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Allahabad High Court · body

1975 DIGILAW 250 (ALL)

Bishesh Chandra v. State of U. P.

1975-04-28

K.N.SINGH

body1975
ORDER K.N. Singh, J. - This petition is directed against the order of the State Government dated 6th November, 1973, issued under Note I to Article 465 of the Civil Service Regulations compulsorily retiring the petitioner from Government service by offering him three months salary in lieu of period of notice. 2. In July, 1948, the petitioner joined Government service as Assistant Sales Tax Officer. In October, 1954, he was promoted to the post of Sales Tax Officer. In 1958 he was allowed to cross efficiency bar. His work and conduct as Sales Tax Officer was not found satisfactory as certain complaints were received against him. The State Government by its order dated 1st May, 1971, reverted the petitioner from the post of Sales Tax Officer to his substantive post of Assistant Sales Tax Officer. The petitioner filed a writ petition No. 355 of 1973 before this Court challenging his reversion. That writ petition was dismissed on 31st March, 1975, as during the pendency of the writ petition the petitioner was again promoted to the post of Sales Tax Officer by an order dated 24th November, 1972. While the petitioner was working on the post of Sales Tax Officer the State Government issued the impugned order dated 6th November, 1973, retiring the petitioner compulsorily from service under Note I to Article 465 of the Civil Service Regulations. The petitioner has challenged that order in the present petition. 3. Article 465 of the Civil Service Regulations was amended by the Governor in November, 1973. After the amendment the Article reads as under : "465 (1) A retiring pension is granted to a Government servant who is permitted to retire after completing qualifying service for 25 years or attaining the age of 50 years. (2) A retiring pension is also granted to a Government servant who is permitted to retire after completing qualifying service for 25 years or on attaining the age of 50 years. Note - The Governor may at any time without assigning any reason require any Government servant to retire on three months notice or pay in lien of the whole or part thereof, after he attained the age of 50 years and no claim to special compensation on this account shall be entertained. Such decision shall be taken by the Government in the administrative department if it appears to be in the public interest. Such decision shall be taken by the Government in the administrative department if it appears to be in the public interest. In the case of pay being given in lieu of the whole or part of such notice the said period shall stand added to the Government servant qualifying service. For the purpose of calculating the pension and death-cum-retirement gratuity due to him and for no other purpose." The Note read with clause (1) of Article 165 confers wide powers on the Government to retire any Government servant by giving him three months notice or pay in lieu thereof after the Government servant attains the age of 50 years. The decision to retire a Government servant is to be taken in the administrative department if it appears to be necessary in public interest. After the aforesaid amendment the Government issued an order dated 2nd November, 1973 addressed to all the Heads of Department laying down guiding principles which were required to be followed in exercising the powers under Note I of Article 465 of the Civil Service Regulations. A copy of the Government order has been filed as Annexure 7, to the supplementary affidavit. Paragraph 2 of the Government Order lays down that ordinarily action under Note I to Article 465 should be taken only against such officers whose integrity is doubtful or whose work and conduct has deteriorated to such an extent that there is no further possibility of improvement in their work. The order directed that the power to retire a Government servant should be exercised in public interest and no reasons therefor need be recorded in the order itself. Paragraph 5 of the order indicates that in those cases in which the Governor was the appointing authority a Screening Committee was contemplated for scrutiny of all the officers who may have attained the age of 50 years, or 55 years to consider the question of their further retention in service. 4. Paragraph 5 of the order indicates that in those cases in which the Governor was the appointing authority a Screening Committee was contemplated for scrutiny of all the officers who may have attained the age of 50 years, or 55 years to consider the question of their further retention in service. 