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2015 DIGILAW 1808 (RAJ)

Baldev Singh v. State of Rajasthan

2015-10-26

GOVIND MATHUR, JAISHREE THAKUR

body2015
Hon'ble MATHUR, J.—By judgment impugned dated 14.1.2015, learned Single Bench dismissed the petition for writ preferred by the appellant petitioner questioning correctness of the judgment dated 25.10.2001 passed by Rajasthan Civil Services Appellate Tribunal, Jaipur. Learned Tribunal by judgment aforesaid affirmed the order dated 9.8.2000 retiring the appellant petitioner compulsorily. 2. In brief, factual matrix necessary to be noticed is that the appellant entered in services of State of Rajasthan on 21.12.1973 being appointed as Patwari. By an order dated 9.8.2000 the Collector, Sriganganagar, while exercising powers under sub-rule (1) of Rule 53 of the Rajasthan Civil Services (Pension) Rules, 1996 (hereinafter referred to as 'the Rules of 1996'), compulsorily retired him and being aggrieved by the same he preferred an appeal before Rajasthan Civil Services Appellate Tribunal with allegation that his compulsorily retirement from service is not well founded being lacking adequate material and also appropriate consideration of service record. The decision taken do not serve public interest. 3. In reply, it was stated that a screening committee consisting of Sub Divisional Officer, Sriganganagar and Accounts Officer, District Rural Development Agency, Sriganganagar screened service record of the petitioner and 33 other Patwaris and that arrived at the conclusion that the appellant was showing indifference in recovering loan, therefore, he has lost his utility in public service. The appellant was also subjected to disciplinary action that resulted into imposing penalty of stoppage of two annual grade increments under an order dated 8.10.1986 and stoppage of three annual grade increments under order dated 30.5.1997. His Annual Performance Appraisal Reports for the years 1979-80, 1980-81 and 1981-82 were adverse because of his indifference in effecting recovery of government revenue. The report of screening committee was placed before the review committee and that also affirmed the view taken by the screening committee. The appointing authority on basis of the recommendations made by the committees decided to weed out the appellant from service in exercise of the powers conferred by sub-rule (1) of Rule 53 of the Rules of 1996, as such that serves public interest. 4. A rejoinder to the reply was filed on behalf of the appellant with assertion that his services were always satisfactory and he was appreciated and awarded by the competent authority for extraordinary work relating to recovery of State revenue. 4. A rejoinder to the reply was filed on behalf of the appellant with assertion that his services were always satisfactory and he was appreciated and awarded by the competent authority for extraordinary work relating to recovery of State revenue. He placed on record certificates issued by the officer competent appreciating him for extraordinary services rendered in the years 1985, 1991 and 1993. It was also pointed out by him that by taking into consideration his services selection grades were also given to him in accordance with the existing provisions and that indicates availability of necessary merit to continue in public service. 5. Learned Tribunal after examining the record dismissed the appeal and while doing so held that the appellant suffered penalty fo stoppage of two annual grade increments in the year 1986 and subsequent thereto in the year 1987 beside having adverse remarks in Annual Performance Appraisal Reports for the years 1979-80, 1980-81 and 1981-82, therefore, no illegality exists in retiring him compulsorily. 6. To challenge the order aforesaid the appellant preferred a petition for writ that came to be dismissed by the judgment impugned. Learned Single Bench while dismissing the writ petition observed that the material taken into consideration by the appointing authority was enough to enable the State authorities to pass the order of his compulsory retirement. 7. In appeal, learned counsel for the appellant states that learned Tribunal as well as learned Single Bench failed to appreciate that the overall record of the appellant is not only satisfactory but always been appreciated as of high quality, hence the order retiring him compulsorily is bad. It is also pointed out that his Annual Performance Appraisal Reports of the recent past were of high standard and, therefore, no decision could have been taken without examining that part of service record. According to learned counsel the screening committee as well as reviewing committing acted in most casual manner and the conclusion arrived by it is not based on adequate material and its objective consideration of that. He has brought into our notice the total consideration made by the screening committee which after noticing certain facts mentions that “as above, the employee was penalised and in his APARs for the years 1980 to 1982 comments are made about disappointing recovery, hence recommendation is made to the review committee for his compulsory retirement in public interest”. He has brought into our notice the total consideration made by the screening committee which after noticing certain facts mentions that “as above, the employee was penalised and in his APARs for the years 1980 to 1982 comments are made about disappointing recovery, hence recommendation is made to the review committee for his compulsory retirement in public interest”. The matter then was placed before the review committee which also after mentioning the fact about imposition of penalty and the comments made in the Annual Performance Appraisal Reports from 1979-80 to 1981-82 accepted the recommendation made by the screening committee and decided to place the petitioner under compulsory retirement. 8. Heard learned counsel for the appellant and learned Government Advocate. 9. A Government servant in normal course is entitled to remain in service till attaining the age of superannuation otherwise than subjecting to a penalty, which too must be subject to the checks given under Article 311 of the Constitution of India and the Rules framed by the competent authority in consonance thereto. The power to retire a person from service after completion of a definite term in service or on completing certain age is exception to normal course to detach a Government servant from service. The basic concept behind giving such exceptional power is to weed out dead wood from service with a view to have smooth circulation of work culture. Rule 53 of the Rules of 1996 empowers the appointing authority to exercise this extraordinary power on being satisfied that the concerned Government servant on account of indolence or doubtful integrity or incompetence to discharge official duties or inefficiency in due performance of official duties has lost his utility and that demands his retirement in public interest. The provision aforesaid or para materia thereto have been examined by the Apex Court and this Court in several cases. 10. In Baikuntha Nath Das & Anr. vs. Chief District Medical Officer, Baripada & Anr., reported in AIR 1992 SC 1020 , the Apex Court enumerated the following principles in this regard :- “(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. 