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2005 DIGILAW 2580 (ALL)

JAI KISHAN KARANWAL v. U P JAL NIGAM

2005-12-21

DHARAM VEER SHARMA, U.K.DHAON

body2005
D. V. SHARMA, J. The instant writ petition has been preferred against the order dated 1-9-2005, a copy of which is contained as Annexure-1 to the writ petition, by which the petitioner was compulsory retired from service. 2. The petitioner had a steep rise in the hierarchy of the Local Self Government Engineering Department until the dawn dated 1-9- 2005 which marked the beginning of his downfall. He suddenly fell from grace as the order for compulsory retirement was passed against him. 3. The petitioner has averred that he was initially appointed as Assistant Engineer in the erstwhile Local Self Government Engineering Department on 18-11-1972 and thereafter, on the creation of U. P. Jal Nigam, his services were transferred in the year 1975. On 18-12-1978, the petitioner was regularised on the post of Assistant Engineer and further on 9-2-1979 he was allowed to cross the first efficiency bar. On 5-5-1983, the petitioner was allowed to cross the second efficiency bar and consequently on 5-12- 1984, he was confirmed on the post of Assistant Engineer (Civil ). On 3-2-1986, the petitioner was granted time scale after completion of ten years satisfactory service and on 22-9-1986, he was allowed to cross efficiency bar. The petitioner has also alleged that he was given appreciation letter for his good work during Haridwar Kumbha Mela and on 11th July, 2000, he was promoted on the post of Executive Engineer (Civil) and further on 6-2-2004 after completion of 18 years satisfactory service, the petitioner was given promotional pay scale of Superintending Engineering. The petitioner has completed approximately 33 years of service. The petitioner has further alleged that he has always with utmost devotion served the U. P. Jal Nigam and all of sudden on 1-9-2005, the petitioner was compulsorily retired from service on the basis of the recommendations of the Screening Committee. Presently, the services of the petitioner, is governed under the U. P. Jal Nigam Engineers (Public Health Branch) Service Regulations, 1978. 4. Presently, the services of the petitioner, is governed under the U. P. Jal Nigam Engineers (Public Health Branch) Service Regulations, 1978. 4. Sri Ritu Raj Awasthi, learned Counsel for the petitioner submits that the petitioner has unblemished service record and neither any adverse entry was ever communicated to him nor any punishment at any point of time has been awarded to him and his work throughout was appreciated by the superiors, but the order of compulsory retirement was passed in violation of the provisions of Rule 56 (C) of the Fundamental Rules without any material. He further submitted that the Screening Committee assessed the merit of the petitioner, in violation of service rules, which amounts to gross abuse of power. 5. Learned Counsel for the petitioner further submitted that the petitioner belonged to a technical service and the members of the Screening Committee were not part of the organisation having sufficient knowledge and expertise and without any public interest the order of compulsory retirement was passed. He further submitted that the petitioner is neither inefficient nor corrupt nor dishonest or has become dead-wood for the service and the conclusion arrived at by the Screening Committee practically keeping the petitioner in the category of no-utility is unfair and unjust and the order of compulsory retirement can be passed on subjective satisfaction which has to be formed on the basis of the entire record of service. At the last he has submitted that the action taken by the respondents was not in public interest and is liable to be quashed for the reason that the petitioner has unblemished service record and especially his ten years service record is good on account of which he was promoted on 11th July, 2000, as Executive Engineer and further on 6-2-2004 he was given promotional pay scale of Superintending Engineer and the persons having inferior service record in comparison to the petitioner, have been retained in service and the order dated 1- 9-2005 is arbitrary and mala fide. 6. Sri I. P. Singh learned Counsel for the opposite parties submitted that on the basis of the recommendation of the Screening Committee, which emphasized on scientific manner by fixing quality point marks, the petitioner was found unsuitable for retention in service and accordingly on the basis of the recommendation of the Screening Committee the order of compulsory retirement was passed. Sri I. P. Singh learned Counsel for the opposite parties submitted that on the basis of the recommendation of the Screening Committee, which emphasized on scientific manner by fixing quality point marks, the petitioner was found unsuitable for retention in service and accordingly on the basis of the recommendation of the Screening Committee the order of compulsory retirement was passed. He further submitted that the petitioner has become dead wood and is of no-utility for the services as he has obtained less marks, prescribed by the Screening Committee, consequently it cannot be said that the action of the respondents was unwarranted, arbitrary, malicious or capricious in any manner and the petition is liable to be dismissed. 