H. C. Kaushal v. State of Uttar Pradesh — 1971 DIGILAW 21 (ALL)

ORDER G.C. Mathur, J. - By this writ petition the petitioner has challenged an order of the State Government dated June 1, 1970, compulsorily retiring him from service under Article 465 of the Civil Service Regulations. 2. The petitioner was initially appointed (as ?) Assistant Engineer in 1940 in the Irrigation Department. In 1948 he vas promoted (as ?) Executive Engineer in which post he was confirmed in 1952. In 1957 he was promoted to the post of Superintending Engineer and was confirmed in that post with effect from August 1, 1964. According to the petitioner he was the senior most amongst the confirmed Superintending Engineers. In the year 1967 the Vigilance Department started some enquiry against the petitioner. During the pendency of this enquiry some other confirmed Superintending Engineers were promoted to the posts of Additional Chief Engineers in the Irrigation Department superseding the petitioner. The vigilance establishment ultimately found no substance in the complaints or allegations against the petitioner. Thereafter on November 7, 1969, the petitioner was also promoted as Additional Chief Engineer and posted as Additional Chief Engineer, Gandak Project at Gorakhpur. On April 30, 1970 the petitioner was transferred from Gorakhpur to Lucknow where he took over charge on April 30, 1970. On June 1, 1970 the impugned order of compulsory retirement was passed. It was served on the petitioner the same day and charge was also taken from him on that very day. 3. The petitioner has challenged the impugned order on the following grounds: - 1. That after the passing of the U.P. Fundamental Rule 56 (Amendment and Validation) Act, 1970, Article 465 of the Civil Service Regulations became inoperative and no order of compulsory retirement could validly be passed thereunder. 2. That it was passed mala fide. 3. That the order was passed arbitrarily as there was no material on the basis of which it could reasonably be held that it was in the public interest to compulsorily retire the petitioner. 4. That the impugned order is by way of punishment as it casts a stigma on the petitioner and is invalid as it violates the provision of Article 311 (2) of the Constitution. 4. The decision of the first point depends on the interpretation of Article 309 of the Constitution. This Article reads: - 309. 4. That the impugned order is by way of punishment as it casts a stigma on the petitioner and is invalid as it violates the provision of Article 311 (2) of the Constitution. 4. The decision of the first point depends on the interpretation of Article 309 of the Constitution. This Article reads: - 309. "Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State: Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor ........... of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act." It is not disputed that Article 465 as it obtained in Uttar Pradesh was made by the Governor in exercise of the powers under the proviso to Article 309 and that the U.P. Fundamental Rule 56 (Amendment and Validation) Act, 1970, (hereinafter referred to as the said Act) was made by the U.P. Legislature in exercise of the power under the main part of Article 309. Article 465 of the Civil Service Regulations as it obtained in Uttar Pradesh was in these terms:- 465 "(1) A retiring pension is granted to a Government servant who is permitted to retire after completing qualifying service for twenty-five years, or on attaining the age of 50 years. (2) A retiring pension is also granted to a Government servant who is required by Government to retire, after completing 25 years or more qualifying service. Note: Government retains the right to retire any Government servant after he has completed 25 years qualifying service without giving any reasons, and no claim to special compensation on this account will be entertained. (2) A retiring pension is also granted to a Government servant who is required by Government to retire, after completing 25 years or more qualifying service. Note: Government retains the right to retire any Government servant after he has completed 25 years qualifying service without giving any reasons, and no claim to special compensation on this account will be entertained. The right shall only be exercised by Government in the Administrative Department where it is in the public interest to dispense with the services of a Government servant who has outlived his usefulness." By an amendment by the Governor made under the proviso to Article 309 of the Constitution the words "who has outlived his usefulness" in the note below in Article 465 were deleted in 1964. The proviso to paragraph 56 (a) of the U.P. Fundamental Rules conferred power on the appointing authority to compulsorily retire an officer on his attaining the age of 55 years. This proviso was struck down by a Full Bench of this Court. The said Act was enacted to reintroduce this proviso in a slightly modified form. The argument of Sri Kacker, learned counsel for the petitioner, is that the proviso introduced by the said Act is now a comprehensive Code so far as compulsory retirements of officers in Uttar Pradesh is concerned and, therefore, any rule made by the Governor under the proviso to Article 309 is displaced by it and cannot now be operative. I am unable to accept