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2015 DIGILAW 547 (GUJ)

State of Gujarat v. Vasant M. Desai

2015-05-05

G.B.SHAH, JAYANT M.PATEL

body2015
JUDGMENT G.B. Shah, J. 1. Present appeal has been directed against the judgment and order dated 19/07/2004 passed by the learned Single Judge of this Court in Special Civil Application No. 5732 of 1989 filed by the respondent herein - original petitioner (hereinafter referred to as "the writ petitioner") challenging the order dated 01/08/1989 passed by the Deputy Secretary to the Government in Home Department, Government of Gujarat, Gandhinagar whereby, the writ petitioner was prematurely retired from his service as Deputy Superintendent of Police (Dy. S.P.) with immediate effect from 02/08/1989 in the public interest, paying notice pay and allowances under clause (3) - Notice Pay and Allowances of Appendix to Government Resolution (GR) No. CRA-1087-805-G.2 dated 28/07/1987 of the General Administration Department (GAD), Government of Gujarat, in lieu of Notice, by which, the aforesaid order dated 01/08/1989 was quashed and set aside and the writ petitioner was ordered to be treated on service. 2. Short facts of the case appear to be that the writ petitioner was recruited as a Police Sub Inspector in July 1958 and was promoted to the post of Police Inspector in August 1970 and was due to retire on superannuation on 10/09/1991. It was the case of the writ petitioner that he was superseded for the promotional post of Dy. S.P. for which, he had also made representation dated 17/02/1983. Thereafter, by order dated 28/01/1985 he was promoted to the post of Dy. S.P. and took over the charge as such on 29/01/1985 and discharged his duties at various places. While the writ petitioner was discharging his duty at CID (IB) at Ahmedabad, he received the order dated 01/08/1989 whereby, he was prematurely retired from the service, which gave rise to the aforesaid writ petition being Special Civil Application No. 5732 of 1989, which came to be allowed by judgment and order dated 19/07/2004 and hence this appeal. 3. We have heard Mr. Dhawan Jayswal, learned Assistant Government Pleader, for the appellant herein - original respondent - State and learned counsel Mr. Harsh Gajjar, for Mr. P.R. Nanavati, learned counsel for the respondent herein - original petitioner - writ petitioner. 4. Mr. Jayswal, learned Assistant Government Pleader, submitted that the impugned judgment and order is unjust, improper and without properly appreciating the evidence on record. Harsh Gajjar, for Mr. P.R. Nanavati, learned counsel for the respondent herein - original petitioner - writ petitioner. 4. Mr. Jayswal, learned Assistant Government Pleader, submitted that the impugned judgment and order is unjust, improper and without properly appreciating the evidence on record. He submitted that the learned Single Judge has not properly appreciated the GR dated 28/07/1987 clause (3) of which, specifically provides that, when it is decided to retire a Government servant immediately i.e. three months' notice is not to be given, three months' pay and allowance should be paid to him in lieu of such notice and in the case on hand, the writ petitioner was paid such pay and allowance while he was retired prematurely. He further submitted that the learned Single Judge has taken into consideration the letters of appreciation dated 01/03/1989 and 17/06/1989 issued to the writ petitioner and thereby, has committed a grave error in coming to the conclusion that by the said letters, the Government had appreciated the work of the writ petitioner and hence, he might not have prematurely retired, however, he submitted that while deciding such an issue, overall record of last 10 years of service rendered by the concerned person is required to be taken into consideration, which in the case on hand is 'below average'. The learned Assistant Government Pleader further submitted that the Review Committee had taken into consideration the Confidential Reports (CRs) of the writ petitioner and the fact that number of opportunities were given to the writ petitioner to improve his performance and he could not improve and hence, in the public interest, the order of compulsory retirement was passed. He further submitted that the learned Single Judge has failed to appreciate the fact that performance of the writ petitioner was not even 'average' but was 'poor caliber' and the order of prematurely retirement was passed after giving ample opportunities to him to overcome the shortcomings, however, he did not improve and hence, in the public interest, the said order was passed. Moreover, he submitted that the writ petitioner was paid all the retirement benefits like pension and gratuity etc. In support of his submissions, he has relied following decisions: a) National Aviation Company of India Vs. S.M.K. Khan, reported in (2009) 5 SCC 732 ; b) Rajasthan State Road Transport Corporation and Others Vs. Babu Lal Jangir, reported in (2013) 10 SCC 551 . In support of his submissions, he has relied following decisions: a) National Aviation Company of India Vs. S.M.K. Khan, reported in (2009) 5 SCC 732 ; b) Rajasthan State Road Transport Corporation and Others Vs. Babu Lal Jangir, reported in (2013) 10 SCC 551 . 4.1 Last but not the least, he submitted that in view of the aforesaid, the present appeal may be allowed and impugned judgment and order may be quashed and set aside. 