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Allahabad High Court · body

1991 DIGILAW 837 (ALL)

Santosh Kumar Gaur v. State of U. P.

1991-05-29

RADHEY KRISHNA AGRAWAL

body1991
JUDGMENT Radhey Krishna Agrawal, J. 1. The order dated 28.11.89 (annexure1) passed by the State Government compulsorily retiring the petitioner from service, has been challenged in this petition. 2. The petitioner was appointed as Assistant Engineer in the P.W.D. in 1960. He was confirmed on the said post on 16.3.1967 and was promoted to the post of Executive Engineer by an order dated 23.8.1972 and the petitioner alleged that his work and conduct throughout was excellent and he has earned several good and excellent entries, and has also received several letters of appreciation. He was, however, awarded an adverse entry in the year 197576 by the Secretary, Public Works Department though other senior officers of the department had given him good entries. The petitioner made representation against the said entry which is still pending. The petitioner was allowed to cross efficiencyBar in the pay scale of Rs8501450 by an order dated 27.11.76 with effect from 4.1.1976. In 197677 also the petitioner was given adverse entry by the Government though his superior officers had given him good entries. The said adverse entries were communicated to the petitioner on 1.10,80. The representation made against the said entries is still pending. In 197778, 197879 and 197980 the petitioner was awarded adverse entries by Sri R.P. Mittal, the then Superintending Engineer as Sri Mittal was biased and prejudiced against him. The said entries were expunged. The petitioner was given adverse entry in the year 198687 by the Government against which representation is pending. In 198788 the petitioner had earned good and excellent annual remark. The petitioner had also nude representation against certain warnings which were extended to him by the department. Except the aforesaid adverse entries against which representation is pending and some of them have been expunged, the petitioner had throughout earned good and excellent entries. The Government should not have taken into consideration the adverse remarks which have been expunged or against which representations are pending and also should not have taken into consideration warnings extended by the department. The Government while passing the order for compulsory retirement had not perusad the entries of the last ten years. The Screening Committee was not justified in placing reliance on the warnings given to the petitioner and in not considering the good entries which have been earned by the petitioner. 3. The Government while passing the order for compulsory retirement had not perusad the entries of the last ten years. The Screening Committee was not justified in placing reliance on the warnings given to the petitioner and in not considering the good entries which have been earned by the petitioner. 3. The opposite parties filed counter affidavit alleging that the petitioner has been compulsorily retired in the public interest under the provisions of Fundamental Rule 56 Subclause of the Financial Hand Book Volume II parts 2 to 4. The petitioner was awarded adverse entries for the years 6465, 7576, 7677, 7778, 7879, 7980, 8081 and 8687. He had of course earned satisfactory entries for the years 197273 and 197374. It has also been mentioned that the entries regarding which the representations were pending against the adverse entries, were not considered by the Screening Committee, The proceedings of the Screening Committee were finalised in the month of December, 1989 and therefore the entries of 198990 could not possibly be considered. It is further alleged that the petitioner was given warnings from time to time and those warnings were also relevant for consideration. In para 24 of the counteraffidavit the opposite parties have given details of the adverse entries and warnings given to the petitioner as follows: Details of Adverse entry. Year Communication Position of rep. 196465 Communicated vide Chief Engineer letter No. 73/Camp. 8A6465, dated 30.4.66. No representation is pending. 197576 Communicated Engineerin Chief letter No. 79 Camp/SO1/82 dated 27.2.84. Representation is pending for disposal. 197677 Communicated GO. No. 4898/23.6.250Em/77 dated 14.4.80. Do 197778 Communicated vide GO No. 2111/2367 (S) EM/77 dated 26.10.78. Representation rejected vide GO No. 8274/2367 (5) EM/77 dated 26.6.82. 197879 Communicated vide EngineerinChief letter No. 80 Camp. SO1/82 dated 27.2.84. Representation decided and communicated vide GO 3130 EG/235253 EG/73 dated 18.5.87. 197980 Communicated vide Engineerin Chief letter No. 78 Camp./SOl/82 dated 27:2.84. do 198081 Communicated vide G.O. No.3259/2367 (9) E/81 dated 20.7.83. No representation, 198687 Communicated vide EngineerinChief letter No. 1289 EG/received 452 EA/72 dated 8.5.87. No representation received. Details of Warnings. Communication Position of representation. 