Ravindra Nath Yadav vs State Of U.P.Thru Principal ...
2015 Latest Caselaw 357 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 
Court No. - 29
 

 
Case :- WRIT - A No. - 14617 of 2013
 
Petitioner :- Ravindra Nath Yadav
 
Respondent :- State Of U.P.Thru Principal Secretary & Anr.
 
Counsel for Petitioner :- G.K.Singh,Chandan Sharma,Mohammad Akram,Santosh Kumar Pandey
 
Counsel for Respondent :- C.S.C.,Manish Goyal,Yashwant Varma
 
Corum: Hon'ble V.K. Shukla,J.

Hon'ble Mrs. Ranjana Pandya,J.

Delivered by Hon'ble Mrs. Ranjana Pandya,J.

1. Brief facts, according to the petitioner, are that on 1.3.2013 the respondent no. 3 compulsorily retired the petitioner from service under Rule 56 (c) of the Fundamental Rules. Initially, he was appointed as Munsif (now designated as Civil Judge (Junior Division) pursuant to the selection made by the U.P. Public Service Commission in 1986. The petitioner was appointed and posted as Munsif at District Judgeship Jaunpur where he joined services on 7.6.1990. He functioned there till June 1993. Thereafter, he was transferred to Shikohabad in District Firozabad where he worked till June 1995, from where, he was transferred to Azamgarh where he worked till September 1995 whereafter he was transferred to Shahjahanpur where he worked till June 1998. Thereafter, the petitioner was transferred to Muzaffar Nagar in June 1998 where he worked there till June 2001. Again he was transferred to Hathras in June 2001. He functioned at Hathras till June 2004 from where he was transferred to Kanpur Nagar in the month of June 2004. From Kanpur Nagar he was promoted as Additional District and Sessions Judge in the Fast Track Court in the month of September, 2005 and was transferred to Lakhimpur Khiri where he worked till June 2009. From Lakhimpur Khiri, he was transferred to District Chandauli where he worked till April 2012 from where he was transferred to Muzaffar Nagar where he worked till passing of the impugned order on 1.3.2013.

2. The petitioner started his career as Assistant Law Officer in U.P. State Road Transport Corporation and he was posted in Gorakhpur in July 1987 till he was appointed as Munsif in the year 1990. After the selection of the petitioner as Munsif, during the process of character verification, several complaints were filed by the first wife of the petitioner leveling allegations against him. The complaints were supported by letters written by some Members of Parliament and Members of Legislative Assembly of the State of U.P. with the purpose that the petitioner may not get appointed on the said post. The complaints were considered by the authorities which were found to be false and the petitioner was given appointment as a Munsif and posted at District Jaunpur on 7.6.1990. The petitioner thereafter filed a divorce petition (bearing Suit No. 59 of 1990) under Section 13 of the Hindu Marriage Act on the ground of desertion and cruelty against his first wife which was decreed on 11.9.1991.

3. After the suit was decreed, the petitioner filed a caveat petition before High Court on 18.9.1991 but no copy of appeal was served on the petitioner or his counsel and the petitioner in good faith believing that no appeal had been preferred against the divorce decree dated 11.9.1991 and after waiting for statutory period of 30 days of filing of appeal as provided under Section 28 (4) of the Hindu Marriage Act, 1955 solemnized his second marriage. Thereafter, the petitioner received a telegram from his divorced wife and came to know about the first appeal pending and also interim order passed by the High Court on 7.10.2009 staying the Judgment and decree dated 11.9.1991 passed in divorce suit.

4. The first wife of the petitioner also filed a complaint under Section 494 I.P.C. in 1996 against which the petitioner filed Criminal Misc. Case No. 778 of 2006 in which the interim order was granted by the Court on 27.3.2006 and further proceedings were stayed in criminal Complaint No. 132 of 1998. Again the first wife of the petitioner filed a complaint in 2001 before the Chief Justice of High Court with false allegations requesting for initiating departmental proceedings against the petitioner. The complaint was entertained and the petitioner was asked to submit a reply. Reply was submitted by the petitioner, no action was taken on the administrative side, hence the petitioner thought that the matter had ended. The petitioner was permitted to appear in the suitability test in the year 2007 for promotion to the cadre of U.P. Higher Judicial Services under Rule 22 (1) of the U.P. Higher Judicial Service Rules, 1975. Pursuant to the aforesaid, the petitioner appeared in the aforesaid test and was qualified and his name was recommended for promotion. The recommendation was accepted by the State Government and the orders in that regard were passed but before the order could be implemented, a complaint, which was made before His Excellency The President of India, was pressed upon in which solemnization of second marriage during subsistence of first marriage was pressed due to which an inquiry (bearing no. 8 of 2008) was initiated and the charge sheet was served upon the petitioner on 18.8.2008 under Rule 29 of the U.P. Government Servants (Conduct) Rules, 1956. Reply was submitted to the charge sheet and it was prayed that summoning order passed in Criminal Complaint Case No. 1324 of 1998 and the inquiry therein be deferred till the disposal of First Appeal No. 558 of 1991. In the meanwhile, pursuant to the notification dated 11.8.2008, an order was issued by the High Court on 5.12.2008 in respect of promoted officers but the petitioner was not promoted. Feeling aggrieved the petitioner filed representation, which remained undecided till passing of the impugned order.

