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NARESH CHANDRA SHARMA versus STATE OF U.P. AND ANOTHER

High Court of Judicature at Allahabad

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Naresh Chandra Sharma v. State Of U.P. And Another - WRIT - A No. 7789 of 2004 [2006] RD-AH 19550 (18 November 2006)

 

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

A.F.R.

Court No. 53

Civil Misc. Writ Petition No. 7789 of 2004.

Naresh Chandra Sharma          ..............Petitioner.

Versus

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

Hon'ble Arun Tandon, J.

Heard Shri M.D.Singh'Shekhar' on behalf of the petitioner, Standing Counsel on behalf of respondents.

This writ petition is directed against an order dated 12.1.2004 passed by the District Magistrate, Ghaziabad (the appointing authority of the petitioner) in exercise of powers under fundamental rules 56(C) as contained in final in book Vol. 2 part 2 to 4 as amended upto date, compulsorily retiring the petitioner from service w.e.f. the date of the order.

On behalf of the petitioner it has been stated that except for adverse entries  awarded for the year 2000-01 and of the year 2002-03 against which  Appeals filed by the petitioner were pending consideration all other annual entries of the petitioner were 'Utkarsh' or 'Ati Uttam'.  It is therefore, submitted that the petitioner cannot be termed as a dead wood to be chopped of before he attains the age of superannuation nor can it be said that it is in  public interest to retire the petitioner.  It is stated that the adverse entries of the year 2000-01 and  2002-03 cannot be taken into consideration as the statutory appeals against the aforesaid entries were pending consideration.  In the alternative it is submitted that the Screening Committee  constituted in the screening of the petitioner was not inconformity with statutory rules as it did not include the appointing authority. Lastly it is pointed out that the District Magistrate has not applied his mind to the recommendation of the Screening Committee and has not recorded his satisfaction as required under fundamental rules 56(C) for compulsorily retiring the petitioner.  

On behalf of the respondents a counter affidavit has been filed and it has been stated that the petitioner was awarded adverse entry in the year 1998-99 and 1999-00, his integrity was witheld in the year 2000-01 besides these there are adverse entries were recorded for the years 2000, 2001 and 2003.  It has been stated that the Appeal filed by the petitioner against the adverse entries have been rejected by the competent authority. The character roll of the petitioner was such that a conclusion was arrived at by the disciplinary authority for compulsorily retiring the petitioner.  The decision cannot be said to be arbitrary nor any interference is called for under Article 226 of the Constitution of India inasmuch as an order of compulsory retirement is not a punishment, it implies no stigma nor suggestion of misbehaviors, reference AIR 1992 S.C. Page 1020(Baikunth Nath Das Vs. Chief Medical Officer).

One of the basic issues to be decided in the petition is as  to whether the  Screening Committee was constituted in accordance with the provisions applicable and further as to whether  the recommendations of the Screening Committee were considered by the District Magistrate after due application of mind to the service record of the petitioner before taking a decision to compulsorily retire the petitioner.  

On records of the present writ petition  is a Government Notification No. 5/1/1975-Karmik-1 dated 26th August, 1975, providing for the constitution of Screening Committee.  Relevant  Clause 2 of the same which is applicable in the case of petitioner reads  as follows :

"(2) Aise Karmchariyon Jinke Niyukti Pradhikari Rajyapal Se Bhinn Hain, Ki Screening Jin Adhikariyon Se Niyukti Pradhikari  Rajyapal Se Bhin Adhikari Hain, Unki Screening Nimn Prakash Gathit Screening Committee Dwara Ki Jayengi :-

(1NiyuktiPradhikari ...........Adhyaksh.

(2) Niyukti Pradhikari Dwara Manonit Do Varishtha Adhikari...........Sadasya.

Uprokt Commiteeyon Ki Sanstuti Ka Karyanvan Niyukti Pradhikariyon Ke Stur Par Hi Hoga.

    Ukt Dono Screening Commiteeyon Ka Koi Vidhik Status Nahin Hoga, Na Ve Kewal Sambandhit Niyukti Pradhikaron Ke Samadhan Mein Sahayta Ke Liye Hongi, Va Unki Karyavahiyan Bhi Unaupcharik Hongi, Va Unke Gathan Mein Kisi Rikti Athwa Anya Kisi Anaupcharikta Ke Hote Hue Bhi Niyukti pradhikari Swa Vivek Se Upyukt Nirnnay Le Sakega."

