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PARAS NATH CHATURVEDI versus ADDL. DIRECTOR OF MEDICAL HEALTH &FAMILY WELFARE DEVISION

High Court of Judicature at Allahabad

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Paras Nath Chaturvedi v. Addl. Director Of Medical Health &Family Welfare Devision - WRIT - A No. 51603 of 1999 [2004] RD-AH 223 (22 April 2004)

 

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

 Reserved

Civil Misc. Writ Petition No. 51603 of 1999

Paras Nath Chaturvedi            vs        The Addl. Director Medical Health and         Family Welfare, Division, Allahabad         and another.

Hon'ble R.B.Misra,J.

Heard Sri A.B.Singh, learned counsel for the petitioner and Sri Raj Kumar, learned Standing Counsel for the State.  By the consent of the parties the writ petition is decided in view of Second Proviso to Rule 2 of  Chapter XXII of the Allahabad High Court Rules 1952.

(1). In this petition prayer has been made to quash the order dated 22.11.1999 passed by Chief Medical Superintendent, Allahabad compulsory retiring the petitioner from service.   According to the petitioner, he was initially appointed on 8.1.1968 in M.D.Eye Hospital, Allahabad as a Choukidar and thereafter he was transferred to Government T.B.Hospital (Telierganj ),Allahabad as a ward boy, where the petitioner was confirmed on 12.10.1983 with effect from 1.1.1983 by Chief Medical Superintendent, Allahabad.  The demand of the petitioner made in the year 1984 from Additional Director, Medical Health & Family Welfare Division,Allahabad was accepted and the direction was issued to Chief Medical Superintendent for issuance of uniform and dress but the Chief Medical Superintendent was having a grudge as the domestic service was not being provided to him therefore, direction for issuance of uniform and dresses were not allowed.  The respondent no.2 became annoyed for which the petitioner had also made complaint of Chief Medical Superintendent.  The respondent no.2 passed an order of compulsory retirement without obtaining screening committee and without any material and without any complaint available in the service record.  It has been contended on behalf of the petitioner to the best belief and knowledge of the petitioner that there was no adverse material in the service record of the petitioner and the work and conduct of the petitioner was always found satisfactory, however, without affording opportunity of hearing, behind his back, malafidely, the respondent no.2, the Chief Superintendent has passed an order of compulsory retirement without assigning any reason or by non speaking order.  The said compulsory retirement is arbitrary, discriminatory and against the principle of natural justice and is not in the public interest..

(2). The counter affidavit has been filed by the Chief Medical Superintendent and it has been asserted  that the service of the petitioner was not satisfactory throughout.   A chart showing the unsatisfactory work and behaviour will clearly prove that the petitioner is not fit for retaining in service.  He has become liability on the medical department.  The chart showing enclosure as Annexure CA-1 reveals that there were seventeen adverse materials recorded in the service book and personal file in respect of misbehaviour and mandatory penalty imposed, warnings, unsatisfactory extension of leave, incident of disobedience, dereliction of duty and making absence from duty without prior permission and information, misbehaviour with  his superior doctors.   It has also been indicated in para 7 of the counter affidavit that the petitioner was working previously in Eye Hospital where he was  punished  several times, for his negligence and disobedience and even he was transferred from Eye Hospital to Moti Lal Nehru Hospital, Allahabad then to T.B.Hospital as a ward boy on administrative ground.   The petitioner was also punished on 20.7.1971 for misbehavouring to the Dr.D.B.Chandra while posted in Eye Hospital.   He was again punished on 14.9.1974 and 18.4.1974 by the Superintendent of Eye Hospital, Allahabad and for negligence of duty he was again punished by the Superintendent of Govt. T.B.Hospital,Allahabad.  The petitioner was found misbehaving frequently with his officials, senior staff and doctor in previous years for which he was awarded punishment.  The punishment awarded on 21.3.1980 and warnings given on 20.3.1997, 3.4.1997, 3.11.97, 3.6.1998 and 24.9.1999 in respect of misbehaviour with the hospital officials and  dereliction of duties were recorded in the service book.   Even the show cause notice was not replied by the petitioner   On many occasions the petitioner was found absent and  warnings were given to him on 30.3.1999.   On 22.5.1999 for absence from duty, even salary of the petitioner was stopped by the Superintendent of the hospital.  

(3). According to the petitioner the compulsory retirement should not be passed by way of punitive measure in the light of 2001 (2) A.W.C. 1445 (SC) ( M.P. Electricity Board vs Shree Baboo ).   In the case of Shree Baboo there was no material at all in the service record for compulsory retirement, whereas, in the present case as contended by the respondents large number of adverse remarks are available and  different suggestive warnings are also available in the service record of petitioner which was indicated to improve and reform the functioning of the petitioner. The fundamental rules provides for compulsory retirement are in the interest of public service and in the present case retiring the petitioner in public interest is not illegal in view of  ( Union of India v. J.N.Sinha, AIR 1971 SC 40; (1971 ) 1 SCR 791 ).