5. Thus, the petitioner had unblemished service record. His entries were good or very good or outstanding and his integrity was always certified. As far as entry awarded in the year 2007-08 is concerned, the then District Judge had mentioned that the petitioner had strained relations with two brother officers. This entry was communicated to the petitioner against which he filed a representation which was rejected and the review application filed against the same was also rejected. The Administrative Judge found that the petitioner was amenable to the advice of the District Judge and the petitioner was found to be a good officer. Thus, the entries cannot be said to be adverse and the order of compulsory retirement cannot be said to be in public interest. At the time of filing of the petition, the petitioner was about 52 years of age., hence, the petition was presented.

6. The respondent no. 2 filed counter affidavit refuting the allegations of the petitioner in which it has been stated that the petitioner remarried before the expiry of one month after passing of the divorce decree dated 11.9.1991 and in spite of the stay order passed in First Appeal, he entered into second marriage with full knowledge that his first marriage was in subsistence. After seeking explanation from the petitioner, the matter was directed to be referred to the vigilance cell and, as such, the matter was referred to the Special Officer (Vigilance). In pursuance of that order, V.B. Inquiry No. 2 of 2008 was initiated against the petitioner in which a report was submitted on 14.3.2008. This report was placed before the Administrative Committee in which resolution was passed to initiate departmental inquiry against the petitioner. The departmental inquiry (bearing no. 8 of 2008) were thus initiated against the petitioner and charge sheet dated 14.8.2008 was also served upon him to which the petitioner submitted his explanation. Besides the above departmental inquiry, the petitioner was awarded adverse remarks in 2007-08 by the Administrative Judge, Lakhimpur Kheri against which the petitioner preferred a representation which was dismissed by the High Court and the petitioner was accordingly informed. Vide order dated 17.12.2012 of Hon'ble the Acting Chief Justice, the screening committee was directed to be constituted for the purpose of screening of judicial officers under the provisions of 56 (c) of the Fundamental Rules. The matter of the petitioner along with other officers was considered by the screening committee and the petitioner was recommended for compulsorily retirement. Judicial work was withdrawn from the petitioner, vide order dated 7.2.2013 passed in pursuance of the order dated 6.2.2013. The petitioner is guilty of serious misconduct, which is to the effect of unbecoming a public servant. Thus, the petition needs to be rejected.

7. Rejoinder affidavit was filed by the petitioner wherein the petitioner denied the allegations made in the counter affidavit and reiterated earlier averments made in his petition.

8. We have heard learned counsel for the petitioner, Sri Manish Goyal for the respondent no. 2 and learned Standing Counsel for the State.

9. The charge has been framed against the petitioner in departmental inquiry no. 08 of 2008 are as follows:-

"That you, being a Judicial Officer having sufficient legal knowledge, while posted as Additional Munsif Magistrate, Jaunpur, contracted second marriage on 11.10.1991 with Ms. Renu Yadav D/o Late Sri S.P. Yadav, at Allahabad, without taking reasonable and proper precautions, within the statutory period of one month, from the date of divorce decree dated 11.09.1991 passed under order XVII R-3 C.P.C. In O.S. No. 59 of 1990, Ravindra Nath Yadav Vs. Smt. Mamta Yadav, by Ist Additional District & Sessions Judge, Ghazipur, along with your first wife. Smt. Mamta Yadav, who being aggrieved, had challenged the aforesaid decree by filing First Appeal No. 558 of 1991 before Hon'ble High Court, Allahabad on 03.10.1991, in which the Court has been pleased to stay operation of the decree of divorce, vide order dated 07.10.1991, on the Stay Application filed along with the appeal, which was duly communicated to you without delay and thereby you prima facie committed misconduct within the meaning of Rule 29 of U.P. Government Servants Conduct Rules, 1956.

The documentary evidence, which is proposed to be considered/adduced in support of the charge, are as follows:-

1. The complaint dated 27.10.2001 addressed to Hon'ble the Chief Justice dated 27.10.2001, moved by Smt. Mamta Yadav.

2. Complaint dated 17th May, 1990, addressed to the Registrar, High Court , Allahabad, of Sri M.S. Yadav, father of Smt. Mamta Yadav, R/o House No. 171- Ram Nagar, L.D.A. Colony, Aishbagh, Lucknow.

3. Complaint dated 20.09.2005 addressed to Hon'ble the President of India made by Smt. Mamta Yadav.

4. Copy of divorce petition dated 14/17th July, 1990 under Section 13 of Hindu Marriage Act, 1955, filed by you before the District Judge, Ghazipur.

5. Judgment and decree dated 11.09.1991 passed by Ist Additional District Judge, Ghazipur.

6. Memo of Civil Appeal NO. 558 of 1991 filed by Smt. Mamta Yadav against the judgment and divorce dated 11.09.1991.

7. Certified copy of the Stay Order dated 07.10.1991 passed by Hon'ble High Court in the above appeal.

8. The application dated 09.10.1991 moved on behalf of Mamta Yadav along with the copy of High Court order dated 07.10.1991, whose copy was not received by your counsel.

