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2002 DIGILAW 396 (GAU)

Har Kaman Lohari v. State of Arunachal Pradesh

2002-09-11

I.A.ANSARI

body2002
I.A.ANSARI J.— By making this application under Article 226 of the Constitution of India, the petitioner has approached this Court with prayer to issue appropriate writ/writs setting aside and quashing the impugned order retiring the petitioner from his post of work charge employee and commanding the respondents to reinstate the petitioner without any break and to give him all consequential financial benefits. 2. In a nutshell, petitioner's case runs thus: The State of Arunachal Pradesh was a Union Territory in the past and its public works department was administered by the Central Public Works Department (hereinafter referred to as "the CPWD"). In course of time, the CPWD was replaced by the State Public Work Department popularly known as the PWD. Way back in 1970-71, because of the difficult terrains and lack of communication facilities, it was difficult to find people to work as mazdoor in the said department. The CPWD, therefore, started engaging casual/non-regular workers for working at the work site of the projects undertaken by the CPWD and these workers used to be paid from the fund ear marked for the project itself and not from the salary accounts of the Government. This system gave birth to anew class of workers known as Work Charge Staff. Even after the CPWD was replaced by the PWD, the said system continued and, in course of time, the Government adopted the policy of regularizing the services of these workers from time to time against sanctioned posts created form employing this class of workers. In response to an advertisement published by the PWD, the petitioner applied for, and received, in the month of November, 1971, appointment as Work Charge Mazdoor, (hereinafter referred to as the "WCM (Non regular)", and was posted at Jairampiir Division of the PWD. Since then, the petitioner has been working as WCM (non regular) with all sincerity and to the satisfaction of the 'authority concerned. Subsequently, a new department was created by the Govt. known as Arunachal Pradesh Public Health Engineering Department (hereinafter referred to as "the PHED"). After. the petitioner had put in, without any blemishes 24 years of service as WCM in the PWD, the petitioner was transferred to, and absorbed in, the PHED as a Work Charge Employee (hereinafter referred to as "WCE") vide order No. CEAP(EZ)/JD/WO-l/95-96/3637-51, dated 28.09.95 (Annexure "A" to the writ petition), issued by the Chief Engineer, PWD. After. the petitioner had put in, without any blemishes 24 years of service as WCM in the PWD, the petitioner was transferred to, and absorbed in, the PHED as a Work Charge Employee (hereinafter referred to as "WCE") vide order No. CEAP(EZ)/JD/WO-l/95-96/3637-51, dated 28.09.95 (Annexure "A" to the writ petition), issued by the Chief Engineer, PWD. The petitioner accordingly joined his new posting, at Jairampur, and since then, he has been working there. Despite several representations made by the petitioner, the services of the petitioner were not regularized. On the other hand, to his utter surprise, the petitioner received an order contained in the letter No. PHED/CHG/WC/PF-8/96-97/172-75, dated 29.04.2002 (Annexure "B" to the writ petition) issued by the respondent No. 3, viz., Executive Engineer, Public Health Department, Changlang, Arunachal Pradesh, informing the petitioner that he would stand retired, on 30.06.2002, on completion of 55 years of age as per Rule 48 of the CCS Pension Rules and in terms of FR 56 read with Clause 23.01 of the CPWD Manual Volume III. The petitioner has, thus, been compulsorily retired w.e.f. 30.06.2002. Though the petitioner had made several representation to the respondents for regularization of his services, the same have been arbitrarily turned down, as stated hereinabove, despite the fact that the petitioner, who had put in 31 years of satisfactory service, ought to have been confirmed by the State Govt. as a model employer. The petitioner has been removed from service malafide on account of the fact that he was claiming to be confirmed. The petitioner has, therefore, approached this Court for setting aside and quashing the impugned order of his retirement on the ground, inter-alia, that the same is malafide, arbitrary and without jurisdiction. 3. Though the respondents have contested this case, they have not filed any affidavit disputing or denying the averments made in the writ petition. In this view of the matter, this Court has to proceed on the premises that the facts stated in the writ petition are true and correct. 4. 3. Though the respondents have contested this case, they have not filed any affidavit disputing or denying the averments made in the writ petition. In this view of the matter, this Court has to proceed on the premises that the facts stated in the writ petition are true and correct. 4. Situated thus, it becomes clear that the petitioner had been working as WCE under the State of Arunachal Pradesh since 1971 and after he had put in 31 years of service, he has been retired compulsorily on attaining the age of 55 years by taking recourse to Para 23.01 of CPWD Manual, Vol .III, which provides for compulsory retirement of WCE in terms of the provisions of FR 56(j). 