 

(4) The public interest in relation to public administration envisages retention of honest and effiecient employees in service and dispensing with services of those who are inefficient,dead-wood  or corrupt and dishonest in view of  ( Brij Mohan Singh v. State of Punjab, ( 1987 ) 2 SCR 583; AIR 1987 SC 948 ).  In the present case warning have been given to bring  the improvement of the petitioner.  The provision of  compulsory retirement are constant reminders to the government servants to conduct themselve properly, diligently and efficiently throughout their  service career ( State of U.P. v. Chandra Mohan, AIR 1977 SC 2411; ( 1977) 4 SCC 345 ).

(5) Since the records  of the same department were scrutinised by the competent authority along with petitioner therefore, such order cannot be treated to be violative of Article 14 and 16 of the Constitution in reference to the decision of ( P. Radhakrishna Naidu v. Govt. of A.P.,   ( 1977 ) 2 SCR 365; AIR 1977 SC 854 ).

(6) The retirement of the petitioner made in the public interest shall also be treated to have been made in the interest of public administration and could  not be said to illegal in the light  of the decision of ( Gian Singh Mann v. The High Court of Punjab and Haryana ( 1981 ) 1 SCR 507; ( AIR 1980 SC 1894 ) and Union of India v. Col. J.N.Sinha, ( 1971 ) 1 SCR 791; ( AIR 1971 SC 40 ).

(7) The principle of natural justice have no place to contest of an order of compulsory retirement as the order of compulsory retirement is not a punishment.  It implies no stigma nor any suggestion of misbehaviour. Since the action is taken on the subjective satisfaction of the State Government as such there is no room for importing the audi alteram partem rule of natural justice  in view of  ( Baikuntha Nath Das v. Chief District Medical Officer,    ( 1992 ) 1 SCR 836; AIR 1992 SC 1020;    ( 1992 ) 2 SCC 299 ).

(8) The order impugned in the present writ petition has been passed taking into consideration the material available in the service record and on the subjective satisfaction of the State Government an order of compulsory retirement may not be passed by a speaking order, in the light of R.L.Butail v. Union of India, (1970) 2 SCC 876 and in view of the decision of  (Union of India v. Dulal Dutt, 1993 AIR SCW 1008 ).  

(9) The compulsory retirement is not to be treated as punishment for the purpose of Article 311 of the Constitution ( State of Gujrat v. Umedbhai M. Patel 2001 (3) SCC 314), the present compulsory retirement is  simplicitor does not amount  dismissal or reduction in rank as such is not hit by the provision of Article 311 of the Constitution, in view of the judgement of Andhra Pradesh v. L.U.A.Dixitulu, AIR 1979 SC 193, relying on judgment in ' Tara Singh v. State of Rajasthan, AIR 1975 SC 1487 and ' State of Haryana v. Inder Prakash, AIR 1976 SC 1841 ).  

(10) The order of compulsory retirement in question has been passed by exercising power of fundamental Rule 1956 where there appears no arbitrariness as such it is not illegal in view of the decision of ( Union of India v.K.R.Tahiliani, AIR 1980 SC 953;  by retiring the petitioner before attaining the age of superannuation on the basis of material available on the record shall not tantamount stigma in view of the decision of  ( State of U.P. v. Shyam Lal Sharma, AIR 1971 SC 2151 ).

(11) The Supreme Court held that the charge or imputation ' that the respondent had outlived his utility ' was made the condition of the exercise of power and hence the order amounted to dismissal or removal from service within the meaning of Article 311 (2) of the Constitution. The Supreme Court itself did not agree and over-ruled the view taken by the Full Bench decision in Abdul Ahad v. The Inspector General of Police, U.P. ( AIR 1965 All. 142 ) to the effect that compulsory retirement will always be on the ground that the employee can no longer render useful service, and the position does not become worse because what is implied is expressed in        ( State of U.P. v. Madan Mohan Nagar ) ( 1967 ) 2 SCR 333; AIR 1967 SC 1260 ).  

(12) The impugned order of compulsory retirement is a simplicitor and stigma is not to be drawn out of which by speculative process as for making the order compulsory retirement the stigma must stems from the order itself and the scheme endeavoured to be derived from the circumstances or possibility or suspicion vide the decision in the State of U.P. v. Shyam Lal Sharma ( AIR 1971 SC 2151 ); State of U.P. v. Ramchandra, AIR 1976 SC 2547 and Sreshta v. Commissioner of Income Tax, ( 1973 ) 2 MLJ 485... It has been repeatedly pointed out by the Supreme Court that Courts cannot delve into the records and pierce the veil of the order for discovering a stigma.  What is open to the court is that it could find out a stigma if it is apparent on the record or otherwise clear and springs from the order, vide the decision in State of U.P. v. Sughar Singh, AIR 1974 SC 423;  State of U.P. v. Ramchandra and State of Bihar v. Shiva Bhikshuk Misra, AIR 1971 SC 1011.  Unless the Court is satisfied that such a stigma stems out from the order, an interference with an order of compulsory retirement is not envisaged while exercising the extra ordinary jurisdiction under Article 226 of the Constitution in the light of ( K. Venugopalan v. Government of Tamil Nadu, 1979 SLJ 517 ).  

