N. M. LINGE GOWDA v. STATE OF KARNATAKA — 1980 DIGILAW 247 (KAR)

( 1 ) LEGALITY of an order of premature retirement made under Note 1 to Rule 285 of the Karnataka Civil Service rules by the State Government is challenged by an Ex-Regional Deputy director of Animal Husbandry and veterinary Services of the State Government, in this writ petition. ( 2 ) DURING the year 1975 the petitioner was worthing as Regional Deputy Director of Animal Husbandry. His date of birth is 6-8-1923. In accordance with the normal Rules of retirement under Rule 95 of the Karnataka Civil Services rules (hereinafter referred to as the 'rules') the petitioner was due to retire on 31st August 1978 after attaining the age of 55 years, on 6-8-1978. Note 1 to Rule 285 of the Rules empowers the State Government to retire a civil servant prematurely if in its opinion such premature retirement in the case of the concerned civil servant is considered necessary in public interest. By notification dated 22nd October 1975 issued under Note 1 to Rule 285 of the rules, the petitioner was prematurely retired from service. ( 3 ) SRI B. M. Chandrashekharaiah, learned counsel appearing for ' the petitioner, urged the following contentions in support of the prayer made in the petition:- (1) The impugned order of retirement is arbitrary and capricious. (2) As the impugned order was made on the basis of uncommunicated adverse confidential remarks and that too made by an officer who had held a departmental enquiry against the petitioner in which he was exonerated violated the principles of natural justice. ( 4 ) IN support of the first contention, the submission made on behalf of the petitioner was as follows: - the petitioner was promoted as senior Assistant Director on 26-12-71. He was further promoted as Regional deputy Director which is a Class I senior post on 28th January 1975 (vide exhi-A ). No adverse remarks had ever been communicated to the petitioner. Therefore, it should be presumed that there was nothing adverse in the confidential reports pertaining to the petitioner. Having found the petitioner fit for promotion to a Senior class I post as late as in January 1975, it was impossible for the Government to hold that the petitioner's continuation in service was opposed to public interest in October 1975. Therefore, it should be presumed that there was nothing adverse in the confidential reports pertaining to the petitioner. Having found the petitioner fit for promotion to a Senior class I post as late as in January 1975, it was impossible for the Government to hold that the petitioner's continuation in service was opposed to public interest in October 1975. ( 5 ) IN the statement of objections filed on behalf of the respondents it is stated as follows: the averment of the petitioner that he was promoted as Senior Assistant director in due course with effect from 21-12-1971 is not correct. His case had not been considered for promotion earlier in the year 1971. A special report was obtained about his work. Thereafter, he was promoted as Senior assistant Director on 21-12-1971 after the Departmental promotional Committee reconsidered his case for promotion. On the question of his claim fqr original seniority in the cadre of Senior Assistant Directors above his juniors who were promoted earlier, he had filed WP No. 38 of 1974. That writ; petition was allowed on 8-8-1974 and it was held that as his case was not superseded earlier in the year 1971 when his juniors were promoted, but had only been deferred, his seniority in the cadre of Senior Assistant Director should be fixed above his juniors. In compliance with the orders of this court in WP No. 38 of 1974 the case of the petitioner was considered and he was promoted as Regional deputy Director on 28-1-1975. The record of service had been considered by the Screening committee constituted by the Government. The Committee recommended premature retirement of the petitioner. The Government accepted the recommendation and retired the petitioner. The retirement is made in public interest. Therefore, it cannot be termed as arbitrary and capricious. ( 6 ) IN, particular, about the submission made on behalf of the petitioner that as he had been promoted as late as in January 1975 to the post of regional Deputy Director he could not have been selected for premature retirement in October 1975 on the basis of his alleged! Therefore, it cannot be termed as arbitrary and capricious. ( 6 ) IN, particular, about the submission made on behalf of the petitioner that as he had been promoted as late as in January 1975 to the post of regional Deputy Director he could not have been selected for premature retirement in October 1975 on the basis of his alleged! antecedent records, in para 15 of the statement of objections, it is stated as follows:"in the course of the argument a,t one stage, it has been contended on behalf of the petitioner that since he has been promoted a,s Deputy director just before the order of compulsory retirement, there was absolutely no justification for his compulsory retirement, is not tenable. For the purpose of considering whether a person has to be retained in service or not, the Government is the best judge. The Government, on consideration of all the records of the petitioner, found that he was liable to be retired in public interest. It has been already stated as to how the petitioner came to be