1. Communicated vide Engineerin Chief Letter No. 6993/Lekha (k)/9 Lekha/78 dated 21.8.81. No representation is pending. 2. Communicated vide GO No. 6715/23.6.7 (2) EM/78 dt, 10.2.82. do 3. Communicated vide EngineerinChief letter No. 7252Lekha (k)/26Lekha/79 dated 24.8.81. do 4. Communicated vide GO No. 40216/23.6.84 dated 19.6.84. No representation received. Details of Warnings. Communication Position of representation. 1. Communicated vide Engineerin Chief Letter No. 6993/Lekha (k)/9 Lekha/78 dated 21.8.81. No representation is pending. 2. Communicated vide GO No. 6715/23.6.7 (2) EM/78 dt, 10.2.82. do 3. Communicated vide EngineerinChief letter No. 7252Lekha (k)/26Lekha/79 dated 24.8.81. do 4. Communicated vide GO No. 40216/23.6.84 dated 19.6.84. do L.C.D. S. K. Gaur v. State of U.P. 23 5. Communicated vide EngineerinChief letter No. 1546 Lekha (Kha) 198081/73 (K), dated 2.6.85. do 6. Communicated vide GO. No. 1153/PWD226 (1) 77, dated 23.4.85. do 7. Communicated vide G.O. No. 5490/23.6.53 (1) EM/87 dated 8.10.87. do 8. Communicated vide Engineer/inchief letter No. 2607 EGG/CEF346/78 dated 25.3.80. Representation rejected vide G.O. No. 3385/23651(3) EM/ 80 dated 12.10.82. 4. Some of the adverse remarks given in the years 197879 & 7980 were expunged but the whole entries were not expunged. As such the entries 5 of those years remain adverse. The Screening Committee has considered the entire service record of the petitioner and an overall assessment was made by the Committee before taking the decision for compulsory retiring the petitioner. 5. Rejoinder affidavit has been filed by the petitioner reiterating the allegation made by him in the writ petition and stated that the warnings given to the petitioner were not to be considered for taking decision for compulsory retirement. The Screening Committee was also not justified in considering the entries which were expunged and regarding which representations were pending. It was further alleged that some of the adverse entries, were not communicated to the petitioner. 6. The opposite parties in the counteraffidavit have alleged that the screening Committee has considered only those adverse and censure entries and the warnings which were duly communicated and the representations against those entries were not pending The opposite parties have given the details of all the adverse entries and the warnings awarded to the petitioner. We have now to examine as to whether all those adverse entries and warnings were rightly considered by the Screening Committee before taking decision to retire the petitioner compulsorily. 7. The purpose of conferring power on the Government to retire Government servant prematurely is to energise its machinary, chopping of dead wood. The decision of the Government has to be bonafide, honest and not malicious. 7. The purpose of conferring power on the Government to retire Government servant prematurely is to energise its machinary, chopping of dead wood. The decision of the Government has to be bonafide, honest and not malicious. It must be based on overall assessment of the work and conduct of the employees and the same must necessarily reflect from hi service record. (Vide AIR 1990 SC 2055 R.P. Mehrotra v. C.C. Income Tax). In a case reported in AIR 1980 SC 1894 Gian Singh Mann v. High Court of Punjab and Haryana and another the Hon'ble Supreme Court has observed : the interests of public administration require retirement of a Government servant who with the passage of years has prematurely ceased to possess the standard of efficiency, competence and utility called for by the government service to which he belongs. No stigma or imputation of misbehavior is intended, and punishment is not the objective. 8. We have now examined if in the instant case the Screening Committee was justified to retire the petitioner compulsorily. The first adverse entry is of 196465 when the petitioner was the Assistant Engineer. Thereafter he earned good entries and was promoted as Executive Engineer in 1972 by an order dated 26th of Aug., 1972 (annexure2) and was allowed to cross efficiency bar. 9. It has been held in a case reported in AIR 1980 SC page 269 Swami Saran Saksena v. State of U.P. and AIR 1970 SC 2086 The State of Punjab v. Dewan Chunni Lal AIR 1987 SC 948 Brijmohan v. State that after the employees are allowed to cross the Efficiency Bar the old adverse entries would stand washed off. In this case the petitioner was promoted to the post of Executive Engineer which would indicate that the petitioner was found fit and suitable for promotion and the entries of 196465 which were adverse to him when he was Assistant Engineer was not considered sufficient to refuse his promotion. The entries of 196465 would, therefore, stand washed off and