JUDGMENT : U.K. Dhaon and S.S. Chauhan, JJ. The Petitioner feeling aggrieved with the order of compulsory retirement dated 22.4.2002 has preferred this writ petition under Article 226 of the Constitution of India. 2. Brief facts of the case are that the Petitioner was initially appointed on the post of Assistant Engineer in the erstwhile U.P. Electricity Board in the year 1980. He was later on promoted to the post of Executive Engineer in the year 1990-91 and thereafter to the post of Superintending Engineer in the year 1999. The Petitioner could not discharge his duties due to illness from 16.8.1999 to 18.5.2000 and the said period of leave was regularised by means of the order dated 26.4.2001. Thereafter, the Petitioner continued to perform his duties on the post of Superintending Engineer without any hindrance. Sri Udai Narain joined as Chief General Manager on 2.7.2001 and the Petitioner did not come to the office after 2.7.2001, as is evident from the report dated 28.8.2001 submitted by Sri Udai Narain, i.e., the date on which he has joined. The Petitioner was placed under suspension on the ground of absenting himself from duty. The Petitioner's case was thereafter considered by the Screening Committee and the Screening Committee found that the Petitioner was not fit to be retained in service as he has become dead wood and his services were of no utility to the department and, therefore, he should be compulsorily retired. The Screening Committee took into consideration the censure entry dated 24.2.2000 and also the adverse report submitted by Sri Udai Narain dated 28.8.2001, wherein he has specifically mentioned that the Petitioner was habitual drinker and was also a drug addict and as such he has become physically unfit to be continued in service and disciplinary proceedings were also going on against him at the time when the Screening Committee considered his case. 3. The learned Counsel for the Petitioner submits that the three grounds, which have been taken into consideration by the Screening Committee, on the basis of which the impugned order has been passed are false, baseless and irrelevant. 3. The learned Counsel for the Petitioner submits that the three grounds, which have been taken into consideration by the Screening Committee, on the basis of which the impugned order has been passed are false, baseless and irrelevant. He submits that the adverse entry, which was awarded to him on 24.2.2000, was with respect to audit which was started on 8.10.1996 and came to an end on 2.5.1997 for the period July, 1990 to March, 1995 and the report of the audit team which has been filed as Annexure-S.A. 1 alongwith the supplementary-affidavit dated 25.4.2005, reveals that neither any adverse opinion has been expressed nor any shortcoming has been pointed out by the audit team against the Petitioner, but inspite of that the Petitioner was issued notice dated 31.12.1998 and ultimately he was awarded censure entry dated 24.2.2000. The learned Counsel for the Petitioner further submits that the adverse entry, which was awarded to the Petitioner, was not in context of any misconduct, but in fact it was baseless and on non-est ground as the Petitioner had never been posted there from the years 1990 to 1995 and he was only required to assist the audit team to which he extended full support and so there is no misconduct on his part. 4. The learned Counsel for the Petitioner further submits that the ground of habitual drinker and the drug addict was also without any basis as evident from the report dated 28.8.2001 submitted by Sri Udai Narain which does not indicate in what manner and on the basis of which material it was assessed by Sri Udai Narain that the Petitioner was a habitual drinker and a drug addict. The counsel for the Petitioner has also assailed the third ground by submitting that during the continuance of the disciplinary proceedings, the order of compulsory retirement should be taken as punishment and the said order cannot be sustained. 5. The learned Counsel for the Petitioner has relied upon the decisions of the Hon'ble Supreme Court in R.K. Panjetha V/s. Haryana Vidyut Prasaran Nigam Ltd. and Anr., (2002) 10 SCC 590 State of Gujarat Vs. Umedbhai M. Patel, and 2001 (2) AWC 1445 (SC) and contended that the nature of the adverse entry was not of such gravity which warrants compulsorily retirement of the Petitioner. Umedbhai M. Patel, and 2001 (2) AWC 1445 (SC) and contended that the nature of the adverse entry was not of such gravity which warrants compulsorily retirement of the Petitioner. Counter-affidavit has been filed on behalf of the Corporation denying the allegations made in the writ petition and it has been stated that the Petitioner was awarded adverse remarks in his annual confidential report for the period 16.9.1994 to 31.10.1994, which was later on expunged on 5.6.1997. It has further been contended in the counter-affidavit that annual confidential report for the period 4.2.1995 and onwards were not received, but he was promoted due to some technical reasons. The opposite parties have denied the promotion of the Petitioner on the basis of merit. The malice levelled against Sri Udai Narain has been denied in para 11 of the counter-affidavit and it has been contended that he being the immediate superior officer had the opportunity to look into the work of the Petitioner and the office report submitted by him was without any bias. The High Level Committee constituted for the purpose examined the records of various officers and found 8 Deputy General Managers, including the Petitioner not fit to be retained in service. The Petitioner was compulsorily retired in public interest and the order of compulsory retirement is not liable to be interfered by this Court. 