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Rajasthan High Court · body

2006 DIGILAW 1131 (RAJ)

K. G. Saxena v. Rajasthan State Agriculture Marketing Board

2006-04-10

AJAY RASTOGI

body2006
Judgment Ajay Rastogi, J.-Instant petition has been filed against order dated 30.12.1992 (Annexure 1) whereby petitioner was compulsorily retired from service in exercise of power under Rule 244 (2) of Rajasthan Civil Service Rules, 1951 (“R.S.R”). 2. Facts, in brief , are that petitioner initially joined service as L.D.C., in the Department of Agriculture on 13.01.1956 and promoted as UDC on 03.03.1960 and so also as Stenographer Gr. II vide order dated 30.11.1963. His services were transferred to Rajastahn Sate Agriculture Marketing Board (“Board”) where he was promoted as Office Superintendent on adhoc basis vide order dated 312.1977 and upon recommendation of DPC, was made substantive on promotional post of Office Superintendent w.e.f. 01.04.1978 vide order dated 20.05.1992 (Annexure 4) and was further promoted as Administrative Officer vide order dated 20.08.1990 (Ann.2) initially for one years probation and on completion of period of probation, was confirmed as Administrative Officer vide order dated 24.09.1991 (Annexure 3). 3. Respondent Board framed its service bye-laws 1977 and wherever Bye-laws are silent, as per resolution of the Board, provisions of RSR were made applicable. Petitioner came with specific case, in the writ petition that his service record is clean and neither adverse entries in his APARs nor disciplinary proceedings were ever initiated against him in his total service career of 35 years and he was lastly promoted as Administrative Officer vide order dated 20.08.1990 (Annexure 2), and confirmed vide order dated 24.09.1991 (Annexure 3). Yet respondents in an arbitrary manner passed an order of his compulsory retirement in exercise of powers under Rule 244(2) of RSR vide order dated 30.12.1992 (Annexure 1). Hence this petition. 4. Shri Chain Singh, Counsel for petitioner contends that no material was available with respondents to form an opinion that the petitioner has outlived his utility or that he is not a fit person to be retained in service; as such very action of respondents is arbitrary, and is in violation of Articles 14 & 21 of the Constitution. According to Counsel, he was due to retire in May, 1995 and interest method has been adopted to oust him from service by invoking Rule 244(2) of RSR which no reasonable man on the basis of his service record can form requisite opinion on given material in holding him to be deadwood; as such impugned decision of respondents is totally perverse and deserves to be set aside. 5. 5. Respondents have filed reply to writ petition and this has not been disputed as referred to in Para 10(B) of the reply that of course, no adverse remarks in ACR was ever recorded or communicated and disciplinary proceedings were also never initiated against him throughout his service career. But it has been averred inter alia that initially preliminary Committee was constituted which examined case of petitioner alongwith such other employees who have attained age of 50 years or rendered 25 years’ services and after examining his service record, found his integrity to be doubtful and such proposal was endorsed by final Committee and accordingly he was compulsorily retired from service in public interest. 6. Cousnel for respondents vehemently urged that preliminary committee constituted by the Board examined total record of service and found integrity of petitioner doubtful and even if his service record was throughout unblemished, that could not be of any significance when the Committee constituted recorded finding of his doubtful integrity; and that apart, one solitary incident, ibid, was sufficient in forming opinion and particularly when no malice has been imputed by petitioner against any member of the Committee or the Board; as such this Court should refrain from interfering with decision of the Committee forming opinion that petitioner has outlived his utility and is not fit to be retained in service and in such circumstances, very decision of respondents impugned is in consonance with Rule 244 (2) of RSR. 7. I have considered rival contentions of Counsel for parties and with their assistance, examined material on record. Under Rule 244 (2) of RSR those employees who have completed 25 years of service or 50 years of age can be considered for compulsory retirement in public interest and is not a penalty provided under Rules. R. 244(2) of RSR reads as under: - “(2) Compulsory retirement after completion of 25 years of service”- .(i) The appointing authority shall have the absolute right to retire in public interest any Government servant, by giving him atleast three month’s previous notice in writing, from service on the date on which he completed 25 years of qualifying service or on the date on which he attains the age of 50 years, whichever is earlier, or on any date thereafter. .(ii) The Government may publish the order of such retirement in Rajasthan Raj Patra, and the Government servant shall be deemed to have retired on such publication if he has not been served with the retirement order earlier.” However, powers can be exercised only in public interest. Once order of compulsory retirement is assailed, its validity depends upon being supported by public interest, for which the authority must disclose material to satisfy the Court that order impugned is not bad in law for want of material whatever which, a reasonable man instructed in the law, is sufficient to sustain grounds of public interest justifying forced retirement of public servant. Basic purpose of the rules is to weed out deadwood and the worthless without punitive extremes covered by Article 311 of the Constitution. But, while examining the same, whole service record of an incumbent has to be considered while giving weightage to latest years record of service. It is not the case of respondents that record of service of later years at all disclosed about inefficiency or adversity which may infer either of doubtful integrity or adversity in record of service. In Baikuntha Nath Das vs. Chief District Medical Officer, 1992 (2) SCC 299 while