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NARENDRA SINGH versus HIGH COURT OF JUDICATURE ALLAHABAD & ANOTHER

High Court of Judicature at Allahabad

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Narendra Singh v. High Court Of Judicature Allahabad & Another - WRIT - A No. 34568 of 1996 [2005] RD-AH 5870 (17 November 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO.34

Civil Misc. Writ Petition No. 34568 of 1996

Narendra Singh

Versus

High Court of Judicature at Allahabad & Anr.

Hon'ble Dr. B.S. Chauhan, J.

Hon'ble Dilip Gupta, J.

(By Hon'ble Dr. B.S. Chauhan, J.)

This writ petition has been filed challenging the impugned order dated 05.07.1996 by which the petitioner had been given compulsory retirement.

The facts and circumstances giving rise to this case are that the petitioner was selected as a Member of the U.P. Higher Judicial Service and posted as Additional District Judge, Etawah. Subsequently, he had been transferred at various places and while posted at Etawah, he was put under suspension as the disciplinary proceedings had been initiated against him. He was imposed punishment withholding one annual grade increment with cumulative effect as communicated vide letter dated 31.05.1996 (Annex.6). In view of the directions of Hon'ble Apex Court in All India Judges' Association case, the case of petitioner along with other Judicial Officers who were about to attain the age of 58 years, was placed before the Screening Committee for assessing their potential for continued utility for extending benefit of increase of retirement age to 60 years. The Screening Committee observing that the petitioner was not suitable for continuance in service beyond the age of 58 years, recommended his case for compulsory retirement. The State Government was accordingly moved vide letter dated 5.07.1996 (Annex.1). The Government issued orders retiring the petitioner with effect from 15.07.1996. Hence the present petition.

Learned counsel for the petitioner has raised large number of issues submitting that in view of the decision rendered in Review Petition No. 249 of 1992 in Writ Petition No. 1022 of 1989 - All Indian Judges' Association  & Ors. Vs. Union of India & Ors., AIR 1993 SC 2493 and in view of the Fundamental Rule 56 of Financial Hand Book Part-II Chapters II to IV, as amended, the question of his compulsory retirement could not arise. More so, the service record of the petitioner had been excellent and there was no justification of passing the impugned order. Thus, the order impugned is liable to be quashed.

On the other hand, Shri Amit Sthalekar, learned counsel appearing for the respondents submitted that the service record of the petitioner was far from satisfaction. His integrity has been doubted. There had been serious complaints against his conduct touching integrity. The petitioner faced disciplinary proceedings and punishment was also imposed. More so, he had been retired at the age of 58 years strictly in accordance with law. No fault can be found with the order impugned. Thus, the petition is liable to be dismissed.

We have considered the submissions made learned counsel for the parties and perused the original service  records produced before us.

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

"56 (c) Notwithstanding anything contained in clause (a) or clause (b), the appointing authority may, at any time, by notice to any Government servant (whether permanent or temporary), without assigning any reason, require him to retire after he attains the age of fifty years or such Government servant may, by notice to the appointing authority, voluntarily retire at any time after attaining the age of forty five years after he has completed qualifying service for twenty years."

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

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

"(i) An order 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 form 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 the showing that while passing it un-communicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference."

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

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

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

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

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

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

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

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

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

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

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

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

Learned counsel for the petitioner placing reliance upon the judgment in High Court of Judicature at, Allahabad Vs. Sarnam Singh & Anr., (2000) 2 SCC 339, stressed that since new Rules made by the State Government under Proviso to Article 309 of the Constitution specifically provides that the judicial officers would retire on attaining the age of sixty years, it was no longer open to the High Court to have scrutinised the service record of the petitioner, who was entitled to continue in service upto the age of sixty years. Thus, the order of compulsory retirement passed by the State Government on the recommendation of the High Court was wholly erroneous.

The Hon'ble Supreme Court reconsidered the decision rendered in High Court of Judicature at Allahabad Vs. Sarnama Singh (Supra) in Nawal Singh Vs. State of U.P. & Anr., (2003) 8 SCC 117 and upon consideration of the powers and authority of compulsory retirement, the Court held that under Rule 56 (c), which empowers the High Court to pass an order of compulsory retirement after an employee attains the age of fifty years, the High Court in exercise of its competence, may pass the order of compulsory retirement. Simply because of the increase in retirement age under the Uttar Pradesh Judicial Officers (Retirement on Superannuation) Rules, 1992, rest of the Rules providing for compulsory retirement would not be nugatory and are not repealed. The Apex Court has held that it was open to the High Court to follow the procedure for exercising the power under Rule 56 (c) and the procedure prescribed in Explanation 2-A thereto requires that such orders should be in public interest and the appointing authority may take into consideration any material relating to such officer. It inter alia provides that any entry in the service record as also any report of the Vigilance Establishment. No doubt, the Committee was constituted on the basis of the directions by the Hon'ble Supreme Court in All India Judges' Association Case, but at the same time, before passing the order of compulsory retirement, the High Court exercised its powers under Fundamental rules, and that is specifically mentioned in the order impugned herein. The object of compulsory retirement is to weed out the dead wood in order to maintain high standard of efficiency and honesty to keep judicial service unpolluted. It empowers the authority to retire officers of doubtful integrity which depends upon over all impression gathered by the higher officers.