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 perverse order. (iv) The government (or the 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. (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.” 11. In view of the law laid down by the Apex Court in the case of Baikuntha Nath Das (supra), a Government servant can be compulsorily retired in public interest on basis of subjective satisfaction of the appointing authority but that must be based on evidence and material i.e. sufficient for a reasonable person to form requisite opinion to place him under compulsory retirement. It is exclusive and subjective satisfaction of the appointing authority that may result into compulsory retirement of a Government servant in public interest, but such satisfaction must be based on adequate material to provide a valid cradle for maintaining the decision for premature retirement. It is exclusive and subjective satisfaction of the appointing authority that may result into compulsory retirement of a Government servant in public interest, but such satisfaction must be based on adequate material to provide a valid cradle for maintaining the decision for premature retirement. A Tribunal or Court may scrutinise a decision of the competent authority and interfere with that on being satisfied that the decision is a malafide one or is based on no evidence or that is arbitrary in the sense that no reasonable person would have formed the requisite opinion on the given material. To form an opinion about effecting compulsory retirement, it is to be kept in mind that such retirement is in public interest. To arrive at such definite conclusion, the authority concerned must look into entire service record, meaning thereby, the competent authority is required to thresh complete material available on service record, may that be negative or positive, about the working of the officer concerned. The competent authority merely by referring negative aspects of service career cannot retire a Government servant compulsorily. The prime duty is to arrive at the conclusion about utility of such Government servant in public service for public interest. The competent authority must mention definite reasons as to how retention of subject Government servant is not in public interest and that demands his compulsory retirement from service. Hon'ble Supreme Court in Nand Kumar Verma vs. State of Jharkhand & Ors., reported in (2012)3 SCC 580 , while dealing with the issue as to how service record of a person whose case is under consideration for compulsory retirement should be examined, held that a person cannot be retired compulsorily on basis of selective service record. The consideration must be by evaluating the complete service record reflecting totality of relevant material necessary to form definite opinion. 12. From reading of the provisions of Rule 53(1) of the Rules of 1996, it is apparent that a Government servant either on completion of 15 years of service or attaining the age of 50 years may be retired from service in public interest, if, the appointing authority is satisfied that the concerned Government servant has lost his utility on account of (1) indolence, or (2) doubtful integrity, or (3) incompetence to discharge official duties, or (4) inefficiency in due performance of the official duties. The appointing authority while deciding to retire a Government servant in public interest in exercising powers under Rule 53(1) of the Rules of 1996 is under obligation to record the reasons to satisfy himself that the Government servant has lost his utility on account of his indolence, doubtful integrity, incompetence and inefficiency in discharging official duties though there is no need to convey these reasons to the Government servant. 13. The case of the appellant has been examined by us in light of the law discussed above. He served the employer for a petty long term and in his service career he received two minor penalties and three adverse remarks in Annual Performance Appraisal Reports. We have looked into the orders imposing penalty and also the adverse remarks. The nature of penalties is minor and the allegations too are not serious. While explaining the conduct, the appellant disclosed the adverse circumstances in which recovery of State revenue was adversely effected. With regard to Annual Performance Appraisal Reports, suffice to mention that those are not with regard to his inefficiency or for other eventualities which are referred in Rule 53(1) of the Rules of 1996. On the other hand, the appellant has been awarded for effective recovery of State revenue in recent past. Selection grades by adopting the criteria applicable for promotion were also given to him. This positive aspect of the service tenure of the appellant has not at all been taken into consideration by the screening committee as well as the reviewing committee. The screening committee has just referred negative aspects of the service career of the appellant and those have been ipse-dixit accepted by the reviewing committee. The appointing authority while arriving at the decision to retire the appellant compulsorily, has also not discussed so as to form his opinion that retention of the appellant in service shall not be in public interest. The only consideration available on record is mention of few negative events of his service career without touching his appreciable performance of immediate past. We are of considered opinion that though the compulsory retirement is not a penalty and it does not reflect any stigma, but merely on that count it cannot be taken lightly. The only consideration available on record is mention of few negative events of his service career without touching his appreciable performance of immediate past. We are of considered opinion that though the compulsory retirement is not a penalty and it does not reflect any stigma, but merely on that count it cannot be taken lightly. The compulsory retirement snatches the person from his livelihood at a pre-mature stage, hence it is certainly having its evil effects with arbitrary consequence, as such, such an order must be passed very cautiously and by objective examination of entire service record. In the case in hand, we find that the screening committee and the reviewing committee to which appointing authority is a member, has not examined complete service record of the appellant, but a selective part of that. In view of it the order of compulsory retirement dated 9.8.2000 is not well founded. The same, therefore, deserves to be quashed. 14. Accordingly, the appeal is allowed. The order dated 14.1.2015 passed by learned Single Bench and the order dated 25.10.2001 passed by the Tribunal are set aside. The order dated 9.8.2000, placing the petitioner under compulsory retirement, passed by the Collector, Sriganganagar, is declared illegal and is hereby quashed. The appellant petitioner is entitled to be reinstated in service with all consequential benefits excluding the actual payment of wages for which the petitioner present in Court has no objection. The petitioner appellant, if has already attained the age of superannuation, his pension is required to be revised accordingly from the date of his retirement and the arrears of pension accruing are required to be paid to him at earliest, as far as possible on or before 31.12.2015. No order to costs.