4. In the counter-affidavit filed by Vinod Kumar, an Upper Division Assistant, Finance (Sales Tax I) Department, it has been asserted that after the issue of the Government Order dated 2nd November, 1973, State Government appointed a high power screening committee consisting of the Secretary, Finance Department, Secretary, Information Department and Cultural Affairs, Commissioner, Sales Tax, U.P. and Special Secretary, Finance Department, was appointed to scrutinise the character rolls of the Sales Tax Officers in order to ascertain whether they should be retained in service or not. The Screening Committee scrutinised the character roll entries of all the Sales Tax Officers who had either completed 50 or 55 years of age. The Committee scrutinised the character roll of the petitioner and considered his work and performance and thereafter it was of the opinion that the petitioner should be compulsorily retired as there was no possibility of any improvement in his work. Since the State of Uttar Pradesh was under President's rule, the recommendations made by the Screening Committee were considered by Sri B.B. Lal ICS, the then Adviser to the Governor. The Adviser on perusal of the petitioner's record of service agreed with the recommendations of the Screening Committee, he also perused the entries in the petitioner's character roll for the year 1972-73, thereafter he recommended to the Governor that the petitioner's retention in service was net in public interest. It was only thereafter that the impugned order retiring the petitioner compulsorily from service under Note I to Article 465 of the Civil Service Regulations was issued. 5. Sri S.C. Khare, learned counsel for the petitioner urged that the impugned order has been passed arbitrarily and the opinion that the petitioner's retirement was in public interest was not formed bona fide and further the opinion was based on irrelevant considerations. This submission is seriously contested by the learned Standing Counsel. It is urged that the petitioner's work and conduct throughout his career was highly unsatisfactory and a large number of adverse entries were awarded to him. This submission is seriously contested by the learned Standing Counsel. It is urged that the petitioner's work and conduct throughout his career was highly unsatisfactory and a large number of adverse entries were awarded to him. The entries as contained in the petitioner's character roll from the year 1961-62 to 1972-73 have been annexed to the counter-affidavit of Vinod Kumar. I do not consider it necessary to reproduce the entire character roll entries. Suffice it to say that the petitioner was awarded adverse entries for the years 1961-62, 1962-63, 1963-64, 1964-65, 1965-66, 1968-69, 1970-71 and 1972-73. Thus during the last ten years of his service the petitioner was awarded eight adverse entries, which show that the petitioner's work and conduct was not satisfactory. Most of the entries indicate that the petitioner was negligent in his work and did not make any effort to achieve any improvement in performance of his duties. As already noted the petitioner had been reverted from the post of Sales Tax Officer to his substantive post of Assistant Sales Tax Officer in May, 1971, but later on in November, 1972, he was promoted to the post of Sales Tax Officer and thus he was given an opportunity to improve his work and conduct, but while he was working as Sales Tax Officer he was again awarded adverse entry in the year 1972-73 which was to the effect that even though the petitioner was an experienced officer, his work was not effective. He failed to take effective steps to recover arrears of sales tax. Thus on an overall assessment of the petitioner's work and conduct during the last ten years of his service, it is difficult to accept the petitioner's contention that the impugned order was passed arbitrarily or that the order was issued on irrelevant considerations. The character roll entries as annexed to the counter-affidavit clearly indicate that the petitioner's work and conduct was most unsatisfactory and his work and performance was poor. For these reasons, I find no merit in the petitioner's contention. 6. Learned counsel for the petitioner urged that the Government order dated 2nd November, 1972, laid down a principle that only those officers should be retired whose work and conduct may have deteriorated to such an extent that there was no possibility of any improvement. The principle was however not followed in the instant case. 6. Learned counsel for the petitioner urged that the Government order dated 2nd November, 1972, laid down a principle that only those officers should be retired whose work and conduct may have deteriorated to such an extent that there was no possibility of any improvement. The principle was however not followed in the instant case. It is urged that the petitioner was promoted to the post of Sales Tax Officer in November, 1972, but within a year he was compulsorily retired although there was nothing on record to show that the petitioner's work and conduct had deteriorated to such an extent that there was no possibility of any further improvement. It is true that the Government order dated 2nd November, 1972, laid down principles for the guidance of the authorities concerned in exercising the power under Note I to Article 465. But in the instant case that