6. The learned Counsel for the opposite party to substantiate his argument, has relied upon the cases of State of U.P. and Another Vs. Bihari Lal, AIR 1995 SC 1161 , The State of Punjab Vs. Gurdas Singh, AIR 1998 SC 1661 , State of U.P. and Another Vs. Lalsa Ram, and R.P. Pandey v. U.P. Power Corporation Limited and Ors. 2004 (22) LCD 20. 7. The Petitioner has filed the rejoinder-affidavit denying the allegations made in the counter-affidavit and has submitted that there was no occasion for Sri Udai Narain to make recommendation on 28.8.2001 when he himself has joined on 2.7.2001 and the report submitted by Sri Udai Narain itself indicates that the Petitioner was absent after his joining on 2.7.2001 and so in any way Sri Udai Narain was having no opportunity to judge the work and conduct of the Petitioner and his physical and mental whereabouts as he has expressed in his report dated 28.8.2001. He has denied that the Petitioner was ever posted between July, 1990 to March, 1995 at Basti and he was only required to assist the Special Audit Team which he assisted and extended full support and he worked from 17.7.1995 to 20.10.1998 at Basti and so by any stretch of imagination the Petitioner could not have been awarded censure entry and that too for the reason that he did not supply the necessary notes as demanded by the Special Audit Team. The further submission of the Petitioner's counsel is that Sri Udai Narain had no opportunity at any point of time to look into the work and conduct of the Petitioner and there was no material before him to form the opinion that the Petitioner was heavy drunkard and drug addict. He submits that Sri Udai Narain was biased against him and so he submitted the report with ulterior motive. 8. We have heard Sri A.R. Masoodi, learned Counsel for the Petitioner and Sri Vishal Singh, learned Counsel for the opposite parties. 9. The point, which requires consideration by this Court, is as to whether the adverse entry awarded to the Petitioner dated 24.2.2000 can form the basis for compulsory retirement. 10. In R.K. Panjetha V/s. Haryana Vidyut Prasaran Nigam Ltd. and Anr., (2002) 10 SCC 590 the Hon'ble Supreme Court considered the impact of various punishments, which were six in numbers awarded to the Appellant in that case including two censure entries and stoppage of four increments without cumulative effect. A charge-sheet has also been issued on 5.9.1997 and after considering the entire punishments awarded to the Appellant in that case, the Apex Court found that the order of compulsory retirement was stigmatic in character as the order was ex facie punitive and the same was quashed. 11. In State of Gujarat Vs. Umedbhai M. Patel, AIR 2001 SC 1109 the Appellant was facing a departmental enquiry and he was placed under suspension by means of order dated 22.5.1986. During the pendency of the enquiry the Appellant was compulsorily retired by means of the order dated 13.2.1987. The order was set aside by the High Court and the Apex Court upheld the same holding that the same was passed for extraneous reasons. The authorities should have waited for conclusion of the enquiry. 12. During the pendency of the enquiry the Appellant was compulsorily retired by means of the order dated 13.2.1987. The order was set aside by the High Court and the Apex Court upheld the same holding that the same was passed for extraneous reasons. The authorities should have waited for conclusion of the enquiry. 12. The Apex Court in the case of 2001 (2) AWC 1445 (SC) wherein also there was no adverse material in the character roll and certain explanation was called from the Appellant with regard to his absence on some occasion without permission from the head quarter and spending more on the telephone bill than the monetary limit prescribed for such telephone calls. The Appellant therein submitted the explanation for the said short-coming stating therein that most of the calls were official in nature and, therefore, it cannot be said to be in violation of the rules. The Apex Court perused the service record and found that there was nothing adverse in the annual confidential report and on the basis of the said correspondence he was illegally compulsorily retired. There was no material, before the Screening Committee and a conclusion not based on any materials is obviously justiciable and could be interfered with by a Court of law. In this background the compulsory retirement of the Appellant was set aside. 13. In the case of State of U.P. and Another Vs. Bihari Lal, and in the same vein in the case of The State of Punjab Vs. Gurdas Singh, it has been held that the entire service record has to be taken into consideration and even uncommunicated entry can also be taken into consideration and adverse remarks prior to the promotion can also be taken into consideration. 