Sudhir Agarwal, J.

1. Petitioner, Jagdish Singh, has filed this writ petition under Article 226 of the Constitution of India aggrieved by the order dated 22.9.2005, Annexure-4 to the writ petition, issued by the District Magistrate, Aligarh compulsorily retiring the Petitioner in purported exercise of power under Fundamental Rule 56 (hereinafter referred to as FR-56) from the post of Revenue Inspector.

2. In brief, the case set up by the Petitioner in the writ petition is that his date of birth is 31.1.1951 and after passing high school in the year 1968 from Board of High School and Intermediate, U. P., Allahabad, he was selected and appointed on the post of Lekhpal on 23.6.1973 and was posted in Tahasil Sadar, District Etah. The appointing authority of the Petitioner was Collector. He was promoted on the post of Supervisor Kanoongo (Revenue Inspector) on 25.5.2005 after passing departmental examination. His service record is exemplary, unblemished and no adverse entry has been communicated to him, but a censure awarded on 27.4.2002, a copy whereof has been filed as Annexure-2 to the writ petition, where against he has filed a representation before the competent authority, i.e., Commissioner, Agra Division, Agra on 6.5.2002, which has not been decided so far. He attained the age of 54 years in the year 2005 and in an arbitrary manner, the Respondent No. 3 has passed the impugned order of compulsory retirement in exercise of powers under FR-56. The order of compulsory retirement is assailed on the ground of being violative of Articles 14, 16 and 21 of the Constitution of India. It is said that the Petitioner has not been given any show cause notice and opportunity of hearing and, therefore, the impugned order is in violation of principles of natural justice and has also been passed mala fide, in gross abuse and misuse of process of law resulting in substantial failure and miscarriage of justice to the Petitioner. The only adverse material available against the Petitioner was the censure dated 27.4.2002 whereagainst representation before the competent authority was pending and therefore, the same could not have been taking into account, yet the impugned order has been passed, which is only illegally based on no material.

3. The Respondents have filed a counter-affidavit admitting the date of birth of the Petitioner being 31.1.1951 and his date of appointment as Lekhpal in District Etah wherefrom he was transferred and was posted in Aligarh. His promotion on the post of Revenue Inspector vide order dated 27.7.2001 passed by the Additional District Magistrate (Admn.) Aligarh is also not disputed. However, it is said that his service record is not unblemished inasmuch he was given a special adverse entry on 12.6.1998 and 5.11.1998 during the year 1998-99, two special adverse entries dated 18.5.1999 and 7.7.1999, in the year 1999-2000, and adverse entries in the year 2002-03 and 2003-04, photo copies whereof have been filed as CA-3. In respect to the alleged censure entry dated 27.4.2002, it is said that it is also special adverse entry awarded for the year 2002-03 and not censure. Further, it is denied that against the aforesaid special entry, the Petitioner has made any representation before the Commissioner, Agra and communication of the alleged representation. Annexure-3 to the writ petition, to the Commissioner, Agra Division, Agra is specifically denied. It is further said that a screening committee constituted in accordance with the Government orders considered the entire service record of the Petitioner as provided under FR-56 and after considering his service record and in particular ten years previous record, the screening committee recommended for compulsory retirement of the Petitioner, which was accepted by the competent authority, whereupon the order of compulsory retirement, impugned in the writ petition has been passed in public interest and therefore, does not warrant any interference.

4. In the rejoinder-affidavit the Petitioner has simply denied the various averments made in the counter-affidavit and reiterated what he has stated in the writ petition.

5. I have heard Sri B. B. Paul, assisted by Sri A. P. Paul, learned Counsel for the Petitioner and learned standing counsel for the Respondents and have perused the record. From the rival submissions made by the learned Counsels for the parties, following questions require consideration in this case:

1. Whether the principles of natural justice are attracted for compulsory retiring an employee in exercise of power under FR-56

2. Whether the order of compulsory retirement needs to be a speaking order

3. Whether the various adverse entries awarded to the Petitioner were communicated to him

4. Whether the order impugned in the writ petition can be said to based on no material on record and is arbitrary

6. Before answering the aforesaid issues, it would be appropriate to have a perusal of Fundamental Rule 56 as applicable in U.P. which has been substituted vide U.P. Fundamental Rule 56 (Amendment and Validation) Act, 1976 (U.P. Act No. 33 of 1976) and reads as under:

56. (a) Except as otherwise provided in other clauses of this rule, the date of compulsory retirement of a Government servant, other than a Government servant in inferior service, is the date on which he attains the age of 58 years. He may be retained in service after the date of compulsory retirement with the sanction of the Government on public grounds, which must be recorded in writing, but he must not be retained after the age of 60 years except in very special circumstances.