Screening Committee could not consider the same against the petitioner. The said entry in fact lost its significance also on account of the fret that it was a very remote point. The entries of 196465 would, therefore, stand washed off and Screening Committee could not consider the same against the petitioner. The said entry in fact lost its significance also on account of the fret that it was a very remote point. In a case reported in 1989 (4) SLR page 220 Baidyanath Mahapatra v. State of Orissa and another Lordhhips of the Hon'ble Supreme Court have observed: The adverse entries for the year 196970, 197071, 197273 and 197576 had lost all significance, because inspite of those entries the appellant was considered to be an intelligent and efficient officer and in that view he was promoted to the post of Superintending Engineer. If those entries did not reflect deficiency in appellant's work and conduct for the purpose of promotion, it is difficult to comprehend as to how those adverse entries could be pressed into service for retiring him prematurely. When a Government servant is promoted to a higher post on the basis of merit and selection, adverse entries if any contained in his service record lose their significance and those remain on record as part of past history. It would be unjust to curtail the service career of Government servant on the basis of those entries in the absence of any significant fall in his performance after his promotion. The next adverse entries are of 197576 and 197677. The petitioner has made representations against the said entries and the said representations are still pending before the Government. The said two entries were admittedly not considered by the Screening Committee at the time of taking decision to retire the petitioner compulsorily. 10. The next entry is of 197778 which was communicated to the petitioner by letter dated 26.10.78 (annexure9). The said letter annexure9 goes to show that the said entry was in fact a censure entry as certain irregularities were committed by the petitioner. It has been alleged by the petitioner that the said entry was the outcome of ill will of Sri R.P. Mittal, the then Superintending Engineer under whom he was working. The fact .that the petitioner was not carrying on well with his Superintending Engineer Sri R.P. Mittal is evident by the endorsement made by the Chief Engineer on the adverse entry given by Sri R.P. Mittal in the year 197879. In 197879 also the adverse entry was given to the petitioner by the Superintending Engineer Sri R.P. Mittal. The fact .that the petitioner was not carrying on well with his Superintending Engineer Sri R.P. Mittal is evident by the endorsement made by the Chief Engineer on the adverse entry given by Sri R.P. Mittal in the year 197879. In 197879 also the adverse entry was given to the petitioner by the Superintending Engineer Sri R.P. Mittal. The Chief Engineer Sri Rai, however did not agree with the said entry and further observed that the petitioner and Sri R.P. Mittal were not on good terms and therefore the report given by Sri Mittal was a colourable one The Chief Engineer Sri Rai described the petitioner as a good officer. For the year 197980 also the Chief Engineer did not agree with the adverse report of Sri R.P. Mittal and has put the petitioner in the category of excellent. It is, therefore, clear that the adverse entry of 197778 against whom the representation has of course been rejected, could not be considered against the petitioner as the said entry was coloured and biased on account of strained relations between the petitioner and Sri R.P. Mittal. Superintending Engineer. 11. The next entries are of 197879 and 197980. Those entries are annexures 10 and 12. The were also given by Sri R.P. Mittal. It has already been mentioned above that the Chief Engineer Sri Rai did not agree with the report given by Sri R.P. Mittal and has placed the petitioner in the category of excellent and good officer. In view of Government Order No. 36176Karmik (2) dated 10.9.1976 the opinion expressed by the final authority (Swikarta) would prevail and would be treated to be the final assessment of the employee concerned. Apart from this, those entries were expunged by the letter dated 18th May, 1987 (annexure11). Those entries of 197879 and 197980 could not, therefore, be taken into consideration by the committee for the purposes of compulsorily retiring the petitioner. 11A The next entry is of 19801981. The petitioner has alleged that the entry was not at all communicated to the petitioner The opposite party, on the contrary, in para 16 of the counteraffidavit has alleged that the said entry of 198081 was communicated to the petitioner and the petitioner did not file any representation against the said entry. 