Over 2 lakh Indian cases. Search powered by Google!

Case Details

RAM KRISHNA RAI versus STATE OF U.P. AND ANOTHER

High Court of Judicature at Allahabad

Case Law Search

Indian Supreme Court Cases / Judgements / Legislation

Judgement


Ram Krishna Rai v. State Of U.P. And Another - WRIT - A No. 56391 of 2005 [2007] RD-AH 6255 (5 April 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.25

Reserved on. 2.3. 2007

Delivered on 5.4.2007

Civil Misc. Writ Petition No.56391 of 2005

Ram Krishna Rai...................Petitioner

Versus

State of U.P. and another........Respondents

Hon'ble Sudhir Agarwal, J.

Shri Ram Krishna Rai, petitioner has filed this writ petition under Article 226 of the Constitution aggrieved by the order dated 28th July, 2005 passed by the Excise Commissioner, U.P. (Respondent No.2) retiring him compulsorily in exercise of power under Fundamental Rule 56 (hereinafter referred to as F.R.56) as amended in U.P., from the post of Excise Inspector. The petitioner has also challenged the orders dated 24/29th January, 2003 and 12/15th December, 2004 alleging to be the orders of censure passed by respondent No.2 and by amendment he has further sought a writ of certiorari quashing the orders dated 6th July, 2001 whereby special adverse entry was awarded by the respondent No.2 and dated 11th August, 2005 rejecting his representation against the censure dated 15.12.2004.

Since counter and rejoinder affidavits have been exchanged, learned counsel for the parties requested that the writ petition may be heard finally at the admission stage itself under the Rules of the Court, therefore, I have heard the matter finally and decide the same with the consent of the learned counsel for the parties.

The facts in brief as narrated by the petitioner in the writ petition are as under:-

The petitioner was working as Excise Inspector and for a certain period, respondent No.2 issued orders awarding special adverse entries and censure without affording any opportunity and without following the procedure prescribed under U.P. Government Servant (Disciplinary) Rules, 1999 (hereinafter referred to as 1999 Rules). Based on aforesaid entries, he has been compulsorily retired by the order impugned in the writ petition, which is neither in public interest nor based on the material which is permissive in law to be considered and hence, the order of compulsory retirement is arbitrary.

The respondents have filed counter affidavit stating that the petitioner was awarded adverse entry in 1995-96 and 1996-97. However, on a representation made against the adverse entry of 1996-97, the adverse part was expunged by the order passed by the competent authority. He was awarded further adverse entries in 1997-98 and 1998-99. Besides, three special adverse entries were awarded by the orders dated 6th July, 2001, 29th January, 2003 and 15th December, 2004. Against the special adverse entry dated 15.12.2004, he filed representation which was rejected by the respondent No.2 vide order dated 11th August, 2005. In the year, 2005, in order to examine the expediency of continuing such Excise Inspectors who have completed 50 years of age, a Screening Committee was constituted which examined the service record of such Excise Inspectors including the petitioner and after considering service record and in particular, preceding 10 years thereof, it recommended the case of the petitioner for compulsory retirement which was accepted by the competent authority and he compulsorily retired the petitioner vide order dated 28th  July, 2005 under F.R. 56. It is also said that while awarding adverse entries, the procedure prescribed under the Rules has been followed.

The petitioner has filed rejoinder affidavit wherein he has disputed the contentions of the respondents that only special adverse entry has been awarded and not censures, in as much as, the entries mention the words "parininda" & "Bhartsna" which amount to "censure" and the same being a minor penalty under Rule, 3 of 1999 Rules, could not have been awarded without applying the procedure prescribed under Rule 10 thereof.  

Pursuant to this Court's order dated 30th September, 2005, the respondents also produced the record of the Screening Committee as well as A.C.Rs. of the petitioner for perusal which has also been examined by the court.

