Shobha Dikshit - (1.) THIS writ petition is directed against the order dated 9.7.1993 contained in Annexure 1 by which the petitioner has been retired compulsorily. The impugned order has been challenged on the ground that the same is illegal, has been passed on extraneous considerations and is based on no material and, therefore, is liable to be quashed.
(2.) PETITIONER is a trained confirmed Consolidation Lekhpal and at the relevant time, he was posted as such in the district Kheri. According to the averments made in the writ petition, he was never awarded any adverse entry in his entire career to the best of his knowledge till the date the impugned order was passed. It has also been stated so by the petitioner on the ground that no adverse entry or adverse material was ever-communicated to him during the aforesaid period. Not only that no adverse entry or adverse material was ever communicated to the petitioner but on the contrary, he was given all his increments regularly every year right from 1.7.1985 to 1.1.1993. He was given selection grade with effect from 1.1.1985. In the aforesaid facts and circumstances, it has been alleged that the order of compulsory retirement has neither been passed in public interest nor to maintain the efficiency in service and the same, therefore, suffers from the vice of arbitrary exercise of power with ulterior motive. A counter affidavit has been filed by the State Government where it has been stated that the petitioner's service record was not good and he was awarded adverse entries for the years 1979-80, 1987-88, 1988-89, 1990-91 and 1992-93 but it has nowhere been stated in the counter affidavit that the said adverse entires or any of them were ever communicated to the petitioner. The said adverse entries have not even been disclosed in the counter affidavit. Therefore, it is not known as to what kind of adverse entries were awarded to the petitioner. Petitioner has filed the rejoinder-affidavit controverting the averments made in the counter-affidavit and it has been reiterated that no adverse entry was ever communicated to the petitioner. Regarding the adverse entries prior to 1985, it has been stated that since the petitioner was given increment which was due to him with effect from 1.7.1985, therefore. If at all there was any adverse- material earlier, the same stands wiped off. Regarding the other alleged adverse material, the petitioner has reiterated in the rejoinder-affidavit that since increments to which the petitioner was entitled were given to him, right from 1985 till 1.1.1993, therefore, all the adverse material or adverse entry prior to this period losses its sting and cannot be taken to be adverse against the petitioner.
(3.) I have heard the learned counsels for the parties. Learned counsel for the petitioner has challenged the order of compulsory retirement primarily on the ground that the same has not been passed in public interest as it is based on no material. According to the learned counsel for the petitioner, admittedly no adverse entry or material has ever been communicated to the petitioner nor the same has been produced before the Court through the counter-affidavit. Therefore, the order impugned herein suffers from the vice of arbitrariness and being passed on extraneous considerations. Learned counsel for the petitioner emphatically submitted that till the filing of the counter-affidavit before this Court, the petitioner was never given an impression in any manner by the opposite parties that his work is not satisfactory. Once the petitioner was getting all his increments at the time when the same became due to him, it could not be said that the opposite parties were not satisfied with the performance of the petitioner. Since the selection grade was given with effect from 1.7.1985 and thereafter increments were given, hence it has been contended that even assuming that there was some uncommunicated adverse material, the same has to be treated to have wiped off and cannot be taken into consideration for the purpose of retiring the petitioner compulsorily on the ground that he has become a dead wood or inefficient to perform his duties. In support of the aforesaid contentions, petitioner has placed reliance on the decisions reported in Rajjan Lal Srivastava v. State of U. P., 1994 (2) LCD 639 and Krishan Pal Sonkar v. State of U. P. and another, 1993 (2) UPLBEC 1049. In the matter of Rajjan Lal Srivastava, a learned Single Judge of this Court while taking notice of the various decisions of Hon'ble Supreme Court by which the law on the subject of compulsory retirement has been laid down and reiterated has held that the power to compulsory retire an employee can only be exercised in public interest where the competent authority comes to a conclusion that such employee does not possess good reputation, he is corrupt and dishonest or is dead wood otherwise not. In this case, no adverse material admittedly has ever been communicated to the petitioner and secondly, he earned his selection grade and other increments timely and, therefore, it cannot be said that the petitioner had lost his utility for which he should be compulsorily retired. In the absence of any material being placed before this Court through the counter-affidavit, it cannot be said as to what is the nature of the adverse material on which the impugned decision has been taken. It has also not been denied by the opposite parties that adverse material/entry was not communicated to the petitioner to put him on guard or to represent against the same. In this connection, learned counsel for the petitioner, while placing reliance on the decision of this Court in the matter of Krishan Pal Sonkar v. State of U. P. (supra) contended that so far as the rule of compulsory retirement in the State of Uttar Pradesh is concerned, it is necessary that the adverse material has to be communicated to the delinquent employee to give him an opportunity to represent against the same and thereafter the competent authority is under an obligation to consider the same before passing any order for compulsory retirement.;