S P JAIN Vs. STATE OF U P

JUDGEMENT

(1.) THE petitioner, who at the relevant point of time was working as Chief Medical Officer, Orai has challenged his compulsory retirement by order dated November 8, 1973. THE main contention raised in the petition is that there was no material on the basis of which the order of compulsory retirement could be passed. It is settled that although the Court does not sit in appeal over an order of compulsory retirement passed by the State Government, it can interfere with such orders inter alia on the ground it is passed on no material on the record, is arbitrary or the order has been passed on wholly inadmissible considerations. In the present case, it appears that three adverse entries were given to the petitioner in the years 1962-63, 1965-56 and 1966-67. THEse were communicated to the petitioner by letter of Director of Medical Health Services dated May 22, 1968. THE petitioner made representation against these entries on September 6, 1968. Subsequently, another adverse entry was given in the year 1969-70 which was communicated on February 6, 1973. THE impugned order was passed on November 8, 1973. However by G.O. dated February 11, 1974, all the four entries given to the petitioner were expunged. THE result of the expunction of these entries was that they stood deleted for the years in which they were made. It was contended by the Standing Counsel that as the order expunging these entries came to be passed subsequently to the compulsory retirement order, the entries could be taken into account while passing the order. We are not able to accept this argument. An order of compulsory retirement has to be passed on some material, and the material relied upon in this case are character roll entries. While considering the character roll entries of an employee, the representations made against those entries have also to be taken into account. It will be opposed to all principles of fair play to consider the character roll entries and pass final orders against an officer, without at the same time taking into account the representations made against those entries. This principle now has been recognised by an amendment of Fundamental Rule 56. THE U. P. Fundamental Rules 56 (amendment) Act of 1976 has substituted an Explanation to Fundamental Rules 56 with retrospective effect. Clause (b) of the newly substituted Explanation permits entries to be taken into account against which representations are pending provided the representations are also considered along with the entries. Even apart from Rule 56, which may not be strictly applicable to the case of the petitioner, for the order has been passed under paragraph 465-A of the Civil Service Regulations, the power under paragraph 465-A has to be exercised bona fide and fairly. It cannot be exercised arbitralily. Non-consideration of the representation made by an officer in respect of adverse entries on which the ultimate order is to be founded would amount to a glaring departure from the principles of fair play and would render the decision arbitrary, and in the circumstances amount to be an arbitrary exercise of power. THE decision to compulsorily retire a person is an objective decision, i.e., all the relevant facts necessary for reaching the conclusion have to be considered, before reaching the conclusion that it is in the public interest to retire a particular officer. Non-consideration of representations against adverse entries at the time of passing of an order of compulsory retirement would render the decision one which is not objective. For objectivity requires considerations of circumstances and facts both for and against an officer which exist on the record at the time when the decision is reached. In the present case, the impugned order could not have been passed in case the representations made by the petitioner had been considered, for as we have seen that all the adverse entries on the basis of which the order came to be passed were subsequently deleted. Thus we are constrained to hold that the impugned order is arbitrary, inasmuch as it does not appear that the representations made by the petitioner were considered at the time of passing the order. Looking it from another angle, inasmuch as the entries stood deleted, there was no material on the record on the basis of which the impugned order could be passed. THE petition is accordingly allowed. THE impugned order dated November 8, 1973 is quashed. THEre shall be no order as to costs.