9. Telegram dated 10.10.1991 sent to you by Smt. Mamta Yadav, informing about the stay order.

10. Report of Stamp Reporter dated 16.11.2006 submitted to the Registrar (Confidential), High Court.

11. Summoning order dated 29.09.1998 passed by 2nd Additional Chief Judicial Magistrate, Lucknow, in Complaint Case No. 1324 of 1998 filed by Smt. Mamta Yadav.

Oral evidence proposed to be recorded during the course of enquiry is as follows:-

1) Statement of Smt. Mamta Yadav, R/o M.I.G. 171, Ramnagar, L.D.A. Colony, Aishbagh, Lucknow PIN 226004.

2) Sri M.S. Yadav, R/o House No. 171- Ram Nagar, L.D.A. Colony, Aishbagh, Lucknow.

3) Head / Pujari of Arya Samaj Mandir, Krishna Nagar, Prayag, Allahabad, with the original record of marriage of Sri Ravindra Nath Yadav performed on 11.10.1991.

Note: Any other evidence which is considered necessary during the course of the enquiry, in respect of the charge, may also be taken into account, after due notice to you.

The copies of the documentary evidence in support of the charge are attached herewith.

You are required to put in your written reply to the charge within 15 days of the receipt of this charge sheet.

You are further informed that in case you do not file written reply within the prescribed time, it will be presumed that you have none to furnish and if you fail to appear on the specified date, the enquiry shall proceed and be completed ex-parte against you.

If you desire, or if the undersigned so directs, an oral enquiry shall be held in respect of such allegations as are not admitted. At the enquiry, such oral evidence will be recorded as the undersigned considers necessary and you shall be entitled to cross-examine the witnesses.

You are further required to informed the undersigned in writing, whether you desire to be heard in person, and in case you wish to examine any witnesses, to submit along with you written reply, their names and addresses together with a brief indication of the evidence which each such witness shall be expected to give."

10. Counsel for the petitioner has vehemently contended that in the present case the order of compulsory retirement has been colourably exercised by the authority. The petitioner was promoted in the past and he was also approved for promotion, thereafter, the order of compulsory retirement is neither justifiable nor sustainable in the eyes of law.

11. Sri Manish Goel, Advocate appearing on behalf of respondent no. 2 on the other hand contended that authority vested under Fundamental Rule 56 of F.H.B. Vol. II Part II to IV has rightly been exercised in the present case and record in question clearly establishes that the petitioner was dead wood and once there was adverse material against the petitioner in this background, conscious decision has been taken, then this court is not to act as court of appeal in exercise of its authority of judicial review, as such no interference be made.

12. In order to appreciate respective arguments, Rule 56 of F.H.B. Vol. II Part II to IV is being quoted below:

"56 (a) Except as otherwise provided in that Rule, every Government Servant other than a Government servant in inferior service shall retire from service on the afternoon of the last day of the month in which he attains the age of fifty eight years. He may be retained in service after the date of compulsory retirement with the sanctioned of the Government on public grounds., which must be recorded in writing but he must not be retrained after the age of 60 years except in very special circumstances

(b) A Government servant in inferior service shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years. He must not be retained in service after the date, except in very special circumstances and with sanction of the Government.

(c) Notwithstanding anything contained in clause (a) or clause (b) the appointing authority may at any time by notice to any Government servant (whether permanent or temporary) without assigning any reason, require him to retire after he attains the age of fifty years or such Government servant may by notice to the appointing authority, voluntarily retire at any time after attaining the age of [forty five years] or after he has completed qualifying service for twenty years.

(d) The period of such notice shall be three months:

Provided that-

(i) any such Government servant may by order of the appointing authority without such notice or by a shorter notice be retired forthwith at any time after attaining the age of fifty years and on such retirement the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances if any for the period of the notice or as the case may be for the ;period by which such notice fall short of three months at the same rates at which he was drawing immediately before his retirement;

(ii) It shall be open to the appointing authority to allow a Government servant to retire without any notice or by a shorter notice without requiring the Government servant to pay any penalty in lieu of notice:

Provided further that such notice given by the Government servant against whom a disciplinary proceeding is pending or contemplated, shall be effective only if it is accepted by the appointing authority, provided that in case of a contemplated disciplinary proceeding the Government servant shall be informed before the expiry of his notice that it has not been accepted.

Provided also that the notice once given by a Government servant under clause (c) seeking voluntary retirement shall not be withdrawn by him except with the permission of the appointing authority.

(e) A retiring pension shall be payable and other retirement benefits if any shall be available in accordance with the subject to the provisions of the relevant rules to every government Servant who retires or is required or allowed to retire under this rule.

Provided that where a Government servant who voluntarily retires or is allowed voluntarily to retire under this rules the appointing authority may allow him for the purposes of pension and gratuity, if any the benefit of additional service of five years or of such period as he would have served if he had continued till the ordinary date of his superannuation whichever be less.]

Explanation- (i) The decision of the appointing authority under clause (c) to require the Government servant to retire as specified therein shall be taken if it appears to the said authority to be in the public interest, but nothing herein contained shall be construed to require any recital in the order of such decision having been taken in the public interest.

(2) In order to be satisfied whether it will be in the public interest to require a Government servant to retire under clause (c) the appointing authority may take into consideration any material relating to the government servant and nothing herein contained shall be construed to exclude from consideration-

(a) any entries relating to any period before such Government servant was allowed to cross efficiency bar or before he was promoted to any post in an officiating or substantive capacity or on ad hoc basis; or

(b) any entry against which a representation is pending, provided that the representation is also taken into consideration along with the entry; or

(c) any report of Vigilance Establishment constituted under Uttar Pradesh Vigilance Establishment Act 1965.

