Allowed

Brajesh Kumar v. State of U.P. and 2 Ors.

Allahabad HC7 Aug 2018SPLAD/496/2018

Case brief

AI extract

What is this about?

Special Appeal against two orders of compulsory retirement of an Assistant Accountant. This Court held that the authority failed to consider relevant recent service records, rendering the decision arbitrary and unsustainable in law, despite the general rule that compulsory retirement is not punitive.

What did the court decide?

Order dated 07.12.2017 and order dated 24.01.2018 set aside. Respondents directed to reinstate the appellant on his post forthwith with all consequential benefits.

Brajesh Kumar Vs State of U.P. and 2 Ors. — Pension and Retirement Benefits | Allahabad HC (2018)

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Court No. - 21

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Case :- SPECIAL APPEAL DEFECTIVE No. - 496 of 2018 Appellant :- Brajesh Kumar Respondent :- State Of U.P. And 2 Ors. Counsel for Appellant :- Siddharth Khare,Ashok Khare Counsel for Respondent :- C.S.C.,Madan Mohan Chaurasisa

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Hon'ble Govind Mathur,J. Hon'ble Chandra Dhari Singh,J.

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(Delivered by Hon'ble Chandra Dhari Singh,J.)

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01 Special Appeal is preferred for assailing the correctness of the order dated 24.01.2018 passed by learned Single Judge in Writ A No.3028 of 2018 by which learned Single Judge dismissed the writ petition.

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02 Heard Sri Ashok Khare, learned Senior Counsel assisted by Sri Siddharth Khare for the appellant, Sri Madan Mohan Chaurasiya, learned counsel for the respondent no.3 and learned standing counsel for the respondents no.1 and 2.

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03 Brief facts of the case are that the appellant was appointed as Assistant Accountant in Uttar Pradesh Awas Vikas Parishad. He was deputed at “Sampatti Prabandh Karyalay,” Uttar Pradesh Awas Avam Vikas Parishad, Rajajipuram Lucknow vide office order dated 06.01.1984. His date of birth is 11.07.1962 and, therefore, he is scheduled to retire from service on 10.07.2022 at the age of 60 years on attaining the age of superannuation. On 04.10.2017, an order has been passed by the Additional Commissioner and Secretary, Uttar Pradesh Awas Avam Vikas Parishad/respondent no.3, whereby the appellant-petitioner has been compulsorily retired from service from the date of order in exercise of the power under Fundamental Rules 56 (C) of the Financial Handbook. The order dated 04.10.2017 has been challenged before this Court by way of filing a writ petition (bearing Writ A no.48482 of 2017). Learned Single Judge has set aside the order dated 04.10.2017 vide order dated 27.10.2017. In pursuance of the compliance of the order dated 27.10.2017 the appellant-petitioner was reinstated in service. On 07.12.2017, an order has been passed by the Additional Commissioner and Secretary, U.P. Awas Avam Vikas Parishad, Lucknow respondent no.3, by which the petitioner has again been compulsorily retried from service from the date of the order in exercise of the power under Fundamental Rules 56 (C) of the Financial Handbook. The order dated 07.12.2017 refers two Government Orders

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dated 26.10.1985 and 21.05.1998. The appellant filed a writ petition bearing No.3028 of 2018 challenging the order dated 07.12.2017 passed by the respondent no.3. The learned Single Judge dismissed the aforesaid writ petition vide order dated 24.01.2018 with observation that the order dated 07.12.2017 may not be set aside merely on the ground that adverse remarks of the confidential report were uncommunicated to the appellant.

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04 Learned senior counsel for the appellant submitted that the order dated 07.12.2017 passed by the respondent no.3 directing for compulsory retirement of the appellant from service is stigmatic. It has been mentioned that the appellantpetitioner is not suitable to be retained in service which will effect the future of the appellant. He further submitted that the order of compulsory retirment passed in exercise of the power under Fundamental Rules 56 (C) of the Financial Handbook is an order which is required to be non-stigmatic language. It is further submitted that the order of compulsory retirement is based on the subjective satisfaction of the appointing authority. Such subjective satisfaction stands vitiated in the present case as the order impugned takes into account material, which is wholly impermissible in the law. It is incapable of determining as to whether after excluding such impermissible material the respondents authority would have still taken the decision to compulsory retire the appellant from service. As per Government Order dated 26.10.1985 the appellant-petitioner could be compulsorily retired by the appointing authority in public interest "either by three months notice or by paying three months salary". No such notice or pay was given him by the respondents.