7. In reply to the submissions of the learned Counsel for the opposite parties, Sri Awasthi learned Counsel for the petitioner submitted that the criteria adopted by the Screening Committee for giving marks is only applicable in the matter of promotion and it has no co-relation with the process of compulsory retirement. He further submitted that the order of compulsory retirement was passed against the settled preposition of law as laid down in series of the decisions of the Honble Supreme Court and Sri K. K. Agarwal, the Managing Director, who issued the order of compulsory retirement was not legally competent to exercise the power under Rule 56 (C) of the Fundamental Rules as under Fundamental Rule 49 of the Financial Hand Book Volume-II, Part 2 to 4, the officiating officer was not capable to issue the order. 8. Learned Counsel for the petitioner has relied upon the decisions of the Honble Supreme Court in Baikuntha Nath Das & Anr. v. Chief District Medical Officer Baripada & Anr. , reported in (1992) 2 SCC 299 ; Union of India v. Col. J. N. Sinha, reported in AIR 1971 SC 40 ; K. Kandaswamy v. Union of India, reported in 1995 6 SCC 162 ; S. R. Venkataraman v. Union of India, reported in 1979 2 SCC 491 ; M. P. Electricity Board v. Shree Baboo, reported in (2002) 9 SCC 704 and Union of India v. R. C. Misra, reported in (2003) 9 SCC 217 . 9. We have heard learned Counsel for the parties at length and perused the record. 10. It is the admitted case of the parties that the petitioner was promoted on 11. 07. 9. We have heard learned Counsel for the parties at length and perused the record. 10. It is the admitted case of the parties that the petitioner was promoted on 11. 07. 2000 on the post of Executive Engineer and on 6-2-2004 he was granted promotional pay scale of the post of Superintending Engineer. A bare reading of the composite chart relating to the petitioners performance based on ten years annual remarks annexed as Annexure CA-1 to the counter-affidavit leads to an inescapable conclusion that the petitioner has unblemished service record and he was not awarded any adverse entry. It further transpires that petitioner was given promotion and was regularly awarded good entries. Consequently, on the basis of the record the assertion of the petitioner that he has unblemished service record cannot be ruled out. 11. Performance of a Government servant is reflected in annual character roll entries and, therefore, one of the methods of discerning efficiency, honesty or integrity of a Government servant is to look to his character roll entries for the whole tenure from the inception to the date on which decision for his compulsory retirement is taken. If character roll is studded with adverse entries or over all categorization of employee is poor and there is material also to cast doubts upon his integrity, such Government servant cannot be said to be efficient. Efficiency is a bundle of sticks of personal assets, thickets of which is the sticks of integrity, if this is missing whole bundle would disperse. A Government servant has, therefore, to keep his belt tight. Adverse entries are required to be communicated so that the Government servant, to whom adverse entry is given, may have either opportunity to explain his conduct so as to show that the adverse entry was wholly uncalled for, or to silently brood over the matter and on being convinced that his previous conduct justified such an entry, to improve his performance. 12. Public interest has been explained in the decision of the Honble Supreme Court in Union of India v. Col. J. N. Sinha (supra ). It was held that the object of premature retirement of a Government servant was to weed out the inefficient, corrupt, dishonest employee from the Government service. The public servant means that only honest and efficient persons are to be retained in service. J. N. Sinha (supra ). It was held that the object of premature retirement of a Government servant was to weed out the inefficient, corrupt, dishonest employee from the Government service. The public servant means that only honest and efficient persons are to be retained in service. In this regard a clear cut guidelines was issued by the State Government through Annexure No. 14. Consequently, keeping the whole controversy through the contents of Annexure No. 14 leave no room for doubt that there was no justification to treat the petitioner as dishonest, corrupt or otherwise having lost his utility as dead wood. Thus, the action was not warranted under Fundamental Rules 56. 13. In Baikuntha Nath Das (supra) Honble the Supreme has given the following guidelines as to how in the matter of compulsory retirement the Screening Committee has to function: (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 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. 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. 14. Honble the Supreme Court in K. Kandaswamy v. Union of India (supra) has held that while exercising the power under Rule 56 (j) of the Fundamental Rules, the appropriate authority has to weigh several circumstances in arriving at the conclusion that the employee requires to be compulsorily retired in public interest. The Government is given power to energise its machinery by weeding out dead wood, inefficient, corrupt and people of doubtful integrity by compulsorily retiring them from service. When the appropriate authority forms bona fide opinion that compulsory retirement of the Government employee is in the public interest, Court would not interfere with the order. 15. The Court, however, added that the opinion must be based on the material on record otherwise it would amount to arbitrary or colourable exercise of power. It was also held that the decision to compulsorily retire an employee can, therefore, be challenged on the ground that requisite opinion was based on no evidence or had not been formed or the decision was based on collateral grounds or that it was an arbitrary decision. 