(b) The date of compulsory retirement of a Government servant in inferior service is the date on which he attains the age of 60 years. He must not be retained in service after that date, except in very special circumstances and with the sanction of 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 50 years, or such Government servant may, by notice to the appointing authority, voluntarily retire at any time after attaining the age of 45 years or after he had completed qualifying service of 20 years.

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

(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 50 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 falls short of three months, at the rates at which he was drawing them 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 the 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 persons 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 rule the appointing authority may allow him, for the purposes of pension and gratuity, if any, the benefit of additional service of five years or such period as he would have served if he had continued till the ordinary date of his superannuation, whichever be less.

Explanation. - (1) 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 any efficiency bar or before he was promoted to any post in an officiating or substantive capacity or on an ad hoc basis ; or (b) any entry against which a representation is pending, provided that the representation is also taken into consideration alongwith the entry ; or (c) any report of the Vigilance Establishment constituted under the Uttar Pradesh Vigilance Establishment Act, 1965.

(2A) Every such decision shall be deemed to have been taken into 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) of the rule shall have effect from the afternoon of the date of its issue, if 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.

7. A perusal of the aforesaid provision shows where the appointing authority on the basis of the material available on record comes to the conclusion that a Government servant has outlived his utility and has become a dead wood, he may be compulsorily retired in public interest. The appointing authority is required to consider the worth and usefulness of the Government servant to allow him to continue in service, if he is still useful and efficient enough. Where he has become a liability to the department, as is evident from the entire service record, the power under Fundamental Rule 56 (a) can be exercised by the competent authority.

8. Coming to the first question as to whether such a power can be exercised without giving opportunity of hearing to the concerned Government servant and whether the principles of natural justice are attracted for exercising power of compulsory retirement, this issue is no more res integra having been settled by the Apex Court and it would be useful to refer the law laid down in Baikunth Nath Das and Anr. v. Chief District Medical Officer : AIR 1992 SC 1020 [LQ/SC/1992/182] , wherein it was held:

Principles of natural justice have no place in the context of an order of compulsory retirement.

9. In view of the aforesaid settled legal exposition of law, an order of compulsory retirement, in my view, cannot be assailed on the ground of denial of opportunity to the Petitioner and, therefore, it is held that the principles of natural justice are not attracted for exercising power under Fundamental Rule 56.

10. Coming to the second question whether an order of compulsory retirement must be a speaking order, this question is also to be answered in negative, since, there is no requirement of an order of compulsory retirement being a speaking order. This issue has also been answered by the Apex Court in Union of India and Anr. v. Dulal Dutt : 1993 (2) SCC 179 [LQ/SC/1993/111] , wherein it was held:

Very often, on enquiry by the Court, the Government may disclose the material but it is very much different from the saying that the order should be a speaking order. No order of compulsory retirement is required to be a speaking order.

11. This issue is also thus answered in negative and I hold that the order of compulsory retirement cannot be assailed on the ground that it is not a speaking order.

12. In my view, the question Nos. 3 and 4 may be considered and answered together. Before considering the aforesaid two questions, it would be appropriate to have a retrospect of the judicial precedents throwing light on the object and purpose of compulsory retirement, the material open to be considered by the authorities, source of power and scope of judicial review in such matter.

