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1996 DIGILAW 461 (ALL)

SANTOSH SINGH v. STATE OF U P

1996-04-16

MAITHLI SHARAN, OM PRAKASH

body1996
OM PRAKASH, J. By order dated 3-1-1986 (Annexure "5" to the writ petition) the petitioner was compulsorily retired by Sri Shiv Kumar Sharma, the then Managing Director, U. P. Jal Nigam, which is sought to be quashed by the petitioner on the ground, as stated in paragraph 17 of the writ petition, that ". . . . that there is absolutely no material on which the appointing authority could have reasonably come to the conclusion that the petitioner can be retired in public interest. " 2. The facts in brief, are that the petitioner was appointed as Assis tant Engineer in the U. P. Jal Nigam on 29-1-1965 in the then Local Self Government Engineering Department of Uttar Pradesh by an order dated 29-1-1965 (Annexure "1" to the writ petition ). In 1975 the Uttar Pradesh Water Supply and Sewerage Act came to be passed (briefly, the Act ). Section 3 of the Act provides for establishment of the Jal Nigam and so the Jal Nigam was created under the Act. Section 3 (3) of the Act declared that the Nigam shall for all purposes be deemed to be a local authority. Section 37 of the Act provides that all the employees of the erstwhile Local Self-Government Engineering Department of the State Government shall become employees of the Nigam from the appointed date and they shall hold their office in the Nigam on the same terms and conditions and with the same rights and privileges. This is how the petitioner ceased to be the employee of the erstwhile Local Self-Government Engineering Department and became the employee of the Nigam with effect from 18-6-1975. The petitioner was temporarily promoted as Executive Engineer in the Jal Nigam by an order dated 23-10-1977 (Annexure "3" to the writ petition ). He was allowed to cross the efficiency bar in the scale of Executive Engineer with effect from 1-10-1978 (see paragraph 11 of the petition ). In paragraph 15 of the writ petition, it is stated that no adverse character roll entry was ever communicated to the petitioner and that as Executive Engineer his service record remained unblamished. This is how the petitioner contended that there was no material on record to enable the authority to come to the conclusion that his compulsory retirement was necessary in the public interest. 3. This is how the petitioner contended that there was no material on record to enable the authority to come to the conclusion that his compulsory retirement was necessary in the public interest. 3. In the counter-affidavit filed for the Jal Nigam it is not disputed that the petitioner was promoted to the post of the Executive Engineer with effect from 26-10-1977, that he was allowed to cross the efficiency bar in the scale of Executive Engineer with effeffect from 1-10-1978, that he was con firmed as Assistant Engineer with effect from 19-12-1983 and that no adverse character roll entry was ever communicated to him. 4. In Baikuntha Nath Das v. Chief District Medical Officer, Baripada, AIR 1992 SC 1020 the Supreme Court considering the whole range of case law on compulsory retirement enunciated the following principles : " (i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour. (ii) The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a Government servant compulsorily. The order is passed on the subjective satisfaction of the Government. (iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judi cial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate Court, they may interfere if they are satisfied that the order is passed (a) mala fide, or (b) that it is based on no evidence, or (c) that it is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material in short ; if it is found to be a perverse order. (iv) The Government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter-of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favour able and adverse. If a Government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favour able and adverse. If a Government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority. (v) An order of compulsory retirement is not liable to be quashed by a court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. The circumstance by itself cannot be a basis for interference. " 5. Close to the heels of the case of Baikuntha Nath Das (supra), the Supreme Court in S, Ramachandra Raju v. State of Orissa, JT 1994 (5) SC 459 reiterated : "the whole purpose of the rule is to weed out the worthless without the punitive extremes covered by Article 311 of the Constitu tion, after all, Administration, to be efficient, must not be manned by drones, do nothings, incompetents and unworthiers. They may not be delinquent who must be punished but may be a burden on the Administration if by insensitive, insouciant, unintelligent or dubious conduct impede the flow or promote stagnation. In a country where speed, sensitivity, probity, and non-irritative public relations and enthusiastic creativity are urgently needed, paper logged processes and callous cadres are the besetting sin of the Administration. It is in public interest to retire a never do well, but to juggle with confidential reports when a mans career is at stake is a confidence trick contrary to public interest. Moreover, confidential reports are often subjec tive, impressionistic and must receive sedulous checking as basis for decision making. The appropriate authority, not the court, makes the decision, but even so, a caveat is necessary to avoid misuse. " 6. It is thus settled law that though the order of compulsory retire ment is not a punishment and the Government employee is entitled to draw all retiral benefits including pension, the Government must exercise its power only in the public interest to effectuate the efficiency of the service. The dead wood need to be removed to augment efficiency. Integrity in public service need to be maintained. The dead wood need to be removed to augment efficiency. Integrity in public service need to be maintained. The exercise of power of compulsory retirement must not be a haunt on public servant but must act as a check and reasonable measure to ensure efficiency of service and free from corrup tion and incompetence. The officer would live by reputation built around him. In an appropriate case, there may not be sufficient evidence to take punitive disciplinary action of removal from service. But his conduct and reputation is such that his continuance in service would be a menace in public service and injurious to public interest. 