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Madhya Pradesh High Court · body

2005 DIGILAW 97 (MP)

Gafoor Mohammad v. State of M. P.

2005-01-18

A.K.SHRIVASTAVA

body2005
JUDGMENT A.K. Shrivastava, J. 1. In the abovesaid three writ petitions, the petitioners have challenged their order of compulsory retirement. In all three petitions, the impugned order of compulsory retirement is Annexure-A/1 dated 26.7.19-94: Petitioner Gafoor Mohammad of Writ Petition No. 9158/2003 was serving on the post of Head Constable, petitioner Abdul Hafiz of W.P. No. 9157/2003 was also serving on the post of Head Constable while the petitioner Hari Krishna of W.P. No. 9156/2003 was serving on the post of Constable. All these three petitioners having attained the age of 55 years were directed to be compulsorily retired in public interest under F.R. 56 by giving three months wages and allowances. All the petitioners were serving in the police department. Against the order retiring them compulsorily, they submitted representation to DIG Police, Jabalpur Range, Jabalpur. The representation/appeal is Annexure-A/3 in all the petitions. According to the petitioners, the order retiring them compulsorily is arbitrary, illegal and is not based on material on record. It has been contended that the State Government framed guidelines for invoking the powers under F.R. 56 and the said guideline is Annexure-A/4. According to the learned Counsel, a Screening Committee is required to be constituted to examine the service record of the employees. At the time of screening the cases, the Screening Committee is required to examine the following: (i) honesty and integrity of the employee; (ii) his overall performance should not be below the average; and (iii) he should be physically fit to discharge the duties. If any of the above condition is found in a case of an employee, he could be retired compulsorily after having attained the age of 55 years. 2. According to the learned Counsel for the petitioners, none of the condition is ever found in the case of any of the petitioner and therefore the order of compulsory retirement Annexure-A is bad in law. 3. Inter alia on the aforesaid grounds, it has been contended on behalf of petitioner Gafoor Mohammad that on 20.12.1993, a notice of retirement was given to him, informing that he may be retiring with effect from 31.12.1995 on attaining the age of superannuation i.e. 58 years and thus after near about 7 months, on 26.7.1994, Annexure-A/1 was passed retiring him compulsorily. According to the learned Counsel since petitioner Gafoor Mohammad crossed the age of 55 years, therefore his case was not required to be considered to retire him compulsorily. It has also been canvassed for him that since he was promoted in the year 1992, therefore there was no justification in passing the impugned order of compulsorily retirement only after two years. Similar type of submission has been made in the case of Abdul Hafiz. So far as the case of petitioner Hari Krishna is concerned, he was retired from the post of Constable and this Court fails to understand that from which post, he was promoted to the post of Constable. The pleadings of his case is self-contradictory. In para 6.1 of the petition it has been pleaded that Hari Krishna was appointed on 1.9.1955 as Constable and if that is the position, how there can be any promotion on the same post on which petitioner Hari Krishna was appointed as stated by him in ground No. 5 that he was promoted in the year 1992. There is no pleading that on which post he was promoted. 4. Shri Gupta, learned Counsel for the petitioner in support of his contentions placed reliance on certain decisions they, are: State of Gujarat v. Umedbhai M. Patel 2001 (89) FLR 173, State of M.P. v. Laxmi Chand Awadhiya and Ors. 2002 (4) MPLJ 343 : 2002 (5) MPHT 228 , R.K. Panjetha v. Haryana Vidyut Prasaran Nigam Ltd. and Anr. (2002) 10 SCC 590 , Yadav Rao Bhelkar v. State of M.P. and Ors. 2004 (4) MPLJ 30 : 2004 (2) MPHT 237 , and Ram Prasad Dwivedi v. Collector, Shahdol and Anr. 2004 (3) MPLJ 640 : 2004 (3) MPHT 501 . 5. Per contra in the return, it has been contended on behalf of respondents that the respondents convened a District Level Screening Committee consisting of three senior officers, namely, Collector, Superintendent of Police and Additional Superintendent of Police. The Committee so constituted was presided by the Collector, Balaghat. The Screening Committee which was constituted, held its meeting on 26.7.1994, and 27.7.1994. The Committee considered, in all 36 persons working as Constables and Head Constables, Assistant Sub-Inspectors and Inspectors, who, have completed the age of 55 years of their service. The Committee so constituted was presided by the Collector, Balaghat. The Screening Committee which was constituted, held its meeting on 26.7.1994, and 27.7.1994. The Committee considered, in all 36 persons working as Constables and Head Constables, Assistant Sub-Inspectors and Inspectors, who, have completed the age of 55 years of their service. According to the respondents, the Screening Committee considered the cases of petitioners by perusing their service record and confidential report and found the record of the petitioners below the average arid unsatisfactory and therefore the petitioners were retired compulsorily under FR 56 in the public interest. In the return it has been emphatically denied that the petitioners were given promotion in the year 1992. On these premised grounds, it has been contended by Shri S.K. Yadav that all the three petitions sans substance and they be dismissed. In support of his submission, he has placed reliance on Baikunth Nath Das and Anr. v. Chief District Medical Officer, Baripada and Anr. 1992 (64) FLR 1090 (SC). 6. In the case of Umedbhai M. Patel (supra), the Supreme Court by crystallizing the norms has enumerated the principles which were broadly summarized thus: (i). Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest. (ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment, coming under Article 311 of the Constitution. (iii) For better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer. (iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order. (v) Even uncommunicated entries in the confidential record can also be taken into consideration. (vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable. (vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer. (viii) Compulsory retirement shall not be imposed as a punitive measure. 7. (vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer. (viii) Compulsory retirement shall not be imposed as a punitive measure. 