11A The next entry is of 19801981. The petitioner has alleged that the entry was not at all communicated to the petitioner The opposite party, on the contrary, in para 16 of the counteraffidavit has alleged that the said entry of 198081 was communicated to the petitioner and the petitioner did not file any representation against the said entry. The original record, however, shows that the said entry of 198081 was censure entry and there was nothing in the original record to show that the said entry was communicated to the petitioner. An adverse entry which has not been communicated to the petitioner could not be taken into consideration by the Screening Committee for the purpose of Compulsorily retiring the petitioner. It has been observed by their Lordships of the Hon'ble Supreme Court in Baidyanath Mahapatra's case (Supra,) that: The purpose of communicating adverse entries to the Government Servant is to inform him regarding his deficiency in work and conduct and to afford him an opportunity to make, amend, and improvement in his work and further if the entries are not justified the communication affords him an opportunity to make representation. If the adverse remarks awarded to a Government Servant are communicated to him after several years, the object of communicating entries is defeated. 12. The petitioner after 198081 earned several good entries. The next adverse entry is of 198687. The petitioner in para 29 of the writ petition mentioned that he had made representation against the said entry. It has of course been denied by the opposite parties in para 19 of the counteraffidavit. In para 19 of the rejoinder affidavit the petitioner reiterated that he did make representation against the said entry and the Engineerinchief forwarded a copy of the representation to the Chief Engineer, Central zone, Lucknow vide letter Ko. 19322 EA/452EA/72 dated 12.12.1988, and the Chief Engineer, Central Zone in his turn sent the same to the Superintending Engineer, Urmao vide letter No. 11213/CZE dated 18.12.1989. In para 19 of the counteraffidavit the opposite party has mentioned, no representation has been received to the Government duly recommended by the Engineerinchief. This averment does not indicate that no representation at all was received but is shows that no representation duly recommended by Engineerinchief was received. It appears, therefore, that the representation was made by the petitioner but the same has not been decided so far. This averment does not indicate that no representation at all was received but is shows that no representation duly recommended by Engineerinchief was received. It appears, therefore, that the representation was made by the petitioner but the same has not been decided so far. The said entry, therefore, could not be taken into consideration by the Screening Committee; Subsequent to 198687 also the petitioner has earned good entry. 13. The aforesaid narration of facts would, therefore, go to indicate that there were only erratic adverse entries against the petitioner which were either expunged or against which representations are pending. The petitioner had also earned good entries after 198081 utile now except for the year 198687. In a Case reported in AIR 1987 SC page 948, Brij Mohan v. State of Punjab their Lordships of the Hon'ble Supreme Court have observed that recent entries should be given greater weight than the earlier entries and that the erratic adverse entries should not be looked into and that the entries of past ten years should be considered while taking decision to retire the Government Servant under public interest. 14. The learned counsel for the opposite parties has contended that besides the adverse entries the petitioner was given warnings from time to time and those warnings would also be sufficient consideration for the Government to take the decision to retire the Government Servant. The details of those warnings, which were considered by the Committee have been given in para 24 of the counteraffidavit. The first three warning, are of the year 198182, the other warnings are of 198384, 198485, 198586, 198788 and one is of 197980, According to the learned counsel for the petitioner the warnings given to the employees from time to time would also be considered to be adverse and can be taken into consideration for retiring the employee even though the annual remark for those years in which the warnings were given, were not adverse. This contention has absolutely no force. The purpose of giving warning to the employee is to apprise him of his deficiency so that he may improve his work and conduct and must not commit such mistake in future. This contention has absolutely no force. The purpose of giving warning to the employee is to apprise him of his deficiency so that he may improve his work and conduct and must not commit such mistake in future. Warning are not given as a punishment, rather the employees are intimated that he must improve his work, conduct and efficiency and