I have heard Shri Ashok Mehta, learned counsel for the petitioner, learned Standing Counsel for the respondents and perused the record as well as various authorities cited by the learned counsel for the parties.

The adverse entries awarded to the petitioner from 1995-96 to 1998-99 excluding the one which has been expunged are as under:-

Sl. No. Year Entry

1 1995-96 mi vkcdkjh vk;qDr dh fVIi.kh%&   Jh jke d`".k jk; ,d xSj ftEesnkj ,oa vkylh izo`fRr ds vkcdkjh fujh{kd gSaaA buds }kjk vkyksP; vof/k esa izorZu lEcU/kh dk;ksZa esa Ik;kZIr :fp ugha yh x;h ftlds dkj.k buds {ks= esa idM+s x;s vfHk;ksxkas esa xr o"kZ dh vis{kk 37 vfHk;ksxksa dh deh vk;h gSA buds }kjk dk;Z fooj.k izi= esa vfHk;ksxksa dks idM+s tkus ds lEcU/k esa vig`r dh x;h eknd oLrqvksa dh dksbZ ek=k ugha n'kkZ;h x;h gS ftlls ;g fofnr gksrk gS fd o"kZ  95-96 ds fy, buds }kjk tks 175 vfHk;ksx idM+s tkus dk dk;Z fooj.k esa fn;k x;k gS og fo'oluh; ugha gSA Jh jk; }kjk vkyksP; vof/k esa vkcdkjh nqdkuksa ij izHkkoh fu;a=.k ugha j[kk x;k ftlds QyLo:Ik buds {ks= esa fons'kh efnjk ds miHkksx esa 47-3% dh deh vk;hA ---------iqjkus cdk;ksa dh olwyh ds lUnHkZ esa Jh jk; }kjk dksbZ Bksl iz;kl ugha fd;k x;kA vkyksP; vof/k esa vusd funsZ'kksa ds mijkUr Hkh Jh jk; }kjk viuh dk;Z iz.kkyh esa dksbZ lq/kkj ugha yk;k x;kA buds }kjk nSfudh vkfn dHkh izsf"kr ugha dh x;h ftlls fd buds }kjk izsf"kr dk;Z fooj.k dks fo'oluh; ekuk tk ldsA dqy feykdj vkyksP; vof/k esa Jh jke d`".k jk; dk dk;Z&O;ogkj ,oa vkpj.k vlarks"ktud jgkAJs.kh%& fud`"VAlR;fu"Bk& izekf.krAg0 v0@fn012-6-96(xwqykc flsg)mi vkcdkjh vk;qDr]y[ku�? izHkkj] y[ku�?Ala;qDr vkcdkjh vk;qDr dh fVIi.kh%&      eSa mi vkcdkjh vk;qDr] y[ku�? izHkkj ds mijksDr er ls lger gwWaAg0 v0@29-7-96(vkj0 ch0 frokjh)la;qDr vkcdkjh vk;qDr]y[ku�? tksuA

2 1997-98 ftyk vkcdkjh v/kh{kd@vf/kdkjh dh fVIi.kh%&      --------- U;k;ky; ls cdk;k LFkfxr jgus ,oa LFkxu vkns'k fujLr u gksus ds dkj.k olwyh 'kwU; jghaA --------                                         g0 v0@                                                                3-6-98lR;fu"Bk izekf.kr                       (jke lwjr)                  Js.kh lUrks"kizn              lgk;d vkcdkjh vk;qDr@ftyk vkcdkjh vf/kdkjhmUukoAmi vkcdkjh vk;qDr izHkkj dk er%&     Jh jke d`".k jk; ,d vkSlr ntsZ ds vkcdkjh fujh{kd gSaa -----------------iqjkus cdk;ksa dh olwyh esa  Jh jk; }kjk dBksj ifjJe ugha fd;k x;k] ftlds dkj.k iqjkus cdk;ksa dh olwyh ds lU/k esa mYYks[kuh;  izxfr ugha izkIr gqbZA -------------                     g0 v0@11-8-98                                (xwqykc flsg)mi vkcdkjh vk;qDr]y[ku�? izHkkj] y[ku�?A     eSa mi vkcdkjh vk;qDr ds mijksDr er ls lger gwWaA vkyksP; vof/k esa Jh jke d`'.k jk; dk dk;Z ,oa O;ogkj larks"ktud jgkA       Js.kh%& larks"ktudA       LkR;fu"Bk%& izekf.krA                                                            g0 v0@26-8-98                                     (ts0 izlkn)la;qDr vkcdkjh vk;qDry[ku�? tksu] y[ku�?