(13) The mere form of order of compulsory retirement though not a conclusive and the court may some times delve into the basis of the order to lift the Veil, however, I find that after scrutiny even the present order in question is not stigmative or by way of punishment therefore can not said to passed in derogation of the decision of Shyam Lal v. State of U.P. ( 1955) 1 SCR 26; Baldev Raj Chadha v. Union of India, AIR 1981 SC 70; Union of India v. J.N.Sinha ( 1971 ) SCR 791; Samsher Singh v. State of Punjab         ( 1975) 1 SCR 814; AIR 1974 SC 2192 and Anoop Jaiswal v. Government of India, ( 1984 ) 2 SCR 453, the Supreme Court observed:

" On a consideration of the above decision the legal position that now emerges is that even though the order of compulsory retirement is couched in innocuous language without making any imputation against the Government servant who is directed to be compulsorily retired from service, the Court, if challenged, in appropriate cases can lift the veil to find out whether the order is based on any misconduct of the Government servant concerned or the order has been made bona fide and not with any oblique or extraneous purposes.  Mere form of the order in such cases cannot deter the Court from delving into the basis of the order if the order in question is challenged by the Government servant as has been held by this Court in Anoop Jaiswal's case."

(14) The present order of compulsory retirement has been passed in public interest.  It was not necessary to give a detail reason in the order in exercise of power under fundamental rule in view of the State of Maharasthtra  vs. V.S.Naik, AIR 1980 SC 1095; ( 1980) Supp. SCC 229 ).  

(15) Uncommunicated adverse entries but mostly based upon general assessment of performance shall not render an order of compulsory retirement invalid as the rule of audi alteram partem does not apply.  The Supreme Court  has held that their non communication of such adverse entry could not have the effect of vitiating the order of compulsory retirement        ( Jayanti Kumar Sinha v. Union of India  AIR 1989 SC 72 and the similar view was taken to decide  the question of compulsory retirement that the rule of audi alteram partem does not apply in view of the decision of Union of India vs V.P.Seth AIR 1994 SC 1261 and Secretary to Government v. Nityanand Pati AIR 1993 SC 383.  

(16) The compulsory retirement in question is not based on remote and stale adverse entries but is based on latest adverse entry of the year 1989-90 as such is not in derogation to the decision of AIR 1984 SC 630                    ( J.D.Srivastava v.State of M.P.).  The said compulsory retirement is not based on the basis of reports written by a bias officer and the order of compulsory retirement is not hit by the provisions of Article 21 of the Constitution in view to the  ( State of Sikkim v. Sonam Lama ) AIR 1991 SC 534 and  order of compulsory retirement does not involved civil consequences hence no show cause notice was necessary in view of decision in  ( E.Venkateswararao v. Union of India ) 1973 SC 698.  Since the decision in the present compulsory retirement by the present order is based on clean and bona fide exercise and as a placid of the doctrine of the State Government in legitimate exercise of power under fundamental rule is not illegal as such compulsory retirement  based on material on record can not be interfered with in view of the  C.D.Ailawadi v Union of India AIR            ( 1990 ) 1 SCR 783; AIR     ( 1990 ) SC 1004.  

(17) In reference to analyse that the Compulsory retirement involves no civil consequences it is noted that compulsory retirement when exercised subject to the conditions mentioned in the Rule, as for example, F.R.56(j), one of which is that the authority concerned must be of the opinion that it is in the public interest to do so, then such order of compulsory retirement does not amount to dismissal or removal from service within the meaning of Art.311 of the Constitution.  It is neither a punishment nor visits with loss of retiral  benefits.  It does not cause a stigma.  The officer will be entitled to pension that is actually earned and there is no diminution of the agreed benefits.  If the competent authority bona fide forms that opinion the same cannot be challenged before the courts.  But it is open to the aggrieved party to contend that the requisite opinion has not been formed or that the decision is based on collateral ground or that it is an arbitrary decision, however, the compulsory retirement involves no civil consequences.  While exercising the power various considerations would weigh with the appropriate authority.  In some cases, the Government may feel that a particular post may be usefully held in public interest by an officer more competent than the one who is holding the office,  this does not mean that the concerned officer is inefficient but the appropriate authority may prefer a more efficient officer or in certain key posts, public interest may require that a person of undoubted integrity and ability should be there. ( S.Rama Chandra Raju v. State of Orrisa , 1994 Supp (3) SCC 424 ).