13. A similar question came up before the Honble Apex Court in State of U.P. and Anr. v. Lalsa Ram : 2001 (3) SCC 389 [LQ/SC/2001/542] : 2001 (2) AWC 1018 (SC), wherein the Honble Apex Court considered Fundamental Rule 56, as applicable in U.P. Lalsa Ram was working as Deputy Collector. At the time when he was compulsorily retired in the year 1998 the screening committee considered adverse entries of 1967-68, 1981-82, 1982-83 and 1991-92 as well as censure dated 18.1.1986. Although there was no adverse entry in the preceding five years yet considering the constant deterioration in the performance of Shri Lalsa Ram, he was recommended for compulsory retirement. The writ petition filed by Lalsa Ram challenging the aforesaid order of compulsory retirement was allowed on the ground that therebeing no adverse entry in preceding five years and the adverse entries from 1967 to 1982 being old and stale, only on the basis of one adverse entry of the year 1991-92 it was not justified to retire him compulsorily. The Honble Apex Court allowing the appeal of the State Government considering Fundamental Rule 56 held as under:

The Uttar Pradesh Fundamental Rules governing the service conditions of the Respondent herein, in particular, Rule 56 (c) and Explanation 2 (a) (b) specifically provide that nothing in the Rules should be construed to exclude from consideration any entry relating to any efficiency bar or he was promoted to any post in an officiating or a substantive capacity or on an ad hoc basis. The important words used are: nothing herein contained shall be construed to exclude from consideration: the exclusion thus is prohibited in terms of the rule.The authority concerned, by reason wherefor has thus a liberty to consider even entries relating to the period before the Government servant was allowed to cross any efficiency bar or before he was promoted. It is true that one of the guiding principles as enunciated above in Baikuntha Nath case, with regard to performance during the later years ought to be attached more importance but that does not exclude the consideration of the entire record of service.

14. Again in para 13 of the judgment, the Honble Apex Court held that Fundamental Rule 56 confers the right absolute to retire an employee on happening of certain event namely, the employee attaining 50 years of age. The only guiding factor is the public interest to retire an employee. It also held that the right being absolute, in the event it is not contrary to the condition, as embodied in Fundamental Rule 56, the question of violation of any legal right of an employee would not arise. It further held where the material is sufficient and conclusion of the authority would have been justified, it cannot be a matter of judicial review, since primarily it is for the departmental authority to decide. The delinquency of the entry and whether it is of such a degree as to reflect on the efficiency of the employees has to be decided by the authorities and the Courts have no authority or jurisdiction to interfere with such exercise of power, if arrived at bona fide on the basis of the material on record. Usurpation of authority is not only unwarranted but contrary to all norms of service jurisprudence. Showing its agreement with the law laid down in State of Punjab v. Gurdas Singh : (1998) 4 SCC 92 [LQ/SC/1998/395] , the Honble Apex Court further held as follows:

... 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 in the wake of the aforesaid, question of any interference of this Court does not and cannot arise. Interference in these matter by the Courts in exercise of their 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 the 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 therebeing a rule permitting an order of compulsory retirement.

15. Following the rule of precedents and also the statutory provision applicable in this case, it is evident that the material which can be looked into for the purpose of compulsory retirement has not been left for the guess of the Court or of the authorities but the Legislature has taken care to provide specific provision under Fundamental Rule 56 stating that in order to form opinion whether the Government servant should be retired compulsorily or not the appointing authority is entitled to consider the entire service record of the Government servant, even if he has been subsequently allowed promotion or crossed efficiency bar etc. or where his representation against the adverse entry is pending, the same may also be considered alongwith the adverse entry. The reason for giving such a wide power to the appointing authority is easily understandable. Whole purpose of provision made for compulsory retirement is to root out worthless without resorting to bona fide extreme covered by Article 311 of the Constitution. After all the administration to be efficient has to be meant by efficient, competent and prone workers and should not be meant by drones do nothing, incompetent and un-worthies. Lacking of efficiency by itself does not amount to a misconduct and, therefore, such incumbent may not be delinquent needs to be punished but may prove to be a burden on the administration, if by insensitive, insouciant, unintelligent or dubious conduct impede the floor or promote stagnation. In a developing country where speed, probity, sensitivity, enthusiastic, creativity and non-brevity process are immediately required, callous cadres and paper logged are the bees setting sin of the administration. Therefore, it is in public interest to retire a never doer person. Some times the reputation or otherwise the information available to the superior officers reflects on the integrity of the employee but there may not be sufficient evidence available to initiate punitive action, but conduct and reputation for continuing of such person is menace in public service and injurious to public interest. In said case also the order of compulsory retirement may be passed by the competent authority.

