Upendra Sharma Sub-Inspector Vs State of U.P. and 4 Others — Allahabad HC (2020) — LawSathi Research

Upendra Sharma Sub-Inspector Vs State of U.P. and 4 Others — Allahabad HC (2020) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

Issue for consideration

Whether the Learned Single Bench failed to appreciate that several uncommunicated adverse remarks were taken into consideration by the appointing authority in ordering compulsory retirement. +1 more

Court's answer

The consideration of adverse remarks not communicated to the appellant is of no consequence, since the other material available on record is adequate to substantiate the conclusion reached by the appointing authority.

Ratio / Principle

The appointing authority took the entire service record into consideration - including 26 censures, one major punishment and several adverse annual confidential report entries - and arrived at a subjective satisfaction, which is not required to be interfered with unless it is not based on objective considerations or is an outcome of malicious exercise of powers.

Key takeaways

In light of the Supreme Court's judgment in Baikuntha Nath Das v. Chief District Medical Officer, Baripada, (1992) 2 SCC 299, an order of compulsory retirement is not liable to be quashed by a Court merely on the showing that uncommunicated adverse remarks were also taken into consideration while recording the subjective consideration for placing an incumbent under compulsory retirement.ratio¶10

Detailed headnote1 paragraphs

Special Appeal dismissed - compulsory retirement upheld. A Sub-Inspector placed under compulsory retirement by order dated 11.9.2017 invoking Rule 56(c), Uttar Pradesh Fundamental Rules, had his writ petition dismissed on 4.12.2017; the Special Appeal against that judgment was dismissed on 27.1.2020. Holding that the appointing authority considered the entire service record (26 censures, one major punishment, adverse ACR entries) and formed a subjective satisfaction not open to interference unless devoid of objective considerations or mala fide; consideration of uncommunicated adverse remarks was held to be of no consequence where the remaining record adequately substantiates the conclusion, consistent with Baikuntha Nath Das v. Chief District Medical Officer, Baripada, (1992) 2 SCC 299, under which a compulsory retirement order is not quashed merely because uncommunicated adverse remarks were taken into account.

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Chief Justice's Court

Case :- SPECIAL APPEAL No. - 77 of 2018

Appellant :- Upendra Sharma Sub-Inspector Respondent :- State Of U.P. And 4 Others Counsel for Appellant :- Shree Prakash Giri Counsel for Respondent :- C.S.C.

Hon'ble Govind Mathur, Chief Justice Hon'ble Samit Gopal, J.

By an order dated 11th September, 2017, the appointing authority invoking powers under Rule 56 (c) of the Uttar Pradesh Fundamental Rules placed the appellant under compulsory retirement. Being aggrieved by the same, he preferred a petition for writ that came to be dismissed vide judgment dated 4th December, 2017.

A challenge to the judgment aforesaid is given in the instant appeal. It is submitted by learned counsel appearing on behalf of the appellant that the Learned Single Bench failed to appreciate that several uncommunicated adverse remarks were taken into consideration and also that the decision taken by the appointing authority is not in public interest or in interest of the efficiency of administration.

Considered the argument advanced and also looked into the material available on record. It is not in dispute that in the entire service period, the appellant was censured 26 times and was also suffered with a major punishment. Beside that, his annual confidential reports too contain several adverse entries. In our considered opinion, the appointing authority has taken into consideration entire service record and then arrived at a subjective satisfaction. Such subjective satisfaction is not required to be interfered unless that is not based on objective considerations or is an outcome of malicious exercise of powers. It would also be appropriate to state that the consideration of adverse remarks which were not said to be communicated to the appellant-petitioner too is of no consequence in view of the fact that the other material available on

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record is adequate to substantiate the conclusion arrived by the appointing authority. Even otherwise, in light of the judgment of the Supreme Court in Baikuntha Nath Das And Another Versus Chief District Medical Officer, Baripada And Another, reported in (1992) 2 SCC 299, an order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while recording subjective consideration, to be placed an incumbent under the compulsory retirement, uncommunicated adverse remarks were also taken into consideration.

In view of whatever stated above, the appeal lacks merit, hence is dismissed.

Order Date :- 27.1.2020 VMA

(Samit Gopal, J.) (Govind Mathur, C.J.)