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It is further submitted that no public interest is involved in the retirement of the appellant-petitioner inasmuch as there was no adverse entry on the last three years and no punishment has been awarded to him. It is argued that the learned Single Judge has also committed error as not to appreciate that the impugned order was passed without application of mind and contrary to the statutory provisions and established law.

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Per-contra learned counsel for the respondent no.3 and learned standing counsel for the respondents no.1 and 2 is defending the order dated 07.12.2017 passed by the respondent no.3 as well as order dated 24.01.2018 passed by the learned Single Judge dismissing the aforesaid writ petition. They vehemently opposed the contentions made by learned counsel appearing on behalf of the appellant. They submitted that the order dated 07.12.2017 of compulsory retirement has no stigma or implication of misbehaviour or incapacity. A

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compulsory retirement does not amount to dismissal or removal and, therefore, does not attract the provisions of Article 311 of the Constitution of India. They further submitted that the order of compulsory retirement is based on subjective satisfaction of the employer and a very limited scope of judicial review is available in such cases. It is settled law that object of compulsory retirement from service is to weed out the dead wood in order to maintain a high standard of efficiency and honesty and to keep the service unpolluted. They further submitted that principles of natural justice have no place in the context of an order of compulsory retirement.

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Before we deal with the aforesaid issues, certain crystallised facets of the matter as evident from facts as narrated and the statutory frameworks need to be noted.

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Respondent no.3, Additional Commissioner and Secretary, Uttar Pradesh Awas Avam Vikas Parishad, Lucknow passed the order dated 07.12.2017 which is reproduced as below:-

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5- Jh cts'k dqekj] ys[kkdkj foxr 10 o"kksZ dh okf"kZd xksiuh; izfof"V;ksa esa ls foRrh; o"kZ 2007&08] Js.kh&[kjkc] foRrh; o"kZ 2009&10] Js.kh&[kjkc ,oa foRrh; o"kZ 2010&11] Js.kh&[kjkc] izfrdwy izfo"V nh x;h gS] tks lalwfpr gSA o"kZ 2007&08 dh izfrdwy izfof"V esa ;g eUrO; vafdr fd;k x;k gS fd ^^-------- Jh cts'k dqekj }kjk dk;ksZ dks yxu ,oa fu"Bk ls ugha fd;k x;k gSA Jh cts'k dqekj }kjk vukf/kdr :i ls lgk;d vkokl vk;qDr ds drs ds :i esa dfri; izi=ksa ij gLrk{kj fd;s x;s gSA Jh cts'k dqekj dh mDr fLFkfr;ksa ds dkj.k bUgsa lEifRr izcU/k dk;kZy; deykuxj vkxjk ls lEc) fd;k x;kA Js.kh&[kjkcA mDr vyksP; vof/k esa lR;fu"B ds lEcU/k esa ;g vkns'k tkjh fd;s x;s fd ^^-------- Jh cts'k dqekj ds vkyksP; vof/k esa 1@658@2 lqgkl uxj ;kstuk fQjkstkckn esa i=kad 1126 fnukad 11-09-2007 ,oa i=kad 1127 fnukad 11-09-07 }kjk ukekarj.k fo"k;d dk;kZy; vkns'k tkjh fd;k x;kA nqcZy vk; oxZ ds Hkou la[;k&1@528 lqgkl uxj ;kstuk fQjkstkckn esa vfrfjDr Hkwfe ds vkaoVu gsrq /kujkf'k tek djkus ds fy, ekax i= la[;k 1128 fnukad 11-09-2007 tkjh fd;k x;kA vr% cts'k dqekj dh lR;fu"Bk lafnX/k gSA^^ o"kZ 2009&10 esa izfrosnd vf/kdkjh }kjk ;g eUrO; vafdr fd;k x;k gS fd ^^-------vkyksP; vof/k esa Jh cts'k dqekj] ys[kkdkj lEifRr izcU/k dk;kZy; deykuxj vkxjk esa lEc) gSA Jh cts'k dqekj }kjk fQjkstkckn lEifRr;ksa ls lEcfU/kr 65 ux i=kofy;ksa dk pktZ ugh fn;k x;k gS] ftlds fy;s