promoted as deputy Director which was on the basis of the direction issued in the earlier writ petition filed by him. The mere fact that the promotion came to be made a little earlier than the order of compulsory retirement does not vitiate the order of compulsory retirement," on the basis of the plea taken in the statement of objections Sri B. B. Mandappa, learned High Court Government Pleader appearing for the respondents, submitted tha,t there is no substance in the contention of the petitioner that the retirement was illegal and arbitrary. He also, submitted that there is no force in the contention urged for the petitioner that uncommunicated adverse remarks could not be relied on in considering the case for premature retirement under note 1 to Rule 285 of the Rules. He also added that as the adverse confidential reports were made by y. B. Raja in discharge of his duties as a superior officer, it was a relevant material to be relied on, unless the same had been expunged on an appeal by the petitioner He also produced the original records which ultimately resulted in the premature retirement of the petitioner. ( 7 ) WITHOUT prejudice to his submissions on merits, with reference to the contentions urged for the petitioner, learned counsel for the respondents also submitted that the writ petition is liable to be dismissed in limine pn the ground of delay and laches on the part of the petitioner. ( 8 ) IN my view, the contention urged for the petitioner that as the petitioner had been promoted to the cadre of regional Deputy Director which was a senior Class I post as late as in Jan-1975, the Government could not have come to the conclusion in October 1975 that the continuance of the petitioner in the services of the State Government was opposed to public interest is sound, as the decision is highly inconsistent with the promotion given to him to a senior class I post in January 1975, as there is no confidential report regular or special found in the records made after the date of the promotion of the petitioner indicating, any subsequent deterioration of his efficiency or lack of integrity. Further it is pertinent to note that the authority competent to make and which ordered the promotion of the petitioner to the cadre of Regional Deputy Director was not any lower authority but the State government itself. Therefore, in the absence of any subsequent adverse service record it is difficult to appreciate how the Govt. could have reasonably formed an opinion that his continuance in service was opposed to publicinterest and directed his premature retirement in October 1975. The contention urged for the petitioner receives full support from the decision of the Supreme Court in Swami Saran saksena v. State of UP, AIR 1980 SC 269 . In the said case, the appellant had been allowed to cross the Efficiency Bar a few months before he was prematurely retired under similar rules. The supreme Court set aside the retirement order. The relevant portion of the judgment reads as follows:"the contention which has found favour with us is that on a perusal of the material on the record and having regard to the entries in the personal file and character roll of the appellant, it is lot possible reasonably to come to the conclusion that the compulsory retirement of the appellant was called for. This conclusion follows inevitably from the particular circumstances, among others, that the appellant was found worthy of being permitted to cross the second Efficiency Bar only a few months before. Ordinarily, the court does not interfere with the judgment of the relevant authority on the point whether it is in the public interest to compulsorily retire a Government servant. And we would have been even more reluctant to reach the conclusion we have, when the impugned order of compulsory retirement was "made on the recommendation of the High court itself. But on the material before us we are unable to reconcile the apparent contradiction that although for the purpose of crossing the second Efficiency Bar the appellant was considered to have worked with distinct ability and with integrity beyond question, yet within a few months thereafter he was found so unfit as to deserve compulsory retirement. The entries in between in the records pertaining to the appellant need to be examined and appraised in that context. There is no evidence to show that suddenly there was such deterioration in the quality of the appellant's work or integrity that -he deserved to be compulsorllyetired. For all these reasons, we are of opinion that the order of compulsory retirement should be quashed. The appellant will be deemed to have continued in service on the date of the impugned order. (underlining (italics) is mine) ( 9 ) THE case of the petitioner is a much stronger one. He had been promoted and appointed to a senior Class I post in January 1975. As pointed out earlier, there is nothing in the records pror duced on behalf of the respondents to indicate that there were any adverse reports about his conduct or integrity between January 1975 and October 1975. Therefore, there is no other alternative than to characterise the decision of the State Government to retire him prematurely as capricious and arbitrary. ( 10 ) THE original records produced also disclosed another serious infirmity in the decision taken by the State government to prematurely retire the petitioner. The