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RAMESH KUMAR SRIVASTAVA versus STATE OF U.P. & ANOTHER

High Court of Judicature at Allahabad

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Ramesh Kumar Srivastava v. State Of U.P. & Another - WRIT - A No. 7424 of 2001 [2006] RD-AH 276 (4 January 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

RESERVED

CIVIL MISC. WRIT PETITION NO. 7424 OF 2001

Ramesh Kumar Srivastava

versus

State of U.P. & another

--------

HON. SHISHIR KUMAR, J.

The present writ petition has been filed for quashing the order-dated 3.2.2001; Annexure-1 to the writ petition passed by respondent no.2 and further for quashing the Government Order dated 24.8.1977, Annexure-2 issued by respondent no.1.

The brief facts arising out of the present writ petition are that by means of the present writ petition the petitioner has challenged the order-dated 23.2.2001 by which the petitioner was compulsory retired. The petitioner was appointed as a clerk in the Court of District Judge, Hamirpur by order-dated 9.2.1971 and the petitioner joined his duties on 18.2.1971. After creation of new Mahoba district, the petitioner's services were transferred to judgeship of Mahoba. The petitioner was promoted on the post of Administrative Clerk on 16.8.1997. The work and conduct of the petitioner was always satisfactory and he was working to his best ability and integrity since his appointment. There was no complaint whatsoever against the petitioner and the work and conduct of the petitioner was always appreciated by the higher authorities. The petitioner was served with an order on 3.2.2001 by which the petitioner has been retired compulsorily on the said date and in lieu thereof the petitioner was awarded three months' salary. It is clear from the order that respondent no.2 has passed the impugned order under Section 56-C of the Financial Hand Book. Under Rule 56 an employee can be compulsory retired after attaining the age of 55 years but by the Government Order dated 24.8.1977, the State Government has substituted the age of compulsory retirement as 50 years in place of 55 years. The petitioner submits that the said Government Order dated 24.8.1977 is absolutely illegal. The Government Order cannot be given precedence over the statutory rules. Before passing the aforesaid order no notice or opportunity has been given to the petitioner, as such the order is against the principles of natural justice. The persons aged than the petitioner are being retained in service though the work and conduct of those persons are not satisfactory in comparison to the petitioner. In normal course the petitioner would have attained the age of superannuation in the year 2007 but the respondents without any justification has passed an order compulsorily retiring the petitioner in a most arbitrary manner.

The submission raised on behalf of the petitioner is that according to the Fundamental Rule 56-C, there is no dispute to this effect that the State Government has been conferred power to retire its employee compulsorily but the decision of the government to compulsory retire its employee should be bonafide and should not be malicious and should be based upon over all performance and assessment of the work and conduct of the employee, that has not been done as such the order passed by the respondent is liable to be set aside. Further submission made on behalf of the petitioner is that there was no adverse entry and if some adverse entry was awarded and subsequently, the petitioner has been promoted on a higher post. As such for the purpose of consideration of order compulsory retiring the petitioner, the same cannot be taken into consideration. Reliance has been placed upon a judgment reported in AIR 1995 SC 111 S. Ram Chandran Raju Vs. State of Orissa and has submitted that though the order of compulsory retirement is not a punishment but the Government must exercise its power only in the public interest to effectuate the efficiency of the service. The entire service record or character roll or confidential reports maintained would furnish the backdrop material for consideration by the Government or the Review Committee or the appropriate authority and the same cannot be passed only on a solitary entry or taking into consideration the performance of one year. Further reliance has been placed by the counsel for the petitioner upon the two judgments of this Court reported in 1992 Selected Civil Decisions Page 155 Santosh Kumar Gaur Vs. State of U.P. and others and another judgment 1992 Selected Civil Decisions Page 165 Committee of Management Uchchattar Madhyamik Viddyalaya Newaria, District Jaunpur Vs. Deputy Director of Education, Varanasi . Further reliance has been placed by the counsel for the petitioner on the Apex Court judgment reported in A.I.R. 1992 SC Page 1020, Baikunth Nath Das and others Vs. Chief District Medical Officer and others and has submitted that if the order is passed malafide or in the arbitrary manner and is against the principles of natural justice, the order of compulsory retirement will be treated to be bad in law and is liable to be set aside.