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bUgsa dk;kZy; }kjk 07 vuqLekjd i= fn;s tk pqds gSA Jh egkohj lgdkjh vkokl lfefr fy0 fQjkstkckn dks vkoafVr Hkw[k.M ,o QthZ jftLVªh fd;s tkus ds lEcU/k esa buds fo:) tkap xfBr gSA budk dk;Z ,oa O;ogkj larks"ktud ugh gSA Js.kh&[kjkcA^^ o"kZ 2010&11 esa izfrosnd vf/kdkjh }kjk ;g eUrO; vafdr fd;k x;k gS fd ^^-------- Jh cts'k dqekj] ys[kkdkj dks muds fo:) izkIr f'kdk;rksa dk;ksZ esa vfu;ferrk,a ,oa fu;fer :i ls dk;kZy; esa mifLFkr u jgus ds dkj.k la;qDr vkokl vk;qDr] vkxjk tksu ds vkns'k la[;k 1074 fnukad 01-11+-2007 }kjk lEifRr izcU/k dk;kZy;] deykuxj] vkxjk ls lEc) fd;k x;k ftlds vuqikyu esa Jh cts'k dqekj us fnukad 21-11-2007 dks deyk uxj esa dk;ZHkkj xzg.k fd;k x;k gS] fdUrq muds }kjk fQjkstkckn ls lEcfU/kr i=kofy;ksa dk leLr pktZ ugh fn;k x;kA rnksijkUr bUgs dbZ i= Hkh leLr pktZ gLrxr djus gsrq fy[ks x;s fdUrq iw.kZ :i ls i=kofy;ksa dk pktZ gLrxr ugh fd;k x;kA Js.kh&[kjkc^^ leh{kd vf/kdkjh }kjk mDr vkyksP; vof/k esa fnukad 15-052010 ls 31-03-2011 rd esa ;g eUrO; vafdr fd;k x;k fd ^^-------- Jh cts'k dqekj] ys[kkdkj lEifRr izcU/k dk;kZy;] fQjkstkckn ls lEcfU/kr i=kofy;ksa dk pktZ gLrxr djus gsrq tksu ds i= la[;k 1019@ fnukad 26-07-2010] i= la[;k 1103 fnukad 10-08-2010 ,oa i= la[;k 573 fnukad 29-03-2011 }kjk funsZf'kr djus ds mijkUr Hkh buds }kjk fQjkstkckn ls lEcfU/kr i=kofy;ksa dk pktZ iw.kZ :i ls gLrxr ugh fd;k x;k] ftlds lEcU/k esa tksu ds i= la[;k 676@ fnukad 19-04-2011 }kjk eq[;ky; dks Hkh fLFkfr ls voxr djk;k x;kA Jh cts'k dqekj }kjk lEifRr izcU/k dk;kZy;] fQjkstkckn ls lEcfU/kr egkohj lgdkjh vkokl lfefr dks vkoafVr Hkw[k.M dh Hkh QthZ <+x ls jftLVªh fu"ikfnr djkus esa lg;ksx fd;k x;k] ftlls vUrr% fookn dh fLFkfr mRiUu gqbZA bl izdj.k ij muds fo:) vu'kklfud dk;Zokgh eq[;ky; Lrj ls dh x;h gSA lekU;r% ;g vkns'kksa dh vogsyuk djus ds vkfn gSA Js.kh&[kjkc^^A

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6- Jh c`ts'k dqekj] ys[kkdkj }kjk ifj"kn dh lqgkxuxj ;kstuk] fQjkstkckn fLFkr Jh egkchj] lgdkjh vkokl lfefr fy0 ds lnL; ds feydj dwVjfpr izi=ksa dks rS;kj djkdj ifj"kn dks vkfFkZd {kfr igaqpkus ds laca/k esa vkns'k la[;k 825@vuq'kk0& 29@2008 ¼1908½ fnukad 22-122008 }kjk foHkkxh; tkWp xfBr dh x;hA izpfyr foHkkxh; tkWp ds vUrxZr vkns'k la[;k 439@vuq'kk0& 29@08 ¼1908½ fnukad 24-09-2011 } kjk fuyfEcr fd;k x;kA rnksijkUr vkns'k la[;k 225@vuq'kk0& 29@08