(2-A) Every such decision shall be deemed to have been taken in the public interest.

(3) The expression "appointing authority" means the authority which for the time being has the power to make substantive appointments to the post or service from which the Government servant is required or wants to retire and the expression "qualifying service" shall have the same meaning as in the relevant rules relating to retiring pension.

(4) Every order of the appointing authority requiring a Government servant to retire forthwith under the first proviso to clause (d) at this rule shall have effect from the forenoon of the date of its issue, provided that if after the date of its issue, the Government servant concerned, bona fide and in ignorance of that order, performs the duties of his office his acts shall be deemed to be valid notwithstanding the fact of his having earlier retired."

13. Bare perusal of the Rule quoted above would go to show that Rule 56 of U.P. Fundamental Rule provides for compulsory retirement of Government Servant. Rule 56 (c) of the aforesaid Rule further provides that notwithstanding anything contained in Clause (a) or Clause (b) the appointing authority may at any time by notice to any Government servant (whether permanent or temporary) without assigning any reason, require him to retire after he attains the age of fifty years, or the Government servant may by notice to the appointing authority voluntarily retire at any time after attaining the age of forty five years or after he has completed qualifying service of twenty years. Sub rule (2) of Rule 56 of the Fundamental Rules provides that in order to be satisfied whether it will be in the public interest to require a Government servant to retire under Clause (c) the appointing authority may take into consideration any material relating to the Government servant and nothing herein contained shall be construed to exclude from consideration, the material referred to in clause (a), (b) and (c). Thus, aforesaid Rule empowers the State Government to retire any Government Servant on completion of 50 years of age or on completion of qualifying service and such order should be in public interest and appointing authority may take into consideration, any material relating to said incumbent, including such entries relating to any period, before such incumbent was permitted to cross efficiency bar or before he was promoted , as well as entries against which representation is pending, provided that the representation against such entry is taken into consideration.

14. At this juncture various pronouncement qua exercise of authority of compulsory retirement are being looked into.

15. In Shyam Lal Vs. State of U.P. reported in 1955 (1) SCR 26, it was held that an order of compulsory retirement is neither a punishment nor any stigma attached to it and it was held therein as follows:

"It is true that this power of compulsory retirement may by used when the authority exercising this power cannot substantiate the misconduct which may be the real cause for taking the action but what is important to note is that the directions in the last sentence of Note 1 of Art. 465-A make it abundantly clear that an imputation or charge is not in terms made a condition for the exercise of the power. In other words, a compulsory retirement has no stigma or implication of misbehaviour or incapacity".

16. In the case of Union of India Vs. J.N. Sinha reported in 1971 (1) SCR 791, it was held that an employee compulsorily retired does not loose any right acquired by him before retirement and said rule is not intended for taking any penal action against the Government servant and the order retiring a Government Servant compulsorily can only be challenged on the ground that either the order is arbitrary or it is not in public interest. No other ground is available to a Government servant who is sought to be compulsorily retired from service under the relevant rules subject to the conditions provided therein.

17. Hon'ble Apex Court in the case of C.D. Ailawadi Versus Union of India and others reported in (1990) 2 S.C.C. 328 has taken view that compulsory retirement is not a punishment as it does not take away any of the past benefits. Chopping off the dead wood is one of the important considerations for invoking Rule 56(J) of the Fundamental Rules.

18. In Balikuntha Nath Das and another Vs. Chief District Medical Officer, Baripada and another reported 1992 (2) SCC 299 following principles were enunciated which are as under:

"(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour.

(ii) The order has to be passed by the Government on forming the opinion that it is in the public interest of retire a Government Servant compulsorily. The order is passed on the subjective satisfaction of the Government.

(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate Court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary- in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be perverse order."

19. In State of Punjab Vs. Gurdas Singh reported in 1998 (4) SCC 92, it was held follows:-

"Before the decision to retire a Government servant prematurely is taken the authorities are required to consider the whole record to service. Any adverse entry prior to earning of promotion or crossing of efficiency bar or picking up higher rank is not wiped out and can be taken into consideration while considering the overall performance of the employee during whole of his tenure of service whether it is in public interest to retain him in the service. The whole record of service of the service of the employee will include any un-communicated adverse entries as well."

20. Hon'ble Apex Court, in the case of State of U.P. Vs. Lalsa Ram 2001 AIR SCW 881 has held as follows. Relevant paragraph 12,13,14 15 and 16 are being extracted below:-