On the other hand the counsel for the respondents Sri Amit Sthalekar has submitted that the order passed by the respondents retiring the petitioner compulsorily cannot be treated to be an order of punishment. The decision has been taken on the basis of the consideration of the entire service record and the same has been taken bonafide and in public interest, therefore, on this ground no different view can be taken. Reliance has been placed upon a judgment of the Apex Court reported in A.I.R. 1995 SC 1161 State of U.P. and others Vs. Bihari Lal.  Sri Amit Sthalekar, Advocate has submitted that it is not necessary in view of the aforesaid judgment that each and every adverse remarks should be communicated and non-communication of the entries cannot be taken into consideration for the purpose of reaching a conclusion whether the Government servant should be compulsorily retired in public interest. In appropriate cases there may not be tangible material but the reputation of the officer built around him can be such that his further continuance would imperil the efficiency of the public servant and would breed indiscipline amongst other public servants.

Further reliance has been placed by the learned counsel for the respondents on a case reported in 2005 A.D.J. IX, Allahabad Narendra Singh Vs. High Court of Judicature at Allahabad. A submission has been made by the learned counsel for the respondent that in view of the aforesaid fact no conclusion can be drawn that the order of compulsory retirement of the petitioner is in any way punitive, malafide and arbitrary as such no interference is called for and the writ petition is liable to be dismissed.

As the counter and rejoinder affidavits have been exchanged, with the consent of the parties, the writ petition is being disposed of finally. The Court had directed to produce the original service record of the petitioner. The same was produced by Sri Amit Sthalekar, advocate before this Court and this Court has perused the same. From the record it is clear that during 1986-87 an entry was given to the petitioner regarding that his work is unsatisfactory and regarding his conduct, the entry has been given ''undisciplined' and the same have been approved in the year 1989-90. His integrity was not certified, working was unsatisfactory and regarding his conduct it was mentioned that he is an undisciplined man though it has been stated that the competent authority has expunged the said adverse entry. In the year 1993 he was again awarded an adverse entry and a remark to that effect was given by the District Judge "He is incompetent, negligent in discharge of his duties and is not acquainted with the rules." In 1997-98 also he was not awarded a good entry.

I have considered the submissions made by the learned counsel for the parties and have also perused the service record produced before me.

Rule 56 (C) of the U.P. Fundamental Rules reads as under:-

"56 (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 after he has completed qualifying service for twenty years."

Thus, it is evident that the aforesaid Rule empowers the Competent Authority to compulsorily retire an Officer, if the conditions mentioned therein are fulfilled.

In Baikuntha Nath Das & Another Vs. Chief District Medical Officer, Baripada and  Another , A.I.R. 1992 SC 1020, the Hon'ble Supreme Court has laid down certain criteria for the Courts, on which it can interfere and they included mala fide, order if based on no evidence, order is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material, i.e.  if it is found to be a perverse order. The Hon'ble Apex Court observed that the order of compulsory retirement is not a punishment, it implies no stigma nor any suggestion of misbehaviours, the order should be passed in public interest on subjective satisfaction of the Authority and while reviewing the service record, the entire service record is to be considered. However, the record of the later years should be given more importance and even un-communicated adverse entries may be taken into consideration. The Apex Court held as under:

"(i) An order or 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 to 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, it is found to be a perverse order.

(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.

(v)An order or compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it un-communicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference."

Similar view has been reiterated in Posts and Telegraphs Board & Others Vs. C.S.N. Murthy, A.I.R. 1992 SC 1368; Sukhdeo Vs. Commissioner Amravati Division, Amravati & another, (1996) 5 SCC 103; State of Orissa & Others vs. Ram Chandra Das, AIR 19967 SC 2436 ; and M.S. Bindra Vs. Union of India & Others., AIR 1998 SC 3058.

In Rajat Baran Roy & Others Vs. State of West Bengal & Others , A.I.R. 1999 SC 1661, the Hon'ble Supreme Court held that there is a very limited scope of judicial review in a case of compulsory retirement and it is permissible only on the grounds of non-application of mind and want of material particulars.

