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HAR PRASAD versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Har Prasad v. State Of U.P. And Others - WRIT - A No. 70298 of 2005 [2007] RD-AH 4141 (12 March 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 25

Reserved on 27.2.2007

Delivered on 12.3.2007

Civil Misc. Writ Petition No. 70298 of 2005

Har Prasad

Vs.

State of U.P. & others

Hon'ble Sudhir Agarwal, J.

Petitioner, Har Prasad, has filed this writ petition under Article 226 of the Constitution of India aggrieved by the order dated 12.8.2005, Annexure-2 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.

In brief, the case set up by the petitioner in the writ petition is that he was appointed as Collection Amin with effect from 22.10.1975. The appointing authority of the petitioner was Collector. His service record is exemplary and unblemished and no adverse entry has been communicated to him. He attained the age of 54 years in the year 2005 and in an arbitrary manner, the respondent no. 2 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 Article 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. There is no adverse material against the petitioner, yet the impugned order has been passed, which is wholly illegally based on no material.

The respondents have filed a counter affidavit stating therein that  the service record of the petitioner is not unblemished inasmuch he was given adverse entries in the years 1997-98, 1998-99, 1999-2000, 2000-01 and 2003-04, photo copies whereof have been filed as Annexure CA-1 & 2. 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 appointing  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.

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.

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 requires to be considered 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?

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:

Provided that:-

(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 in 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 requires 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 along with the entry; or

(c) any report of the Vigilance Establishment constituted under the Uttar Pradesh Vigilance Establishment Act 1965,

(2-A) 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 b e deemed to be valid notwithstanding the fact of his having earlier retired."

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.

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 another Vs. Chief District Medical Officer AIR 1992 SC 1020 wherein it was held :

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

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.

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 another Vs. Dulal Dutt 1993 (2) SCC 179, 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."

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.

In my view, the question no. 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.

A similar question came up before the Hon'ble Apex Court in State of U.P. and another Vs. Lalsa Ram, 2001 (3) SCC 389 wherein the Hon'ble 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 18.1.86. 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 there being 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 Hon'ble 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) & 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 governmetn 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." (para 11) (emphasis added.)

Again in para 13 of the judgment, the Hon'ble 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 Vs. Gurdas Singh, (1998) 4 SCC 92, the Hon'ble 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 there being a rule permitting an order of compulsory retirement." (para 16)

(emphasis added.)

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 my also be considered along with 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.

The facts as available on record in the case in hand shows that the petitioner was awarded following adverse entires for the year 1997-98, 1998-99, 1999-2000 and 2000-2001.

15.4.1998 olwyh dk;Z ekud ds vuq:i ugh gSA is'kh ds le; vuqifLFkr jgrs gSA mPp vf/kdkfj;ksa ds vkns'k dh vogsyuk djuk budh vknr gSA Js.kh& [kjkc] lR;fu"Bk izekf.kr

16.5.1999 fofo/k ns; ds 25 ekax i= gksus ds mijkUr dksbZ Hkh mRihMu dh dk;Zokgh ugh dh gSA bl dkj.k olwyh u gksus ls jktLo dh gkfu gqbZ gSA mPp vf/kdkfj;ksa ds vkns'k dh vogsyuk djrs gSAJs.kh& [kjkc] lR;fu"Bk izekf.kr

3.4.2000 olwyh dk;Z ekud ds vuq:i ugh gSA olwyh esa :fp ugha ysrs gSA is'kh ds le; vuqifLFkr jgrs gSA mPp vf/kdkfj;ksa ds vkns'k dh vogsyuk djrs gSA Js.kh& [kjkc

12.5.2001 olwyh dk;Z Bhd ugh gS ykijokg laxzg vehu gSA Js.kh& [kjkc] lR;fu"Bk izekf.kr

Besides, it appears he was issued a charge-sheet on 15.1.2003 and after completion of inquiry awarded a punishment of censure vide order dated 31.12.2003 passed by the Collector Aligarh. A photo copy of the said order has been placed on record at Page-36 showing acknowledgment of the said order by the petitioner on 20.3.2004. A special adverse entry was awarded to him by Deputy Dollector, Koil, District Aligarh by order dated 17.1.2004 acknowledged by the petitioner on 20.1.2004. Though in para 4 of the rejoinder affidavit, the petitioner has alleged that none of the adverse entries referred to in para 5 and 6 of the counter affidavit were ever communicated to him but he has not said anything about the documents showing receipt of the order of censure etc. by him as to whether the acknowledgment and the signature contained therein are forged or that he has not signed or received the same. The further details of the various recoveries made by the petitioner during 2004-05 has also been placed on record which has not been disputed by the petitioner.

In these circumstances, it is difficult to hold that the entries recorded against the petitioner were not communicated to him or that there was no material available before the appointing authority to form the opinion as to whether the petitioner should be retained in service or has outlived his utility and unfitted to continue in service.

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 Saikia Vs. State of Assam and another- 2003 (4) SCC 59, the Apex Court held as under-

"it can not 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".

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 & another Vs. Chief District Medical- AIR 1992 SC 1020 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."

Learned counsel for the petitioner placed heavy reliance on a judgment of this Court in Writ Petition No. 35441 of 2005, Kaushal Kishor Pathak Vs. The Adhyaksha, Zila Panchayat Etah & others decided on 8.11.2005 wherein the Hon'ble Single Judge holding order of compulsory retirement in that case punitive in nature set aside the same.

I Have carefully gone through the entire judgment and it appears that an enquiry report was submitted against Sri Kaushal Kishor Pathak wherein he was held guilty and based on the said enquiry report, without there being 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.  

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.

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

Dt. 12.3.2007

PS-70298/05


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