(18) When the charge against the Government servant has been proved by the departmental enquiry and punishment has been awarded and the entry to that effect has been entered in the confidential report compulsory retirement on the basis of that entry is valid and cannot be held to be in the nature of punishment. ( Collector v. Chottelal ( 1995) Supp (1) SCC 184;  

(19) In another decision ( K. Kandaswamy v. Union of India ( 1995 ) 6 SCC 162;  1995 SCC ( L& S) 1361;  (1995) 31 ATC 479, the Supreme Court has again reiterated that if the appropriate authority forms a bona fide opinion that in view of the doubtful integrity it would not be desirable in public interest to retain the officer concerned in service the action thereof cannot be challenged before the Courts, though it is open to the aggrieved party to impugn it on the ground that requisite opinion is based on no evidence or has not be formed on bona fide ground or is based on collateral grounds or arbitrary.  When the order has been passed by the competent authority on the basis of totality of facts and circumstances appropriate to the case the order cannot be held to be arbitrary, unjustified or based on no evidence.  When the adverse remarks in the confidential reports contained a reflection on his integrity in discharging the duty, the decision to compulsory retire him on such adverse remarks is held to be in public interest.  ( U.P.State Mineral Dev. Corporation v. K.C.P.Sinha ( 1996) 5 SCC 111;

(20) The competent authority can also take into consideration record of pending disciplinary enquiry against the Government servant along with other relevant record for formation of opinion to compulsorily retire a Government servant in public interest even if such departmental enquiry resulted in imposing a minor penalty. ( State of Orissa v. Ram Chandra Das AIR 1996 SC 2436; ( 1996 )5 SCC 331;

(21) The bad service record in the form of  adverse remarks made in the confidential report although preceded by promotion constituted a material on the basis of which the opinion could be formed to compulsorily retire the employee concerned in public interest. ( H.G.Venkatachaliah v. Union of India ( 1997 ) 11 SCC 366 ).   The  employee concerned out of last ten years was graded in ACRs for part of one year and for three other years as " average ".  He was punished by three warnings in respect of various lapses in pre-promotion and post-promotion period.  In view of such average gradings and punishment order compulsory retirement passed against him has been upheld by the Supreme Court.  ( Satya Prakash Gupta v State of Haryana 1997 SCC ( L& S)  1764 ).  

When the entire service record of the concerned employee was placed before the Review Committee and the Review Committee on considering the adverse entries and punishment imposed on the Government servant recommended compulsory retirement  and the competent authority on the basis thereof passed the order of compulsory retirement.  It cannot be held that the order of compulsory retirement was arbitrary or illegal. ( I.K.Mishra v. Union of Indian ( 1997 ) 6 SCC 228;    While considering the entire service record of the employee the authority took into consideration and adverse entry even prior to his promotion.  The order passed bona fide cannot be faulted because such adverse remarks even prior to promotion is not wiped out by promotion of the concerned employee. ( State of Punjab v. Gurdas Singh AIR 1998 SC 1661; ( 1998 ) 4 SCC 92;

When entire service record including the record for the period prior to 1st April 1985 i.e. prior to confirmation, which contained adverse remark was considered it cannot be said that there was no sufficient material for the appropriate authority to form the requisite opinion that further retention of service of the respondent was not in public interest.   ( Union of India v. P.S.Dhillon ( 1996) 3 SCC 672;

(22) In Bishwanath Prasad Singh v. State of Bihar and others ( 2001 ) 2 Supreme Court Cases 305 the Supreme Court has observed in para 12 as below:-

"12.Compulsory retirement in service jurisprudence has two meanings.   Under the various disciplinary rules, compulsory retirement is one of the penalties inflicted on a delinquent government servant consequent upon a finding of guilt being recorded in disciplinary proceedings.  Such penalty involves stigma and cannot be inflicted except by following procedure prescribed by the relevant rules or consistently with the principal of natural justice if the field for inflicting such penalty be not occupied by any rules.  Such compulsory retirement in the case of a government servant must also withstand the scrutiny of Article 311 of the Constitution.  Then there are service rules, such as  Rule 56(j) of the Fundamental Rules, which confer on the Government or the appropriate authority, an absolute ( but not arbitrary ) right to retire a government servant on his attaining a particular age or on his having completing a certain number of years of service on formation of an opinion that in public interest it was necessary to compulsorily retire a government servant.   In that case, it is neither a punishment nor a penalty with loss of retiral benefits.( see Shyamlal v. State of U.P. AIR 1954 SC 369;   ( 1955) 1 SCR 26 ),  (Birj Mohan Singh Chopra v. State of Punjab  (1987 ) 2 SCC 188; ( 1987 3 ATC 496 ), (S Ramachandra Raju v. State of Orissa 1994 Supp (3) SCC 424; 1995 SCC ( L& S) 74; (1994)    28 ATC 443 ) ,  ( Baikuntha Nath Das v. Chief District Medical Officer, Baripada ( 1992 ) 2 SCC299; 1993 SCC ( L& S) 521; ( 1992 ) 21 ATC 649 ).  More appropriately, it is like premature retirement.  It does not cast any stigma.   The government servant shall be entitled to the pension actually earned  and other retiral benefits.  So long as the opinion forming basis of the order for compulsory retirement in public interest is formed bona fide, the opinion cannot be ordinarily interfered with by a judicial forum.  Such an order may be subjected to judicial review on very limited grounds such as the order being mala fide, based on no material or on collateral grounds or having been passed by an authority not competent to do so.  The object of such compulsory retirement is not to punish or penalise the government servant but to weed out the worthless who have lost their utility for the administration by their insensitive, unintelligent or dubious conduct impeding the flow of administration or promoting stagnation.  The country needs speed, sensitivity, probity, non-irritative public relation and enthusiastic creativity which can be achieved by eliminating the dead wood, the paperlogged and callous  ( see S.Ramachandra Raju v. State of Orissa     ( 1994 Supp ( 3) SCC 424; 1995 SCC ( L& S) 74; ( 1994 ) 28 ATC 443 ).  We may with advantage quote the following passage from this decision;       ( SCC p.430, para 9 )  