this contention. The proviso to Article 309 in substance provides that where an Act under the main part of Article 309 is enacted then any rule made under the proviso to Article 309 shall have effect subject to the provisions of such Act. This means that to the extent the Act covers the field the rules will cease to operate. In other words the rules will continue to operate to the extent provision is not expressly made by the Act. If the whole or any part of the rule is inconsistent with the Act then it will cease to operate but if the Act does not touch any rule or part of the rule then it will continue to operate. In other words the rules will continue to operate to the extent provision is not expressly made by the Act. If the whole or any part of the rule is inconsistent with the Act then it will cease to operate but if the Act does not touch any rule or part of the rule then it will continue to operate. The said Act was enacted specifically for the purpose of amending Fundamental Rule 56 and to validate certain actions taken under the proviso to that rule which had been struck down by the Full Bench of this Court. It is to be noticed that under the original proviso as well as under the proviso introduced by the said Act to Fundamental Rule 56 power was conferred on the appointing authority to compulsorily retire a Government servant on his attaining the age of 55 years. Article 465 of the Civil Service Regulations, on the other hand, conferred power on the Government to retire a Government servant on completion 25 year's qualifying service by him. The object of the said Act was only to restore the power of the appointing authority to compulsorily retire a Government servant on his attaining the age of 55 years and the said Act does no more than that. The said Act was not concerned at all with the power of the Government to compulsorily retire a Government servant on completion of 25 year's qualifying service. It thus appears that the said Act is not a comprehensive Code in respect of compulsory retirement of Government servants. It does not cover the field covered by Art. 465 of the Civil Service Regulations and, therefore, this Article continues to operate in spite of the said Act having been enacted. There is thus no force in the first contention. 5. So far as the second point regarding mala fide is concerned, there is really no allegation in the writ petition which may amount to an allegation of mala fides. Most of the allegations in this connection merely say that Sri Charan Singh, Ex-Chief Minister, was in power at all the relevant times when orders adverse to the petitioner were passed by the Government. There is no allegation of personal malice or bias against Sri Charan Singh. Most of the allegations in this connection merely say that Sri Charan Singh, Ex-Chief Minister, was in power at all the relevant times when orders adverse to the petitioner were passed by the Government. There is no allegation of personal malice or bias against Sri Charan Singh. The only allegation against Sri Charan Singh is that Sri P.S. Yog, who was also confirmed Superintending Engineer and who was promoted Additional Chief Engineer before the petitioner came from the same territory as Sri Charan Singh. Even if this allegation be taken to mean that Sri Charan Singh was interested in Sri P.S. Yog, that could not in any way affect the order of compulsory retirement passed against the petitioner on June 1, 1970. Sri P.S. Yog had already superseded the petitioner in the promotion as Additional Chief Engineer. There is nothing on the record to show that Sri P.S. Yog, was to gain any thing by the compulsory retirement of the petitioner. The material on the record falls far short of establishing the charge of mala fides levelled by the petitioner. 6. The next question which arises for consideration is whether the impugned order is arbitrary and not in the public interest. The learned Standing Counsel has contended that once it is held that the order has been passed bona fide, it is not open to the Court to go behind the opinion of the Government that it is in the public interest to compulsorily retire a Government servant. In support of his contention he has relied on two decisions of the Supreme Court. In Union of India v. Col. J. N. Sinha, (1970) 2 Lab LJ 284 : A.I.R. 1971 SC 40 which was the case of a Government servant compulsorily retired under Fundamental Rule 56 (j), the Supreme Court observed:- "Now coming to the express words of Fundamental Rule 56 (j) it says that the appropriate authority has the absolute right to retire a Government servant if it is of 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. 