Thus, in view of the above, the submission made by learned counsel for the petitioner is preposterous and does not require further consideration.

We have examined the entire service record of the petitioner.

In the year 1985-86, his disposal was very low being 88.6 percent and his merit was assessed as merely fair. However, the same was not taken to be adverse because of the fact that he was a new entrant in service. In 1986-87 again, he was assessed as a Fair Officer. In 1987-88, the District Judge reported that complaints in connection with Sessions Trial No. 158 of 1985, State Vs. Kalicharan & Ors., under Section 302, I.P.C. decided on 15.04.1986, Sessions Trial No. 253 of 1984, State Vs. Alok & Ors., under Sections 147, 148, 149, 307, I.P.C., decided on 28.08.1987, Sessions Trial No. 10 of 1985, State Vs. Satya Narayan & Ors., Sessions Trial No. 11 of 1986, State Vs. Arun Kumar, under Sections 147, 148, 149, 302, 307/201, I.P.C. decided on 1011.1987 were received. Further, complaints of corruption against the petitioner made by Shri Radha Kant Dwivedi, Advocate and the same could not be verified as the records of the cases in which complaints were made, had been sent for Government Appeal. In the year 1988-89, while recording adverse remarks, the District Judge, Etawah indicated that a complaint of corruption in respect of large number of cases had been made and, thus, it was not possible to certify his integrity. Against the adverse remarks recorded for the year 1988-89, the petitioner made a representation whereby he challenged the legal knowledge of the District Judge. Upon consideration, suitable action for using intemperate language, was recommended by Hon'ble the Administrative Judge. The matter was placed before the Administrative Committee in its meeting held on 29.09.1989 when it was resolved that the petitioner be censured for using intemperate language against the District Judge.

A written complaint against the conduct of grave judicial impropriety in the matter of disposal of bail application on 22.07.1991 of an accused Sunil Maheshwari, who was involved in Case Crime No. 304 of 1991, under Section 323, 324, 307, 504, I.P.C. P.S. Chandpur, District Bijnor, was received. The matter was enquired by the Additional Registrar of the Court, who submitted his report dated 15.03.1994. The enquiry report was placed before the Administrative Committee in its meeting on 03.09.1994 and thereafter before the Full Court on 18.12.1994. Since the Inquiry Officer was an officer of the same rank as that against whom the inquiry had been held, it was resolved that the matte be placed for enquiry before a Hon'ble Judge of the Court. The proceedings of Full Court meeting held on 18.12.1994 further provide as below:-

"It was further resolved, on being informed by Hon'ble Birendra Dixit, J. regarding the attempt made by Shri Narendra Singh, Additional District Judge, Bijnor, to seek to influence him in a judicial matter pending before him, that the Hon'ble Judge may record appropriate remarks, which may be placed on his personal file."

In furtherance of the aforesaid resolution passed on 18.12.1994, the matter was placed before the Hon'ble Chief Justice, who vide order dated 05.01.1995, appointed Hon'ble Mr. Justice S.C. Verma as Inquiry Judge in the matter. The Hon'ble Inquiry Judge submitted his report. The report together with comments thereon of the petitioner, was considered by the Administrative Committee in its meeting held on 06.05.1996 when the report of the Hon'ble Inquiry Judge was accepted and the petitioner was held guilty of charges 1, 5 and 6 (part). Keeping in view the misconduct of the petitioner, the Administrative Committee in its meeting held on 06.05.1996 resolved that the petitioner be punished by way of stoppage of his one increment with cumulative effect. However, since the petitioner stood retired with effect from 15.07.1996, the punishment of withholding of one grade increment with cumulative effect that was imposed vide the resolution of the Administrative Committee meeting dated 06.05.1996, could not be given effect to and subsequently the punishment was substituted with the punishment of censure vide Administrative Committee's Resolution dated 09.04.1999.

It is noticed that the case of petitioner along with other Judicial Officers who were about to attain the age of 58 years, was placed before the Screening Committee for assessing their potential for continued utility for extending benefit of increase of retirement age to 60 years in view of the directions of Hon'ble Apex Court in All India Judges' Association case. The Screening Committee observed and recommended that since the petitioner was not suitable for continuance in service beyond the age of 58 years, he should be retired compulsorily. The State Government was accordingly moved and the petitioner was retired with effect from 15.07.1996.

In view of the above, the service record of the petitioner itself reveals that it was not desirable to retain him in service and no fault can be found with the order of compulsory retirement and that too on attaining the age of 58 years. We do not find any force in the petition. It is accordingly dismissed.

17.11.2005

AHA


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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