14. In State of U.P. and Another Vs. Lalsa Ram, AIR 2001 SC 1137 it has been held that adverse entries although preceding the crossing of the efficiency bar or promotion or being old ones, can nonetheless be taken into consideration. The adverse entries lose their sting on promotion only if it is by selection/merit and not merely on seniority. 14. In State of U.P. and Another Vs. Lalsa Ram, AIR 2001 SC 1137 it has been held that adverse entries although preceding the crossing of the efficiency bar or promotion or being old ones, can nonetheless be taken into consideration. The adverse entries lose their sting on promotion only if it is by selection/merit and not merely on seniority. It has further been held that the whole service record including uncommunicated adverse entries has to be taken into consideration to form an opinion that it was in public interest and he has become dead wood and he will not be of any use to the department any further but exceptions have also been carved out to the effect that the service rules do not run counter thereto and the decision was not mala fide. In the said case there were various adverse entries against the Appellants and, therefore, the Apex Court was of the view that the said Appellants could have been retired compulsorily in the public interest. 15. In R.P. Pandey v. U.P. Power Corporation Limited and Ors. 2004 (22) LCD 20, the same principle has been enunciated that the adverse remark, if any before promotion, loses its sting if promotion is based on merit and secondly, that if the order of compulsory retirement has been passed as a punishment, then also the same cannot be sustained in the eye of law. In the said case reliance was also placed upon the case in High Court of Punjab and Haryana v. Ishwar Chand Jain and Anr. 1999 Lab IC 1823 (SC), wherein it was held by the Hon'ble Supreme Court that pending enquiry against a judicial officer, the compulsory retirement was held to be bad as the subject-matter of misconduct was subject-matter of enquiry by a Judge of the High Court and in that context itself the Apex Court held that the order of compulsory retirement was an order of punishment. 16. Considering all the cases relied upon by the learned Counsel for the parties, it comes out that the adverse material without any evidence cannot be taken into consideration to form an opinion of compulsory retirement and also that the compulsory retirement could not be resorted to during the continuance of disciplinary proceedings. 17. 16. Considering all the cases relied upon by the learned Counsel for the parties, it comes out that the adverse material without any evidence cannot be taken into consideration to form an opinion of compulsory retirement and also that the compulsory retirement could not be resorted to during the continuance of disciplinary proceedings. 17. In the instant case the material before the Screening Committee was in the form of censure entry awarded on 24.2.2000, but that censure entry was not with regard to any misconduct committed by the Petitioner but in fact it was with respect to non-assistance by the Petitioner in not supplying the notes demanded by the Special Audit Team, whereas the document which has been placed on record in the form of letter dated 2.5.1997, makes it clear that no shortcoming has been indicated against the Petitioner by the Special Audit Team. The report forwarded by Sri Udai Narain dated 28.8.2001 is based on no material, but it reveals that the enquiry proceedings were going on against the Petitioner and he was suspended by means of order dated 14.8.2001, meaning thereby that the Petitioner was facing an enquiry with regard to his absence and other charges and later on 28.1.2002 a charge-sheet was also issued to the Petitioner. The Screening Committee when considered the case of the Petitioner for compulsory retirement on 28.9.2001, 3.11.2001, 23.12.2001 and 9.4.2002, it is evident from the record that a charge-sheet had already been issued to the Petitioner on 28.1.2002 and such the proceedings against the Petitioner were pending on the date when the Screening Committee formed the opinion. 18. The Screening Committee has also taken into consideration the pendency of the disciplinary proceedings and so in view of the cases of Ishwar Chand (supra) and R. K. Panjetha (supra) it comes out that if enquiry is pending on the date of order of compulsory retirement then the same would be a punishment in the eye of law and that could not have been imposed against the Petitioner. The order of compulsory retirement cannot be sustained. In the background of the aforesaid discussion we are of the view that the order of compulsory retirement dated 22.4,2002 cannot be sustained in the eye of law and deserves to be quashed. 19. In the result, the writ petition is allowed. The order of compulsory retirement cannot be sustained. In the background of the aforesaid discussion we are of the view that the order of compulsory retirement dated 22.4,2002 cannot be sustained in the eye of law and deserves to be quashed. 19. In the result, the writ petition is allowed. A writ in the nature of certiorari is issued quashing the order of compulsory retirement dated 22.4.2002, a copy of which has been annexed as Annexure-1 to the writ petition, and further direct the opposite parties to reinstate the Petitioner with all consequential benefits. 20. There shall be no order as to costs.