Research › Search › Judgment

Allahabad High Court · body

2002 DIGILAW 117 (ALL)

KAMLAKAR UPADHYA v. STATE OF U. P.

2002-01-21

S.K.SINGH

body2002
S. K. SINGH, J. ( 1 ) BY means of this writ petition, the petitioner has challenged the order dated 6. 12. 2000 (Annexure-1 to the writ petition) as passed by respondent No. 3 by which, the petitioner has been compulsorily retired. ( 2 ) AT the time when the order of petitioners compulsory retirement was passed, he was serving as Deputy Jailer in the District Jail, Pratapgarh. In respect to the claim of promotion to the post of Jailer as juniors to the petitioner were promoted, after a chase in the department, he filed a claim petition before the State Services Tribunal vide Claim Petition No. 2584 of 1997 which vide its order dated 29. 4. 1999 allowed the claim petition and a direction was given to consider the petitioners claim for promotion with full benefits from the date on which Juniors were promoted, within a period of three months. When compliance was not made to the order of the tribunal, the petitioner filed a Contempt Petition No. 388 of 1999 which was pending before the tribunal. In the meantime, opposite parties appear to have filed writ petition before this Court against the order of the Tribunal dated 29. 4. 1999 which was numbered as W. P. No. 1315 (S/b)of 1999 but in the writ petition, no interim order was granted in favour o the writ petitioners. It is after this effort on the part of the respondents of getting the order of Tribunal stayed, in the event of failure to get protection from compliance to the direction of the Tribunal, the present exercise of screening the petitioner for compulsory retirement was proceeded and that came in the shape of the order dated 6. 12. 2000. against which, the petitioner has come up before this Court. ( 3 ) LEARNED counsel for the petitioner submits that the action on part of the respondents besides being Illegal, arbitrary is punitive in nature. It has also been argued that it is only to avoid the compliance of the order of Tribunal which was tried to be implemented by the petitioner, by filing a contempt petition, the respondents when insplte of filing writ petition before this Court, having not been able to obtain interim order, with bad motive have taken the Impugned action. It has also been argued that it is only to avoid the compliance of the order of Tribunal which was tried to be implemented by the petitioner, by filing a contempt petition, the respondents when insplte of filing writ petition before this Court, having not been able to obtain interim order, with bad motive have taken the Impugned action. It has been further argued that materials as exists on record, cannot justify the action of respondents as even accepting the totality of the circumstances, It cannot be held that continuance of the petitioner in service will not be in the public interest. To strengthen the submission, learned counsel for the petitioner argues that there has been certain adverse entries against him but all were of the period before 1993 and right from 1994 onward, there has been no adverse entry whatsoever till the time when the matter was considered on 6. 12. 2000. It has been submitted that on 20. 6. 1995 after considering the previous records, petitioner was confirmed on the post of Deputy Jailer. According to the learned counsel, the confirmation on the post of Deputy Jailer by order dated 20. 6. 1995, came to be in petitioners favour as the earlier charges against the petitioner were not so serious on account of which mainly for certain years warning and stoppage of some increments were ordered. So far as annual confidential report in respect to the petitioner is concerned, a Chart has been submitted by learned counsel for the petitioner after serving copy of the same to learned standing counsel which shows that it is for the years 1985-86 and 1988-89 it was adverse, for other years. It is mentioned either as fair or as good. The chart as has been submitted, takes note of various entries as detailed in the counter-affidavit by which It appears that after 1994-95 onward there is nothing adverse against the petitioner. Lastly, learned counsel for the petitioner submits that entries even if adverse, before the confirmation of the petitioner on the post of Deputy Jailer on 20. 6. 1995, should not have been taken into account as on a consideration of previous record of the petitioner, he was confirmed giving benefit of his satisfactory record. Lastly, learned counsel for the petitioner submits that entries even if adverse, before the confirmation of the petitioner on the post of Deputy Jailer on 20. 6. 1995, should not have been taken into account as on a consideration of previous record of the petitioner, he was confirmed giving benefit of his satisfactory record. For consideration of compulsory retirement, a Government servant, learned counsel for the petitioner draws attention of the Court to the norms as has been provided by the Government order dated 30. 6. 1993. This Government order has been annexed as Annexure-5 to the amendment application. ( 4 ) IN the light of the aforesaid material as exists in the character roll of the petitioner learned counsel submitted that the decision as has been taken by the respondents to compulsorlly retire the petitioner, being not in the public interest rather it being biased and punitive is liable to be quashed. Learned counsel for the petitioner in support of his submissions has placed reliance on the decisions in S. Rama Chandra Raju v. State of Orissa, AIR 1995 SC 111 ; State of Gujarat v. Surya Kant Chunni Lal Shah, 1999 (3) SCC 529 : Madan Mohan Chaudhary v. State of Bihar, 1999 (3) SCC 396 ; State of Gujarat v. Umed Bhai M. Patel. 2001 (2) AWC 1024 (SC) : 2001 (3)SCC 314 ; Chandrika Rai v. State. 1996 (1) LCD 466 ; Badri Nath v. Government of Tamil nadu, 2000 (8) SCC 395 ; Dr. Girish Bihari v. State, 1984 UPLBEC 953 and Bai} Nath Pandey v. State of U. P. . 