RAMESH KUMAR SRIVASTAVA Vs. STATE OF U P

JUDGEMENT

(1.) The present writ petition has been filed for quashing the order-dated 3/2/2001; Annexure-1 to the writ petition passed by respondent No. 2 and further for quashing the Government Order dated 24.8.1977, Annexure-2 issued by respondent No. 1.

(2.) The brief facts arising out of the present writ petition are that by means of the present writ petition the petitioner has challenged the order-dated 23/2/2001 by which the petitioner was compulsory retired. The petitioner was appointed as a clerk in the Court of District Judge, Hamirpur by order-dated 9/2/1971 and the petitioner joined his duties on 18/2/1971. After creation of new Mahoba district, the petitioner's services were transferred to judgeship of Mahoba. The petitioner was promoted on the post of Administrative Clerk on 16/8/1997. The work and conduct of the petitioner was always satisfactory and he was working to his best ability and integrity since his appointment. There was no complaint whatsoever against the petitioner and the work and conduct of the petitioner was always appreciated by the higher authorities. The petitioner was served with an order on 3.2.2001 by which the petitioner has been retired compulsorily on the said date and in lieu thereof the petitioner was awarded three months' salary. It is clear from the order that respondent No. 2 has passed the impugned order under Section 56-C of the Financial Hand Book. Under Rule 56 an employee can be compulsory retired after attaining the age of 55 years but by the Government Order dated 24.8.1977, the State Government has substituted the age of compulsory retirement as 50 years in place of 55 years. The petitioner submits that the said Government Order dated 24.8.1977 is absolutely illegal. The Government Order cannot be given precedence over the statutory rules. Before passing the aforesaid order no notice or opportunity has been given to the petitioner, as such the order is against the principles of natural justice. The persons aged than the petitioner are being retained in service though the work and conduct of those persons are not satisfactory in comparison to the petitioner. In normal course the petitioner would have attained the age of superannuation in the year 2007 but the respondents without any justification has passed an order compulsorily retiring the petitioner in a most arbitrary manner.

(3.) The submission raised on behalf of the petitioner is that according to the Fundamental Rule 56-C, there is no dispute to this effect that the State Government has been conferred power to retire its employee compulsorily but the decision of the government to compulsory retire its employee should be bonafide and should not be malicious and should be based upon over all performance and assessment of the work and conduct of the employee, that has not been done as such the order passed by the respondent is liable to be set aside. Further submission made on behalf of the petitioner is that there was no adverse entry and if some adverse entry was awarded and subsequently, the petitioner has been promoted on a higher post. As such for the purpose of consideration of order compulsory retiring the petitioner, the same cannot be taken into consideration. Reliance has been placed upon a judgment, AIR 1995 SC 111, JT 1994 (5) SC 459, (1995)I LLJ 1083 SC, 1994 (3)SCALE 907, [1994]Supp2 SCR 828, (1995)2 UPLBEC 1008 S. Ram Chandran Raju v. State of Orissa and has submitted that though the order of compulsory retirement is not a punishment but the Government must exercise its power only in the public interest to effectuate the efficiency of the service. The entire service record or character roll or confidential reports maintained would furnish the backdrop material for consideration by the Government or the Review Committee or the appropriate authority and the same cannot be passed only on a solitary entry or taking into consideration the performance of one year. Further reliance has been placed by the counsel for the petitioner upon the two judgments of this Court reported in 1992 Selected Civil Decisions Page 155 Santosh Kumar Gaur v. State of U.P. and Ors. and Anr. judgment 1992 Selected Civil Decisions Page 165 Committee of Management Uchchattar Madhyamik Viddyalaya Newaria, District Jaunpur v. Deputy Director of Education, Varanasi Further reliance has been placed by the counsel for the petitioner on the Apex Court judgment, AIR 1992 SC 1020, JT 1992 (2)SC 1, (1992)I LLJ 784 SC, 1992 (1)SCALE 428, (1992)2 SCC 299, [1992]1 SCR 836, 1992 (1)SLJ 177 (SC), (1992)2 UPLBEC 816, Baikunth Nath Das and Ors. v. Chief District Medical Officer and Ors. and has submitted that if the order is passed malafide or in the arbitrary manner and is against the principles of natural justice, the order of compulsory retirement will be treated to be bad in law and is liable to be set aside.