" Though the order of compulsory retirement is not a punishment and the government servant on being compulsorily retired is entitled to draw all retiral benefits, including pension, the Government must exercise its power in the public interest to effectuate the efficiency.  Integrity of public service needs to be maintained.  The exercise of power of compulsory retirement must not be a haunt on public servant but act as a check and reasonable measure to ensure efficiency in service, and free from corruption and incompetence.  The officer would go by reputation built around him. In appropriate case, there may not be sufficient evidence to take punitive act of removal from service.  But his conduct and reputation in such that his continuance in service would be a menace in public service and injurious to public interest."

(23) The order of compulsory retirement is neither punitive nor stigmatic and in the formation of opinion while passing order of compulsory retirement the entire service records, character roll or confidential report with the emphasis cannot be taken into account along with the relevant period and the contention that the consideration of adverse material older than ten years vitiated the order of compulsory retirement was rejected by the Supreme Court in the State of U.P. and others v. Vijay Kumar Jain  (2002 ) 3 SCC 641 and order of withholding integrity certificate and censor entry are sufficient entries for compulsory retirement under Rule 56 ( c ) and (j)  of U.P.Fundamental Rules.   In Vijay Kumar Jain ( supra ) the court in para no.13  and 14 had noted below:

" 13.In Baikuntha Nath Das v. Chief District Medical Officer, Baripada (1992) 2 SCC 299 : 1993 SCC (L&S) 521 : (1992) 21 ATC 649, this Court laid down certain principles which are as under: (SCC pp. 315-16, para 34).

"34. (i) An order of 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 from the requisite opinion on the given material; in short, if 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 of compulsory retirement is not liable to be quashed by a court merely on showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference."

"14. In State of Punjab v. Gurdas Singh (1998) 4 SCC 92: 1998 SCC (L&S) 1004, it was held thus: (SCC p. 99, para 11)-

"Before the decision to retire a government servant prematurely is taken the authorities are required to consider the whole record of service. Any adverse entry prior to earning of promotion or crossing of efficiency bar or picking up higher rank is not wiped out and can be taken into consideration while considering the overall performance of the employee during whole of his tenure of service whether it is in public interest to retain him in the service. The whole record of service of the employee will include any uncommunicated adverse entries as well."

(24) This Court by order dated 22.8.1995 while considering the case of Bharat Singh namely Writ Petition No. 5168 of 1995 had set aside the order dated 30.1.1995 compulsorily retiring Sri Bharat Singh in the facts and circumstances applicable to Sri Bharat Singh only by observing that there was no adverse material and the order was passed without application of mind, without assigning any reason. However, such order of this Court (Single Judge) passed in Bharat Singh (supra)was per encurium has not considered the different decisions of the Supreme Court where the order of compulsory retirement need not to mention reasons and has not to be passed in grate detail in view of the above observations as mentioned above. However, the facts and circumstances of Sri Bharat Singh (supra) are different and distinguishable and can not be helpful in respect of the assessing the case of the present petitioner, as for passing the order of compulsory retirement the facts and materials on record pertaining to an individual are relevant for consideration.

(25).   In the present case the relevant records, character roll, confidential report and service book have been seen and the order in question is not passed arbitrarily and is made in public interest in compliance to the fundamental Rules 56 as such judicial review is not possible in view Vijay Kumar (supra).  The present compulsory retirement has been passed fairly, bona fidely free from arbitrariness, in the public interest and in the interest of the  administration and in consonance to the fundamental rules by way of order of simplicitor, therefore, is in consonance to the decision of Supreme Court (1992 ) 2 SCC 317 P & T. Board v. C.S.N.Murthy  and on the material available in the service record of the petitioner and in the light of judgment of Baikuntha Nath  ( supra )  and AIR 1994 SC 1261 Union of India v. N.P.Seth, ( 1998 ) 4  SCC 92  State of Punjab v. Gurudas Singh 1998 (9) SCC 220;  U.P.S.R.T.C. v. Hari Narain Singh (1997) 7 SCC 483; Union of India v. G.Ganayuthan  and 1997 (6) SCC 381 State of Punjab v. Bakshi Singh.  

(26). In the present case three aspects are to be immediately considered.

(i) Who is the authority competent to pass the order of compulsory retirement.