3 1998-99 ftyk vkcdkjh v/kh{kd@vf/kdkjh dh fVIi.kh%&   Jh vkj0 ds0 jk;] vuqHkoh] ofj"B] ,d xSj ftEesnkj] vuq'kklughu rFkk drZO;foeq[k vkcdkjh fujh{kd gSaA okf"kZd uhyke esa fu/kkZfjr c<+ksRrjh dk y{; izkIr fd;k x;k fdUrq blesa budk ;ksxnku ux.; jgkA ns'kh "'kjkc ds miHkksx esa buds {ks= esa 20-9% dk gzkl jgk tks vijk/kksa ij buds f'kfFky fu;a=.k dk ifjpk;d gSA turk ds fo:) idM+s x;s vfHk;ksxksa ls cjken dsl izkiVhZ dk j[kj[kko rFkk eky[kkus esa bls tek djkus dk dk;Z fufdz"V dksfV dk jgkA Vªk;y dksVZ us dbZ ckj eqdneksa dh leqfpr iSjoh u djus ds fy, buds fo:) eq>s o ftykf/kdkjh mUuko dks Ik= Hksts tks budh drZO;ksa ds izfr ykijokg gksus dk ifjpk;d gSA iqjkus cdk;ksa dh olwyh ds izfr dksbZ :fPk buds }kjk ugha yh xbZA vkyksP; vof/k esa cdk;ksa ds ekeyksa esa U;k;ky; ls yafcr oknksa dh iSjoh Hkh buds }kjk ugha dh xbZA Jh jk; vkcdkjh flikfg;ksa ds lkFk cSBdj "'kjkc dk lsou djrs gSa rFkk buds jgu&lgu dk Lrj fuEu dksfV dk jgk gSA Ik=ksa dk mRRkj rFkk fooj.k Ik=ksa ds izs'k.k esa foyEc ds vknh gSaA   lR;fu"Bk izekf.kr   Js.kh fufdz"V                                                                        g0 v0@25-5-99                                  (,l0 ,u0 flag)                           lgk;d vkcdkjh vk;qDrAftyk vkcdkjh vf/kdkjhmUukoAmi vkcdkjh vk;qDr dh fVIi.kh      eSa lgk;d vkcdkjh vk;qDr@ftyk vkcdkjh vf/kdkjh] mUuko ds mijksDr er ls iw.kZr;k lger gwWaA  Js.kh%& fud`"VA  lR;fu"Bk%& izekf.krA                                                                 g0 v0@15-6-99                                                         (xwqykc flsg)mi vkcdkjh vk;qDr]cjsyh izHkkj] cjsyhArRdkyhu mi vkcdkjh vk;qDRk]y[ku�? izHkkj] y[ku�?A  

Besides the above, the special adverse entry were awarded to the petitioner vide orders dated 19th March, 2001, 29th January, 2003 and 20th October, 2004.  

From the above, it is evident that besides the special adverse entries or the censures as claimed by the petitioner, there were consistently three adverse entries in the service record of the petitioner for the years 1995-96, 1997-98 and 1998-99. In the latest one, he has been graded as ''poor' and in the other entries he has been found wanting in taking steps for recovery of old arrear/dues. Being Excise Inspector, the petitioner, besides other, was also responsible to ensure timely recovery of excise revenue of the State. Any deficiency in performance would justify the decision of the competent authority to compulsory retire such an employee finding him unuseful to continue having become a dead wood and out-lived his utility.