"12. The respondent herein very strongly adverted to the promotion offered and contended that even assuming there were adverse reports and remarks by reason of the promotion being made available, the adverse remarks lost its sting and as such the same does not and cannot be said to be a factor which must have weighed with the concerned authority directing compulsory retirement. Admittedly and the law being well settled on this score that in the event of there being a promotion by the Departmental Promotion Committee upon assessment of the service career and annual confidential reports the adverse entries lose its sting - in the event however, the promotion is offered only on the ground of seniority without any assessment of the entire career situation, question of adverse entries losing its sting does not and cannot arise. In the contextual facts if it was promotion by way of a selection and not by seniority, no exception could be taken therefore but the facts in the present context depict otherwise since the respondent herein was promoted by seniority only. The fourth principle as enunciated by this Court in Baikuntha Nath's case (1992 AIR SCW 793 : AIR 1992 SC 1020 : 1992 Lab IC 945) (supra) thus cannot be of any assistance to the respondent herein. A similar situation arose in the case of I. K. Mishra v. Union of India, (1997) 6 SCC 228 : (1997 AIR SCW 2944 : AIR 1997 SC 3740 : 1997 Lab IC 2866) wherein this Court upon analysis of the factual aspect has the following to state (Para 7 of AIR, Lab IC) :

"No doubt the appellant was sent by the respondents to appear in S.A.S. examination in the year 1972-73 after having been found that the appellant complied with the conditions for appearing in the said examination and further the appellant passed the S.A.S. Part II Examination but merely the facts that the appellant was sent to appear in the examination and was declared successful in the said examination are not the end of the matter. In fact passing of the S.A.S. examination entitles an auditor to be considered for promotion to the higher post by the Departmental Promotion Committee. In the present case after the appellant was declared successful in the S.A.S. examination, the Departmental Promotion Committee after considering the service record of the appellant did not recommend his case for further promotion. Applying principle No. 4 as noted in the case of Baikuntha Nath Das the appellant having not been promoted to the higher post the adverse remarks in his character roll remained intact. Since the appellant was not promoted to the higher post by the Departmental Promotion Committee it is not correct to contend that the adverse materials in the annual confidential report of the appellant lost their sting and those materials could not form the basis of order compulsorily retiring the appellant from service."

13. Rule 56 (c) of the U. P. Fundamental Rules read with sub-rule (2) as noted herein before provides an authority to the Board with an absolute right to retire an employee on the date on which he attains the age of 50 years. The option for the Government servant to voluntarily retire however has been attributed to the concerned employee at any time after attaining the age of 45 years or after he has completed qualifying service of 20 years. The fundamental rules thus confer a right absolute to retire an employee on the happening of certain event namely the latter attains 50 years of age - the right being absolute and in the event the same is not contra to the conditions as embodied in Rule 56 of the Fundamental Rules, question of violation of any legal right of the respondent herein does not and cannot arise. The factum of the doctrine of natural justice being not available to an employee so retired compulsorily stands well settled and we need not dilate thereon.

14. Rule 56(c) seems to be in pari materia with Rule 3 of the Punjab Civil Services (Premature Retirement) Rules, 1975 and this Court while considering the same in the case of Gurdas Singh (1998 AIR SCW 1425 : AIR 1998 SC 1661 : 1998 Lab IC 1401) (supra) in para 6 observed :

"It will be thus seen that these Rules give absolute right to retire any Government employee on the date on which he completes 25 years of qualifying service or attains fifty years of age or as on any date thereafter to be specified in the notice by giving that employee prior notice of three months in writing. This right has to be exercised if in the opinion of the appropriate authority it is in public interest to retire any employee under the Rules."

15. Incidentally, the five guiding principles as laid down in Baikuntha Nath's case (1992 AIR SCW 793 : AIR 1992 SC 1020 : 1992 Lab IC 945) (supra) by this Court stands accepted in another three-Judges Bench's judgement of this Court in Posts and Telegraphs Board v. CSN Murthy, (1992) 2 SCC 317 : (1992 AIR SCW 1362 : AIR 1992 SC 1368 : 1992 Lab IC 1410) wherein this Court observed that whether the conduct of the employee is such as to justify a conclusion of compulsory retirement but the same is primarily for the departmental authorities to decide. The nature of the delinquency and whether it is of such a degree as to require the compulsory retirement, the Courts have no authority or jurisdiction to interfere with the exercise of power if arrived at bona fide on the basis of the material available on record : Usurpation of authority is not only unwarranted but contrary to all norms of service jurisprudence.

16. This Court on the basis as above in Gurdas Singh's case (1998 AIR SCW 1425 : AIR 1998 SC 1661 : 1998 Lab IC 1401) (supra) observed that is on this perspective the matter shall have to be considered as to whether it is in public interest to retain him in the service and the whole record of the service of the employee shall have to be considered including any un-communicated adverse entry as well provided however, the service Conditions/Regulations do not run counter thereto. We also do record our concurrence therewith and record that the same holds good excepting however the issue of mala fides. The issue of mala fides has not been or even raised in the pleadings of the matter in issue and as such we are not called upon to delve into the same. The Appointing Authority upon consideration of the entire service record as required under the rules and having formed its opinion that the compulsory retirement of the respondent being in public interest issued the order and on the wake of the aforesaid, question of any interference of this Court does not and cannot arise. Interference in these matters by the Courts in exercise of its jurisdiction under the constitutional mandate is very restricted and the Courts shall have to tread on the issue with utmost care and caution by reason of very limited scope of interference. The High Court has in fact ignored this aspect of the matter and proceeded solely on the basis of the factum of there being no adverse entry in recent past. Needless to state that adverse entries did not stand extinguished by mere lapse of time but they continued to be on record and it is for the employer to act and rely thereon in the event of there being, a rule permitting an order of compulsory retirement."