5. I have carefully perused the materials on record. I have heard Mr. C. Barua, learned Senior Council for the petitioner, and Mr. B.L. Singh learned Senior Govt. Advocate appearing on behalf of the respondents. 6. Before entering into the merit of this writ petition, it is important to take note of Para 23.01 of CPWD Manual, Vol. II, which has been used for compulsory retirement of the petitioner. Para 23.01, it may be noted, reads as follows:- "23.01. Age of retirement It has been decided to regulate the age and the mode of retirement of work charged employees of the CPWD on the analogy of FR. 56 as at present. That is a work charged employee shall ordinarily be retained in service till the day he attains the age of sixty year's. He may, however, be granted extension of service, under very special circumstances, to be recorded in-writing, after he attains the age of 60 years, with the prior sanction of Government of India. However, the appropriate authority shall, if it is of the opinion, that it is in public interest to do so. have the absolute right to retire any work charged employee after he has attained the age of 55 years by giving him in writing, notice of not less than three months or three months' pay and allowances in lieu of notice. have the absolute right to retire any work charged employee after he has attained the age of 55 years by giving him in writing, notice of not less than three months or three months' pay and allowances in lieu of notice. Similarly any work charged employee may be giving in writing, notice of not less than three months to the appropriate authority, retire from service after he has attained the age of 55 years, provided that it shall be open to the appropriate authority to withhold permission to a work charged employee under suspension who seeks to retire after giving three months notice." Note 1. Appropriate authority means the Authority which has the power to make substantive appointment to the post of category of posts from which the work charged employee is retired or wants to retire." (Emphasis is supplied by me) 7. From a bare reading of Para 23.01 of the CPWD Manual, Vol. Ill, it is clear that a WCE will, ordinarily, retire on attaining the age of 60 years and that his services may be extended beyond 60 years, but he may also be retired by the appropriate authority, provided that the authority concerned forms the opinion that it is in the public interest to retire the work charge employee on his attaining the age of 55 years. 8. Note 1 to Para 23.01 clearly shows that the "appropriate authority" means the authority, which can make substantive appointments. It is not in dispute before me that it is the Superintending Engineer, Public Health Engineering Division, Ghanglang, which is the appropriate authority within the meaning of Para 23.01 aforementioned. The impugned order has, however, been passed by the respondent No. 3, viz., Executive Engineer, PHED, Changlang, who is, admittedly, not the appropriate authority to compulsorily retire the petitioner. The impugned order is, therefore, as correctly contended by Mr. Barua, wholly without jurisdiction and void ab-initio. 9. It is also submitted by Mr. Barua that the appropriate authority can decide to retire a person on forming an opinion, on the basis of the service records of the person concerned, that he shall be retired on attaining the age of 55 years in public interest. In the case at hand, there is nothing in the impugned order, dated 25.04.2002 aforementioned, to show, points out Mr. In the case at hand, there is nothing in the impugned order, dated 25.04.2002 aforementioned, to show, points out Mr. Baruah, that it was in the public interest that the respondents concerned decided to retire the petitioner. Viewed from this angle, the impugned order is, contends Mr. Baruah, palpably illegal and must be treated as non-est in law. 10. The law governing the provisions of compulsory retirement, as envisaged by FR 5 3 (j), is well settled by successive judicial pronouncements of the Apex Court and the position of law, which emerges from these pronouncements, is thus: An order for compulsory retirement is not a punishment and it does not attach any stigma to the employee concerned. Security of tenure is an essential condition for achieving efficiency in service. The power of compulsory retirement can, therefore, be resorted to only as an exceptional measure and not as a general rule; it can be invoked on a "positive conclusion" and not on a "neutral attitude". Order for compulsory retirement has to be passed by an appropriate authority, the appropriate authority being one, which has the power to make substantive appointment to the post of category of posts from which the employee is sought to be retired. Though the power to compulsory retire an employee is absolute, the word 'absolute' has to be read as 'wide'. The recourse to compulsory retirement cannot be taken on personal, political or other interest, but solely in public interest, the public interest being retention of efficient and honest employees and weeding out of inefficient, corrupt and dishonest persons or dead wood from the Government services. The order for compulsory retirement can be passed only upon forming of opinion or that it is in the public interest to retire the Government servant concerned compulsorily and, for this purpose, his entire record of service has to be