- (1.) THE petitioner, who at the relevant point of time was Additional Commissioner (Scheduled Caste and Scheduled Tribe) a post of Provincial Services, (P. C. S.) cadre in which he was promoted from the lower cadre had challenged the order dated 29th January, 1990 by means of which he has been compulsorily retired by the State Government in exercise "of powers under Fundamental Rules 56 (C). It has been challenged on the ground that the same was not in public interest and was arbitrary, penal and is an abuse of power as he was not a dead-wood but has continuously shown improvement in his work, which is apparent from his service record. Tbe State has defended its action in the counter affidavit and supplementary counter affidavit and as directed, has produced the record.
(2.) THE petitioner started his carrier in 1957 as Naib Tahsildar from which post he was promoted as Tahsildar in 1962 and thereafter as Deputy Collector in September 1971 (P. C. S.) to which approval was given by the Public Civil Services Commission in 1987against the vacancy of 1974, but according to the State against the vacancy of 1975. He crossed his efficiency bar (E.B.) in P. C. S. ordinary grade in 1978. THEreafter the petitioner crossed the Efficiency Bar automatically due to various pay revisions. THE petitioner has stated that but for one adverse entry in 1968, which was expunged, he has not earned any adverse entry as none was communicated to him. In respect of some matter of the year 1982, a charge sheet was issued to him and after submission of reply, enquiry was held and report was submitted but no decision on it was taken and even though he was awarded Rs. 1000/- as honorarium for his excellent work in 1986-87 when he was posted in Secretariat, yet suddenly he was retired at the age of 56 years by the impugned order. In the rejoinder affidavit it has been stated that the petitioner's character roll up to 1980-87 along with charge sheet and enquiry report dated 10-2-1987 was considered by the Selection Committee of the Public Service Commission and he was approved and findings against him were not seriously considered. His approval was not keept in sealed cover, as generally done with respect to those officers against whom disciplinary proceedings are pending, in accordance with the Government Order, but he was approval in P. C. S. Ordinary grade against the vacancy of the year 1974. In the counter affidavit it has been stated that a preliminary report was received from the Commissioner, Allahabad Division, Allahabad in respect of irregularities committed by the Petitioner, who was posted as Special Land Acquisition Officer, Kanpur Dehat for the reason that he had selected an exampler of very high rate for acquiring land in a particular village. In the Departmental enquiry which was followed, the enquiry officer found the petitioner guilty of all the four charges against him. He was found guilty of gross negligence on account of which heavy financial loss could have been caused to the Government. It has further been averred that one single instance of gross negligence and serious irregularity committed by him for which he was charge sheeted was considered sufficient and justified to retire, the petitioner compulsorily in public interest (Emphasis supplied). The Screening Committee, which examined the Character roll of few officers, opined to compulsorily retire the petitioner and one another officer. It has been stated that the Selection Committee kept its decision regarding the petitioner also in sealed cover and he was not promoted in the vacancy of 1974, but of the subsequent year. The petitioner's assertion that he has not earned any adverse entry has not been denied. Even from the record we did not find any adverse entry, but in the year 1984 he was rated as an average officer though prior and subsequent to it, he was rated as good officer.
(3.) FROM the facts stated above, it is clear that because of findings recorded by the Enquiry Officer in departmental enquiry decision to retire the petitioner compulsorily was taken. This being an admitted fact in the counter affidavit, it is not necessary to -call for the Secretariat files. There being no adverse entry in the service record, the order of compulsory retire- ment was in the nature of penalty though innocuously worded and the same has not been passed in public interest, but may tantamount to be removal from service, before attaining the age of superannuation within the meaning of Article 311 of the Constitution of India. Even if it be accepted that the Government instead of taking the drastic step of removal from service and thus depriving him of pensionary benefits has taken a lenient view and has only cut short his service period by two years by retiring him, yet the order of compulsory retirement will tantamount to be a punishment and in total disregard and contravention of the procedure prescribed under Article 311 of the Constitution. In State of U. P. v. Madan Mohan Nagar, AIR 1967 SC 1260, the Honourable Supreme Court applied the principle applicable to a temporary government servant to the case of compulsory retirement. In S. R. Venkata raman v. Union of India, (1979) 2 SCC 491, the order of compulsory retirement was struck down as there was nothing on the record to justify and support the order. It was held by the Honourable Supreme Court that the order of compulsory retirement amounted to gross abuse of power to use* the rule for a purpose, unwarranted by it. ...;