STATE OF U P Vs. DURGA PRASAD SHARMA

JUDGEMENT

(1.) -Heard Sri Yogendra Kumar Yadav, learned standing counsel appearing for the appellants and Sri V. K. Singh learned senior counsel assisted by Sri S. Shekhar, learned counsel for the respondent.

(2.) RESPONDENT was retired compulsorily by order dated 30.3.1990 whereagainst he preferred Civil Misc. Writ Petition No. 9908 of 1990, which was allowed by the Hon'ble single Judge vide judgment dated 17.9.1996 and aggrieved thereto the State has preferred this appeal, under the rules of the Court.

(3.) AT this stage, learned standing counsel submitted that Fundamental Rule 56 provides that the entire service record of Government servant could have been considered including any entry relating to period before the 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 ad hoc basis. He, therefore, submitted that even if the representation against the adverse entry was not decided, the said adverse entry could have been considered. He also placed before us the original record of the screening committee and the material placed before it, which was considered at the time of making recommendation of compulsory retirement. It appears that the screening committee considered the service record of the petitioner, which consists of annual character rolls. Fundamental Rule 56 (2) (b) provides that an entry against which representation is pending shall be taken into account provided that the representation is also taken into consideration alongwith the entry. The provision is very clear and makes it obligatory upon the competent authority to consider the representation of the employee concerned alongwith adverse entry if the representation has not already been decided and the matter in that way has not attained finality. When a particular procedure is prescribed, the authorities have to observe the same in letters and spirit and any deviation shall vitiate the order. From the record produced before us there is nothing to show that the representation of the petitioner-respondent, which he preferred against the adverse entry of 1986-87 was also placed before the screening committee or competent authority before considering the aforesaid entry in order to form an opinion whether the said employee concerned is to be retired compulsorily or not.