In Krishena Kumar Vs. S.P. Saksena & others, AIR 1973 SC 1065, Hon'ble Apex Court held that what is to be seen by the Court at the time of judicial review, as to whether the Appointing Authority has formed its opinion objectively and whether the order had been passed by the Competent Authority and for such a purpose, constitution of a Committee is permissible, as held by Hon'ble Apex Court in High Court of Judicature for Rajasthan Vs. P.P. Singh & Another, A.I.R. 2003 SC 1029.

In State of Gujarat & Another versus Suryakant Chunilal Shah, (1999) 1 SCC 529, the Hon'ble Supreme Court held that while considering the case of an employee for compulsory retirement, the public interest is of paramount importance. A dishonest, corrupt and dead-wood deserves to be dispensed with, how much efficient and honest an employee is, it is to be assessed on the basis of material on record which may also be ascertained from confidential reports. However, there must be some tangible material against the employee warranting him retirement.

In State of U.P. & another Vs. Bihari Lal, AIR 1995 SC 1161, the Apex Court held that if the general reputation of an employee is not good, though there may not be any tangible material against him, he may be given compulsory retirement in public interest and judicial review of such order is permissible only on limited grounds. The Court further held that "what is needed to be looked into, is the bona fide decision taken in public interest to augment efficiency in the public service."

In I.K. Mishra Vs. Union of India & others (1997) 6 SCC 228, the Hon'ble Supreme Court observed as under:-

"Power to retire compulsorily a Government servant in terms of Service Rules is absolute, provided the authority concerned forms an opinion bona fide that compulsory retirement is in public interest."

In Prabodh Sagar Vs. Punjab State Electricity Board and others. AIR 2000 SC 1684, the Hon'ble Supreme Court held that employee's unsatisfactory performance, coupled with the tendency to resort to litigation, most of which was unsuccessful, rendered him a liability to his employer, and he was rightly retired in public interest. In the said case, allegation of mala fide was also rejected for want of particular material.

Similar view has been reiterated in Ramesh Chandra Acharya Vs. Registrar, High Court of Orissa & another, AIR 2000 SC 2168 while dealing with a case of judicial officer.

In State of U.P. Vs. Vijay Kumar Jain, AIR 2002 SC 1345, the Hon'ble Supreme Court placed reliance upon its earlier judgments in Shyamlal Vs. State of Uttar Pradesh, AIR 1954 SC 369, wherein it has been held that an order of compulsory retirement is neither a punishment nor any stigma attached to it, rather, further services of a person are dispensed with in public interest. The Apex Court held that if an employee has been given the adverse entries regarding his integrity at any stage of his service career, he loses the right of continuation in service, and compulsory retirement, if given, should not be interfered with.

In Union of India Vs. J.N. Sinha & another AIR 1971 SC 40, the Apex Court held that an employee compulsorily retired does not lose any right acquired by him before retirement, as the compulsory retirement is not intended for taking any personal action against the Government servant, and the order so passed can be challenged on the ground that either the order is arbitrary or it is not in public interest. No other ground can be available to the government servant who is sought to be compulsorily retired from service. However, it may be subject to the conditions provided under the statutory provisions.

In Jugal Chandra Saikia Vs. State of Assam & another, AIR 2003 SC 1362, the Apex Court held that where the screening committee is consisting of responsible officers of the State and they have examined/assessed the entire service record and form the opinion objectively as to whether any employee is fit to be retained in service or not. In absence of any allegation of mala fide, there is no scope of a judicial review against such an order. While deciding the said case, reliance had been placed upon a large number of judgments, particularly, upon judgments in S. Ramachandra Raju Vs. State of Orissa, AIR 1995 SC 111; and M.S. Bindra Vs. Union of India & others (Supra).

In view of the aforesaid fact the controversy regarding an order passing the compulsory retirement cannot be said to be illegal, malafide, if the same has been passed by the competent authority after scrutinizing the entire service record of an employee. As mentioned above, the Court has perused the complete service record of the petitioner, therefore, the contention of the petitioner to this effect cannot be accepted that the order of compulsory retirement against the petitioner is in any way illegal, punitive and has been passed without taking into consideration the performance of the petitioner.

The writ petition is devoid of merit and is hereby dismissed. No order as to costs.

Jan.       ,2006

V.Sri/-


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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