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2012 DIGILAW 50 (ALL)

PRADEEP KUMAR AGARWAL v. STATE OF U. P.

2012-01-06

PANKAJ NAQVI, S.K.SINGH

body2012
JUDGMENT By the Court.—Heard Sri H.R. Misra, learned Senior Advocate assisted by Sri D.S. Srivastava who appeared in support of this petition and learned Standing Counsel who appeared for the respondents 1 and 2. 2. By means of this petition petitioner has prayed for quashing of the judgment of the U.P. Public Services Tribunal, Lucknow dated 30.8.2006, 28.9.2007 (Annexures 20 and 22 respectively and the order of compulsory retirement dated 7.11.2001 passed by the State Government (Annexure- 2 to the writ petition. 3. There is further prayer for re-instatement in service as Executive Officer in Nagar Palika Parishad and also to pay salary of a particular period as stated in relief (iii) of the writ petition. 4. At the very outset it is to be mentioned that so far relief about re-instatement in service is concerned that has become infructuous by lapse of time as when writ petition was filed in the year 2008 petitioner was aged about 57 years and thus other prayers are to be considered. 5. For disposal of the writ petition, brief facts will suffice. 6. Petitioner was appointed as Executive Officer Class III in Nagar Palika Parishad U.P. by order dated 17.5.1979 and his service was governed by U.P. Palika Centralised Services Rules, 1966 as amended from time to time. The meeting of the Screening Committee under Chairmanship of Director Local Bodies is said to have been held for the purpose of consideration of compulsory retirement of Executive Officers of U.P. Palika Parishad Centralised Service of Class III Nagar Palika Parishad who completed 50 years of service. The committee in the proceeding mentioned the date of birth of the petitioner as 19.10.1950 and about the character rolls of the petitioner for the last ten years. In the character roll entries of last ten years i.e. from the year 1990-91 to 1999-200 no entries were found for the years 1995-96, 1996-97, 1997-1998 and 1998-1999. It was further found that for the year 1999-2000 adverse entry was given and that was communicated to the petitioner and for the previous year after enquiry proceedings were dropped and only warning was given. On this premises Committee recommended for compulsory retirement of the petitioner. It was further found that for the year 1999-2000 adverse entry was given and that was communicated to the petitioner and for the previous year after enquiry proceedings were dropped and only warning was given. On this premises Committee recommended for compulsory retirement of the petitioner. On the basis of the recommendations respondent No. 1 passed order on 7.11.2001 which was challenged before the Tribunal but the claim of the petitioner was dismissed and thereafter review petition was also dismissed and thus all the three orders are under challenge in this petition. 7. From the order passed for compulsory retirement of the petitioner, it is clear that petitioner’s case for compulsory retirement was recommended on three grounds- 1. During the period of posting at Nagar Palika Parishad, Mauranipur he was given warning and inquiry was dropped. 2. During the period of posting at Nagar Palika Parishad, Chitrakoot Dham petitioner was given adverse entry dated 15.5.1998. 3. Petitioner was given adverse entry for the year 1999-2000 which was communicated to him through District Magistrate, Chitrakoot Dham. 8.Sri Misra, learned Senior Advocate challenged the order of compulsory retirement and at the same time order of the Tribunal dismissing the claim petition on various grounds which we may hurriedly notice but ultimately writ petition can be safely disposed of on one ground which will be just noticed later on. 9. Submission is that decision of compulsory retirement is without application of mind and by non speaking order and on the facts it cannot be held that petitioner was dead wood and had lost utility in service and this is not the finding recorded by the committee. It is then pointed out that in respect to the adverse entry dated 15.5.1998 a representation dated 18.6.1998 was filed by the petitioner and in respect to the entry of 1999-2000 representation dated 5.1.2001 was filed before the Director, Local Bodies and no decision has been taken by the State Government and this fact has not been taken notice at all, and therefore, the order of compulsory retirement is in violation of Rule 56 Clause 2(B) of the Fundamental Rules. This aspect has not been considered by the Tribunal. This aspect has not been considered by the Tribunal. Besides the aforesaid, argument about constitution of Screening Committee was also tried to be argued to be faulty and it is pointed out that petitioner completed 50 years on 31.5.2000 as his date of birth is 19.10.1950 and thus when Screening Committee met i.e. in the year 2000-2001 petitioner had not completed the age of 50 years but neither the State Government nor the Tribunal has considered this aspect. It was then pointed out that by order dated 21.7.1999 petitioner was permitted to cross efficiency bar since 1.1.1994 and thus record upto 1999 could not have been considered by the Screening Committee for consideration of the compulsory retirement. 