16. In this context, we find that the requisite opinion is based on no evidence and consequently the opinion was based on collateral grounds and definitely it would be an arbitrary decision. In an identical case, S. R. Venkataraman v. Union of India (supra), the Honble Supreme Court has held the order of compulsory retirement as a gross abuse of power as there was nothing on the record to justify and support the order. 17. While viewing this case from the angle for judicial scrutiny i. e. want of evidence or material to reach such a conclusion, we may add that want of any material is almost equivalent to the next situation that from the available materials, no reasonable man would reach such a conclusion. 17. While viewing this case from the angle for judicial scrutiny i. e. want of evidence or material to reach such a conclusion, we may add that want of any material is almost equivalent to the next situation that from the available materials, no reasonable man would reach such a conclusion. Consequently, it is not possible to uphold the action of the opposite parties. 18. Thus, we may hold that there is no iota of material to support the aforesaid conclusion of the Screening Committee and the conclusion being not based on any material, it is a fit case in which this Court should interfere with the order of compulsory retirement. We are supported by (2002) 9 SCC 704 M. P. Electricity Board v. Shree Baboo. 19. The Govt. Order dated 26th October, 1985 is crystal clear and gives a clear cut guidelines as to how requisite opinion on the given material should be formed and the same has been flouted. 20. In this context, it would in the fitness of things to consider this aspect also that before taking the recourse of compulsory retirement no attempt was made to retain the petitioner at a lower post. The Honble Supreme Court in Union of India v. R. C. Misra (supra) has held that in case the officer is not fit to be retained to a higher post then authority should have considered and retained him on the lower post. The opposite parties have not made any endeavour in this case to revert the petitioner on the ground that the efficiency of the petitioner was not upto the mark. Thus, on this count, the action of the opposite parties to compulsory retire the petitioner is unwarranted. 21. The whole exercise described above would, therefore, indicate that there was no material on the basis of which reasonable opinion could have been formed that the petitioner had outlived his utility as a Government Servant or that he had lost his efficiency as Government servant and had become a dead wood. It would be highly improper to deprive a person with his livelihood without any material or justification. There was no material before the committee to come to the conclusion that the petitioner was of doubtful integrity or was not a fit person to be retired compulsorily from the service. It would be highly improper to deprive a person with his livelihood without any material or justification. There was no material before the committee to come to the conclusion that the petitioner was of doubtful integrity or was not a fit person to be retired compulsorily from the service. In the circumstances of the case the impugned order was punitive having been passed for the collateral purpose of immediate removal of the petitioner from the service rather than in public interest. Obviously, it is a fit case in which this Court should interfere with the order of the compulsory retirement by quashing the same. 22. The petitioner has prayed for a direction in the nature of mandamus commanding the opposite parties to pay full salary and allowances including arrears to the petitioner treating him to be in service till he attains the age of superannuation. In this regard, the earlier view of the Honble Supreme Court was that whenever there is interference with the order of termination or retirement, full back wages were the natural corollary. It has been laid down in several cases that the payment of back wages would depend upon several factors and the Court has to weigh the pros and cons of each case and to take pragmatic view. 23. Keeping in view the law laid down by the Honble Supreme Court in Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya, 2002 (2) LBESR 725 (SC): (2002) 6 SCC 41 , Allahabad Jal Sansthan v. Daya Shankar Rai, 2005 (2) LBESR 747 (SC) : (2005) 5 SCC 124 , we have pondered over the matter and find that the petitioner has failed to satisfy us that after issuance of the order of his compulsory retirement dated 1 9. 2005, he was not earning anything. Thus, it is difficult to conceive that he was not engaged in any gainful employment. Consequently, it would not be equitable to issue any mandamus commanding the opposite parties to pay salary and allowances as prayed including arrears to the petitioner. After all opposite parties are the custodian of public purse and the public exchequer cannot be burdened. Thus the petitioner is only entitled to appropriate quantum in the light of the aforesaid law laid down by the Honble Supreme Court. After all opposite parties are the custodian of public purse and the public exchequer cannot be burdened. Thus the petitioner is only entitled to appropriate quantum in the light of the aforesaid law laid down by the Honble Supreme Court. Consequently, we are of the view that the ends of justice would be satisfied if the respondents are directed to pay 50% back wages. 24. In view of the circumstances referred to above, the petition is partly allowed and the impugned order dated 1-9-2005 (annexure No. 1) is hereby quashed. The respondents are directed to pay 50 per cent back wages to the petitioner from the date of the impugned order till the date of the judgment and reinstate the petitioner in service. No order as to costs. Petition partly allowed. .