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2004 DIGILAW 1940 (ALL)

Toofani Prasad v. State of U. P.

2004-09-24

B.S.CHAUHAN, SANJAY MISRA

body2004
JUDGMENT : B.S. CHAUHAN, J. 1. This special appeal has been filed against the judgment and order dated 17.5.2004, passed by the learned single Judge by which the writ petition filed by the Petitioner-Appellant for quashing the order of compulsory retirement, has been dismissed. 2. The facts and circumstances giving rise to the case are that the Petitioner-Appellant was a class-III employee in the Judgeship at Varanasi. A Screening Committee was constituted by the District Judge, Varanasi for screening the service records of class-III and IV employees. The name of the Petitioner was also recommended for compulsory retirement. However, taking a lenient view, the learned District Judge did not accept the report of the Screening Committee and gave one chance to the Petitioner-Appellant to improve his work. Subsequently, another Screening Committee headed by 1st Additional District Judge, Varanasi examined the service records of various employees with that of the Petitioner-Appellant and recommended his name for retirement vide report dated 8.1.2002. The District Judge, vide order dated 17.1.2002, after considering the facts and examining the record, passed the order of compulsory retirement of the Petitioner-Appellant in public interest. Being aggrieved, the Appellant preferred the appeal in the High Court on administrative side which had been dismissed vide order dated 7.8.2003. Subsequently, he challenged both the orders by filing Writ Petition No. 16086 of 2004, which has been dismissed vide order dated 17.05.2004. Hence the present special appeal. 3. Learned Counsel appearing for the Appellant has submitted that once the District Judge did not accept the first report and gave an opportunity to the Appellant to improve himself, the occasion for recommendation for compulsory retirement by the 2nd Screening Committee did not arise. Therefore, the orders dated 17.1.2002, 07.8.2003 as well as the judgment and order under challenge are liable to be reversed. 4. Shri K.R. Sirohi, learned Counsel appearing for the Respondent Nos. 2 and 3 has submitted that the Appellant's service record was not very good. Punishment had been imposed against him. He had been put under suspension and after examining the same, the orders had been passed, thus, no interference is required. 5. We have considered the rival submissions made by the learned Counsel for the parties and perused the record. 6. The issue of compulsory retirement has been considered by the Hon'ble Supreme Court time and again. 7. In Baikuntha Nath Das and another Vs. 5. We have considered the rival submissions made by the learned Counsel for the parties and perused the record. 6. The issue of compulsory retirement has been considered by the Hon'ble Supreme Court time and again. 7. In Baikuntha Nath Das and another Vs. Chief District Medical Officer, Baripada and another, AIR 1992 SC 1029 : (1992) 2 SCC 299 , the Hon'ble Supreme Court has laid down certain criteria for the Courts, on which it can interfere and they included mala fide, order if based on no evidence, order is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material, i.e., if it is found to be a perverse order. The Hon'ble Apex Court observed that the order of compulsory retirement is not a punishment, it implies no stigma nor any suggestion of misbehaviour; the order should be passed in public interest on subjective satisfaction of the Authority and while reviewing the service record, the entire service record is to be considered. However the record of the later years should be given more importance and even uncommunicated adverse entries may be taken into consideration. The Apex Court held as under: (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 judicial 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. (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 favourable 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. That circumstance by itself cannot be a basis for interference. 8. Similar view has been reiterated in Posts and Telegraphs Board and others Vs. C.S.N. Murthy, AIR 1992 SC 1368 Sukhdeo Vs. Commissioner Amravati Division, Amravati and Another, (1996) 5 SCC 103 State of Orissa and others Vs. Ram Chandra Das, AIR 1996 SC 2436 and M.S. Bindra Vs. Union of India and Others, AIR 1998 SC 3058 . 9. In Rajat Baran Roy and Others Vs. State of W.B. and Others, AIR 1999 SC 1661 , the Hon'ble Supreme Court held that there is a very limited scope of judicial review in a case of compulsory retirement and it is permissible only on the grounds of non-application of mind and want of material particulars. 10. In The State of Gujarat and Another Vs. Suryakant Chunilal Shah, (1999) 1 SCC 529 , the Hon'ble Supreme Court held that while considering the case of an employee for compulsory retirement, the public interest is of paramount importance. A dishonest, corrupt and dead-wood deserves to be dispensed with, how much efficient and honest an employee is, it is to be assessed on the basis of material on record which may also be ascertained from confidential reports. However, there must be some tangible material against the employee warranting his retirement. 11. In State of U.P. and Another Vs. A dishonest, corrupt and dead-wood deserves to be dispensed with, how much efficient and honest an employee is, it is to be assessed on the basis of material on record which may also be ascertained from confidential reports. However, there must be some tangible material against the employee warranting his retirement. 11. In State of U.P. and Another Vs. Bihari Lal, AIR 1995 SC 1161 , the Apex Court held that if the general reputation of an employee is not good, though there may not be any tangible material against him, he may be given compulsory retirement in public interest and judicial review of such order is permissible only on limited grounds. The Court further held that "what is needed to be looked into, is the bona fide decision taken in public interest to augment efficiency in the public service." 12. In I.K. Mishra Vs. Union of India and Others, AIR 1997 SC 3740 , the Hon'ble Supreme Court observed as under: Power to retire compulsorily a Government servant in terms of Service Rules is absolute, provided the authority concerned forms an opinion bona fide that compulsory retirement is in public interest. 