16. The facts as available on record in the case in hand shows that the Petitioner Jagdish Singh was awarded special adverse entries vide orders dated 12.6.1998, 5.11.1998, 7.7.1999, 18.5.1999, 22.6.2003 and 5.2.2004. The aforesaid entries reads as under:

17. The photo copies of the aforesaid entries have been placed on record as Annexure CA-3 to the counter-affidavit, a perusal of which shows that the aforesaid entries have been acknowledged by the Petitioner. In para 8 of the counter-affidavit, referring to the aforesaid entries and appending Annexure CA-3, it has specifically been said that the copy of the aforesaid entries were made available to the Petitioner. In para 9 of the rejoinder-affidavit, the Petitioner has barely denied the said paragraph without making any comment on the aforesaid documents and the endorsements therein showing receipt of the said entries by the Petitioner. He has only sought to explain in para 7 of the rejoinder-affidavit that the adverse entries were ex parte given without show cause notice and opportunity of hearing. But he has not said that after recording the said entries the same were not received by him as is evident from Annexure CA-3 which are the photo copies of the entries showing acknowledgment by the Petitioner receiving the said entries on different dates. Moreover, it is not disputed that the Petitioner was awarded a censure entry by order dated 27.4.2002, which he has admitted in para 9 of the writ petition and the same has not been expunged. Though in para 10 of the writ petition, he has said that he filed a representation against the said censure entry before the competent authority, but the said averment has been specifically denied in para 10 of the counter affidavit and it has specifically been said that no representation has been sent to or received by the Commissioner, Agra Division, Agra. The Petitioner has sworn para 10 of the writ petition on the basis of the record. In reply to para 10 of the counter-affidavit, he has only reiterated para 10 of the writ petition in para 10 of his rejoinder-affidavit without placing anything on record as to in what manner the alleged representation was communicated or sent to the Commissioner, Agra Division, Agra. In the absence of any material placed on record and also in view of the fact that para 10 of the writ petition has been sworn on record without placing on record anything to support the submission that the said representation was sent in a recognized mode and manner to the Commissioner, Agra Division or was received in person in his office, I am inclined to accept the Respondents averment that the Petitioner has not made any such representation. In this view of the fact the Respondents were well within their rights to consider the aforesaid censure and to form opinion as to whether the Petitioner has outlived his utility and is unfit to continue in service. The Respondents after considering the various material have formed an opinion and therefore, the same cannot be said to be perverse or based on no material on record.

18. Learned Counsel for the Petitioner referred to his supplementary affidavit stating that he has sought an amendment in the writ petition seeking writ of certiorari quashing Fundamental Rule 56 (c) embodied in Financial Hand Book Vol.-2, though no order has been passed on the said amendment application till date and except of referring to supplementary-affidavit, the learned Counsel for the Petitioner did not address the Court as to why and on what basis, he has assailed the vires of Fundamental Rule 56 (c). It is, therefore, not necessary for this Court to go into this question but it would be useful to refer the judgment of this Court in Writ Petition No. 28588 of 1993, Devi Deen v. District Magistrate, Banda and Anr. decided on 27.3.2006, wherein the validity of Fundamental Rule 56 was assailed on the ground of being violative of Articles 14 and 16 of the Constitution but has been negatived by this Court.

19. Learned Counsel for the Petitioner, at this stage sought to argue that he was promoted to the post of Supervisor Kanoongo on 25.5.2005 and, therefore, the entire adverse material prior thereto shall stand wiped out and should not be taken into consideration. Answer to this question is contained in Fundamental Rule 56, Explanation (2) (a) quoted above. Moreover, in Lalsa Ram (supra), a similar contention has been rejected by the Apex Court in para 16 of the judgment. It was held that the appointing authority is entitled to form an opinion upon consideration of the entire service record and adverse entries would not stand extinguished by mere lapse of time, but they having continued to be on record, it is for the employer to rely thereon in the event therebeing a rule permitting the compulsory retirement.