if the employee respond to those warnings and give good result in future the purpose of warning is served and the said warning could not go adverse or against the employee and on the basis of said warning, which have served the purpose, the employee cannot be said to have ceased to possess the standard of efficiency, competence end utility called for by the Government Servant and he would not at all be called a ' dead wood. On the contrary it would indicate that the employee has improved his efficiency, work and conduct. In case the employee even after warning do not show improvement the authorities at the time of final assessment of work and conduct of the employee would indicate in the annual remark and would give adverse entry to the employee. On the contrary if the employee shows improvement after the warning and earns good entries the warnings which were given to him would lose their importance as the purpose for which the warnings were given had been served. 15. The Government has also considered this matter and has issued G. O. No. 36/9/j976Karmik2 dated 29th July, 1979 annexure17. The opposite party does not dispute the said G.O. annexure17 but has alleged in the counteraffidavit that according to the said G.O. the warning would not be placed in the character roll of the employees and that the G.O. does not prohibit the screening Committee from taking into consideration the said warnings. The said G.O. indicates that if an employee is warned or displeasure or reprimand is expressed against him by the superior officer the same shell be kept in his pennon I file and at the end of the year the reporting officer would see if the said employee had shown any improvement or not and if improvement was shown, the said warning, displeasure or reprimand would not be indicated in the annual remark. On the contrary if no improvement has been shown by the employee the said warning, displeasure or reprimand shall be kept in the character roll of the employee and reference be also made in the annual remark. Warning has very short life span. It dies out the moment the annual entry is given to the employee for his workconduct etc. for the said Financial Year. It his no independent entity and is merged in annual remark as the said remark is given after having overall assessment, including of course the effect of warnings of the employee. 16. If in the annual remark adverse comments are made, on the basis of the warning also, the said annual remark and not the warning would be treated as adverse. On the contrary if the annual remark is not adverse, the warning would have no effect at all as it would be assumed that the employee had responded to the warning and has shown improvement and has earned good entry. The aforesaid discussions, therefore, clearly indicate that the warning would not be treated as an adverse remark. 17. In the instant case the warning was given in 197980. The adverse annual remark given in 197980, has been expunged and the Chief Engineer did not agree with the adverse remark given by the Superintending Engineer. The said warning has, therefore, no effect Warnings of 198182, 198384, 198485, 198586 and 198788 are also of no importance as the petitioner has earned good entries in those years. Those warnings cannot, therefore, be made one of the grounds for retiring the petitioner compulsorily. On the contrary as hereinbefore mentioned the petitioner had shown improvement in his working after he was warned of his lapses. There is no evidence to indicate that there was such deterioration in the quality of the petitioner's work that he deserved to be compulsorily retired. 18. All said and considered, therefore, the screening committee was not justified in taking into consideration the warnings and the entries which had been expunged. Those entries could not also be taken as adverse as the petitioner was subsequently given promotion as Executive Engineer and was allowed to cross his efficiency bar. 18. All said and considered, therefore, the screening committee was not justified in taking into consideration the warnings and the entries which had been expunged. Those entries could not also be taken as adverse as the petitioner was subsequently given promotion as Executive Engineer and was allowed to cross his efficiency bar. The old entry of 1964, erratic as well as other entries which are beyond the period of ten years should not have also been made the basis of retiring the petitioner compulsorily as the petitioner has earned good entries in the subsequent years. The court is not satisfied that the petitioner has lost his utility in service and has become a dead wood requiring him to retire compulsorily in public interest. 19. The result, therefore, is that the writ petition is allowed with costs and the order dated 28.12.89 (annexure1) is hereby quashed with all consequential benefits including full salary etc.