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2001 DIGILAW 255 (ALL)

PHOOL CHAND YADAV v. STATE OF UTTAR PRADESH

2001-03-16

D.R.CHAUDHARY, S.R.SINGH

body2001
D. R. CHAUDHARY, J. ( 1 ) DR. Phool Chand Yadav, the petitioner herein, while working on the post of District Social welfare Officer, Sidharthnagar was served with an order dated 28. 9. 2000 (Annexure-8) issued by the State Government in exercise of its power under Rule 56 (c) of the Fundamental Rules, retiring him prematurely with immediately effect and three months salary was directed to be paid in lieu of the notice. The legality and validity of the order dated 28. 9. 2000 has been questioned by means of this writ petition. ( 2 ) THE facts, as borne out of the pleadings, are that the petitioner, while posted in the district ghazipur as District Social Welfare Officer, he went on medical leave from 25. 9. 1997. During leave period, his wife developed lever cancer which resulted in her death. When he went to join his duties, he was not allowed as one Ratan Kumar had been posted in his place by the Director, social Welfare. U. P. Lucknow. Aggrieved, the petitioner made a representation, which annoyed the Director Sri Kapil Dev who attached the petitioner to the office of the Director, Directorate of Social Welfare. U. P. . Lucknow. His attachment continued from January, 1999 up to 5th May. 1999 and during this period, as stated in para 10 of the writ petition, the Director became revengeful to the petitioner. In para 11 of the writ petition, It has been stated that right from the date of joining, i. e. . in the year. 1984 up to the year 1996-97 no adverse entry has ever been made against the petitioner. The work and conduct of the petitioner was always found to be excellent and no grudge of any kind was ever shown with regard to his work and conduct; he has always been given good entries by his superiors and by no stretch of imagination, the petitioner could be considered unfit for the services of the State. He further alleged in para 12 that Sri kapil Dev took a decision dated 7. 4. 1998 awarding special entry condemning the action of petitioner in respect of the act done within the period from 25. 9. 1997 to 30th June, 1998. It has been averred that the representations dated 16. 4. 1998 and 23. 4. He further alleged in para 12 that Sri kapil Dev took a decision dated 7. 4. 1998 awarding special entry condemning the action of petitioner in respect of the act done within the period from 25. 9. 1997 to 30th June, 1998. It has been averred that the representations dated 16. 4. 1998 and 23. 4. 1998 (Annexure-6 to the writ petition) against the aforesaid adverse entry is still pending ; there was no material before the respondent No. 2 to form an opinion to retire the petitioner pre-maturely under Rule 56 (c) of the fundamental Rules Financial Hand Book Vol. 2 Part II to IV except that of a single adverse entry for the year 1997-98 against which representation was pending as has been stated in paragraph No. 17 of the writ petition. On the strength of these pleadings the order impugned is sought to be quashed. ( 3 ) NO counter-affidavit has been filed by the respondents though by order dated 16. 10. 2000 of this Court, four weeks time was granted to the learned standing counsel and the case was ordered to be listed on 30. 11. 2000. ( 4 ) HEARD Sri Rajiv Mishra and Sri R. C. Yadav, the learned counsel appearing for the petitioner and the learned standing counsel for the respondents. ( 5 ) WITH the aid of uncontroverted pleadings, Sri Rajiv Misra submitted that the order impugned dated 28. 9. 2000 retiring the petitioner compulsorily is patently illegal, without jurisdiction and suffers from mala fide inasmuch as entire service record has not been considered and the sole foundation for the exercise of the power of retiring the petitioner compulsorily from service is the adverse remark for the year 1997-98. He further contended that the impugned decision is based on collateral grounds and is arbitrary and, therefore, cannot be sustained in the eye of law. ( 6 ) THE learned standing counsel, on the other hand submitted that there was sufficient material before the authorities for invoking the provisions of Fundamental Rule 56 (c) Vol. 2 Part II to IV of Financial Hand Book, the order impugned herein, therefore, is justified. He also urged that annexure-6 cannot be said to be the representation against adverse entry as by the aforesaid annexure, the petitioner demanded letters of D. M. , Ghazipur and, thus, the adverse entry remained unrepresented. 2 Part II to IV of Financial Hand Book, the order impugned herein, therefore, is justified. He also urged that annexure-6 cannot be said to be the representation against adverse entry as by the aforesaid annexure, the petitioner demanded letters of D. M. , Ghazipur and, thus, the adverse entry remained unrepresented. Learned standing counsel further argued that in absence of counter-affidavit, he cannot countenance the averments set up in the writ petition that the order impugned has been passed on the basis of single adverse entry. He, however, further submitted that order impugned is not dismissal or removal within the meaning of Article 311 of the constitution and Is neither a punishment nor it visits with loss of retiral benefits. ( 7 ) FUNDAMENTAL Rule 56 (c) of the Financial Hand Book Vol. II. Part II to IV as amended from time to time is reproduced as below : "notwithstanding anything contained in Clause (a) or Clause (b), the appointing authority may, at any time, 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 or such government servant may, by notice to the appointing authority, voluntarily retire at any time after attaining the age of forty five years or after he has completed qualifying service for twenty years. " ( 8 ) ON the subject, the Constitutional Bench of the Apex Court in Shyam Lal v. State of U. P. , air 1954 SC 369 , have held that compulsory retirement does not amount to dismissal or removal from service within the meaning of Article 311 of the Constitution of India. It is neither punishment nor visits with loss of retiral benefits. It does not cast stigma. The Officer will be entitled to the pension, i. e. . actually earned and there is no diminution of the accrued benefits. In union of India v. Col J. N. Sinha. 