20. In fact in State of U.P. and Anr. v. Bihari Lal : 1994 (Supp) (3) SCC 593, [LQ/SC/1994/810] the Apex Court held that the entries, if for technical reasons might have been expunged even such record could have been considered and would not affect the order of compulsory retirement provided the appointing authority has taken a decision that the retention of the Government servant is not in public interest. The Apex Court in para 4 of the judgment held as under:

It is now settled law that the entire service record should be considered before taking a decision to compulsorily retire a Government servant exercising the power under Rule 56 (j) of the Fundamental Rules. It is not necessary that adverse remarks should be communicated or every remark, which may sometimes be categorized as adverse, be communicated. It is on an overall assessment of the record, the authority would reach a decision whether the Government servant should be compulsorily retired in public interest. In an appropriate case, there may not be tangible material but the reputation of officer built around him could be such that his further continuance would imperil the efficiency of the public service and would breed indiscipline among other public servants. Therefore, the Government could legitimately exercise their power to compulsorily retire a Government servant. The Court has to see whether before the exercise of the power, the authority has taken into consideration the overall record even including some of the adverse remarks, though for technical reasons might be expunged on appeal or revision. What is needed to be looked into is the bona fide decision taken in the public interest to augment efficiency in the public service. In the absence of any mala fide exercise of power or arbitrary exercise of power, a possible different conclusion would not be a ground for interference by the Court/Tribunal in exercise of its judicial review."

21. Once the appointing authority has formed its opinion on subjective satisfaction based on objective consideration, and unless it is shown that there is no material at all and the decision is totally perverse, the Court would not interfere. In Jugal Chand Saika v. State of Assam and Anr. : 2003 (4) SCC 59 [LQ/SC/2003/316] , the Apex Court held as under:

it cannot be disputed that the passing of an order of compulsory retirement depends on subjective satisfaction of the competent authority, of course on objective consideration. Unless it is shown that the order of compulsorily retirement was passed arbitrarily and without application of mind or that such formation of opinion to retire compulsorily was based on no evidence or that the order of compulsory retirement was totally perverse, the Court cannot interfere".

22. The conspectus of the entire discussion aforesaid makes it clear that a Government servant, whose retention in the department is not in public interest, may be considered for premature retirement if there is any material justifying the said decision. The Court would not sit in appeal scrutinizing sufficiency and adequacy of the material. In the case of Baikunth Nath Das and Anr. v. Chief District Medical : AIR 1992 SC 1020 [LQ/SC/1992/182] , the Apex Court laid down the following principles of law which are reproduced as under:

"The 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 a perverse order.

It also held that:

the procedure to pass an order of compulsory retirement is not quasi-judicial in nature and as the action has to be taken on the subjective satisfaction of the Government, there is no room for importing the facet of natural justice particularly when an order of compulsory retirement is not a punishment nor does it involve any stigma.

23. Learned Counsel for the Petitioner placed heavy reliance on a judgment of this Court in Writ Petition No. 35441 of 2005, Kaushal Kishore Pathak v. Adhyaksha, Zila Panchayat, Etah and Ors. decided on 8.11.2005, wherein the Honble single Judge holding order of compulsory retirement in that case punitive in nature set aside the same.

24. I have carefully gone through the entire judgment and it appears that an enquiry report was submitted against Sri Kaushal Kishore Pathak wherein he was held guilty and based on the said enquiry report, without therebeing any other material on record instead of passing an order of punishment in accordance with law, the appointing authority sought to compulsorily retire the employee which was not sustained by this Court. The facts in the aforesaid case are wholly different and, therefore, have no application or relevance to the facts and dispute in the case in hand. Therefore, the said judgment does not help the Petitioner at all.

25. In view of the aforesaid binding precedents, the specific provision under Fundamental Rule 56 and the service record of the Petitioner as placed by the Respondents before this Court, it cannot be said that the compulsory retirement of the Petitioner is based on no material on record and is arbitrary or perverse. Once, it is found that the order of compulsory retirement has been passed on some material which is relevant, the scope of judicial review does not permit this Court to proceed further or to find out whether the material is sufficient or whether any other view is possible or not. Therefore, I am clearly of the opinion that the order of compulsory retirement passed against the Petitioner cannot be faulted on any legal or factual basis and does not warrant any interference.

26. In the result, the writ petition fails and is dismissed without there being any order as to costs.