2000 (3) VPLBEC 2224. ( 5 ) LEARNED standing counsel in response to the aforesaid submission, on the facts so stated in the counter-affidavit argues before the Court that while considering the matter of compulsory retirement, entire service record right from start of the petitioners career is to be taken into account and as there have been several Instances of misconduct on the part of the petitioner for which warning and adverse entries were given, no exception can be taken to the decision as has been taken by the respondents. Learned standing counsel submits that inspite of confirmation of the petitioner on the post of Deputy Jailer, earlier adverse entries to his credit can be valldly taken into account for forming opinion about the utility of continuance of the petitioner in service. Learned standing counsel submits that inspite of confirmation of the petitioner on the post of Deputy Jailer, earlier adverse entries to his credit can be valldly taken into account for forming opinion about the utility of continuance of the petitioner in service. Learned standing counsel in support of this submission has placed reliance on the decision in Union of India v, P. S. Dhillon, 1996 (3) AWC 2. 194 (SC) (NOC) : 1996 (3) SCC 672 . ( 6 ) IN the light of the aforesaid submission as has come across the Bar, the material as exists on record has been examined. There cannot be any dispute that the Government has a right to weed out inefficient, corrupt and dishonest employee from the Government service in public Interest. It is for the Government to form opinion in an individual case, in the light of the materials as exist against a Government employee that whether his continuance in the Government service is to be detriment of the public but at the same time, on the facts of the particular case, it should also not appear that the action as has been taken by the Government is either punitive or on account of some bias. It is for this effective check regarding action of the Government with regard to the mala fide, perverse order and arbitrary action, this Court as well as Apex Court has repeatedly said that remedy provided under Article 226 of the Constitution is not less than an important safeguard. Guidelines have been enumerated in the decision of the Apex Court in baikunth Nath Das v. Chief Medical Officer. 1992 (2) SCC 299 . The cases as has been referred by learned counsel for the petitioner in support of his submission also lay down that more importance should be attached io the performance of the later years and heavy weight should not be given to the entries of remote past. ( 7 ) SO far the case in hand is concerned it appears that the petitioner has succeeded in getting direction from the Services Tribunal on 29. 4. 1999 for his promotion on the post of Jailer which was admittedly, not complied with by the respondents, on account of which, the petitioner has to file a contempt petition before the Public Services Tribunal which remained pending. 4. 1999 for his promotion on the post of Jailer which was admittedly, not complied with by the respondents, on account of which, the petitioner has to file a contempt petition before the Public Services Tribunal which remained pending. The respondents in order to avoid compliance of the order of the Tribunal approached this Court but they could not be able to obtain any restraint order against the decision of the Tribunal. Although the petitioner was confirmed on the post of Deputy Jailer on 20. 6. 1995 and he was serving on that post for the last about 5 years without any complaint or any adverse material against him, prima facie there exists no exception or any justification on the part of the respondents to all of a sudden woke up and consider the continuance of the petitioner in service to be in public Interest or not. It is not a case that on the basis of the adverse material against the petitioner, his continuance was considered, at the time of either confirmation of certain benefits on him or on account of his continued acts of indiscipline, serious misconduct. Here is the case where after a consideration of previous service record, the petitioner was conferred benefit and he was confirmed on the post of Deputy Jailer on 20. 6. 1995 and even thereafter, for a period of 5 years, he worked on that post, admittedly, without any misconduct on his part. This Court do not find, in the light of the material as has been placed and in the light of the pleadings as has been set forth by the respondents that what was the occasion for consideration to take action of compulsorily retiring the petitioner although in 1995, he was confirmed on the post of Jailer and he has been working as such since last 5 years which is quite a long time. It appears that it is only when on account of denial to the petitioner of his further promotion to the post of Jailer as juniors to the petitioner were promoted, due to rigid approach of the respondents, the petitioner was able to get a decision from the Tribunal in his favour, the respondents having taken steps not to implement the same, having failed, chosen to proceed with the present impugned exercise. The action of the respondents lack in its bona fide on the facts and totality of the circumstances. Although, decision as has been referred by learned standing counsel in Union of India v. P. S. Dhillon (supra), states that pre-confirmation of adverse material on record, can be taken into consideration for forming such opinion but here is the case where after confirmation, the petitioner has worked for more than 5 years without any adverse thing on his part and in the peculiar facts of the present case, the impugned exercise has come into existence due to apparent rigid approach of the respondents to accept the mandate of the Tribunal and, therefore, to my mind, the decision as has been relied upon by the learned standing counsel may not apply to the facts of the present case. ( 8 ) IN view of the aforesaid discussions and analysis of the material as has been brought on record, it appears that the action as has been taken by the respondents was arbitrary, perverse and lacks in bona fide and, therefore, the same deserved to be quashed. ( 9 ) ACCORDINGLY, the writ petition succeeds and is allowed. The Impugned order dated 6. 12. 2000 as passed by respondent No. 3 (Annexure-1 to the writ petition) is hereby quashed. The petitioner will be entitled to all consequential benefits. ( 10 ) PARTIES shall bear their own costs.