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Allahabad High Court · body

1990 DIGILAW 949 (ALL)

Prem Shanker Jauhari v. District Magistrate, Lakhimpur Kheri

1990-10-22

S.N.SAHAY

body1990
ORDER S.N. Sahay, J. - This writ petition is directed against an order of compulsory retirement contained in Annexure 1. The petitioner Prem Shanker Jauhari, was appointed as an Paid Apprentice in the Collectorate Lakhimpur Kheri with effect from June, 27, 1949. He was appointed as Copyist on June 28, 1949 and was confirmed on Sept. 7, 1950. He worked on various posts until he was transferred to the post of Revenue Assistant, where he worked till January 2, 1989. He proceeded on Medical Leave on January, 3, 1989. The impugned order of compulsory retirement was passed by District Magistrate Lakhimpur Kheri, opposite party No. 1 in his capacity as appointing authority on January 5, 1989 under fundamental Rule 56(c). The said order purports to have been passed in public interest and it is provided therein that the petitioner would retire from the afternoon of the date of order and would be entitled to a sum equivalent to three months pay and allowances at the rate drawn by him immediately before the above mentioned order. 2. It is urged on behalf of the petitioner that the impugned order is arbitrary and illegal and is liable to be set aside. The counter-affidavit filed on behalf of the opposite parties shows that an adverse entry was made against the petitioner for the year 1985-86. He took charge of the post of Revenue Assistant on May 17, 1988 and worked on that post till January 2, 1989. His work on the said post was found to be unsatisfactory. A surprise inspection was made by the Office Superintendent on Nov. 30, 1987 and May 20, 1988 but no compliance report was submitted by the petitioner till the next inspection made by the Officer In charge on Sept. 30, 1988. The petitioner stated in his explanation that he was perturbed due to the death of his wife and family problems. It is accordingly asserted in the counter affidavit that on account of the petitioner's personal problems and indifference to work, it was not proper in the interest of work to retain him in service and, therefore, the impugned order was passed against him. 3. It appears that the adverse entry made against the petitioner for the year 1985-86 constitutes the only material which can be pleaded in justification of the impugned order. 3. It appears that the adverse entry made against the petitioner for the year 1985-86 constitutes the only material which can be pleaded in justification of the impugned order. The said entry which has been reproduced in the order of the Commissioner, Lucknow Division, contained in Annexure 4 to the writ petition, rejecting the representation made by the petitioner against the entry, may be quoted as under :- " ,d vkSlr ntZ dk deZpkjh gS fpUgs vius dk;ksZa esa dksbZ :fp ugha gSA vusdksa ckj lkIrkfgd cSBdksa esa dgus ij Hkh rglhyksa ds laxzg dk;Z ds lkekU; rFkk vkdfLed fujh{k.k ugha fd;s dsoy eksgEenh vkSj yNheiqj rglhy ds ekpZ 1986 esa nks fujh{k.k fd;sA v/khuLFk LVkQ ij dksbZ fu;a=.k ugha jgk vkSj u mUgs ekxZ n'kZu fn;k QyLo:i fjdojh LvhZfQdsVksa dh fLFkfr vLi"V gSA budh mnklhurk rFkk drZO; foeq[krk ds dkj.k gh laxzg vehuksa ds LFkkbZdj.k] n{krkjksd] pfj= iaftdkvksa ds j[k&j[kkvksa vkSj lsysD'ku xzzsM ds dk;Z esa dksbZ izxfr ugha gqbZA ftykf/kdkjh dks eq[; jktLo ys[kkdkj ds ek/;e izLrqr i=koyh vkSj dkxtkrksa esa Jh tkSgjh dk ;ksxnku 'kwU; jgkA cSBdksa esa Hkh fdlh fo"k; dh rS;kjh djds ugha vkrs gSA " 4. The aforesaid entry is to the effect that the petitioner is an average worker. It is not of such a nature as to indicate that the petitioner has ceased to be useful for transaction of public work and for being retained in service. The entry may not be examined on merits by the Court as an appellate authority in order to find out whether the entry is justified or not and should be maintained or expunged. But where a question is raised as to whether a reasonable person can draw an inference from the entry with regard to the unsuitability of the Government servant for retention in service, the Court is bound to consider and to determine the effect of the entry as it stands. Thus, the entry referred to above, does not lead to reasonable inference that the petitioner had become dead wood and was unfit for being retained in service any more. It is pertinent to mention that the petitioner was subsequently allowed to cross efficiency-bar in 1987 and further that no adverse entry was made against the petitioner for the years 198&87 and 1987-88. The previous effect of the aforesaid adverse entry has been taken away by the subsequent events. 5. It is pertinent to mention that the petitioner was subsequently allowed to cross efficiency-bar in 1987 and further that no adverse entry was made against the petitioner for the years 198&87 and 1987-88. The previous effect of the aforesaid adverse entry has been taken away by the subsequent events. 5. It is contended on behalf of the opposite parties that the mere fact that the petitioner was allowed to cross efficiency-bar after making of the adverse entry against him is not sufficient to wipe away the effect of the said entry in view of the provisions of F.R. 56. This contention has no force. Under clause (c) of F.R. 56, the appointing authority may, by notice to any Government servant (whether permanent or temporary) without assigning any reason, require him to retire after he attains the age of fifty years. According to Explanation (2A), to the said rule, every such decision shall be deemed to have been taken in the public interest. Explanation (2) provides that in order to be satisfied whether it will be in the public interest to require a Government servant to retire under Clause (c), the appointing authority may take into consideration any material relating to the Government servant and nothing herein contained shall be construed to exclude from consideration any entries relating to any period before such Government servant was allowed to cross any efficiency bar. The provisions of Explanation (1) to F.R. are of enabling nature so that any material including entries relating to any period before the crossing of efficiency bar may be considered by the appointing authority. The power to consider any material or entry like this is related to the duty of being satisfied that it will be in the public interest to require a Government servant to retire after he attains the age of fifty years. The exercise of the power cannot be arbitrary, but must be purposive. Every administrative decision must be based on grounds relevant and germane to the exercise of power. If the administrative decision is based on grounds irrelevant, extraneous or not germane to the exercise of power, it is liable to be questioned in exercise of the power of judicial review AIR 1985 SC 915 : (1985 Lab IC 1001). Every administrative decision must be based on grounds relevant and germane to the exercise of power. If the administrative decision is based on grounds irrelevant, extraneous or not germane to the exercise of power, it is liable to be questioned in exercise of the power of judicial review AIR 1985 SC 915 : (1985 Lab IC 1001). Therefore, the reference to the words "any material" in Explanation (1) must be construed as a reference to words "any relevant material." If the appointing authority were free to take into consideration any material regardless of relevancy, it will not be germane to the exercise of power in that behalf and the administrative decision to retire a Government servant on the basis of satisfaction derived from such material would be patently arbitrary and unreasonable. The entry relating to the period before the crossing of efficiency bar would be just a piece of relevant material and cannot be conclusive. The effect of the entry will have to be determined in the light of the fact that the Government servant has been subsequently permitted to cross efficiency bar. The fact of crossing efficiency bar is also a relevant fact and cannot be overlooked simply because Explanation (1) enables the preceding entry to be considered. The adverse nature of the entry in respect of the efficiency of the Government servant will certainly stand effected if after a consideration of that entry, he is subsequently allowed to cross efficiency bar. 6. The above reasons, the writ petition is allowed and the impugned order of compulsory retirement dated January 5, 1989, contained in Annexure 1, is hereby quashed. This order will however, be without prejudice to the retirement of the petitioner on attaining the age of superannuation in the ordinary course. No order as to costs.