(ii) Is it necessary to constitute a Screening Committee.

(iii) Is prior notice in necessary to be given to the employee before passing the order of compulsory retirement.

(27). In order to analyse the above aspects it is necessary to quote the fundamental Rules 56 as provided in Chapter IX of the U.P. Fundamental Rules.  Chapter IX of the Financial Hand Book Volume II ( Parts 2 to 4 ) which deals the U.P .Fundamental Rules.

CHAPTER IX - COMPULSORY RETIREMENT;

56. (a)  Except as otherwise provided in this Rule, every Government servant other than a Government servant in inferior service shall retire from service on the afternoon of the last day of the month in which he attains the age of fifty eight 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). A Government servant in inferior service shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years.  He must not be retained in service after that date, except in very special circumstances and with sanction of the 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 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 or after he has completed qualifying service of twenty 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 fifty 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 same rates at which he was drawing 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 pension shall be payable and other retirement benefits, if any, shall be available in accordance with and 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 of 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 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 in 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 this rule shall have effect from the afternoon of the date of its issue, provided that if after the date of its issue, 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.

In Fundamental Rules 56 (c ) the proper word used is the appointing authority, similarly in fundamental Rules 56 (d) (ii) and 56 (e ), The word 56(3) the similar words appointing authority has been authorised for passing an order of compulsory retirement and at the material provided in 56 (c ) 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 at the age of forty five years or after the employee has completed twenty years of service.

(28). In Union of India v. Col. J.N.Sinha and another, ( 1970 ) 2 SCC 458; 1970 SLR 718, the petitioner was compulsorily retired by the Government of India under Fundamental Rules 56 (j).  It was alleged that, among other things, the lack of opportunity to show cause amounted to denial of natural justice.   The Supreme Court examined Fundamental Rule 56 (j) and observed:

" Now coming to the express words of Fundamental Rule 56 (j ) it says that the appointing authority has the absolute right to retire a Government servant if it is on the opinion that it is in the public interest to do so.   The right conferred on the appropriate authority is an absolute one.  That power can be exercised subject to the conditions mentioned in the rule, one of which is that the concerned authority must be of the opinion that it is in public interest to do so.   If that authority bona fide forms that opinion, the correctness of that opinion cannot be challenged before Courts.   It is open to an aggrieved party to contend that the requisite opinion has not been formed or the decision is based on collateral grounds or that it is an arbitrary decision."

Compulsory retirement, competent authority, who is ?

(29). The order to retire must be passed only the ' appropriate authority'. The authority must form the requisite opinion not subjective satisfaction but objective is bona fide and based on relevant material.  The requisite opinion is that the retirement of the victim is in public interest, not personal, political or other interest but solely governed by the interest of public service.  The right to retire is not absolute though so worded.   ' Absolute' merely mends wide, not more.  Under Note 1 to F.R.56.  the authority entitled to make substantive appointment is the " appropriate authority " to retire Government servants under the said Rules.  The power of the  " appropriate authority " in respect of Accounts Officers has been vested in the A.G. by Notification of the Ministry of Finance dated 29.11.1972.   Since the A.G. has been clothed from that date, with power to appoint substantively Accounts Officers, he has become the appropriate authority for compulsory retirement even though the appellant Accounts Officer had been appointed by the C & A.G. prior to 29.11.1972.  ( Baldev Raj Chadha v. Union of India and others, AIR 1981 SC 70)

(30). Unless a contrary intention appears from the context, a power to appoint should include a power to terminate the appointment, including termination of the person appointed by his compulsory retirement in accordance with terms and conditions of his service.   This fundamental principle underlies Section 16 of the General Clauses Act.  In other words, the power to terminate the appointment by compulsory retirement or otherwise is a necessary adjunct of the power of appointment and is exercised as an incident to or consequences of the power.   There is nothing in the G.O. Nmo. 1782, dated June 27,1973, issued by Government of T.N. which militates against this rule of construction.  In this view notwithstanding the conferment of gazetted status, the respondent continued to be Government, inter alia, in the matter of " appointment ", which would include compulsory retirement or termination of service also, by the rules and Government orders applicable to non-Gazettee Officer of the Secretariat, and therefore, the Review Committee presided over by a Departmental Secretary, set up for reviewing the cases of non- Gazetted officers of the Secretariat, was fully competent to consider the case of respondent and recommend his retirement.  ( State of Tamil Nadu and others v. M.N.Sundararajan, (1980 ) 4 SCC 592.

(31). Where a Government Servant was appointed by the Comptroller and Auditor- General and his compulsory retirement was issued by the Director of Commercial Audit, it was held that the compulsory retirement was illegal.   The appointing authority according to Rule 56 (j) of Central Civil Services    ( Classification, Control and Appeal ) Rules ( 1965 ) is competent authority and the appointing authority being Comptroller and Auditor General by virtue of Rule 2 (a ), retirement order was set aside.  ( Dharma Dev Mehta v. Union of India and others, AIR 1980 SC 557; ( 1980) 2 SCC 205; 1980 SCC ( L&S ) 195; 1980 Lab I.C. 383; ( 1980 ) 1 SLR 414.