10. In support of the submission about constitution of the Screening Committee the Government Order dated 26th October, 1985 about ignoring the earlier entry after crossing the efficiency bar and in respect to the submission that if representation against the adverse entry is pending and that has not been decided then that entry is not to be taken into consideration, the Government Order and the decision of this Court given in case of State of U.P. and another v. Durga Prasad Sharma, 2008(10) ADJ 268 , was placed. 11. As main emphasis of Sri Misra during course of argument was on non consideration of representation filed by the petitioner against the adverse entry, we are to quote at this place the Fundamental Rule 56 which provides for compulsory retirement and sub-rule (2) thereof enables the competent authority to consider the entire service record including the entries prior to promotion or adverse entries, which have not attained finality inasmuch as the representation against which has not been decided provided the representation is also considered alongwith adverse entry by the competent authority. For proper appreciation thereof the Fundamental Rule 56(2) is reproduced as under: “(2) in order to be satisfied whether it will be in the public interest to require a Government servant to retire under Clause (c) the appointing authority may take into consideration any material relating to the Government servant and nothing herein contained shall be construed to excluded from consideration— (a) any entries relating to any period before such Government servant was allowed to cross any efficiency may or before he was promoted to any post in an officiating or substantive capacity or on ad hoc basis; or (b) any entry against which a representation is pending, provided that the representation is also taken into consideration alongwith the entry; or (c) any report of the Vigilance Establishment constituted under Uttar Pradesh Vigilance Establishment Act, 1965.” 12. Petitioner has specifically stated in para 25 of the writ petition that against the entry dated 15.5.1998 representation was made to the State Government on 18.6.1998 and in respect to the entry of 1999-2000 representation was made to the Director Local Bodies but no decision has been taken either by the State Government or by the Director Local Bodies. Averment as made in para 25 of the writ petition will be useful to be quoted for convenience— “25. That till the date the representation dated 18.6.1998 which was made to the State Government against the entry dated 15.5.1998 and the representation dated 5.1.1001 made to the Director Local Bodies against the adverse entry for the year 1999-2000 submitted by the petitioner are pending and no decision have been given either by the State Government in the representation dated 18.6.1998 or by the Director Local Bodies in the representation dated 5.1.2001.” The reply to the aforesaid paragraph as contained in para 16 of the counter-affidavit is quoted here— “16. That the contents of paragraph Nos. 23 to 25 of the writ petition being the matter of record hence need no reply.” 13. That the contents of paragraph Nos. 23 to 25 of the writ petition being the matter of record hence need no reply.” 13. At the same time in para 27 of the writ petition it has been clearly stated that although report of the Screening Committee mentions about non availability of the character roll of the petitioner for the years 1995-96, 1996-97, 1997-1998, 1998-99 (against last ten years i.e. from the year 1990-91 to 1999-2000) but petitioner submits that his Confidential Report for the year 1994-95, 1996-97, 1997-98 and 1998-99 was found Excellent and as his integrity has been certified for the said period. These confidential reports were also filed as Annexure 11 to 14 of the writ petition. The statement of fact in this respect as stated in para 27 of the writ petition will also to be useful to be quoted here— “27. That the screening committee in its report mentioned that in character roll of the petitioner the entries for the year 1995-96, 1996-97, 1997-1998, 1998-99 against last ten years (since 