21. Hon'ble Apex Court in the case of State of U.P. Vs. Vijay Kumar Jain reported in AIR 2002 Supreme Court 1345 has held as follows-

"14. The aforesaid decisions unmistakable lay down that the entire service record of a Government Servant could be considered by the Government while exercising the power under FR 56(c)of the Rules with emphasis on the later entries. FR 56(c) of the Rules read with sub-rule (2), empowers the State Government with an absolute right to retire an employee on attaining the age of 50 years. It cannot be disputed that the dead woods need to be removed to maintain efficiency in the service. Integrity of a Government employee is foremost consideration in public service. If a conduct of a Government employee becomes unbecoming to the public interest or obstruct the efficiency in public services, Government has an absolute right to compulsorily retire an employee is a method to ensure efficiency in public service and while doing so the Government is entitled under Fundamental Rule 56 to take into account the entire service record, character roll or confidential report with emphasis on the later entries in the character roll of an employee. In fact, entire service record, character roll or confidential report furnishes the materials to Screening committee or the State Government as the case may be to find out whether a Government Servant has outlived his utility in service, it is on consideration of totality of the materials with emphasis on the later entries in the character roll, the Government is expected to form its opinion whether an employees is to be compulsorily retired or not."

22. On the basis of pronouncement noted above it is clear that order of compulsory retirement has no stigma nor it implies suggestion of misbehaviour. Principles of natural justice has no role to play. The order is passed on subjective satisfaction of the Competent authority, forming opinion, that it is in public interest to retire Government servant compulsorily. Any adverse entry prior to earning of promotion/crossing of efficiency bar or picking up higher rank is not wiped out and can be taken into consideration while considering overall performance of the employee during the whole of his tenure of service whether it is in public interest to retain him in service, as per clause (a) of sub-rule (2) of Rule 56 of U.P. Fundamental Rules of Financial Handbook, Volume II, Part II to IV. High Court, on challenge been made, will not act as appellate forum, and will interfere only when satisfaction is recorded, that order passed is (i) malafide (ii) based on no evidence (iii) same is arbitrary, in the sense that no reasonable person would form the requisite opinion on the given material, in short order in questions perverse order.

23. On the basis of principles settled down in catena of decisions noted above and on the basis of original record in question, entire fact of the present case in hand is being look into. Merely because petitioner has been considered for promotion does not ipso-facto wash the adverse entries and misconduct which have been accorded in the past. Promotion of petitioner from his own showing, was not merit based selection rather same was seniority based selection. In the State of U.P. there is specific provision, sub-rule (2) of Rule 56 which mentions that in order to satisfy that it will be in public interest to retire a government servant under sub Clause (C) of Fundamental Rule 56 of F.H.B. Vol. II Part II to IV, appointing authority may take into consideration any material relating to government servant and nothing herein contained, shall be construed to exclude from consideration any entries relating to any period before such government savant was allowed to cross any efficiency or before he was promoted to any post. Thus merely on account of promotion accorded , the entries do not stand wiped out and at the point of time when opinion is to be formed, said material can be very well taken into consideration. In the present case there is adverse material available on record in the shape of entry awarded to petitioner coupled with this in departmental proceeding, petitioner has been found guilty and qua the said material, two fold argument has been put up by counsel for the petitioner in which he has submitted that firstly, the alleged adverse remark in the file of the petitioner cannot be termed to be adverse and secondly he re-married after passing of the prescribed period of appeal and thus he is not guilty of re-marriage during the subsistence of his first marriage and accordingly it will not fall within the range of misconduct.

24. In R.C. Chandel vs. High Court of Madhya Pradesh and Another, (2012) 8 Supreme Court Cases 58, in which it has been held as follows:-

"Judicial service is not an ordinary government service and the Judges are not employees as such. Judges hold the public office; their function is one of the essential functions of the State. In discharge of their functions and duties, the Judges represent the State. The office that a Judge holds is an office of public trust. A Judge must be a person of impeccable integrity and unimpeachable independence. He must be honest to the core with high moral values. When a litigant enters the courtroom, he must feel secured that the Judge before whom his matter has come, would deliver justice impartially and uninfluenced by any consideration. The standard of conduct expected of a Judge is much higher than an ordinary man. This is no excuse that since the standards in the society have fallen, the Judges who are drawn from the society cannot be expected to have high standards and ethical firmness required of a Judge. A Judge, like Caesar's wife, must be above suspicion. The credibility of the judicial system is dependent upon the Judges who man it. For a democracy to thrive and rule of law to survive, justice system and the judicial process have to be strong and every Judge must discharge his judicial functions with integrity, impartiality and intellectual honesty. "

25. As far as, the entries are concerned, in the counter affidavit, copies of the entries have been annexed, which go to show that in the entry relating to the year 2007-08, the District Judge had made the following note:-

"There had been strained relations with Sushri Sweta Verms, Addl. Civil Judge )JD), Sri V.K. Dubey A.S.J./F.T.CI. Their relations were so strained that the matter to notice of Hon'ble the Administrative Judge."

26. Against this adverse remark, the officer made his representation to the Administrative Judge but the Administrative Judge endorsed the remark of the District Judge and has specified that according to the report of the District Judge there has been strained relations of the Officer with two brother officers.