7. The Supreme Court in S. Ramachandra Raju (supra) observed with perspicacity : "the entire service record or character rolls or confidential reports maintained would furnish the back drop material for considera tion by the Government or the Review Committee or the appro priate authority. On consideration of the totality of the facts and circumstances alone, the Government should form the opinion that the Government officer needs to be compulsorily retired from service. Therefore, the entire service record more particular the latest, would form the foundation for the opinion and furnish the base to exercise the power under the relevant rule to compulsorily retire a Government officer. " (see para 9) 8. The Supreme Court further cautioned in the same paragraph in these words : "therefore, before exercising the power, the competent appropriate authority must weign pros and cons and balance the public interest as against the individual interest. On total evolution (sic-evaluation) of the entire record of service if the Govern ment or the governmental authority forms the opinion that in the public interest the officer needs to be retired compulsorily, the court may not interfere with the exercise of such bona fide exercise of power but the court has power and duty to exercise the power of judicial review not as a court of appeal but in its exercise of judicial review to consider whether the power has been properly exercised or is arbitrary or vitiated either by mala fide or actuated by extraneous consideration or arbitrary in retiring the Government officer compulsorily from service. " 9. " 9. The contention of the petitioner before us is that he was compulsorily retired by the impugned order without there being any material to "form the opinion that his continuance in service was not in the public interest. In other words, the plea of the petitioner is that the appointing authority acted arbitrarily in coming to the conclusion that his compulsory retirement was in the public interest. 10. The Court certainly has the power of judicial review to consider whether there was sufficient material with the appointing authority to form the opinion that it is in the public interest to retire the petitioner compulsorily and whether the impugned order passed is arbitrary in the sense that no reasonable person would form the requisite opinion on the given mate rial. In short, the judicial review in the case in hand will be on the question whether the impugned order is perverse or based on supportive material. 11. To controvert the case of the petitioner, the Standing Counsel produced before us the personal file containing character roll entries of the petitioner. Since the petitioner was appointed by an order dated 29-1-1965 as temporary Assistant Engineer (Civil) in the L. S. G. E. D. . we carefully perused the character roll entries from the year 1965-66. His work and conduct both were found satisfactory right from 1965- 66 to 1971-72. The Head of the Department not once but several times recorded highly appre ciative remarks for him. For the year 1967-68 the Superintending Engineer, III Circle, L. S. G. E. D. , Lucknow, stated that "he is an asset to the depart ment. " For the year 1972-73, the Superintending Engineer, L. S. G. E. D. , remarked that his out-put was unsatisfactory, as he prepared only a preliminary estimate of a small scheme during the period of seven months. Again his work and conduct in the following years were found satisfactory. In the year 1974-75 he was adjudged by the higher authority as "an officer of good merit". Nothing adverse was found in his performance upto 1977 when he was promoted as Executive Engineer. In October 1978 his efficiency bar was allowed to be crossed, which implies that he was efficient and a good hand. Later he was confirmed as Assistant Engineer in December 1983. In June 1982 the Chief Engineer recorded an adverse entry, which was not communicated to him. In October 1978 his efficiency bar was allowed to be crossed, which implies that he was efficient and a good hand. Later he was confirmed as Assistant Engineer in December 1983. In June 1982 the Chief Engineer recorded an adverse entry, which was not communicated to him. But the fact remains that he was allowed to cross efficiency bar thereafter on 19-12-1983. This being the position, the adverse entry dated 15-6-1982 is of no consequence. Again his work and conduct were found satisfactory upto 1985-86 by all the authorities, except the Reviewing Officer, who disagreeing with the assessment of Superintend ing Engineer for the said period, evaluated the petitioners performance as poor and found the petitioners conduct as objectionable, inasmuch as, in his opinion the petitioner was habituated to manage good postings. 12. So except the adverse remark of the Reviewing Officer for the year 1985-86, there is nothing adverse against the petitioner. The question is whether the single remark lor the year 1985-86 by the Reviewing Officer, which too does not touch upon the efficiency of the officer, is sufficient to form the opinion that compulsory retirement of the petitioner was necessary in the public interest. Looking to the case law on the point, as pointed out hereinabove, we are of the considered opinion that the single adverse entry relating to the period from 1-4-1985 to 30-6-1985 falling in the year 1985-86, cannot constitute good and sufficient material to form the opinion that to retire the petitioner compulsorily was in the public interest. The petitioner is right in contending that his work and conduct remained unblamished, except the adverse entry recorded in 1982, whereafter his efficiency bar was allowed to be crossed, which means that the entry of 1982 stood wiped out. The over all consideration of the petitioners character roll entries unmistakenly lead to a conclusion that there was no material for the appointing authority to come to the conclusion that the decision of compulsory retire ment of the petitioner was in the public