examining scope of Rule 56(i) which is almost pari materia to Rule 244(2) of RSR in instant case, Apex Court laid down guidelines which have to be considered for purposes of taking decision about compulsory retirement, which are inter alia- “the order of compulsory retirement has to be passed on forming the opinion that it is in the public interest to retire a Government servant compulsorily. Though the order is passed on the subjective satisfaction of the Government, the Government or the Review Committee 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 so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse.” 8. The record so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse.” 8. ApexCourt further observed that though the Court would not examine the matter as an appellate Court, but may interfere if satisfied that the order is mala fide or passed on no evidence or of it is arbitrary, in the sense that no reasonable person would form the requisite opinion or the given material, if found to be a perverse order, remedy under Article 226 is an important safeguard since it is an effective check against arbitrary, mala fide or perverse actions. It is true that order of compulsory retirement is not a punishment and employee is entitled to draw all retiral benefits, but simultaneously the authority has to exercise its powers only in public interest to effectuate the efficiency of the service; and while forming opinion, entire record of service or confidential report maintained would furnish backdrop material for consideration by authority or Committee constituted. Totality of facts while forming opinion are to be considered that employee needs to be compulsorily retired from service. .9. Apex Court in State of Gujarat vs. Umedbhai M. Patel, 2001 (3) SCC 314 , observed that the law relating to compulsory retirement stands now crystallized into a definite principles, and 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. (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. Keeping these principles in mind, let me advert to consider totality of facts in the instant case. It is not in dispute that during 35 years’ service ( from 1956 to 1992), no adverse remark even of doubtful integrity was ever recorded and his integrity was never withheld nor any disciplinary proceedings were also initiated and there is separate column to certify integrity of employee/officer in ACR, it is not the case of respondent that integrity of petitioner was ever withheld by his reporting/reviewing or counter-signing authority in 35 years of his service and that apart, adverse remarks were also never recorded & communicated to him throughtout. 10. However, nothing has been pleaded in the reply as to on what basis opinion was formed of his doubtful integrity. Rather undeniably, petitioner got his promotions as & when became due and last promotion accorded to him was of Administrative Officer vide order dated 20.08.1990 (Annexure 2) on which, confirmed vide order dated 24.09.1991 (Annexure 3). This also holds that his service record was found to be satisfactory by the authority. 11. Record, placed by Counsel for respondents including minutes of preliminary and final committee which took decision with regard to compulsory retirement of petitioner, revealed that one solitary incident has been referred to about a case filed by M.L. Bairwa in which petitioner was Officer-Incharge but decision of that case for some reason was not placed before concerned authority. 12. 11. Record, placed by Counsel for respondents including minutes of preliminary and final committee which took decision with regard to compulsory retirement of petitioner, revealed that one solitary incident has been referred to about a case filed by M.L. Bairwa in which petitioner was Officer-Incharge but decision of that case for some reason was not placed before concerned authority. 12. Minutes of the preliminary Committee with respect to petitioner referred to by Counsel for respondents during arguments are reproduced: Facts recorded in Minutes (Supra) holding integrity of petitioner doubtful on a case inferred that petitioner was Officer-Incharge in the matter of Shri M.L. Bairwa and copy of decision rendered in that case was not furnished by him to the authority concerned, in my opinion it is difficult to accept as to who could be held responsible if at all it be so, and can integrity of petitioner be said to be doubtful on that basis; as such opinion expressed by the Committee is not supported by any material on record and is based on their own personal perception holding him of doubtful integrity. This was a solitary incident-reference whereof has been made in Minutes while recording his integrity to be doubtful which in my opinion is totally perverse and is not supported with any cogent material on record. 13. Inthis view of matter, I find that exercise of power by respondents herein is wholly arbitrary and failure to take entire record of service into consideration objectively; and the authority has taken solitary instance-reference whereof has been made in Minutes quoted supra, even from a bare perusal whereof depicts that no one can at all presume of doubtful integrity of petitioner and more so when his integrity has never been withheld in his 35 years of service career by either of the authority under whom he worked and that apart, his consistent record of service establish that he has satisfactory record and his efficiency was never impaired. In my considered opinion, decision of respondents impugned for compulsorily retiring petitioner was abuse of powers under Rule 244(2) of RSR and was in violation of Article14 of the Constitution. 14 Consequently, this writ petition succeeds and is hereby allowed. Order of compulsory retirement of petitioner dated 30.12.1992 (Annexure 1) is quashed and set aside. Petitioner will be entitled for all consequential benefits flowing thereon. 14 Consequently, this writ petition succeeds and is hereby allowed. Order of compulsory retirement of petitioner dated 30.12.1992 (Annexure 1) is quashed and set aside. Petitioner will be entitled for all consequential benefits flowing thereon. Respondents shall ensure compliance of this order within three months. No costs.