The Screening Committee has considered the entire service record and thereafter made the following recommendation:-

       Jh vkj0 ds0 jk;] vkcdkjh fujh{kd

Jh vkj0 ds0 jk; dks Ok"kZ 1990-91 esa ek= vkSipkfjd dk;Z fd;s tkus rFkk v/khuLFk dkfeZdksa ij f'kfFky fu;a=.k cuk;s j[kus ds vk/kkj ij [kjkc Js.kh esa oxhZd`r fd;k x;kA o"kZ 1995-96 esa nqdkuksa ij f'kfFky fu;a=.k j[kus ds dkj.k buds {ks= esa fons'kh efnjk ds miHkksx esa 47.3 izfr'kr dh deh ik;s tkus ds vk/kkj ij vkcdkjh vk;qDr }kjk bUgsa [kjkc Js.kh esa oxhZd`r djrs gq, izfrdwy izfof"V iznRr dh x;h gSA o"kZ 1996-97 o 1997-98 dh okf"kZd izfof"V esa bUgsa iqjkus cdk;ksa dh olwyh esa Ik;kZIr :fPk iznf'kZr u djus dk mYys[k fd;k x;k gSA o"kZ 1998-99 esa ns'kh "'kjkc ds miHkksx esa 20.9 izfr'kr dk gzkl ik;s tkus] turk ds fo:) idM+s x;s vfHk;ksxksa ls cjken izkiVhZ ds j[k&j[kko ,oa eky[kkuk esa tek djkus lEcU/kh dk;Z esa f'kfFkyrk cjrus] U;k;ky; esa yfEcr oknksa esa leqfpr iSjoh u djus vkfn ds vk/kkj ij bUgsa fud`"V Js.kh esa oxhZd`r fd;k x;k gSA vkcdkjh vk;qDr }kjk fnukad 06.07.2001 dks fons'kh efnjk nqdku cdsoj ds fy, izkIr vkosnu Ik= dks fons'kh efnjk nqdku egsok dh Ik=koyh esa j[kus ds lEcU/k esa mRrjnk;h ik;s tkus ij Jh jk; dks HkRlZukRed izfof"V iznku dh x;hA fufgr LokFkZo'k Jh jk; }kjk fons'kh efnjk nqdku LVs'ku ctfj;k dk ykblsal 'kqYd xyr vkWdM+ksa ds vk/kkj ij fu/kkZfjr djk;k x;k] ftlds fy, nks"kh ekurs gq, vkcdkjh vk;qDr }kjk fnukad 24-01-03 dks bUgsa ifjfuUnkRed izfof"V iznku dh x;hA iqu% ,u0vkbZ0lh0,y0 ds lh0,y0&2 ij ys[kkuqlkj ns'kh 'kjkc ds 576 ikSos vf/kd ik;s tkus ,oa mPpkf/kdkfj;ksa }kjk fn;s x;s funsZ'kksaZ dk leqfpr ikyu u djus ds vk/kkj ij vkcdkjh vk;qDr }kjk bUgsa ifjfuUnkRed izfof"V fnukad 20-10-04 dks iznku dh x;hA

bl izdkj foxr 10 o"kksaZ esa bUgsa 07 izfrdwy izfof"V;kW iznku dh x;h] ftlls Li"V gS fd buds dk;Z&O;ogkj esa mRRkjksRrj lq/kkj ds ctk; fxjkoV iznf'kZr gks jgk gS] blfy, bUgsa vfuok;Z lsokfuo`Rr fd;s tkus dk fu.kZ; fy;k tkrk gSA

Here at this stage, it would be appropriate to consider as to what could be the material, sufficient to justify an order of compulsory retirement, and what is the scope of judicial review in such matters.