7. In the present case though there is an averment by the petitioners that they were promoted in the year 1992 but neither any specific date has been mentioned on which they were promoted nor any promotion order has been annexed along with the petition. If the petitioners are coming with a specific case in order to put the dent on the action of respondents retiring them compulsorily on the ground that soon before passing of the impugned order of compulsorily retirement, they were promoted, according to me, they should have filed their promotion order. The averment which is made in this regard is very vague. Merely mentioning the order of promotion would not suffice. Indeed, the petitioners should have filed their order of promotion, which according to them, was given in the year 1992 or at least they should have mentioned the date of promotion. This was more so, when this fact was specifically denied in the return. The return which was filed in the case of Abdul Hafiz, the note sheet Annexure R-l has been' annexed' which was prepared by the Screening Committee. On going through this document, it is revealed that after considering the cases of as many as 36 employees, including the present petitioners, 7 were found to be fit for compulsory retirement, since their overall performance of their service career was found to be below standard and unsatisfactory. It be seen that ordinarily the order of compulsory retirement cannot be treated as a punishment under the ambit and scope of Article 311 of the Constitution of India. The Screening Committee did consider the cases of as many as 36 candidates and chose 7 employees to retire compulsorily. Thus, it cannot be said that the order of compulsory retirement was biased, liven otherwise there is no sufficient material on record, in order to hold that the impugned order is mala fide. On going through the note sheet of the Screening Committee, it is revealed that after testing the entire service career which was found to be unsatisfactory and below standard and after giving due weightage to it, the impugned order was passed. On going through the note sheet of the Screening Committee, it is revealed that after testing the entire service career which was found to be unsatisfactory and below standard and after giving due weightage to it, the impugned order was passed. In the case of Umedbhai M. Patel (supra) which was heavily placed reliance by learned Counsel for the petitioner and on the basis of which he argued that soon before the age of his superannuation, the petitioners were retired which was not permissible in view of the dictum laid down in the case of Umedbhai M. Patel (supra). According to me, the argument so advanced, though at the first blush appears to be quite attractive, however on the deeper scrutiny of it, is found to be devoid of any substance. In the said case Umedbhai M. Patel (supra) in para 11 the Supreme Court laid down the norms in regard to the compulsory retirement. Thereafter, in para 12 after scrutinizing the case of Umedbhai M. Patel, it was found that there was absolutely no adverse entries in regard to confidential report, but in the present case the Screening Committee did find that the entire service record of the petitioners is unsatisfactory and below standard and therefore the decision was taken to retire them compulsorily under FR 56 along with four more employees. There is no merit in the submission of learned Counsel for the petitioners that the petitioner cannot be retired compulsorily after attaining the age of 55 years. The learned Counsel could not point out any provision that an employee who had crossed the age of 55 years cannot be considered for compulsory retirement. After x-raying FR 56 I could not find that the intention of this provision is to consider the case of an employee only when he attains the age of 55 years and not thereafter. 8. I have already held that the case of Umedbhai M. Patel (Supra) is quite distinguishable. There is nothing on record in order to show that soon before the passing of the impugned order the petitioners were promoted and therefore the decision of Yadav Rao Bhelkar (supra) is not applicable in the present case. 8. I have already held that the case of Umedbhai M. Patel (Supra) is quite distinguishable. There is nothing on record in order to show that soon before the passing of the impugned order the petitioners were promoted and therefore the decision of Yadav Rao Bhelkar (supra) is not applicable in the present case. In the case of Ram Prasad Dwivedi (supra), the adverse ACRs were communicated to Ram Prasad Dwivedi only on the date when the order of compulsory retirement was passed and in that situation the order of compulsory retirement was found to be bad in law. However, this is not applicable in the present case. The case of Laxmi Chand Awadhiya (supra) is also distinguishable since in that case the ACRs were found to be good and nothing happened for the period of 18 years. In the case of R.K. Panjetha (supra), the compulsory order of retirement was found to be stigma tic and punitive in nature and in that situation it was held that on the basis of stigmatic order, there cannot be any order of compulsory retirement. There is no quarrel to this preposition. However, the present case is distinguishable and therefore the decision of R.K. Panjetha (supra) is also not applicable in the present 9. In the present case, the Screening Committee after considering the overall performance of all the petitioners as well as their service record found their services to be unsatisfactory and therefore, according to me the order of compulsory retirement which has been passed cannot be said to be faulty. In the case of State of U.P. and Ors. v. Lalsa Ram 2001 (89) FLR 998 (SC), the Supreme Court found that, after considering the entire service record as required in the rules and forming the opinion that it was in the public interest, if the appointing authority passed the order of compulsory retirement, such an order, in the absence of any allegation as to mala fide cannot be called for any interference. While holding so, the Apex Court further held that in the case of compulsory retirement, applicability of the rules of natural jus I too does not arise. According lo me, the case of Lalsa Ram (supra) is fully applicable in the present factual scenario. 10. While holding so, the Apex Court further held that in the case of compulsory retirement, applicability of the rules of natural jus I too does not arise. According lo me, the case of Lalsa Ram (supra) is fully applicable in the present factual scenario. 10. Judging from all the angles of the action of respondents taking a decision to retire these three petitioners, does not found to be faulty or arbitrary. Hence, I have no option except to dismiss all these three writ petitions and I accordingly do so. Ex consequenti, all these three writ petitions are dismissed without any order as to costs.