(32). Although the notice had been signed by the Chief Auditor it had been done with the approval and under the authority of the Comptroller and Auditor-General of India.  On this short ground the first contention based on the lack of competency for taking action under clause (j) of Fundamental Rule 56 was repelled.   It was clear from the affidavit of the Comptroller and Auditor-General that he studied the recommendation of the Committee and also considered the physical capacity, work and conduct of the appellant as revealed from his official records in order to form an opinion whether it was in public interest to retire the appellant after he had attained the age of 55 years.   It was only after consideration of the entire material that he formed the opinion that it was in public interest to retire him.  The Supreme Court held that it could not be argued that the appropriate authority did not form any opinion that the retirement of the appellant would be in public interest.    ( Krishna Kumar v. S.P.Saksena and others A.I.R. 1973 SC 1065 )

(33). The decision of the Review Committee have not force proprio vigore and at best are mere recommendations which do not and cannot have a peremptory effect.   The ultimate power to accept or not to accept its recommendations and to take an effective and definitive decision in the matter, vests in the Government.  Thus even if there is some irregularity in the Constitution of the Review Committee, the functions of which are purely advisory, that cannot, by itself, have the effect of vitiating the order of compulsory retirement passed by the Government in exercise of the power vested in it.   ( State of Tamil Nadu and others v. M.N.Sundarajan, ( 1980 ) 4 SCC 592.

(34). The appointing authority has absolute right to retire the Government servant if such authority is of the opinion that in the public interest it is necessary to do so.   If that authority bona fide forms that opinion, the correctness of that opinion can not be challenged before the Court.  However, it is open to the aggrieved party to contend that the requite opinion has not been formed or the decision is based on collateral ground or that it is an arbitrary decision.  In view of Union of India v. J.N.Sinha , AIR 1971    SC- 40.  However the order to retire must be passed by the appropriate authority and the authority must form the requisite opinion objectively and must pass the order bona fide on relevant material.  Requisite opinion is tht the retirement of the Government servant is  in public interest, not personal, political or other interest but solely governed by the interest of public service.  In view of Baldeo Raj Chhadha v. Union of India AIR 1981 SC 70.

(35). Compulsory Retirement involves no civil consequences-  The compulsory retirement when exercised subject to the conditions mentioned in the Rule, as for example, F.R.56(j), one of which is that the authority concerned must be of the opinion that it is in the public interest to do so, then such order of compulsory retirement does not amount to dismissal or removal from service within the meaning of Art. 311 of the Constitution.  It is neither a punishment nor visits with loss of retiral benefits.   It does not cause a stigma. The officer will be entitled to pension that is actually earned and there is no diminution of the agreed benefits.   If the competent authority bona fide forms that opinion the same cannot be challenged before the Courts.    But it is open to the aggrieved party to contend that the requisite opinion has not been formed or that the decision is based on collateral ground or that it is an arbitrary decision.   However the compulsory retirement involves no civil consequences.  While exercising the power various considerations would weight with the appropriate authority.   In some cases, the Government may feel that a particular post may be usefully held in public interest by an officer more competent than the one who is holding the office.   That does not mean that the concerned officer is inefficient but the appropriate authority may prefer a more efficient officer or in certain key posts, public interest may require that a person of undoubted integrity and ability should be there. ( S. Rama Chandra Raju v. State of Orrissa 1994 Supp ( 3 ) SCC 424. )

(36). Power- how to be exercised.   Though the order of compulsory  retirement is not a punishment and the Government servant on being compulsorily retired is entitled to draw all retiral benefits, including pension, the Government must exercise its power in the public interest to effectuate the efficiency of service.   The dead wood needs to be removed to augment efficiency.  Integrity of public service needs to be maintained.   The exercise of power of compulsory retirement must not be a haunt on public servant but act as a check and reasonable measure to ensure efficiency in service, and free from corruption and incompetence.   The officer would go by reputation built around him.   In appropriate case, there may not be sufficient evidence to take punitive act of removal from service.   But his conduct and reputation is such that his continuance in service would be a menace in public service and injurious to public interest.  The entire service record or character rolls or confidential reports maintained would furnish the back drop material for consideration by the Government or review committee or the appropriate authority.( emphasis ).  On consideration of the totality of the facts and circumstances alone, the Government should form the opinion that the employee needs to be compulsorily retired from service.    Therefore, entire record, more particularly the latest would form the foundation for the opinion and furnish the base to exercise the power under the relevant rule to compulsorily retire a Government officer.   An officer reaching the age of compulsory retirement could neither seek alternative appointment nor meet the family burdens with the pension or other benefits he gets and thereby he would be subjected to great hardship and family would be greatly affected.  Therefore, before exercising the power, the competent authority must weigh pros and cons and balance the public interest as against the individual interest.  On total evaluation of entire record of service if the Government or the Governmental authority  forms the  opinion  that in the public interest the officer needs to be compulsorily retired, the court may  not interfere with the exercise of such bona fide exercise of power but the court has the power or duty to exercise the power of judicial review not as a court of appeal, but in its power of judicial review to consider whether the power has been exercised properly or is arbitrary or vitiated either by mala fides or actuated by extraneous consideration in retiring a Government servant compulsorily.   Laying down the above principle the Supreme Court has held that when the competent authority took one solitary adverse report of the appellant ignoring other good reports and satisfactory record of service including promotion, the order is arbitrary and illegal ( Ram Chandra Raju v. State of Orissa 1994 Supp (3) SCC 424.   The service record of the employee was average and in taking the decision to compulsorily retire him the management took the overall records and not merely the adverse entry immediately preceding the order.    His overall service record for the last five years showed that he had slackened down and did not exercise the control expected of him over his subordinates and he did not show sufficient interest in the discharge of his duties resulting in omissions and irregularity in the performance thereof.   So, it is held that the retirement of the Government servant compulsorily under F.R.56 (j) of the Fundamental Rules was in public interest and such order is unassailable ( S.S.Marwah v.Union of India 1994 SCC ( L&S) 1077

