KRISHNA PAL SONKER Vs. STATE OF U.P.

JUDGEMENT

(1.) This writ petition has been filed against the impugned order of compulsory retirement dated 31-12-89 (Annexure-1 to the petition). The petitioner was appointed in 1965 as Village Level Worker. It has been alleged in paragraph 3 of the writ petition that in 1981 an adverse entry was communicated to him but no other adverse entries were communicated. Since this entry of 1981 is more than five years old, in my opinion, it could not be taken into consideration, in view of the judgment of the Supreme Court in the case of Brij Mohan Singh Chopra v. State of Punjab, 1987 AIR(SC) 948 .

(2.) In paragraphs 9 and 11 of the counter-affidavit it has been alleged that there were adverse entries against the petitioner in other years also viz. 1983-84,1984-85,1987-88 and 1988-89 but there is no denial that these were not communicated to petitioner. These entries have not been quoted or annexed to the counter affidavit. On 25-1-1991 this court had directed the standing counsel to file a detailed supplementary counter affidavit regarding these alleged entries and whether they were communicated to the petitioner but no supplementary counter affidavit has been filed.

(3.) It has no doubt been held by the Supreme Court in Baikunth Nath Das v. Chief Distt. Medical Officer, 1992 AIR(SC) 1020 that even an uncommunicated adverse entry can be taken into consideration while passing an order of compulsory retirement. However, in my opinion this decision is distinguishable, and it will have no application to U.P. Government employees to the extent that it says an uncommunicated entry can be relied upon. It may be noticed that Baikunth Nath Das case related to an employee of the Orissa Government. The law in Orissa regarding compulsory retirement is different from the law in U.P. In U.P. the law regarding compulsory retirement was amended by the U. P. Fundamental Rule, 56 (Amendment) Act, 1976 which introduced a new clause (2) to the U.P. Fundamental Rule 56. This clause (2) states; (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 an ad hoc basis; or (b) any entry against which a representation is pending, provided that the representation is also taken into consideration along with the entry; or (c) any report of the Vigilance Establishment constituted under the Uttar Pradesh Vigilance Establishment Act, 1965. "(2-A) Every such decision shall be deemed to have been taken in the public interest.)" A perusal of clause (2) (b) shows that the authority which is to pass the order of compulsory retirement must consider the representation which is pending against an adverse entry. Now there can be no representation if the adverse entry is not communicated. Hence it is implicit in the said clause that the entry must be communicated to the concerned employees so that he has an opportunity of making a representation against it, and an uncommunicated entry cannot be relied upon for passing an order of compulsory retirement.