1970 (2) SCO 458. the Supreme Court is of the view that the power can be exercised subject to the conditions mentioned in Rule 56 (j) of the Fundamental rules-one of which is that the authority concerned must be of the opinion that it is in the public interest to do so. If that authority bona fide forms that opinion, the correctness of that opinion cannot be challenged before the Courts. If that authority bona fide forms that opinion, the correctness of that opinion cannot be challenged before the Courts. It is open to the aggrieved party to contend that requisite opinion has not been formed or the opinion so formed is tainted with malajlde. ( 9 ) IN Baikuntha Nath Das v. Chief District Medical Officer, 1992 12) SCC 299, the Supreme court has observed thus : "this Court considering the scope of Fundamental Rule 56 (j) on the anvil of administrative law, held that the order of compulsory retirement has to be passed on forming the opinion that it is in the public interest to retire a Government servant compulsorily. Though the order is passed on the subjective satisfaction of the Government, the Government or the Review Committee shall have to consider the entire record of service before taking a decision in the matter. In S. Ramachandra Raju a. State of Orissa. 1994 (Supp) (3) SCC 424, the question before the Apex Court was that whether the appellant in that case was rightly retired compulsorily considering the single adverse entry for the year 1987-88. The appellant in that case was initially appointed as a Lecturer on 29. 9. 1965 in a private college, which was taken over by the Government w. e. f. 9. 3. 1971. For the year 1987-88, the Principal made adverse remarks for the period 1. 4. 1987 to 29. 2. 1988, The appellant thereon submitted his representation alleging that the Principal was actuated by mala fide. On 20. 3. 1991, the appellant was promoted as a Reader. His representation was rejected on 5. 12. 1991. By the proceedings dated 28. 5. 1991, he was compulsorily retired from service. The Administration dismissed his petition. Allowing his appeal, the Supreme Court discussed the law in detail. After having discussed, the law laid down by the Apex Court in the decision referred to above, and while allowing the appeal, the court held : "keeping these principles in mind and on considering the facts extracted hereinbefore, we find that the exercise of power by the Government falls in the category of arbitrary exercise of power or failure to take the total record of service into consideration objectively. It has taken only the solitary adverse report for the year 1987-88 as a foundation to compulsorily retire the appellant from service. It has taken only the solitary adverse report for the year 1987-88 as a foundation to compulsorily retire the appellant from service. The Review Committee as well considered only that report, neither earlier report nor subsequent reports were considered. It is seen that admittedly the appellant was promoted as a Reader after the adverse report and the adverse comments were communicated to him and in a mechanical way they rejected the report (sic representation) to expunge the adverse remarks, even without going into the contention of the appellant that the then Principal was actuated with mala fides by submitting wrongly or falsely in confidential reports which appear to have some foundation or suspicion for such a contention. Consistent record earlier and later periods would establish that the appellant has meritorious record of service as a teacher and that his devotion to the service is good and fair and that he maintains discipline, good relations with the students and imparts teaching to the students fairly with good knowledge as a teacher. Therefore, in that background the exercise of the power is illegal. " ( 10 ) IN Civil Misc. Writ Petition No. 9949 of 1999. Vijay Kumar Jain v. State of U. P. and others, a Division Bench of this Court in the judgment dated 1. 3. 2000 has viewed that "it is the settled law that the entries of only 10 years prior to the order of compulsory retirement are to be seen. . . . . . " In the present case, the petitioner in para 15 of the writ petition has stated that the directorate of Social Welfare, U. P. , Lucknow, was itself not in possession of any entry for the years 1990-91, 1992-93. 1994-95, 1997-98, 1998-99 and 1999-2000. Further the annual entries for the years 1995-96 and 1996-97, which were good and remark excellent, were not before the reviewing authority. In para 17 of the writ petition, the petitioner has stated that the impugned order of compulsory retirement has been passed on the basis of the single adverse entry against which the petitioner had filed his representation which is still pending. In para 17 of the writ petition, the petitioner has stated that the impugned order of compulsory retirement has been passed on the basis of the single adverse entry against which the petitioner had filed his representation which is still pending. This fact coupled with the fact, as stated in para 11 of the writ petition, that right from the date of joining of his services from the year 1984 up to the years 1996-97, no adverse entry had ever been made against the petitioner and the fact that the last ten years entries were not before the reviewing authority, we are of the view that the decision to retire the petitioner prematurely was not justified. In view of the law discussed above and the uncontroverted averments, we feel persuaded to hold that there was no valid material before the Reviewing Authority and the Government for invoking the provision of Fundamental Rule 56 (c ). Financial Hand Book Vol. II. Part II to IV retiring the petitioner from service compulsorily. ( 11 ) IN the result, the writ petition, succeeds and is allowed. The impugned order dated 28. 9. 2000 (Annexure-8 to the writ petition) passed by the respondent No. 1 is quashed. The petitioner is entitled to consequential benefits. However, on the peculiar facts and circumstances of the case, there shall be no order as to costs. .