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 is an arbitrary decision." The second is an unreported case, R. L. Butail v. Union of India, Civil Appeals Nos. 1614 to 1616 of 1968, D/d. 8.9.1970. (SC). This was also a case of compulsory retirement under Rule 56 (j) of the Fundamental Rules. In this case the Supreme Court observed:- "It may well be that in spite of the work of the appellant being satisfactory, as he claimed it was, there may have been other relevant factors, such as the history of the appellant's entire service and confidential reports throughout the period of his service, upon which the appropriate authority may still decide to order appellant's retirement under F.R. 56 (j). Further, there is nothing to show that the impugned order was not in public interest. As aforesaid, Col. J.N. Sinha's case clearly lays down that the question as to the correctness of such a decision by the appropriate authority, provided it is bona fide, would not be gone into by this Court." Sri Kacker, learned counsel for the petitioner, has sought to distinguish these two cases on the ground that in these cases the orders of compulsory retirement were challenged only on the grounds of mala fides and not on the ground of the arbitrariness and, therefore, the observations of the Supreme Court that the charge of mala fides having failed, the orders could not be challenged does not rule out an attack on such orders on the ground of arbitrariness. He has further pointed out that in Col. J.N. Sinha's case, (1970) 2 Lab LJ 284 : (A.I.R. 1971 SC 40) the Supreme Court specifically states that such orders can be challenged on the ground of arbitrariness. He has further pointed out that in Col. J.N. Sinha's case, (1970) 2 Lab LJ 284 : (A.I.R. 1971 SC 40) the Supreme Court specifically states that such orders can be challenged on the ground of arbitrariness. I am inclined to agree with Sri Kacker that these two decisions of the Supreme Court do not prevent orders of compulsory retirement from being challenged on the ground of arbitrariness even if the charge of mala fides fails. 7. It has then to be seen whether the petitioner has succeeded in establishing that the impugned order was passed arbitrarily. The main contention of Sri Kacker is that the petitioner having been found fit for promotion to the high post of Additional Chief Engineer in November, 1969, and having been actually promoted to that high post, there was nothing on account of which it became necessary to compulsorily retire the petitioner in the public interest within seven months. According to him no entry whatever was communicated to him within this period and that his earlier record is also without blemish. It does seem very odd that having found the petitioner fit for promotion in November. 1969. the Government thought seven months later that it was in the public interest to compulsorily retire him. But it is not for this Court to sit in judgment over the decision of the Government. If there is any relevant material before the Government upon which such a decision can be reached then this Court cannot strike down that decision as arbitrary. From the counter-affidavit it appears that there had been some adverse entries in the character roll of the petitioner earlier, that he had been on medical leave for about two and a half years before he was promoted to the post of Additional Chief Engineer and in the opinion of the Government the petitioner had not been medically unfit to discharge his duties and that in April 1970 his integrity certificate had been withheld. Sri Kacker has contended that the adverse entries made before the petitioner's promotion to the post of Additional Chief Engineer could not be taken into consideration. Sri Kacker has contended that the adverse entries made before the petitioner's promotion to the post of Additional Chief Engineer could not be taken into consideration. He has further contended that if the Government was of the view that the petitioner was medically fit to join service, it could have called upon the petitioner to do so but it did not do so and, therefore, this factor could also not be taken into account. Lastly he has contended that the entry regarding withholding of integrity certificate was never communicated to the petitioner and he had no opportunity of making a representation against it and, therefore, that entry also could not be taken into account. It also appears that on several occasions the Departmental Promotion Committee selected other persons for promotion to the posts of Additional Chief Engineers in preference to the petitioner. In R. L. Butail's case, Civil Appeals Nos. 1614 to 1616 of 1968, D/- 8-9-1970 (SC) the Supreme Court has observed that it may well be that in spite of the work of the Government servant being satisfactory, there may be other relevant factors such as the history of the Government servant's entire service and his confidential report throughout the period of his service upon which the Government may till decide to order his retirement. Having considered all these matters. I have come to the conclusion, though not without some hesitation, that the decision of the Government that it was in the public interest to compulsory retire the petitioner is not arbitrary. It cannot be said that there was no relevant material before the Government or that no such decision could be arrived at by any person on the basis of the history of the petitioner's entire service record. 