27. Since entry was communicated to the officer, although he was rated as good officer but by no stretch of imagination, this entry could not be said to be not adverse to the officer. The first argument of the counsel for the petitioner stands repelled on this score.

28. Much reliance has been placed by counsel for the petitioner in 1994 Supp. (3) Supreme Court Cases 424, S. Ramchandra Raju Vs. State of Orissa, in which it has been laid down that "Representation against the adverse remarks alleging such remarks to be malafide, rejected without going into the said allegation. In such circumstances, order of compulsory retirement passed exclusively on the basis of such solitary adverse report without taking the total record of service into consideration objectively, held, arbitrary."

29. The aforesaid law does not come to the rescue and reprieve of the petitioner. He had not been compulsorily retired on the sole ground of the aforesaid entry but infact his over all conduct has been assessed as is reflected from the proceedings of Screening Committee.

30. Counsel for the petitioner has also placed reliance on (1999) 4 Supreme Court Cases page 579, High Court of Punjab & Haryana through R.G. Vs. Ishwar Chand Jain and Another in which the appointing authority shall, if it is of the opinion that it is in the public interest to do so have the absolute right to retire any Government employee other than class IV employee. In the same case Hon'ble Apex Court in para 23 while referring to the case of Shyamlal Vs. State of U.P., A.I.R. 1954 SC 369, in which it has been held that the appellant was compulsorily retired under the provisions of Article 465-A of the Civil Service Regulations. Note 1 of Article 465-A provides that the Government retains the absolute right to retire any government servant after he has completed 25 years of qualifying service without giving any reasons and that this right will not be exercised except when it is in the public interest to dispense with the services of an officer. This Court said that the two requirements for compulsory retirement were that the officer had completed 25 years of service and that it was in public interest to dispense with his further services. Then the Court added:

"It is true that this power of compulsory retirement may be used when the authority exercising this power cannot substantiate the misconduct which may be the real cause for taking the action but what is important to note is that the directions in the last sentence in Note 1 to Article 465-A make it abundantly clear that an imputation or charge is not in terms made a condition for the exercise of the power. In other words, a compulsory retirement has no stigma or implication of misbehaviour or incapacity."

31. In the same judgment in Ram Ekbal Sharma Vs. State of Bihar, (1990) 3 SCC 504, the Hon'ble Apex Court has laid down that the court can lift the veil of an innocuous order in appropriate cases to find the real basis of the order of compulsory retirement of an officer. This is how the Court said: (SCC.516, para 32)

"32. On a consideration of the above decisions the legal position that now emerges is that even though the order of compulsory retirement is couched in innocuous language without making any imputations against the government servant who is directed to be compulsorily retired from service, the court, if challenged, in appropriate cases can lift the veil to find out whether the order is based on any misconduct of the government servant concerned or the order has been made bona fide and not with any oblique or extraneous purposes. Mere form of the order in such cases cannot deter the court from delving into the basis of the order if the order in question is challenged by the government servant concerned as has been held by this Court."

32. As far as, charge of misconduct against the petitioner is concerned, it is admitted case that he filed the divorce petition against his wife in the Court of 1st Additional District and Sessions Judge, Ghazipur bearing Original Suit No. 59 of 1990 which was decreed on 11.09.1991. Against this decree of divorce, the wife of the petitioner filed a first appeal no. 558 of 1991 which was decided on 12.02.2015 by the judgment of division Bench is as follows:- .

"In view of our finding recorded on the procedure adopted by the court below in deciding the case the proper course would have been to set aside the decree and remand the matter to the court below for deciding it afresh after affording due opportunity of evidence to the wife. However, considering the entire conspectus of facts let us record here that the facts of the present case compel and bound us to close the chapter here now and put the matter to quietus. The appellant and the respondent have been living separately without any break for the last 25 years at least if not 30 years. Even if the period of desertion as alleged in the plaint i.e. from 1985 to 1990 is taken to be disputed, the fact remains that right from 1990 till today the parties have been living separately. The husband has already remarried. The status of his remarriage is not in question before us. In so far as its validity is concerned it is hit by non-observance of minimum statutory period of filing an appeal. It is also in violation of the interim order dated 7.10.1991 as the second marriage was performed after that on 10.10.1991. Out of the second wedlock the husband has two grown up children. The daughter is said to be 21 years of age and the son is aged about 17 years."

33. Thus, even in the judgment, passed in the first appeal, Hon'ble Judges have commented on the manner in which the decree was passed and also the conduct of the petitioner.

34. Admittedly, the decree of divorce was passed on 11.09.1991 and the petitioner re-married Renu Yadav on 11.10.1991. It has been submitted by the counsel for the petitioner that the petitioner re-married after statutory period of limitation provided under Section 28 Sub Clause (4) of the Hindu Marriage Act in which it has been mentioned that every appeal under this Section shall be preferred within a period of 30 days from the date of the decree or order and since the petitioner re-married after 30 days from the date of decree, hence this conduct cannot be treated as misconduct by any stretch of imagination.

35. We cannot loose sight of the fact that the petitioner is also a judicial officer, well educated and is well conversant with law. In this regard, his conduct has to be taken note of, in as much as Annexure No. 4 of the counter affidavit shows that on 11.10.1991, the date on which marriage took place at Allahabad, the applicant moved an application for special casual leave for 10.10.1991 before the District Judge and on the same date i.e. on 11.10.1991 mentioning that on 9.10.1991 due to personal work, he had gone to Allahabad with permission to leave the station. But he suddenly fell ill and could not attend the Court on 10.10.1991, hence, the special casual leave for 10.10.1991 be granted on that date.

