S.Rafat Alam, Sudhir Agarwal - (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. Learned standing counsel submitted that there was adverse entry against the petitioner-respondent for the year 1986-87, which was duly communicated and thereafter the same was placed alongwith other A.C.R. before the screening committee constituted pursuant to the G.O. dated 26.10.1985. The screening committee after considering the above material in its meeting dated 23.3.1990, recommended compulsory retirement of the petitioner alongwith some others. The competent authority after considering the recommendation passed order of compulsory retirement. Since there is adverse entry against the petitioner-respondent, which shows that he is deadwood, the order of compulsory retirement cannot be said to be illegal and arbitrary or based on no material itself. He contended that the Hon'ble single Judge erred in law by observing that in the same year favourable entry of 1986-87 was also given and the petitioner-respondent was also paid honorarium and, therefore, the said adverse entry was not sufficient material to form the aforesaid opinion. He has argued that the judgment impugned in this appeal is liable to be set aside. The petitioner-respondent, on the other hand, submitted that the adverse entry for the year 1986-87 was communicated to the petitioner whereagainst he made representation dated 12.5.1988 requesting the competent authority to expunge his adverse entry. Representation of the petitioner was not decided till the matter was considered by the screening committee and he has been compulsorily retired relying on the said entry only. He contended that the adverse entry could not have been considered at all since the representation was pending.
(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. Learned standing counsel also produced the original record dealing with the aforesaid representation, which shows that there are some endorsements whereby direction was sought from higher authority as to whether the representation dated 12.5.1988 should be decided since the employee concerned has already retired. It appears that after receiving the said instruction the aforesaid representation was considered and was rejected in June, 1990 observing that it was made beyond time.;