Along with counter affidavit filed on behalf of the respondents the report of the Screening Committee has been enclosed as Annexure CA-8.  From the report so enclosed it is apparent that it comprised of three members only :

(1)   J.B.Singh, Deputy Collector, Ghazibad.

(2)   S.B.Tewari, Deputy Collector, Garh Mukteshwar.

(3) Rakesh Chandra, Additional District Magistrate(Admn.),             Ghaziabad.

It is thus apparent that Screening Committee did not include the District Magistrate as one of its members.  The report of the said Screening Committee in so far as it pertain to the petitioner Shri Naresh Chandra Sharma reads as follows :

"Shri Naresh Chandra Sharma (Sa.Ra.Ka.)Ki Do Varshik Pravishtiyan Pratikool Tatha Do Pratikool Pravishtiyan Vibhagiya Ke Antargat Nirgat Ki Gayin Hain.

Asharam (Sa.Ra.Ka.) Va Shri Naresh Chandra Sharma (Sa.Ra.Ka.) Ko Anivarya Sewanivrit Kiye Jane Ki Sanstuti Ki Jati Hai.

On the said report dated 27.12.2005 there is an endorsement which reads as follows:

"Kya Shri Sharma Va Shri Asharam Ke Pratikool Pravishtiyon Ke Viruddh Pratyavedan Lambit To Nahin Hai.

                                  Sd/- 27.12.2005"

On the next page of the report is another note addressed to the Additional District Magistrate(Admn.) submitted by the Bhulekh Adhikari dated 3.1.2004 which reads as follows :

"Apar Zila Adhikari(Pra.)

Committee Ki Karyavahi Tippri Sankhya 3 Per Apne Aadesh Ka Avlokan Karne Ka Kasht Karen.

Shri Naresh Chandra Sharma, (Sa.Ra.Ka.) Ka Varsh 2000 Mein Zila Adhikari Mahodaya Dwara Di Gai Pratikool Pravishti Tatha Satyanishta Sandigdh Ghoshit Kiye Jane Ke Viruddh Ek Pratyavedan Ayukt, Meerut Mandal, Meerut Ke Yahan Lambit Hai, Iske Atirikt Varsh 2002-2003 Ki Varshik Pratikool Pravishti Ke Virudh Shri Naresh Chandra Sharma Dwara Dinank 26.12.2003 Ko Ek Pratyavedan Aapko Prastut Kiya Hai, Jo Abhi Lambit Hai."

On 9th January, 2004 the note put up by the A.D.M to the District Magistrate  reads as follows :

"Avlokit Samiti Ki Aakhya Dinank 27.12.2003 Se Sahmat Zila Adhikari Mahodaya Ke Anumodanarth Agrasarit.

9.1.2004"

Lastly the District Magistrate on the same page has recorded as follows:

                           'Anumodit'

and has signed the same in the month of February, 2004.  

From the records of the proceedings as aforesaid this Court is satisfied that there has been non application of mind by the District Magistrate with regards to the character roll entries of the petitioner as well as to the fact  as to whether the nature of entries in the  character roll was such so as to come to the conclusion that the petitioner was a fit person to be compulsorily retired.  The District Magistrate has only approved the proposal of the Screening Committee to the effect that the petitioner may be compulsorily retired.  The recommendation of the Screening Committee is only an opinion. It is the satisfaction of the appointing authority which should determine as to whether powers under Section 56(C) of the fundamental rules are to be exercised.  Such a satisfaction must be arrived at after due application of mind to the service records of concerned government servant. The appointing authority has to decide that the employee has become a dead wood and it is in public interest to retire him compulsorily.  Mere acceptance of the report of Screening Committee in the facts of the case byendorsement of the word 'Anumodit" by the appointing authority (District Magistrate)  cannot be held to a decision to compulsorily retire the petitioner after due application of mind as required under Fundamental  Rule 56(c).  The aforesaid conclusion is further supported by the reason that the Screening Committee did not refer to(i) all the entries recorded into the character roll of the petitioner in the previous years (especifically of recent part).  (ii)  the relevant period for which such adverse entires have been recorded, (iii)  the nature of adverse entries, (iv) the effect of other entries which were good/outstanding available on  the service records of the petitioner.

Division Bench of this Court in the case of Sri Narain Saxena Vs. Principal Secretary, reported in 2005 Vol. 4 Education and Service Cases page 2431, after referring to various judgments of the Hon'ble Supreme Court in paragraph 20 of the judgment has held as follows :

"Paragraph 20- In view of the above, there is no bar for the Competent Authority to appoint a Screening Committee and consider its recommendations by application of his mind.  This view stands fortified by the judgment relied upon by Shri K.Ajit in Kamta Singh Vs. State of U.P. and another, 1993 HVD (Alld.) Vol 2, Page 131, wherein it had been held that the Appointing Authority has to apply his mind independently on the recommendation made by the Screening Committee, failing which the order impugned would stand vitiated."