36. We fail to understand that when the officer was so sick and so unwell so as to disable him to attend the Court on 10.10.1991, and to take special casual leave, why he was in such a hurry to get married on the next day i.e. on 11.10.1991 during the early hours in the morning at 05:00 A.M. at Arya Samaj Mandir, Krishna Nagar, Prayag, Allahabad and then rushed to his place of posting and join his duties.

37. Annexure No. 4 to the counter affidavit clearly reflects that the petitioner has specifically said that after conducting his marriage on 11.10.1991, he left Allahabad at 08:00 A.M. and reached Jaunpur at 10:30 A.M. and on the same day he received the telegram about the interim stay order of the High Court. We also cannot loose sight of the fact that the petitioner was very much aware at that time, that the prescribed limit for filing appeal would definitely exclude the time for obtaining copies but the way in which the decree was obtained in a hurried way and how after taking special casual leave, the petitioner conducted the second marriage speaks volume for itself.

38. In M/s Shree Chamundi Mopeds Ltd. Versus Church of S.I.T. Association 1992 AIR 1439 in which it has been held that this court is not a appellate court, qua the decision taken by Competent Authority while exercising and invoking authority in terms of Rule 56 (c) of F.H.B. Vol. II Part II to IV. Once there is material available on record and conscious decision has been taken, then interference is permissible only in three contingencies.(i) opinion formed is malafide (ii) decision is based on no evidence (iii) and same is arbitrary decision. In the present case, by no stretch of imagination, it can be said that opinion, which has been formed in any way is malafide/based on no evidence or same is arbitrary or there is no evidence to support the same. Here, there is evidence available on record, which clearly clinches the issue and substantiates that rightful action has been taken and rightful opinion has been formed. For taking decision there is ample material available on record and once on the basis of material available on record, conscious decision has been taken, which empowers the authority to take decision for cleaning the administration and for maintaining purity in administration, as such action taken, cannot be faulted. This court is not a court of appeal and settled ground on which order in question could be assailed, are not available in the present case as opinion has been formed on the material available and said decision could not be termed to be arbitrary.

39. Much reliance has been placed by learned counsel for the petitioner in the case of Badrinath Versus Government of Tamil Nadu and others reported in (2000) 8 SCC 395. Said judgement will not at all come to the rescue of petitioner, inasmuch as, in the said case while considering case for promotion, the Court has taken the view, that in matter of promotion, consideration of past records may be taken into consideration, but consideration of same must be fair according to established principles of service jurisprudence said principles have been extended in respect of compulsory retirement also.

40. In the said case plea of mala fide and misconduct have been found proved. In the present case apart from adverse entry, there is other material available on record, which has been referred to above, which prompted the authority concerned to take action. Compulsory retirement is one of the prescribed mode provided for taking action against government servant in public interest.

41. The record of the petitioner has been filed by Sri. Manish Goyal, counsel for respondent no. 2 and perusal of the record shows that the Administrative Committee by its resolution dated 2nd July 2008 (being resolution no. 20) appointed Sri Prakash Krishna, the then Judge of the High Court, as Inquiry Officer. the Inquiry Officer looked into three points which are as follows:-

1.The effect of the stay order dated 7th of October, 1991 on the parties and the fact when it was communicated to the charged officer.

2.The effect of the defence as set out by the charge officer that the second marriage was performed on 31st day of the divorce decree at 5:00 A.M. and is established on evidence.

3.Whether such a marriage is legally permissible under law in view of the Section 15 of the Hindu Marriage Act; even if it is found that the second marriage as stated by the charged officer was performed on 31st day of the divorce decree.

42. After examining the matter at length, the Inquiry Officer concluded that the witnesses produced by the petitioner were not trustworthy and his conduct was not bona fide. He being a Judicial Officer was well conversant to law but in undue haste, he performed the second marriage. The caveat, which is said to have been filed by the petitioner, did not state the correct district. Thus, there was willful omission on the part of the petitioner. The matter was also looked into by the Administrative Judge, who did not expunge the entry as regards his strained relations with the brother officers was concerned but the overall assessment of the officer is different and other co-related factors, relations with the Bar, relations with the brother officers, quantum of work had also to be looked into and in the case of the petitioner, his relation with two brother officers was found strained. Inasmuch as the matter was so serious that it had to be reported to the Administrative Judge.

43. Thus, the remarks of the District Judge and the Administrative Judge coupled with the conduct of the petitioner by re-marrying in violation of the interim order dated 07.10.1991 as is also mentioned by Division Bench of this Court in First Appeal No. 558 of 1991.

44. We find that due waitage has been given to the entry and the conduct of the applicant who has been rightly compulsorily retired.

45. Hence, in the present case, on the basis of entire over all assessment of record of the petitioner, opinion has been formed for compulsorily superannuating the petitioner, and such exercise of authority, is neither perverse nor unreasonable, as such no interference is being made with the impugned order

46. Consequently, the writ petition is dismissed.

47. No order as to cost.

Order Date :- 05.05.2015

Ram Murti/sailesh