interest. The impugned order is, therefore, nothing but an arbitrary decision to retire the petitioner compulsorily. The over all consideration of the petitioners character roll entries unmistakenly lead to a conclusion that there was no material for the appointing authority to come to the conclusion that the decision of compulsory retire ment of the petitioner was in the public interest. The impugned order is, therefore, nothing but an arbitrary decision to retire the petitioner compulsorily. Though the satisfaction of the appointing authority that it is in the public interest to retire a Government employee is subjective, it is incumbent upon the respondents to show that there is supportive material to pass that order and that the order does not deserve to be branded as an arbitrary order. On the basis of the tenuous adverse entry by the Reviewing Authority for a period of throe months relating to the year 1985-86, in our opinion, no reasonable person could form the requisite opinion to retire the petitioner compulsorily and, therefore, we hold that the impugned order is perverse and arbitrary, which deserves to be quashed. 13. The contention of the petitioner that no adverse character roll entry was ever communicated to him is not denied in the counter-affidavit ; rather in paragraph 14 of the counter -affidavit it is pleaded that "----even though no adverse entry as Executive Engineer was communicated to the petitioner, it is not admitted that the petitioners record of service as Exe cutive Engineer always remained unblarnished. " In the cases of Baikuntha Nath Das and S. Ramachandra Raju (supra), no doubt, it is observed that the order of compulsory retirement cannot be challenged only on the ground that uncommunicated adverse character roll entries were considered to form an opinion that compulsory retirement of a given Government servant is hi the public interest, but it does not mean that a Government servant can be compulsorily retired only on the basis of ancommuaicated character roll entries without there being any other supportive malarial in forming the opinion that it is in the public interest to retire a Government servant compulsorily. Against adverse character roll entries, one has a right to make representation aid if that representation is accepted, then adverse early will stand deleted, and if it is so done, then that will not constitute a material to form the opinion that it is in the public interest to retire a Government servant compulsorily. Against adverse character roll entries, one has a right to make representation aid if that representation is accepted, then adverse early will stand deleted, and if it is so done, then that will not constitute a material to form the opinion that it is in the public interest to retire a Government servant compulsorily. Where there is material, besides the uncommunicated adverse character roll entries, then an order to retire a Government servant compulsorily, cannot be challenged merely on the ground that uncommunicated adverse entry was taken into consideration. But if there is no other supportive material and is uncommunicated adverse character roll entry alone constitutes a basis to form the opinion that com pulsory retirement was in the public interest, then the impugned order cannot be sustained, because in that case the possibility of adverse entries being deleted on representation, if any made, cannot be ruled out. 14. The learned Standing Counsel relied upon the case of The Chief General Manager, State Bank of India v. Suresh Chandra Behera, 1995 (2j SLR 754. In this case the respondent entered the service of the State Bank of India as a Cashier in 1950, In 1972 he was appointed as Head Cashier. In 1978 he was promoted to Grade I and was brought to the Accounts Wing. In November 1979, he was posted as Branch Manager. The Reviewing Committee considered the case of the respondent in its meeting dated 11-5-1985 and recorded over all performance of the respondent during the past five years as average. He was censured for procedural irregularities as a Head Cashier. His performance as Branch Manager had not been satis factory on account of his inadequate job knowledge. His initiative had also been only average for the last five years. Though he was withdrawn as a Branch Manager and was posted as a Passing Officer since April, 1984 to impart further training in the Accounts Wing, he had shown no improvement despite his seniority. The Bank was not able to utilise him effectively commensurate with his seniority. Even the proposal to transfer him to the cash wing could not be suggested against the back-drop of his earlier performance as Head Cashier. The Bank was not able to utilise him effectively commensurate with his seniority. Even the proposal to transfer him to the cash wing could not be suggested against the back-drop of his earlier performance as Head Cashier. On these facts, the Reviewing Committee took the view that there was no alternative but to retire him compulsorily after giving him the requisite notice as per paragraph 19 (1) of the State Bank of India Officers (Determination of Terms and Conditions of Service) Order, 1979. The facts of this case are entirely from the case of the instant petitioner, inasmuch as, the respondent was found by the Reviewing Committee as wholly inefficient, incompetent and not useful for the Bank services. Therefore, this authority seems to be misplaced by the Standing Counsel. 15. Admittedly, the petitioner has already reached the age of super annuation somewhere in 1992 and, therefore, the Counsel for the petitioner submits that the petitioner will be entitled to his emoluments upon the impugned order being quashed. 16. In the result, the petition succeeds and is allowed. The impugned order dated 3-1-1986 (Annexure "5" to the writ petition) compulsorily retiring the petitioner is quashed and the petitioner is treated to have continued in service notionally until the date of his superannuation in service and, consequently, the respondents are directed to pay his emolu ments in accordance with law for the period, commencing from the date of impugned order till the date of superannuation as per the departmental rules within two months from the date of presentation of a copy of this judgment before them. Petition allowed. .