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Madhya Pradesh High Court · body

2006 DIGILAW 1057 (MP)

State of M. P. v. Ram Sewak Jaiswal

2006-09-05

A.K.GOHIL, A.K.PATNAIK

body2006
ORDER Patnaik, CJ. -- 1. This writ petition under Article 227 of the Constitution has been filed by the petitioners against the order dated 19.10.2001 passed by the Madhya Pradesh Administrative Tribunal, Gwalior Bench in OA No. 218/1996. 2. The facts briefly are that the respondent No.2 was working as Asstt. Statistical Officer in the State of Madhya Pradesh and he was prematurely retired under rule 42 (1) (b) of the Madhya Pradesh Civil Services (Pension) Rules, 1976 by order dated 3.8.1995. The Respondent No.1 challenged the said order dated 3.8.1995 of compulsory retirement before the Madhya Pradesh Administrative Tribunal, Gwalior Bench in OA No. 218/1996. The Tribunal found from the records of the Screening Committee that the Screening Committee has considered the CRs of respondent No. 1 only for the period 1990-1994. The Tribunal held that as per the law laid down by the Supreme Court the entire service record of the Government servant had to be seen by the Screening Committee and since only five years' CRs of the respondent No.1 were considered by the Screening Committee, the order of compulsory retirement was liable to be quashed. Accordingly, the Tribunal quashed the order of compulsory retirement and directed that the respondent No.1 should be given consequential reliefs by the impugned order dated 19.10.2001. Aggrieved by the said order of the Tribunal, the petitioners have filed this writ petition. 3. Mr. Brajesh Sharma, learned Government Advocate for the petitioners submitted that the ACRs of the respondent No.1 for the last five years would show that for the year 1990 he got 'Gha' and for the years 1993, 1994 and 1995 he had got 'Ga' in each of the years and on the basis, of the said ACR entries of the respondent No.1, the Screening Committee had decided that he should be retired under rule 42 (1) (b) of the Madhya Pradesh Civil Services (Pension) Rules, 1976. 4. Mr. 4. Mr. S.P. Shrivastava, learned counsel for the respondent No.1, on the other hand, submitted that a Division Bench of this Court in WP No.113/2002 [State of M.P. and another v. Kedar Nath Ashthana and another] has decided on 24.1.2002 that where the entire service record of the employee has not been taken into consideration before passing an order of compulsory retirement, the same was illegal as per the law laid down by the Supreme Court in Baikuntha Nath Das and another v. Chief District Medical Ofjicer, Baripada and another [ (1992) 2 SCC 299 ], State of Orissa and others v. Ram Chandra Das [( 1996) 5 SCC 33]] and State of Gujarat v. Umedbhai M. Patel [ (2001) 3 SCC 314 ]. He submitted that the aforesaid decision of the Division Bench in WP No. 113/2002 was challenged before the Supreme Court in a Special Leave Petition but the Supreme Court has dismissed the Special Leave Petition. 5. Rule 42 (l) (b) of the Madhya Pradesh Services (Pension) Rules, 1976 is quoted herein below: "42. (1) (b) The appointing authority may in the public interest require a Government servant to retire from service at any time after he has completed 20 years qualifying service or he attains the age of 50 years whichever is earlier, with the approval of the State Government by giving him three months notice in Form 29 : Provided that such Government servant may be retired forthwith and on such retirement the Government servant shall be entitled to c1aim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing then immediately before his retirement or, as the case may be, for the period by which such notice falls short of three months." The aforesaid Rule thus empowers the appointing authority to require a Government servant to retire from service at any time after he has completed 20 years of qualifying service or the attains the age of 50 years. whichever is earlier in the public interest. whichever is earlier in the public interest. Interpreting similar provision ·in rule 71 of the Orissa Service Code, the Supreme Court has held in Baikuntha Nath Das and another v. Chief District Medical Officer (supra) that the review committee or the Government while deciding the cases of Government servant regarding compulsory retirement from service in public interest should not be swayed by one or two remarks but should form an opinion on a totality of consideration of the entire record attaching more importance to later period of his service. 