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¼1908½ fnukad 08-06-2012 }kjk lsok esa cgky fd;k x;k rFkk fQjkstkckn ;kstuk ls lEcfU/kr 70 ux i=kofy;ksa dk pktZ gLrxr u fd;s tkus ds izdj.k esa iqu% vkns'k la[;k 654@vuq'kk0& 29@08 ¼1908½ fnukad 11-10-12 }kjk rRdky izHkko ls fuyfEcr fd;k x;k gSA rnqijkUr vkns'k la[;k 976@vuq'kk0& 29@08 ¼1908½ fnukad 18-02-13 }kjk fuyEcu lekIr dj ifj"kn lsok esa iquLFkkZfir fd;k x;kA tkWp ;Fkkor~ izpfyr gSA Jh c`ts'k dqekj] ys[kkdkj lEifRr izcU/k dk;kZy;] fQjkstkckn ds fo:) nqcZy vk; oxZ Hkou la[;k 2@982 dk vks0Vh0,l0 rS;kj djrs le; =qfViw.kZ x.kuk djus fd'rksa ds fu/kkZj.k esa cjrh x;h vfu;ferrk gsrq vkns'k la[;k 257@vuq'kk0 39@2014 ¼2821½ fnukad 23-06-2014 }kjk foHkkxh; tkWp xfBr dh x;h gSA

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7- mDr ds nf"Vxr] LØhfuax desVh }kjk ;g ik;k x;k fd Jh cts'k dqekj] ys[kkdj vius dk;ksZ@mRrjnkf;Roksa ds izfr drZo; fu"B ugha gS] ftlds nf"Vxr budh lsok,a ifj"kn ds fy, mi;ksxh ugha ik;h tkrh gS vkSj lfefr }kjk ;g ik;k x;k fd tufgr esa Jh cts'k dqekj] ys[kkdkj dks vfuok;Z lsokfuoRr djus dk iw.kZ vkSfpR; gS rFkk lfefr }kjk budh fu;ekuqlkj] vfuok;Z lsokfuofRr dh laLrqfr dh xbZ gSA vr% ;kph dk izR;kosnu fnukad 01-11-2017 cyghu ik;k x;k gSA””

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The order of compulsory retirement is neither punitive nor stigmatic and has to be based on subjective satisfaction of government authority that it is in public interest.

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In the case of Baikuntha Nath Das And Anr vs Chief Distt. Medical Officer (1992 ) 2 SCC 299 the Hon'ble Supreme Court held :-

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“33. At this stage, we think it appropriate to append a note of clarification. What is normally required to be communicated is adverse remarks - not every remark, comment or observation made in the confidential rolls. There may be any number of remarks, observations and comments, which do not constitute adverse remarks, but are yet relevant for the purpose of F.R. 56(j) or a Rule corresponding to it. The object and purposes for which this power is to be exercised are well-stated in J.N. Sinha and other decisions referred supra.

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34. The following principles emerge from the above discussion: (i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour.

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

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government.

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(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.

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(iv) The government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter - of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.

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(v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interfere. Interference is permissible only on the grounds mentioned in (iii) above. This aspect has been discussed in paras 30 to 31 above.

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36. So far as the appeals before us are concerned, the High Court which has looked into the relevant record and confidential records has opined that the order of compulsory retirement was based not merely upon the said adverse remarks but other material as well. Secondly, it has also found that the material placed before them does not justify the conclusion that the said remarks were not recorded duly or properly. In the circumstances, it cannot be said that the order of compulsory retirement suffers from mala fides or that it is based on no evidence or that it is arbitrary.”

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11. In the case of State of Gujrat vs. Umedbhai M. Patel (2001) 3 SCC

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314, the Hon'ble Supreme Court held :-

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“11. The law relating to compulsory retirement has now crystallized into definite principles, which could be broadly summarised thus:

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(i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.

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(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.

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(iii) For better administration, it is necessary to chop off dead- wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer.