8. The last point which remains to be considered is whether the impugned order casts a stigma on the petitioner and whether it is bad on this account. In the State of Uttar Pradesh v. Madan Mohan Nagar, A.I.R. 1967 SC 1260 the Supreme Court has laid down that if an order of compulsory retirement casts an aspersion or attaches a stigma to the officer when it purports to retire him, it amounts to an order of dismissal within the meaning of Article 311 (2) of the Constitution. The question, therefore, is whether the impugned order casts an aspersion or attaches a stigma on the petitioner. The question, therefore, is whether the impugned order casts an aspersion or attaches a stigma on the petitioner. The order is in Hindi and reads:- " floy lfoZl jsxqys'kUl tSlk fd jkT; ljdkj n~okjk vaxhd`r fd;k x;k gS ds vuqPNsn 465 rFkk leLr vU; le;sdkjh micU/kksa ds vUrxZr mUgsa iznRr vf/kdkjksa dk iz;ksx djrs gq;s jkT;iky tufgr esa Jh gfj'pUnz dks'ky vfrfjDr eq[; vfHk;Urk] flapkbZ foHkkx] mRrj izns'k] ftUgksaus 24 o"kZ ls vf/kd vgadkjh lsok iw.kZ dj fy;k gS] dks twu 1]1970 bZ0 vijkUg ls vfuok;Z fuo`r djrs gSaA" The order recites that the Governor retires the petitioner compulsorily in the public interest. The petitioner contends that the recital that it was in the public interest to compulsorily retire him casts a stigma upon him. I am inclined to agree with him. Madan Mohan Nagar's case, A.I.R. 1967 SC 1260 is also a case of compulsory retirement under Article 465 of the Civil Service Regulations as it was in force in U.P. before the amendment of 1964. In the order of his compulsory retirement it was mentioned that he had completed the requisite period of qualifying service and had outlived his utility. The Supreme Court held that the use of the words "has outlived his utility" cast a stigma on the Officer and, therefore, the order amounted to one of dismissal. The Supreme Court observed: - "In the present case there is not only no question of implication but a clear statement appears on the face of the order that the respondent had outlived his utility, in other words, it is stated that he was incapacitated from holding the post of Director, State Museum, Lucknow. The order clearly attaches a stigma to him and any person who reads the order would immediately consider that there is something wrong with him or his capacity to work." In this case the Supreme Court held that the principle laid down in Jagdish Mitter v. Union of India, A.I.R. 1964 SC 449, which was a case of termination of service, applied to the case of compulsory retirement also. The order of termination of service of Jagdish Mitter stated that it had been found undesirable to retain him in Government service and, therefore, he was discharged from service. The order of termination of service of Jagdish Mitter stated that it had been found undesirable to retain him in Government service and, therefore, he was discharged from service. The Supreme Court observed in that case:- "No doubt the order purports to one of discharge and as such can be referred to the power of the authority to terminate the temporary appointment with one month's notice. But it seems to us that when the order refers to the fact that the appellant was found undesirable to be retained in Government service, it expressly casts a stigma on the appellant and in that sense must be held to be an order of dismissal and not a mere order of discharge." It was further observed in Jagdish Mitter's case:- "It seems that anyone who reads the order in a reasonable way, would naturally conclude that the appellant was found to be undesirable, and that must necessarily import an element of punishment which is the basis of the order and is its integral part. When an authority wants to terminate the services of a temporary servant, it can pass a simple order of discharge without casting any aspersion against the temporary servant or attaching any stigma to his character. As soon as it is shown that the order purports to cast an aspersion on the temporary servant, it would be idle to suggest that the order is a simple order of discharge. The test in such cases does the order cast aspersion or attach stigma to the officer when it purports to discharge him ? If the answer to this question is in the affirmative, then notwithstanding the form of the order, the termination of service must be held, in substance, to amount to dismissal." The recital in the impugned order that the petitioner was compulsorily retired in the public interest necessarily implies that public interest would suffer if he was not compulsorily retired. This can only mean that there is some thing wrong with the petitioner or in his capacity to work. To say that it is in public interest to compulsorily retire an officer is as damaging to his reputation as saying that he has outlived his utility or that it has been found undesirable to retain him. This can only mean that there is some thing wrong with the petitioner or in his capacity to work. To say that it is in public interest to compulsorily retire an officer is as damaging to his reputation as saying that he has outlived his utility or that it has been found undesirable to retain him. I can see no real distinction between the case of the petitioner and the cases of Madan Mohan Nagar, A.I.R. 1967 SC 1260 and Jagdish Mitter, A.I.R. 1964 SC 449. I am, therefore, of the opinion that the impugned order casts a stigma on the petitioner and, therefore, amounts to an order of dismissal within meaning of Article 311 (2) of Constitution. Since the order was passed without complying with the provisions of Article 311 (2) of the Constitution, it is illegal and has to be struck down. 9. The writ petition is accordingly allowed and the impugned order of compulsory retirement dated June 1, 1970, Annexure `B' to the writ petition, is quashed. The petitioner is entitled to the posts of this petition from respondent No. 1.