In paragraph 23 and 24 it has been further held as follows :

23. "Undoubtedly, one particular misconduct or adverse entry unless it is of doubtful integrity or involving moral turpitude cannot be the basis of passing the order of compulsory retirement.  The entire service record is to be examined for this purpose.  Inefficiently of an employee may weigh with the authority concerned in coming to the conclusion whether or not the employee should be compulsorily retired and in that case the scope of judicial review is very limited.  If on the perusal of the service book of the employee and file of the Department, the Court comes to the conclusion that the order has been passed by the competent authority in strict adherence to the statutory required, the order cannot be held to be invalid.  (Vide State of Rajasthan and another Vs. Sripal Jain A.I.R. 1963 S.C. 1323).

24. "It is for the competent authority to examine as to whether the Government employee should be retained in service or not, and to be retained in service is not a fundamental right of the employee.  However, a permanent employee has a right to hold the post till he reaches the age of superannuation subject to his remaining fit and efficient and other statutory provisions dealing with the subject.  In such circumstances, efficiency may not be the only criteria; the authority has to consider circumstances other than the question of the efficiency also.  Therefore, it is in the exclusive domain of the Competent Authority to take a decision after assessing the over all service record.  (Kailash Chandra Vs. Union of India, AIR 1961 S.C. 1346; L.Butail Vs. Union of India and others (1970) 2 SCC 876; Gurdial Singh Fiji Vs. State of Punjab and others AIR 1979 S.C. 1622)."

Reference may also be made to the Division Bench judgment of this Court in the case of Kamta Singh Vs. State of U.P. 1993 HVD(Alld.) Vol. II Page 131, Paragraph 6 whereof reads as follows :

"F.R. 56(c) empowers the appointing authority, the State Government in this case, to require the petitioner to retire after attaining the age of fifty years "if it appears to the said authority to be in the public interest."  This provision supposes that the State Government has formed the opinion that it is in the public interest to retire the petitioner compulsorily.  If the decision of the State Government is based merely on the opinion of an extraneous body like the Screening Committee, it cannot be said that the State Government has exercised its jurisdiction in accordance with the said rule.  It is not shown that the Screening Committee is a committee of the Government which has been constituted under the Rules of Business made under Article 166 of the Constitution.  The I.G. Prisons who is not part of the organization known as Government, was also a member of the Screening Committee.  The Screening Committee cannot be regarded as an instrumentality of the Government.  The role of Screening Committee is to assist the State Government and after a careful examination of the relevant materials to report whether there is a prima facie case to require the Government servant concerned to retire compulsorily in public interest.  The function to do so is that of the Government to do so is that of the Government and the order is passed on the subjective satisfaction of the Government.  Subjective satisfaction cannot be a matter of delegation and the satisfaction of the Screening Committee cannot be the satisfaction of the Government.  This is not to say that the law requires a second examination of the materials by the Government, as apprehended by the learned Standing Counsel.  But, circumstances must exist which would indicate that the State Government (or the appointing authority) has itself applied its mind to all the relevant materials and was satisfied that the concerned government servant has become a dead wood and public interest would suffer more by allowing him to continue to perform the duties and functions of his office till superannuation in the normal course and that it is in public interest to order compulsory retirement and that in taking such action it has not merely acted on the basis of the report of the Screening Committee.  We have come to the conclusion after giving out most thoughtful consideration to the facts and circumstances of the present case that the impugned order of compulsory retirement has not been passed by the State Government after applying its mind to all the relevant materials on record.  The impugned order is, therefore, clearly arbitrary, the requisite opinion having not been formed in the requisite manner as required by law, and it is liable to be quashed."

With reference to aforesaid legal principles enunciated, this Court is satisfied, that in the facts of the present case the order of compulsory retirement passed by the District Magistrate dated 12.1.2004 is legally not justified as he has not exercised his jurisdiction in accordance with the Rule 56(c)  and, therefore, is hereby quashed.

Petitioner shall be reinstated in services with all consequential benefits.  It will be open to the appointing authority to take a fresh decision under Fundamental Rule 56(c) qua the petitioner in accordance with law and the observations made hereinabove.  Writ petition is allowed.

Dated: 18.11.2005

V.R.


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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