5. Per contra, learned counsel Mr. Gajjar for Mr. Nanavati, learned counsel for the writ petitioner with all vehemence at his command, opposed the present appeal and submitted that the writ petitioner was ordered to be prematurely retired on attaining age of 55 years under Rule 161(1)(aa) of the Bombay Civil Services Rules (hereinafter referred to as "the Rules") with immediate effect from 02/08/1989 under the guise of public interest which was absolutely arbitrary and mala fide and the powers thus exercised, are not in consonance with the spirit under which the said Rule is framed. He submitted that the contention of the appellant - original respondent - State authority that the Government has a right to prematurely retire a Government servant under the aforesaid Rule and it is the discretion of the Government and in lieu of Notice, if three months' pay and allowance is paid, then no further formality is required and such a decision of the Government cannot be called in question before the Court of law, is a misconception on the part of the appellant - original respondent and based on that misconception, they were trying to justify their action, which has rightly been dealt with by the learned Single Judge and accordingly quashed and set aside the order dated 01/08/1989. He further submitted that in the affidavit-in-reply in the main petition, it was averred by the appellant - original respondent that adverse remarks of 1983-1984 i.e. prior to promotion have not been taken into consideration however, tenor of the additional affidavit on behalf of the appellant in the present appeal speaks contrary i.e. the same were taken into consideration by the Review Committee and on perusal of the report of the Review Committee, it appears that the adverse remarks for the year 1983-1984 have been taken into consideration, which is contrary to the settled principles of law. He further submitted that the reviewer has made the subjective valuation of the writ petitioner without taking into consideration the appreciation letters issued to him by his superiors appreciating his services. He further submitted that the adverse remarks have been communicated to the writ petitioner after quite long time of two years and thereby, he was deprived of making effective representation against the same. In support of his submission, he has relied upon following decision: a) Cantonment Executive Officer and Another Vs. Vijay D. Wani and Others, reported in (2008) 12 SCC 230 ; b) State of Gujarat Vs. Umedbhai M. Patel, reported in (2001) 3 SCC 314 ; c) D.G. Desouza Vs. Director General of Police, Ahmedabad and Another, reported in 1991 (1) GLH (U.J.) 10. 5.1 Making above submissions, he requested that the judgment and order passed by the learned Single Judge requires no interference at the hands of this Court being just and proper and present appeal deserves to be dismissed. 6. We have considered the above-referred rival submissions of the learned counsel for the parties and in light of the same, we have also carefully gone through the record and proceedings of case. The controversy involved in the case on hand is that the writ petitioner was prematurely retired from his service as Dy. S.P. with the State Government on his attaining age of 55 years under the provisions of Rule 161(1)(aa) of the Rules without giving any notice and by paying three months' notice pay and allowance, taking into consideration the report of the Review Committee based on his confidential reports. The learned Single Judge, while allowing the petition, has observed in para 6.0 onwards as follows: "6.0 I have heard the learned advocates for the parties and have perused the records. In view of the law laid down by the Apex Court, I am of the opinion that the order passed by the respondent authority is not in consonance with the Government Resolution. Moreover, no Notice was given to the petitioner as per the Government Resolution dated 28/07/87 I.e. pertaining to Class I Officers. The order was passed by the respondent Government in public interest and in the affidavit-in-reply filed by the respondent Government, it has not been shown as to how the duties of the petitioner affected public interest. Moreover, no Notice was given to the petitioner as per the Government Resolution dated 28/07/87 I.e. pertaining to Class I Officers. The order was passed by the respondent Government in public interest and in the affidavit-in-reply filed by the respondent Government, it has not been shown as to how the duties of the petitioner affected public interest. The reasons which are shown are with respect to the petitioner being a 'dead wood'. Therefore, the affidavit-in-reply pertains to totally different reasons, than the reasons given in the Government Order dated 01/08/89. 6.1 Moreover, on the ground of 'dead wood', as mentioned in the affidavit-in-reply, the petitioner could not have been Prematurely retired, in view of the letter dated 17/06/89 of the Spl.Inspector General of Police, C.I.D. (Intelligence), Gujarat State and letter dated 01/03/89 of the Ministry of Home Affairs, New Delhi, whereby both the superior Officers had appreciated the petitioner's work. The respondent Government ought to have considered these letters which were issued in appreciation of the petitioner's duties. Therefore, the order of Premature retirement has been passed contrary to the records and is required to be quashed and set aside. 7.0 For the foregoing reasons, this petition is allowed. The order of Premature retirement of the petitioner dated 01/08/89 passed by the respondent Government at Annexure 'A' to the petition, is quashed and set aside. The petitioner is ordered to be treated on service, as if the impugned order of Premature retirement had not been passed. 7.1 The petitioner has already retired from service on his attaining the age of superannuation. Therefore, he is entitled for salary for the period from 01/11/89 till the date of superannuation. All the monetary and retiral benefits are ordered to be paid to the petitioner within a period of six months from the date of receipt of this order. If the same is not paid within the stipulated period, then the petitioner will be entitled for interest @ 9% per annum and the same shall be recovered from the account of the erring officer. Rule is made absolute to the aforesaid extent with no orders as to costs." 