6. Similarly, in State of Orissa and others v. Ram Chandra Das (supra), the Supreme Court again reiterated that the Government was empowered and would be entitled to compulsorily retire a Government servant in public interest with a view to improve efficiency of the administration or to weed out the people of doubtful integrity, but before taking such a decision to retire a Government employee compulsorily from service, the Government has to consider the entire record of the Government servant including the latest reports. 7. In State of Gujarat v. Umedbhai M. Patel (supra), the aforesaid law laid down by the Supreme Court in the case of State of Orissa and others v. Ram Chandra Das (supra), was quoted in para 5 of the judgment as reported in (2001) 3 SCC 314 that Government before taking such a decision to retire a Government employee compulsorily from service, has to consider the entire record of the Government servant including the latest reports. 8. Applying the aforesaid law laid' by the Supreme Court in case of Baikuntha Nath Das, Ram Chandra Das and Umedbhai M. Patel (supra), we find from Annexure P-4 annexed to the writ petition filed by the petitioners that for the years 1966, 1967, 1968, 1970, 1972, 1973, 1974, 1978, 1985 and 1992, the respondent No. 1 had been given a general grading of 'kha' which is equivalent to 'Good' and for the years 1969, 1971, 1973, 1976, 1979, 1980, 1981, 1982, 1983, 1984, 1987, 1988, 1989, 1993, 1994 and 1995, the respondent No. 1 has been given a general grading of 'Ga' which is equivalent to 'Average' and for the years 1968, 1975, 1976, 1977 and 1990, the respondent No.1 has been given a general grading of 'Gha' which is equivalent to 'Adverse'. Thus, the general grading in the ACRs of the respondent No.1 have varied from period to period comprising of 15 Good', 17 Average' and 5 Adverse' out of a total of 39 periods. But the Screening Committee in the present case has considered only four years ACRs from 1990 to 1995 which comprised of 1 Gha', 3 Ga' and 1 Kha' and has ignored the gradings of 'Kha, 'Ga' and 'Gha' for the previous period from 1966 to 1989. Such an approach of the Screening Committee was clearly contrary to the aforesaid law laid down by the Supreme Court in the case of Baikuntha Nath Das, Ram Chandra Das and Umedbhai M. Patel (supra) and the Tribunal was right in quashing the order of compulsory retirement. 9. Mr. Brajesh Sharma, learned Government Advocate, appearing for the petitioners, next submitted that the Tribunal has directed that the respondent No.1 should be given all consequential relief. He submitted that as a result of compulsory retirement, the respondent No.1 was out of service for a period of six years from 3.8.1995 to August, 2002 and therefore he will have to be paid his full salary for the said period. He cited the judgment of the Supreme Court in M.L. Binjolkar v. State of M.P. [2006 (1) Vidhi Bhasvar 70 = (2005) 6 SCC 224 ], wherein the Supreme Court has refused to interfere with the order of the High Court granting 50% back wages to the Government Servants who were compulsorily retired in that case. 10. We have perused the said decision of the Supreme Court in the case of M.L. Binjolkar v. State of M.P. (supra) and we find that in that case the High Court had directed in the cases of each of the four employees that the employee concerned was to be granted 50% of the amount payable as salary, allowance, etc. while setting aside the order of compulsory retirement and employees had questioned the correctness of the orders of High Court granting 50% back wages and the Supreme Court did not think it appropriate to interfere with the order of the High Court. while setting aside the order of compulsory retirement and employees had questioned the correctness of the orders of High Court granting 50% back wages and the Supreme Court did not think it appropriate to interfere with the order of the High Court. In the present case, the Tribunal has granted consequential relief to the respondent No.1 and no ground is made out by the petitioners that the respondent No.1 should have been granted 50% back wages or less nor any material placed before the Court in support of said period. In the absence of any pleadings and material before the Court for grant of back wages less than the full back wages, we are not inclined to consider this point raised before us by the learned Government Advocate for the first time. But, we make it clear that any post retiral benefits given to the respondent No.1 as a consequence of the order of compulsory retirement, will be deduced from the arrears of salary payable to the respondent No.1 for the period he was out of service. 11. For the aforesaid reasons, we find no merit in the writ appeal and we accordingly dismiss the same with the aforesaid observations.