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1976 DIGILAW 65 (RAJ)

O. P. Gupta v. State of Rajasthan

1976-02-26

D.P.GUPTA

body1976
JUDGMENT 1. - Heard learned counsel for the petitioner. The petitioner, who was holding the post of Professor of Pathology in Sardar Patel Medical College, Bikaner was compulsorily retired from service under Sub-rule (2) of Rule 244 of the Rajasthan Service Rules (hereinafter referred to as "the Rules") by the order of the State Government dated October 17, 1975. The petitioner has challenged the aforesaid order of his compulsory retirement. 2. Learned counsel for the petitioner submitted that while compulsorily retiring the petitioner four adverse entries made in his confidential record were taken into consideration by the Screening Committee. Two of the aforesaid our entries related to the year 1966-67 and 1967-68. Learned counsel contended that those entries should not have been taken into consideration because after the said entries were made, the petitioner was confirmed on the post of Professor of Pathology. In para 2 of the writ petition it has been mentioned that the petitioner was confirmed on the post of Professor of Pathology with effect from June 3, 1967 and as such it does appear that the entry relating to the year 1967-68 could not have been made prior to his confirmation. Of course, the entry relating to the year 1966-67 was in respect of the period prior to the confirmation of the petitioner on the post of Professor of Pathology. 3. Learned counsel for the petitioner relied upon the decisions in Shri J.R. Jain v. Union of India and others, 1973(2) SLR 309 , Shri Shadi Lal v. The Deputy Commissioner Gurgaon and ors., 1974(1) SLR 217 and the State of Punjab v. Dewan Chuni Lal, 1970 SLR 375 in support of his contention that adverse entries made in the service record prior to the order of confirmation should not have been taken into consideration for the purpose of compulsory retirement. So far as the decision of their Lordships of the Supreme Court in Dewan Chuni Lal's case (3) and the decision of Punjab and Haryana High Court in Shadilal's case (2) are concerned, it may be observed that they do not relate to the matter of compulsory retirement, but to the right of consideration for promotion under Article 16 of the Constitution and as such they are not applicable to the facts of the present case. So far as compulsory retirement is concerned, it has been held by their Lordships of the Supreme Court in Union of India v. J.N. Sinha and another, AIR 1971 SC 40 that it is not a punishment and no vested right of a Government servant is taken away by compulsorily retiring him from service after the completion of specified period of service or on attaining a specified age. So far as the decision of the Delhi High Court in J.R. Jain's case (1) I have respectfully disagreed with the view taken in that case while deciding S.B. Civil Writ petition No. 1854 of 1972 Prem Chand Sanghi v. The State of Rajasthan and others decided on May 16, 1975 and have also given detailed reasons in the judgement of the aforesaid case for taking a different view from that taken by the Delhi High Court in J.R. Jain's case (1). It was held in Prem Chand Sanghi's case: "The matter of compulsory retirement cannot be considered on the same basis as that of awarding punishment or making selection for promotion to higher posts on the basis of merit or seniority-cum-merit and it would be wholly unrealistic to hold that once the employee is allowed to cross the efficiency Bar, all punishments awarded to him or adverse remarks made in his character rolls prior there to, are completely wiped out for all purposes." A similar view was also taken by me in S.B. Civil Writ Petition No. 527 of 1974 Manmal v. The State of Rajasthan decided on September 30, 1975 and it was held in that case that the entire service record of the employee concerned should be considered for the purpose of compulsory retirement and that the fact that a person was allowed to cross efficiency Bar could not have affected the consideration of the adverse entries relating to the earlier period. The same view has also been recently taken by Lodha J. in Dr. C.L. Pathak v. The State of Rajasthan, 1976 WLN 1 . A similar view was also held by Shinghal J in Deep Chand Jain v. The State of Rajasthan and others, 1973(1) SLR 994 . The same view has also been recently taken by Lodha J. in Dr. C.L. Pathak v. The State of Rajasthan, 1976 WLN 1 . A similar view was also held by Shinghal J in Deep Chand Jain v. The State of Rajasthan and others, 1973(1) SLR 994 . Thus adverse entries in the service record of the petitioner relating to the years 1966-67 and 1967-68 were rightly taken into consideration by the Screening Committee and the State Government while passing the order of compulsory retirement of the petitioner. 4. The other submission of the learned counsel is that the adverse entry relating to the year 1971-72 could not be taken into consideration as a representation in respect of that entry is still pending with the State Government. I am unable to agree with this contention as well of the learned counsel for the petitioner. Until and unless the concerned adverse entry was not expunged, the Screening Committee and the State Government were entitled to take the same into consideration. Moreover, even on the basis of the adverse entries relating to the years 1966-67 and 1967-68, the Screening Committee and the State Government were entitled to come to the conclusion that the efficiency of the petitioner was impaired or that the petitioner was no longer remained efficient for continuing in Government service. 5. As regards the adverse entry pertaining to the year 1973-74, the argument of the learned counsel is that it was made malafide. I am not impressed with this submission of the learned counsel. The entry relating to the year 1973-74 was duly confirmed by the State Government after consideration of the representation made by the petitioner in that respect. The submission of the learned counsel that the said entry was made by a person junior to the petitioner, can be of no avail to the petitioner as the said entry was ultimately confirmed by the State Government. 6. The next submission made by the learned counsel for the petitioner was that even if one of the adverse entries considered by the Screening Committee and the3 State Government was irrelevant, then the entire order of compulsory retirement of the petitioner would fall. I have already observed above the none of the adverse entries can be said to be irrelevant for the purposes of consideration under Sub-rule (2) of Rule 244 of the Rules. I have already observed above the none of the adverse entries can be said to be irrelevant for the purposes of consideration under Sub-rule (2) of Rule 244 of the Rules. Even if the matter of compulsory retirement was one of subjective satisfaction of the State Government, it has been consistently held that such an order should be based on objective considerations. The records of the proceedings of the Screening Committee and the State Government, relating to the compulsory retirement of the petitioner, were called for by me and they have been placed before me by the learned Additional Government Advocate. From a perusal of the same, I am satisfied that the order of compulsory retirement of the petitioner is based upon objective consideration of the material on record. 7. It was then submitted by the learned counsel for the petitioner that under Rule 244(2) of the Rules only the Government could have passed an order of compulsory retirement of the petitioner. In this connection it may be pointed out that by a notification dated September 19, 1975 the State Government, has delegated the power of compulsory retirement of a Government servant under Sub-rule (2) of Rule 244 of the Rules after completing 20 years qualifying service or on attaining the age of 50 years, to the State Government in the Administrative department. The order of compulsory retirement of the petitioner has been issued by the State Government in the concerned Administrative department, namely the Secretary to the State Government in the Medical and Health Department and it has also been properly authenticated. 8. The last submission made by the learned counsel for the petitioner was that by the amendment dated September 2, 1975 entire rule 244 of the Rules has been substituted for the existing rule and as the 'Note' appended thereto formed part of the aforesaid Rule, it should be held that the 'note' was omitted with the substitution of the new Rule 244. This agreement of the learned counsel also cannot be accepted. The 'note' was originally enacted at the time when Rule 244 was initially made and it continues to remain as such. Only Rule 244(2) has now been submitted by a new sub Rule by the amendment dated September 2, 1975. 9. In view of the aforesaid discussion, there is no force in the writ petition and the same is, therefore, dismissed. *******