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(iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.

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(v) Even uncommunicated entries in the confidential record can also be taken into consideration.

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(vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable.

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(vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer.

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(viii) Compulsory retirement shall not be imposed as a punitive measure.”

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It is well settled principle of law that an order of compulsory retirement is found to be stigmatic inter alia, in the event the employer has lost confidence [ See Chandu Lal vs. Management of M/s Pan American World Airways Ine. (1985) 2 SCC 727 ] or he has concealed his earlier record [see Jagdish Prasad vs. Sachiv, Zila Ganna Committee, Muzaffarnagar and others (1986) 2 SCC 338 ]. He can, however, be subjected to compulsory retirement inter alia, if he has outlived his utility [ State of Uttar pradesh vs. Madan Mohan Nagar AIR 1967 SC 1260]

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In Allahabad Bank Officers' Association and antoher vs. Allahabad Band and others (1996) 4 SCC 504 it was held :

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“17.The above discussion of case law makes it clear that if the order of compulsory retirement casts a stigma on the Government servant in the sense that it contains a statement casting aspersion on his conduct or character, then the court will treat that order as an order of punishment, attracting provisions of Article 311(2) of the Constitution. The reason is that as a charge or imputation is made the condition for passing the order, the court would infer therefrom that the real intention of the Government was to punish the Government servant on the basis of that charge or imputation and not to exercise the power of compulsory retirement. But mere reference to the rule, even if it mentions grounds for compulsory retirement, cannot be regarded as sufficient for treating the order of compulsory retirement as an order of punishment. In such a case, the order can be said to have been passed in terms of the rule and, therefore, a different intention cannot be inferred. So also, if the statement in the order refers only to the assessment of his work and does not at the same time cast an aspersion on the conduct or character of the Government servant, then it will not be proper to hold that the order of compulsory retirement is in reality an order of punishment. Whether the statement in the order is stigmatic or not will have to be judged by adopting the test of how a reasonable person would read or understand it.”

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In the order dated 07.12.2017, the service records of the petitioner was scrutinized. It is not only referred to his performance in year 2007 to 2011 but also records that the confidential reports are either 'poor' or 'below average' . It

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has to be seen that this reference was in respect of the earlier period upto year 2010. But recent service records have not be taken into consideration. This assumes importance became in view of the legal position, adumbrated as above, records of recent past are more relevant as compared to old records while deciding whether an employee has become dead wood or not.

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After examining the order dated 07.12.2017 as reproduced above paragraph, the inevitable conclusion is that while screening the records of the petitioner, the respondent/competent authority has not examined the records in its entirety correctly and in its proper perspective. No effect has been made to give more importance to the recent past while is more relevant. More weightage has been given to performance in the remote past rather than paying more attention to the records of recent past.

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At the earlier occasion also the respondent no.3 had passed an order of compulsory retirement on 04.10.2017 which was challenged before this Court by filing Writ Petition no.48482 of 2017. Learned Single Judge vide order dated 27.10.2017 has set the order dated 04.10.2017 passed by the respondent no.3. The order dated 07.12.2017 has been passed after two months in the same nature without any additional reasons or grounds. A bare perusal of the order dated 07.12.2017 indicates that the order is stigmatic and contentions raised by the learned counsel for the appellant appear to be correct. It is settled law that the order of compulsory retirement has to be passed by the government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The said order is passed on the subjective satisfaction of the government. It is settled law that 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 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 the present case, therefore, applying the test of reasonableness and arbitrariness, we are of the considered opinion that the decision of the respondent authority is arbitrary, unreasonable and unsustainable in the eye of law.

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In the result, the order dated 07.12.2017 passed by the respondent no.3 cannot be sustained in the eyes of law and therefore, is set aside. For the reason aforementioned, the order dated 24.01.2018 passed by learned Single Judge is

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set aside. The special appeal is allowed . Respondents are directed to reinstate the appellant on his post forthwith with all consequential benefits. Order Date :- 7.8.2018 Asha

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(Chandra Dhari Singh,J.) (Govind Mathur,J.)

Brajesh Kumar v. State of U.P. and 2 Ors.

Case brief

What is this about?

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Brajesh Kumar v. State of U.P. and 2 Ors.

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