principle has not been violated. As already noted the petitioner was promoted to the post of Sales Tax Officer in October, 1954 and in 1958 he was allowed to cross the efficiency bar but his performance was not satisfactory on that post and there were several complaints against him. Therefore he was reverted to the post of Assistant Sales Tax Officer. Subsequently, the petitioner was again promoted to the post of Sales Tax Officer in November, 1972, and while working on that post the petitioner failed to show any improvement in performance of his work and duties as would be clear from a perusal of the entry awarded to him for the year 1972-73. The entry of 1972-73 and the character roll entries of the earlier years clearly indicate that there was no possibility of any improvement in the petitioner's work and conduct. I am therefore of the opinion that the guiding principles laid down by the Government order dated 2nd November, 1972, were not violated and the impugned order was passed in accordance with those principles. Learned counsel for the petitioner urged that the petitioner was allowed to cross second efficiency bar by an order dated 1st October, 1970, as a result of which whatever entries adverse to the petitioner were made in his character roll stood waived, and any entry prior to 1st October, 1970, could not be taken into account. I find no substance in this contention. I find no substance in this contention. Article'465 contemplates that the decision to retire a Government servant on his attaining the age of 50 years should be taken on an over all assessment of his work and performance in service. A perusal of the counter-affidavit shows that the petitioner was due to cross efficiency bar with effect from 1st April, 1968, and by an order dated 21st October, 1970, the petitioner was allowed to cross his efficiency bar with effect-from 1st April, 1968. Even thereafter the petitioner earned adverse entries to his credit and there was no improvement in his work and conduct. Even if the entries for the years prior to 1968 are ignored and if the entries for the subsequent years are taken into account the impugned order is sustainable as even after 1968 the petitioner failed to show any improvement in his work. In the circumstances the petitioner's contention must fail. 7. Learned counsel further urged that there are two provisions for retiring a Government servant prematurely, one is contained in fundamental Rule 56(a) and the other is contained in Article 465 of the Civil Service Regulations. The authorities concerned are free to take action against a Government servant under either of the two provisions without there being any guiding principles for the same. Therefore, the provision is hit by Article 14 of the Constitution. Further Note I to Article 465 does not lay down any guiding principles for exercising the powers conferred upon the authorities concerned. Hence Note 1 was violative of Article 14 of the Constitution. These two very contentions were raised before me in the case of Gauri Shanker v. State of U.P., (1973 Lab IC 1054 (All)). On a detailed discussion I repelled the contentions and upheld the validity of Note I, to Article 465. Gauri Shankar's' case was affirmed by a Division Bench in Special Appeal No. 56 of 1972, decided on 3rd October, 1972. Moreover, the State Government by its order dated 2nd November, 1972, laid down guiding principles for the guidance of the authorities concerned in exercising the powers under Note I to Article 465 of the Civil Service Regulations. I, therefore, find no substance in the petitioner's contention. 8. Lastly, learned counsel for the petitioner urged that the entry awarded against him for the year 1972-73 was not communicated to him. Therefore, he could not make any representation. I, therefore, find no substance in the petitioner's contention. 8. Lastly, learned counsel for the petitioner urged that the entry awarded against him for the year 1972-73 was not communicated to him. Therefore, he could not make any representation. The State Government was not entitled to take that entry into consideration unless an opportunity was afforded to the petitioner to make representation. Further he had made representation against the earlier adverse entries but the same had not been decided before the issue of the impugned order. Similar arguments were repelled by a Division Bench in State of Uttar Pradesh v. B.S. Saxena, 1971 All LJ 911 = (1971 Lab IC 1456). Further, I myself took a similar view in Gauri Shanker's case (1973 Lab IC 1054 (All)) which was affirmed by a Division Bench in special appeal. I am, therefore, of the opinion that even if the adverse entry of 1973 was not communicated to the petitioner or if his representation was pending against certain adverse entries, the impugned order of compulsory retirement is not rendered invalid. 9. In view of the above discussion, I do not find any illegality in the impugned order. The petition fails and is accordingly dismissed, but there will be no order as to costs.