- (1.) R. R. K. Trivedi, J. In this writ peti tion, counter and rejoinder affidavits have been exchanged between the parties. Learned Counsel for the parties have agreed that this writ petition may he decided finally at this stage.
(2.) DURING the relevant period, petitioner Akhlaq Ahmad Khan was serving as Executive Engineer (Electrical and Mechanical) in Public Works Department of State of Uttar Pradesh. State of Uttar Pradesh by its order dated 26th June, 1992, Annexure-7 to the writ petition, retired petitioner compulsorily from the aforesaid post, aggrieved by which, this writ petition has been filed. Petitioner's case, in brief, is that he was appointed as Assistant Engineer. He joined this post on 17th December, 1963. On account of his sincere and honest dis charge of duty, he was promoted as Execu tive Engineer on 22nd July, 1973. Later on, he was confirmed as Assistant Engineer by respondent No. 1 on 8th May, 1981. In the year 1988 petitioner was posted at Agra from where he was transferred to Azamgarh where he joined on 4th August, 1988. How ever, his family remained at Agra as his wife was heart patient and was getting medical treatment at Agra. The children of petitioner were also studying at Agra. Petitioner was compelled to proceed on leave and he remained on leave for a period of three months six days during different periods. It is stated that the leave was duly sanctioned by the authorities. From Azamgarh petitioner was transferred to Varanasi where he joined on 18th July, 1989 and has also shifted his family as better medical facilities were available at Varanasi. It is further stated that Sri AC. Asthana was Superintending Engineer of 44 Circle, Public Works Department, Varanasi. Sri Asthana, who was immediate superior officer of the petitioner, proceeded on medical leave on 16th November, 1989. While on leave Sri Asthana was compulsori ly retired on 14th December, 1989. Order of compulsory retirement was challenged in Civil Misc. Writ Petition No. 74 of 1990 filed in Lucknow Bench of this Court. The writ petition was allowed on 17th January, 1990. However, Sri Asthana was not allowed to join as Superintending Engineer at Varanasi. He remained attached to the of fice of Chief Engineer. Later on he was posted at Lucknow on 8th December, 1990. It is stated that Sri Asthana while proceed ing on leave had recommended the name of Shri R. B. Mittal to officiate as Superintend ing Engineer during his absence. However, his recommendation was not accepted and petitioner was asked to officiate and dis charge functions of Superintending Engineer alongwith his duties as Executive En gineer, by order dated 20th November, 1989. Petitioner officiated as Superintend ing Engineer from 14th December, 1989 to 8th December, 1990. During this period, petitioner was awarded good service entires. However petitioner was communicated an adverse entry given to him vide letter dated 4th July, 1991. This entry was with regard to the period 1st April, 1989 to 31st March, 1990. Petitioner submitted his repre sentation against adverse entry on 20th February, 1992. It has been submitted that though Superintending Engineer, Sri AC. Asthana had given adverse entry, Chief En gineer and Engineer-in-Chief had given good entry. Bad entry was also given to petitioner during period 4-8-88 to 31-3-89. A representation against this period was also filed. The representations were how ever, rejected by the State Government on 28th April, 1992 on which date the screen ing committee scrutinised the service record of the petitioner had recommended him for being compulsorily retired. Acting on the basis of the recommendation of the screen ing committee, impugned order of compul sory retirement has been passed.
(3.) LEARNED Counsel for the petitioner has submitted that the screening committee has illegally taken into account the adverse entry awarded to petitioner in the year 1982-83 while, as held by apex court, the entires of five previous years only could have been taken into account. It has also been sub mitted that the adverse entry was awarded by Sri A. C. Asthana on account of malice and annoyance as petitioner was asked to officiate as Superintending Engineer during the absence of Sri Asthana which, was against his wishes. The representation of the petitioner was illegally rejected. It is further submitted that if the adverse entries of 1982-83 and 1989-90 are ignored for the aforesaid reason, the impugned order of compulsory retirement against petitioner is based on solitary entry and as held by apex court compulsory retirement could not have been ordered on the basis of the single entry. It is submitted that the petitioner's service record all along has been very good and the compulsory retirement cannot be termed in public interest in the facts and circumstan ces of the case and the impugned order suf fers from manifest illegality. It has also been submitted by the learned Counsel for the petitioner that as counter and rejoinder af fidavits have been exchanged and the case is ripe for hearing, it will not be proper at this stage to relegate petitioner to avail alterna tive remedy before the U. P. Public Services Tribunal. LEARNED Counsel for the petitioner has placed reliance on following cases: (1) V. Villaswamy v. Inspector General of Police, Tamil Nadu, Madras and another, AIR1982. SC 82. (2) Brij Mohan Singh v. State of Punjab, AIR1987. SC 948, (3) 5. Ramchandra Raju v. State of Orissa, AIR 1995, SC 111; and (4) Sri Dilawar Singh Paul v. State of U. P. and others, (1997) 1 ESC 324 (All ). (D. B. ). Learned standing Counsel, on the other hand, submitted that the impugned order retiring petitioner compulsorily has been passed in public interest. The petitioner has failed to establish that the impugned order suffers from any mala fide or arbitrariness. All relevant documents have been considered by the screening com mittee before recommending to the State to retire petitioner. It has also been submitted that the screening committee, has not com mitted any illegality in considering the ad verse entries awarded to the petitioner in the years 1982-83 and 1989-90. Petitioner's representations against adverse entries were considered by the State and were rejected on 28th April, 1992 on merits which was not challenged before any court and the order has become final. It is also submitted that it is incorrect to allege that the impugned order is based on a single adverse entry awarded to petitioner. It has also been submitted that the petitioner has equally, efficacious, alternative remedy before the U. P. Public Services Tribunal and this writ petition is liable to be dismissed on this ground alone. Learned standing Coun sel has placed reliance on the judgment of the apex court in case of Bakunth Nath Das and another v. Chief District Medical Officer, Ban Pada and another, (1992) 2 UPLBEC 816 ; State of U. P. and another v. Labh Chand, (1993) 2 UPLBEC, 1219 and U. P. Jal Nigam and another v. Nareshwar Sahai Mathur and another, (1995)1 SCC, 21.;