(37). The Supreme Court has held (in para 93.54 of G.B.Singh's Digest of Important Case Law on Service Matters) that the appointing authority for the purpose of F.R.56(j) should be found out with reference to the definition of the term in Rule 2 (a) of the Central Civil Services ( Classification, Control and Appeal ) Rules 1965 ( Dharam Dev Mehta v. Union of India, ( 1980 )2 SCR 554; AIR 1980 SC 557.   The Supreme Court has held mere irregularity in the constitution of the Review Committee which recommends compulsory retirement shall not vitiate the order as observed in ( State of Tamil Nadu v. M.N.Sundarajan, AIR 1980 SC 2084.

(38). Though the appointing authority or the competent authority is exclusively empowered to take the decision  of compulsory retirement, however for deriving proper help in screening out the records, character roll entries in service record and complaints, representation and material relating to the employee may be analysed by the screening committee so appointed.   Some times the ' screening committee ' may  be termed as ' review committee. '  If the large number of employees and their records are to be screened out or the large number of employees are analysed for such purpose it would be satisfaction of the ' appointing authority ' or appropriate authority to constitute a ' screening committee ' or the ' review committee ' and such ' screening committee ' or ' review committee ' shall be providing valuable material for the appointing authority to take decision of compulsory retirement as below:-

(i) the Review Committee should have at least one outsider, of sufficient rank, as its member,

(ii) should look into the character rolls to satisfy themselves about the merits of the case;

(iii) must not be influenced by any extraneous or irrelevant manner,

(iv) should reach their decision in regard to totality of circumstances and not attach any undue important to an obsolete material less relevant to the decision; an

(v) the decision should be taken by proper application of mind in public interest.

In the light of the observations made in { R.P.Suri v. Union of India,              ( 1986) ATC 323, relying on the judgments of the Supreme Court in (Smt. ) S.R.Venkataraman v. Union of India, AIR 1979 SC 49 ( review committee being influenced by extraneous considerations ); Hans Raj v. State of Punjab, ( 1985 ) 1 SCC 134 ( non-application of mind ); and Baldev Raj Chadha v. Union of India, AIR 1981 SC 70 ( in regard to point (iv) above }.  

(39). Since the principle of natural justice is not required before passing order of compulsory retirement as the same is not the punishment or stigmatic and the provisions of Article 311 (2) of the Constitution is also not necessary to be followed as the order of compulsory retirement involves no civil consequences therefore, only notice  required under Fundamental Rule 56 Chapter IX of Financial Hand Book Vol.II ( Part 2 to 4 ) shall be necessary to be given to the retiring employee and the ' appointing authority ' or the ' competent authority ' for and on behalf of State Government  being appropriate authority shall have exclusive powers of passing the order of compulsory retirement on the basis of entire records, perusing the complaints, representations, character roll entries, comments and remarks and taking into consideration of material presented by the ' screening committee ' or the ' review committee '. The competent authority/ appointing authority on the facts and circumstances of the case may without constituting          ' screening committee ' or ' review committee '   take a decision objectively, bonafidely, in public interest in respect of compulsory retirement.  In the light of these observations the three aspects as indicated in para 26 above are dealt with.

(40). The records of the petitioners were also perused and after perusal it has been noticed that large number of adverse remarks, warnings were mentioned in the service book of the petitioner and the competent authority after perusing the relevant records, character roll entries and the comments in the service book and warnings has arrived at the conclusion fairly in public interest for retiring the petitioner compulsorily.

(41). The Chief Medical Superintendent the respondent no.2, being an           ' appointing authority ' for passing compulsory retirement alone was not under obligation to constitute screening committee before passing compulsory retirement order if on his  satisfaction has arrived at objectively in public interest retiring the petitioner compulsorily.

In view of the above observations the writ petition is dismissed.  No order as to costs.

Dated 22.4.2004

PKB      


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

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