifying service. It is to be remembered that an order of compulsory retirement is not an order of punishment. Government has a prerogative to retire its employee on an over-all assessment of his performance. Such an order is not amenable to challenge except on the ground of mala fide or perversity or total lack of evidence. ( 10 ) IN the back-drop of this legal position, there was no illegality in taking into account the entries awarded to the petitioner-applicant prior to his promotion in the superior scale in the year 1966 for the purpose of the decision to retire the petitioner-applicant compulsorily. The order and judgment of the Tribunal is perfect, and in upholding the same, the Court did not commit any error apparent on record. ( 11 ) ALL told, in the opinion of the Court, neither the delay condonation application nor the review application has any substance. Accordingly, they are rejected. .