considered before the decision is taken in the matter, more importance having been attached to the record of performance during the later years. The opinion, so formed, is subjective satisfaction of the authority concerned. The burden will rest with the authority to prove that the step has been taken in public interest and the onus is not on the employee to prove the contrary. If the authority concerned forms the opinion bona fide to retire the Government servant, correctness of that opinion can not be challenged before the Courts. The burden will rest with the authority to prove that the step has been taken in public interest and the onus is not on the employee to prove the contrary. If the authority concerned forms the opinion bona fide to retire the Government servant, correctness of that opinion can not be challenged before the Courts. Wisle minimum service tenure is granted to the Government servant, the Government is given power to energies its machinery and to make it more efficient by compulsory retiring those, who should not be there in the public interest. The dismissal or removal from service shall not be equated with retirement. The exercise of power of compulsory retirement must not to be used as a haunt on public servant, but must act as a check and reasonable measure to ensure efficiency of service and freedom from corruption and incompetence. A Government servant can challenge an order of compulsory retirement on any of the three grounds, namely, (i) that the requisite opinion has not been formed; or (ii) that the decision is based on collateral grounds or (iii) it is an arbitrary decision. The decision to compulsorily retire an employee can, therefore, be taken on "positive conclusions" reached and not on a "neutral disposition" or "neutral attitude". 11. I am guided to adopt the views from the law k: d down in Baldev Raj Chadha Vs. Union of India and others ( AIR 1981 SC 70 ), Baikuntha Nath Das and another Vs. Chief District Medical Officer, Baripada ( AIR 1992 SC 1020 ), Brij Mohan Singh Vs. State of Punjab ( AIR 1987 SC 948 ), CD. Ailawadi Vs. Union of India and others, (1990) 2 SCC 328 , Union of India Vs. Col J.N. Sinha and another 1970 (2) SCC 458 ', S* Ramachandra Raju Vs. State of Orissa, 1994 Supp (3) SCC 424 and Work Charged Employees Association Vs. State of Mizoram & ors. 1999(2)GLT 407. 12. I may pause here to point out that it has been contended by the learned Sr. Govt. Advocate that the decision to retire the WCE is of the State Govt. inasmuch as the State Govt. is unable to maintain, because of its financial constraints, the present strength of the WCE. 13. State of Mizoram & ors. 1999(2)GLT 407. 12. I may pause here to point out that it has been contended by the learned Sr. Govt. Advocate that the decision to retire the WCE is of the State Govt. inasmuch as the State Govt. is unable to maintain, because of its financial constraints, the present strength of the WCE. 13. If the financial constrains on the part of the Government were the only reason for compulsorily retiring the petitioner, then, the record ought to have revealed that the Government will not be employing another person in place of the petitioner. However, apart from the fact that there is nothing before this Court to show that no new appointment would be made in place of the petitioner after he stood retired, what is also essential to note is that even according to Para 23.01, which has been made use of by the respondents to retire the petitioner, a WCE will, ordinarily, retire on attaining the age of 60 years and it is only as an exceptional measure that recourse can be taken to FR 56(j) to retire a WCE on his attaining the age of 55 years. For such a purpose, whole service record of the person concerned has to be considered and if an opinion is bona fide formed that it is in the public interest to retire the employee concerned on account of his inefficiency and/or dishonesty, and/or that he had become a dead wood, he may be retired. 14. In the case at hand, however, what has been contended, on behalf of the State Govt., is that it is in pursuance of a policy of the State Government that all WCE shall retire on attaining the age of 55 years that the petitioner stands retired and not because he is unfit to remain in service. In other words, contrary to the established position of law discussed above, the respondents have chosen to retire the petitioner, as herein before stated, without considering his service record, without assigning any reason therefor and there being no material on record to show to the effect that the petitioner has ceased to be of utility to the department concerned. Thus, in any view of the matter, the impugned order does not stand scrutiny of law and cannot, therefore, be allowed to stand good on record. 15. Thus, in any view of the matter, the impugned order does not stand scrutiny of law and cannot, therefore, be allowed to stand good on record. 15. In the result and for the reasons discussed above, this writ petition succeeds. The impugned order, dated 29.04.2002, aforementioned retiring the petitioner w.e.f. 30-06-2002 is set aside and quashed and the petitioner is directed to be reinstated in service w.e.f. 30.06.2002 with all back wages and other admissible benefits. 16. With the above observations and directions, this writ petition shall stand disposed of. 17. No order as to costs.