13. In Prabodh Sagar v. Punjab State Electricity Board and Ors. AIR 2000 SC 1684 , the Hon'ble Supreme Court held that employee's unsatisfactory performance, coupled with the tendency to resort to litigation, most of which was unsuccessful, rendered him a liability to his employer, and he was rightly retired in public interest. In the said case, allegation of mala fide was also rejected for want of particular material. 14. Similar view has been reiterated in Ramesh Chandra Acharya Vs. Registrar, High Court of Orissa and Another, AIR 2000 SC 2168 , while dealing with a case of judicial officer. 15. In State of Uttar Pradesh and Others Vs. Vijay Kumar Jain, (2002) 3 SCC 641 (1), the Hon'ble Supreme Court placed reliance upon its earlier judgments in Shyam Lal Vs. The State of Uttar Pradesh and The Union of India (UOI), AIR 1954 SC 369 , wherein it has been held that an order of compulsory retirement is neither a punishment nor any stigma attached to it, rather, further services of a person are dispensed with in public interest. The State of Uttar Pradesh and The Union of India (UOI), AIR 1954 SC 369 , wherein it has been held that an order of compulsory retirement is neither a punishment nor any stigma attached to it, rather, further services of a person are dispensed with in public interest. The Apex Court held that if an employee has been given the adverse entries regarding his integrity at any stage of his service career, he loses the right of continuation in service, and compulsory retirement, if given, should not be interfered with. 16. In Union of India (UOI) Vs. Col. J.N. Sinha and Another, AIR 1971 SC 40 , the Apex Court held that an employee compulsorily retired does not lose any right acquired by him before retirement, as the compulsory retirement is not intended for taking any personal action against the Government servant, and the order so passed can be challenged on the ground that either the order is arbitrary or it is not in public interest. No other ground can be available to the Government servant who is sought to be compulsorily retired from service. However, it may be subject to the conditions provided under the statutory provisions. 17. In Jugal Chandra Saikia Vs. State of Assam and Another, AIR 2003 SC 1362 , the Apex Court held that where the screening committee is consisting of responsible officers of the State and they have examined/ assessed the entire service record and form the opinion objectively as to whether any employee is fit to be retained in service or not. In absence of any allegation of mala fide, there is no scope of a judicial review against such an order. While deciding the said case, reliance had been placed upon a large number of judgments, particularly, upon judgments in S. Ramachandra Raju Vs. State of Orissa, AIR 1995 SC 111 . 18. In Nawal Singh Vs. State of U.P. and Another, AIR 2003 SC 4303 , a similar view has been reiterated, observing that formation of an opinion regarding compulsory retirement by the authority is in the nature of a subjective satisfaction. However, it should be based on assessment of the service record. State of Orissa, AIR 1995 SC 111 . 18. In Nawal Singh Vs. State of U.P. and Another, AIR 2003 SC 4303 , a similar view has been reiterated, observing that formation of an opinion regarding compulsory retirement by the authority is in the nature of a subjective satisfaction. However, it should be based on assessment of the service record. In case of adverse entry regarding the officer is concerned, it should be entertained on the basis of the opinion of a higher officer who had an opportunity to watch the performance of the officer concerned and to form an opinion with regard to overall reputation enjoyed by him. 19. Thus, the law of the point can be summarised that the Authority must consider and examine over-all entries of the officer concerned and not an entry here and there, as it may well be in some cases that in spite of satisfactory performance, still the authority may desire to compulsorily retire an employee in public interest, as in the opinion of the said Authority, the post has to be manned by more efficient and dynamic person and if there is sufficient material on record to show that the employee "rendered himself a liability to the institution", there is no occasion for the Court to interfere in the exercise of its limited power of judicial review. 20. In Krishena Kumar Vs. S.P. Saksena and Others, AIR 1973 SC 1065 , the Hon'ble Apex Court held that what is to be seen by the Court at the time of judicial review, as to whether the Appointing Authority has formed its opinion objectively and whether the order had been passed by the Competent Authority. In the instant case, recommendation of the Screening Committee had been accepted by the District Judge, therefore, the order has been passed by the District Judge and not by the Additional District Judge and for such a purpose, constitution of a Committee is permissible, as held by Hon'ble Apex Court in High Court of High Court of Judicature for Rajasthan Vs. P.P. Singh and Another, AIR 2003 SC 1029 . 21. The Appellate Authority, i.e., High Court in administrative side, while considering the memo of appeal filed by the Appellant, has examined the entire service record of the Appellant and found that his record was worst. P.P. Singh and Another, AIR 2003 SC 1029 . 21. The Appellate Authority, i.e., High Court in administrative side, while considering the memo of appeal filed by the Appellant, has examined the entire service record of the Appellant and found that his record was worst. The Appellant had been censured on various occasions for various reasons and had been placed under suspension twice. Major punishment of withholding five Annual Grade Increments had also been imposed and the appeal was dismissed on the ground that he had been given compulsory retirement. 22. Nothing could be brought to our notice on the basis of which it can be held that the findings of fact that Petitioner-Appellant did not have a good service record is not factually correct, nor the report of the screening committee can be held to be contrary to the evidence on record. There can be no reason not to accept the reasoning given by the High Court on administrative ground that the service record of the Petitioner was far from satisfaction. 23. The sole contention raised by the learned Counsel for the Appellant that as the service record of the Appellant in later years was good and it showed that he has improved significantly is of no consequence for the reasons recorded above. No allegation of malice etc. have been urged before us. 24. In view of the above, we find no force in the appeal. It is, accordingly, dismissed.