1990-91 to 1999-2000) have not been found. Here the petitioner submits that the confidential report for the year 1994-95, 1996-97, 1997-98 and 1998-99 have been found excellent and as his integrity have been certified for the said periods. The true copies of the said confidential reports are being filed herewith as Annexure Nos. 11 to 14 of the writ petition).” The reply to the aforesaid averment of paragraph 27 is contained in para 18 of the counter-affidavit which is mentioned here— “18. That the contents of paragraph Nos. 27 to 32 of the writ petition are not admitted. The present writ petition has been filed against the judgment and order of the learned Tribunal, the judgment and order of the learned Tribunal is in accordance with law.” 14. A perusal of the recommendation of the screening committee for compulsory retirement of the petitioner only states about the entry dated 5.5.1998 and another entry of the year 1999-2000. Neither in the recommendation nor in the decision of the State Government dated 7.11.2001 there is any reference/consideration of representation which was filed by the petitioner which has not been disputed in the counter-affidavit or otherwise. The recommendation of the committee and the impugned order otherwise also do not state that petitioner has become dead wood in service. Neither in the recommendation nor in the decision of the State Government dated 7.11.2001 there is any reference/consideration of representation which was filed by the petitioner which has not been disputed in the counter-affidavit or otherwise. The recommendation of the committee and the impugned order otherwise also do not state that petitioner has become dead wood in service. Confidential Report for the year 1994-95, 1996-97, 1997-98 and 1998-99 was excellent and his integrity was certified as has been stated by petitioner and this fact has also not been disputed in the counter-affidavit. 15. The Tribunal in its judgment dated 30.8.2006 has taken note of the adverse entry in question (paras 7 and 8 of the judgment) but filing of the representation by the petitioner and no decision thereupon has been taken by the Department has not been taken into account at all. The Tribunal has just referred to certain decision of the Apex Court which is to the effect that even if no entry is communicated and the employee became dead wood he cannot be retained in service and he can be compulsorily retired . 16. This is a preposition as stated by the Apex Court but here is the case where various details of the entries have been mentioned in the judgment. Petitioner claims some entries to be excellent, integrity certified and about two entries which if are to be taken as adverse were to be considered in the light of the objections as filed by way of representation. On account of non consideration of four years entries which are said to be excellent, with integrity certified (para 27 of the writ petition) the consideration of the case of an employee for compulsory retirement may be found to be shaky and not acceptable in law. The scope of judicial review in these matters may be certainly narrow and this Court is not supposed to go into sufficiency of material in the wisdom of consideration of the State Government but at the same time consideration is to be proper and in the manner so provided in law. 17. When a particular procedure is prescribed the authority will have to observe the same in full spirit and if there is deviation then that is to vitiate the order. 18. 17. When a particular procedure is prescribed the authority will have to observe the same in full spirit and if there is deviation then that is to vitiate the order. 18. On the facts, we are satisfied that it was incumbent upon the authority to observe the settled procedure as provided in Fundamental Rule 56(b) as stands upto, substituted by U.P. Act No. 36 of 1976 and if consideration is not in the manner so provided then that is to vitiate the impugned order. 19. Learned counsel for the petitioner rightly placed reliance on the decision given by this Court in case of State of U.P. and another (Supra) which on the facts has full application to the case in hand. 20. For the reasons given above writ petition succeeds and is allowed. The impugned orders of the State Government dated 7.11.2001 (Annexure-2 to the writ petition) and impugned judgment of the Tribunal dated 30.8.2006 and 28.9.2007 (Annexure 20 and 22 to the writ petition) are hereby quashed. 21. Respondent No. 1 is to pass fresh orders on merits, in accordance with law, in the light of observation as made above and keeping in mind the changed circumstances but without being influenced by any observation, if it has come in this judgment. ——————