Mahabir Singh vs State of U.P.& Anr.

V.M. Sahai, J.—The petitioner was appointed as constable in the State police. He was promoted as head constable. Byorder dated 22493 he has been compulsorily retired. The order of compulsory retirement is annexed as Annexure 2 to the writ petition has been challenged by the petitioner in the instant writ petition on the ground that the petitioner has been compulsorily retired without his claim being considered by the screening committee under the Government order dated 6289.

Standing Counsel was allowed lime to file counteraffidavit from time to lime and on 19499 this Court allowed three months and more time to Standing Counsel for filing counteraffidavit. Inspite of stop order no counteraffidavit has been filed by the Standing Counsel.

Heard Shri H.K. Sharma learned Counsel for the petitioner and Miss Amakshi Sharma learned Standing Counsel.

Since no counteraffidavit has been filed by the respondents the assertions made in the writ petition by the petitioner has to be accepted as correct.

The Apex Court in the case of Bir Singh Chauhan v. State of Haryana and others, 1997 (2) SCC (Labour & Service) 1447, has held as under:

"We wanted to examine the record to ascertain Whether there is any substantial case against the appellant. The respondents have neither filed counter not produced the record. Under these circumstances we are constrained to accpet the case of the appellant that he is entitled to be considered for promotion under the Rules. We direct the Government to consider his case for promotion on the basis of his service record within four months from the receipt of this order. While doing so the Government will exclude the material relating to his inspection report."

A Division Bench of this Court in Mis. J.K. Cotton Spinning & Weaving Mills Co. Ltd. v. The Collector, Kanpur and others, 1999 (82) FLR 709, has held as under:

"In the absence of counteraffidavit, the Court is left with no choice but to accept the averments made in the petition to be correct."

Since it was not disputed by the respondents that the petitioner was compulsory retired without his case being considered by the screening committee as provided by the Government order dated 61289 specifically stated in paragraph 8 of the writ petition, the order of compulsory retirement cannot be up held.

The learned Counsel for the petitioner further prays that the period from 22489 till his reinstatement be treated to be continuous service and his post retiral benefits be calculated accordingly by the respondents. Since the order of compulsory retirement is being quashed, therefore, the prayer of the petitioner is liable to be accepted.

In the result the writ petition succeeds and is allowed. The order dated 22493 compulsorily retiring the petitioner as Head constable passed by Respondent No. 2, Annexure 2 to the writ petition is quashed. The respondents are directed to reinstate the petitioner and pay his entire arrears of salary within a period of 4

months. His post retiral benefits after his retirement shall be paid treating the period from 22489 till his reinstatement be continuous service. There shall be no order as to costs. Petition allowed