Before answering the aforesaid, it would be useful to have a perusal of F.  R. 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 F.R.56 can be exercised by the competent authority.

F. R. 56 came up for consideration in State of U.P. and another Vs. Lalsa Ram (2001)3 SC389  wherein it was 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 F. R. 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 F R 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 employee 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 precedent 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 F.R. 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 manned by efficient, competent and prone workers and should not be manned by drones do nothing, incompetent and un-worthies. Lack 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 flow 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.

In the light of above and considering the proceedings of the Screening Committee, I find that it has taken a bonafide decision that consistently there is a downfall in the performance of the petitioner and, therefore, he needs to be compulsorily retired. It is true that adverse entry of 1996-97 was expunged subsequently and though the Screening Committee has referred to it but that by itself would not vitiate the order since it has taken a bonafide decision that there is a consistent deterioration in the performance of the petitioner, on account whereof, he should be compulsorily retired.

A similar issue came up for consideration in State of U.P. and another Vs. Bihari Lal (1994)Supplementary SCC 593 in para 4 of the judgment it was held :-

"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.  " (para 4) (Emphasis added)

Once the appointing authority has formed its opinion on subjective satisfaction based on objective consideration, 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-

"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 places reliance on a Division Bench judgment of this court in Sharwan Kumar Purwar Vs. Inspector General (Registration) U.P. Allahabad 2007 (1) ESC 269. However, I do not find that the said judgement is applicable in this case, in as much as, there, this court held that even the order passed by the disciplinary authority withholding integrity of the petitioner was as a result of regular departmental enquiry held against the said petitioner and, moreover, it was also held that the enquiry was not conducted in accordance with rules which vitiates the order of punishment and excluding the order of punishment there was no material adverse against the petitioner on the basis whereof it could be said that disciplinary authority has taken a decision on some material available on record and consequently the order of compulsory retirement was quashed. However, in the case at hand, the adverse entries recorded against the petitioner are sufficient to justify the decision taken by the respondent that the petitioner has outlived his utility. Therefore, in my view, the order of compulsory retirement cannot be said to be arbitrary or based on no material and, hence, does not warrant any interference.

Now coming to the other reliefs concerning various orders awarding special adverse entries, the learned counsel for the petitioner submitted that the language of the said entries make it clear that the same are nothing but "censure" which is a punishment under 1999 Rules and could not have been imposed without affording opportunity or giving a show cause notice to the petitioner and, therefore, the said entries are liable to be set aside. However, I do not find myself in agreement for the reason that it is always open to the competent authority to award more than one entry to an employee in one year. Such entry is normally known as special entry and if it is adverse, is  called special adverse entry otherwise it would also be treated as normal one. However, where "censure" is to be being a punishment, consequences would be different and, therefore, it also requires to follow the procedure prescribed under the Rules. Merely, for the reason that a special adverse entry recorded in a particular year other than Annual Character Roll entry, if uses the word "parininda" or "bhartsna" i.e. condemnation, the same by itself would not make it a penalty of censure under the Rules. If the authorities did not want to impose punishment, mere language of the entry would not make it punishment. Therefore, in respect to the aforesaid entries which have specifically been referred to as the special entries, the 1999 Rules have no application and the challenge based on the procedure prescribed under 1999 Rules, therefore, fails.

In the result, I do not find any error in the orders impugned in the writ petition. The writ petition lacks merit and is accordingly dismissed. No costs.

Dated/-05.04.2007

RKM/


Copyright

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

Advertisement

dwi Attorney | dui attorney | dwi | dui | austin attorney | san diego attorney | houston attorney | california attorney | washington attorney | minnesota attorney | dallas attorney | alaska attorney | los angeles attorney | dwi | dui | colorado attorney | new york attorney | new jersey attorney | san francisco attorney | seattle attorney | florida attorney | attorney | london lawyer | lawyer michigan | law firm |

Tip:
Double Click on any word for its dictionary meaning or to get reference material on it.