recommendation of a Screening Committee consisting of the Secretary and the Deputy Secretary to the Government, Agriculture and Animal Husbandry Department; and the Director, Department of animal Husbandry ana Veterinary services, is found at pages 15 to 17 of the original records. The recommendation of a Screening Committee consisting of the Secretary and the Deputy Secretary to the Government, Agriculture and Animal Husbandry Department; and the Director, Department of animal Husbandry ana Veterinary services, is found at pages 15 to 17 of the original records. The recommendation made in so far as it relates to the petitioner is contained at page 16. It reads as follows:"the C. Rs. of this officer consistently contain adverse observation. He is reported to be highly communal and his dealings negotiable. He is said to work up pressures in the name of community for his selfish ends and would not hesitate to stoop to any level for this purpose. The officer's tactlessness and discourtesy are commonly noticed year after year his dealings with subordinates are not good and he is in the habit of teasing them and undertaking tours unnecessarily. His behaviour is said to be erratic. His relations with the public are not satisfctory. The Committee feels that with these shortcomings, the officer will not be able to discharge his duties efficiently. "a reading of the recommendation indicates that the confidential report of the Officer is consistently bad. The records however disclosed that severe condemnation of the conduct and integrity of the petitioner adverted to in the report of the screening committee is found in the annual confidential report of the petitioner, for the year 1972 written by the then regional Deputy Director Y. B. Raja. on 18-2-1973. In all the other reports there were several good reports about the petitioner which the Committee has failed to take into consideration. The good reports which were omitted to be taken into consideration may be summarised as follows:-"for the year 1972 there are three reports. The first report is for the period commencing from 15-7-1972 to 31-12-1972. The remarks of the reporting Officer is as follows: 'he is sincere and hard working and is conversant with rules but at times erratic in behaviour. ' the Head oi the Department while affixing its counter-signature to the report stated as follows: - 'capable of discharging his duties with responsibility and can be considered for promotion. "for the year 1972 itself there is another report written by the Deputy commmissioner, Mandya, District, which also contains the cqunter- signing remarks of the Director of animal Husbandry and Veterinary services. "for the year 1972 itself there is another report written by the Deputy commmissioner, Mandya, District, which also contains the cqunter- signing remarks of the Director of animal Husbandry and Veterinary services. It reads: 'a knowledgeable and painstaking officer who has maintained good relations with the public. Hq is also tactful and courteous. ' countersigning remarks of the head of the Department reads as follows: 'discharges his duties with a sense of responsibility. " for the year 1973 the manner in which the Officer discharged his duties was said to be satisfactory. He was also certified to be impartial. The adverse remarks against him is that he was lacking in patience and tact. The general remarks made by the Reporting Officer reads as follows: - 'sincere in work but erratic in behaviour. " the Head of the Department did not make any remarks. For the year 1974, it is certified that he had good knowledge of the subject. But his behaviour with his subordinates was not gopd-teasing. Takes up unnecessary tours. However, the Reporting Officer added, he is a 'man of integrity'. The Deputy commissioner, Mandya, to whom the report was forwarded remarked as follows:- 'his work was satisfactory. ' remarks made by the Head of the department are as follows: 'his work is satisfactory. ' 'honest. A reading of the confidential reports for the years 1972 to 1974, excluding the confidential report written by y. B. Raja, which was for the year 1972 in which year the petitioner had two other good reports indicates that except lack of patience and tactlessness he was generally certified to be an 'honest and Sincere' Officer and his work was also certified to be satisfactory. The opinion expressed by the head of the Department for 1972 itself was that the petitioner was a capable officer and should be considered for promotion. In particular the latent opinion of the Head of the Department recorded for the year 1974 was that his work was satisfactory and that he was honest. Obviously, all these reports must have been taken, into consideration in adjudging his suitability for promotion to the post of regional Deputy Director in January 1975 by the State Government. The state Government formed an opinion to the effect that he was fit to occupy and discharge the duties of that higher post as late as in January 1975. Obviously, all these reports must have been taken, into consideration in adjudging his suitability for promotion to the post of regional Deputy Director in January 1975 by the State Government. The state Government formed an opinion to the effect that he was fit to occupy and discharge the duties of that higher post as late as in January 1975. The screening Committee has not at all adverted to any one of the good reports in favour of the petitioner or to his promotion in January 1975. Any consideration for the purpose of premature retirement under Note 1 to Rule 285, to be considered as just and fair, must take into account both the plus and minus points in favour or against the concerned civil servant and the conclusion must be reached on an overall consideration of the entire record of service. The recommendation of the Screening Committee made on a consideration of the adverse remarks only qmitting the good reports and in particular considering the adverse remarks of reporting officers ignoring the good opinion Consistently expressed by the Head of the Department has to be characterised as unfair and arbitrary. The recommendation of the Screening Committee dated 3-10-1975 was approved by the State Government on 18-10-1975 as disclosed from page 6 para 23 of the Minutes of the Secretariat file which merely states 'approved'. Thus, it is clear, the approval was also accorded by the Government without considering the good records of the petitioner and without noticing his promotion to the cadre of Regional Deputy director in January 1975. The non-consideration of relevant materials and circumstances which were in favour of the petitioner is an additional reason to hold that the decision taken to retire the petitioner prematurely was capricious and arbitrary. ( 11 ) AS I have come to the conclusion that the decision taken to prematurely retire the petitioner was capricious and arbitrary, it is sufficient to set aside the order of compulsory retirement (See: Union of India v. J. N. Sinha, AIR 1971 SC. 40 , para 8. I consider it unnecessary to examine the second contention urged for the petitioner viz. , that consideration of uncommunicated adverse confidential reports of the year 1972, written by an officer who had held departmental enquiry earlier in which the petitioner was exonerated by the Government, violated the principles of natural justice. 40 , para 8. I consider it unnecessary to examine the second contention urged for the petitioner viz. , that consideration of uncommunicated adverse confidential reports of the year 1972, written by an officer who had held departmental enquiry earlier in which the petitioner was exonerated by the Government, violated the principles of natural justice. ( 12 ) THE learned counsel appearing for the respondents, however, insisted that the petition is liable to be dismissed on the ground of delay and laches on the part of the petitioner. The impugned order of retirement was made on 22-10-1975. Thereafter, the petitioner had made representation for reconsideration. The State Government itself had constituted a Screening Committee to review the representations of all such officials who had been retired under Note I to Rule 285 of the Rules. In fact, several similar writ petitions filed earlier in the year 1975 were dismissed in limine by this Court on the ground that the petitioners in those cases had not exhausted alternative remedy provided by the Government by appointing a Screening Committee. The representation of the petitioner for reconsideration was rejected only on 17th february 1977 (vide Ext. 'd') The writ petition was presented on 29-8-1978. Therefore, there is force in the contention urged for the respondents that there has been considerable delay on the part of the petitioner in approaching this court. The explanation furnished by the petitioner is that he had made a representation to the Shah Commission and the said representation was forwarded by the Shah Commission to the chief Secretary suggesting that the matter may be looked into by the Government at an appropriate level as per communication dated 15-2-1978 (Ext- f ). Thereafter, the petitioner presented this writ petition in August 1978. It is true that the time spent by the petitioner in awaiting the outcome of the representation made to the Shah Commission cannot be considered as legitimate as that was not a remedy provided under the Rules regulating the conditions of service of the petitioner. Taking the extent of delay and all the facts and circumstances into consideration, including the fact that the petitioner would suffer by way of receiving reduced pension every month throughout his life, I am of the opinion that this is not a case in which the relief should be denied in its entirety on the ground of delay. Taking the extent of delay and all the facts and circumstances into consideration, including the fact that the petitioner would suffer by way of receiving reduced pension every month throughout his life, I am of the opinion that this is not a case in which the relief should be denied in its entirety on the ground of delay. In my opinion it is reasonable to hold that the delay and laches on the part of the petitioner disentitles him to the relief to the extent of the difference of salary from the date of his premature retirement till the date on which he would have, in the normal course retired from service. ( 13 ) FOR the reasons aforesaid I make the following Order: - (i) The impugned order of retirement,dated 22-10-197. 5 (Ext.-C) is quashed. (ii) The petitioner shall be entitled to all the consequential benefits except the difference between the amount of pension he has drawn and the salary, from the cate of his premature retirement till 31-8-1978. (iii) No costs. --- *** --- .