6.1 in view of the above, we have carefully perused and re-appreciated the material on record of this appeal as well as the writ petition. Rule is made absolute to the aforesaid extent with no orders as to costs." 6.1 in view of the above, we have carefully perused and re-appreciated the material on record of this appeal as well as the writ petition. At the outset, we deem it proper to go through the legal position under which the order impugned in the writ petition was passed and the writ petitioner was ordered to be prematurely retired. Clause (aa) of Rule 161(1) of the Rules empowers the Government to retire a Government servant from Government service prematurely on his attaining the age of 50 or 55 years as the case may be, if the Government is satisfied that it is necessary to do so in the public interest. Several instructions to be followed for the purpose have been issued vide Government Resolution No. CRA-1087-805-G.2 dated 28/07/1987 of the General Administration Department (GAD), Government of Gujarat. Clause (2) of Point No. III (Criteria to be followed) provides as under: "(2) The following criteria should be followed to review the case of an officer attaining the age of FIFTY FIVE years. (i) Same as item (I) and (ii) of para III above. (ii) A record of service i.e. C.R.S. for the last eight to ten years should be good." 6.1.2 Further, clause (3) of the aforesaid GR provides as under: "(3) NOTICE PAY AND ALLOWANCES IN LIEU OF NOTICE: When it is decided to retire a Government servant immediately i.e. three months notice is not to be given, then three months' pay and allowance should be paid to him in lieu of such notice. In such cases, the Appointing Authorities may make the payment to the officer concerned immediately by drawing the requisite amount on ABSTRACT CONTINEGENCY BILL which can be readjusted later by adopting the usual procedure." 6.2 Now, if the facts of the case on hand are tested on the above premise, the writ petitioner was ordered to be prematurely retired from his service as Dy. S.P. on his attaining age of 55 years. For the purpose, the report of the Review Committee meeting held on 04/03/1989, produced at Annexure R/1 Colly. at page Nos. 54 to 56 based on Confidential Reports of the writ petitioner for last several years was taken into consideration. On perusal of the same it appears that the writ petitioner Mr. S.P. on his attaining age of 55 years. For the purpose, the report of the Review Committee meeting held on 04/03/1989, produced at Annexure R/1 Colly. at page Nos. 54 to 56 based on Confidential Reports of the writ petitioner for last several years was taken into consideration. On perusal of the same it appears that the writ petitioner Mr. V.M. Desai, was recommended to be prematurely retired on the basis of adverse remarks in his CRs. He was found to be weak, irresponsible and deadwood, lacking prevision, pro-activeness and not taking responsibilities, lacking control over subordinates and not exercising powers conferred to him. His performance was weak and was not of any help to the police department and was cumbersome. We have also carefully and minutely perused the Confidential Reports of the writ petitioner forthcoming on the record and it appeared that the overall performance of the original petitioner was poor, unsatisfactory and substandard and to the extent that he described to be not fit for the police department. 6.3 Referring to page Nos. 26 to 38, it appears that the adverse remarks for the periods 1985-1986, 1986-1987 and 1988-1989 had been communicated to the writ petitioner. Drawing attention to the same, much has been argued by the learned counsel for the respondent - writ petitioner to the effect that the adverse remarks had been communicated to the respondent - writ petitioner after a period of two years, in the year 1988-1989 only and the respondent - writ petitioner, as such, has been deprived of making effective representation against the said adverse remarks. Moreover, the object of maintaining service record and to communicate the adverse remarks every year is meant to see that a Government servant can improve his efficiency in service if found lacking by his superior during a particular year and it is not something to target a Government servant in the form of punishment by communicating adverse remarks at a later stage. 6.4 We have minutely perused the record. It appears that the adverse remarks had been communicated to the writ petitioner after about two years but it is surprising that after receiving the same, nothing has been forthcoming on record to show that any effort had been made by the writ petitioner for getting the said adverse remarks expunged. 6.4 We have minutely perused the record. It appears that the adverse remarks had been communicated to the writ petitioner after about two years but it is surprising that after receiving the same, nothing has been forthcoming on record to show that any effort had been made by the writ petitioner for getting the said adverse remarks expunged. Even, the learned counsel for the respondent - writ petitioner could not lay his hands on any such documents during the course of the submissions to show that the respondent - writ petitioner had made any effort to make any representation against such adverse remarks after receiving the same in the year 1988-1989. Under the circumstances, in our view, it cannot be said that the respondent - writ petitioner has been deprived of making effective representation against the said adverse remarks referred herein above. It is not under dispute that the adverse remarks had been duly communicated to the respondent - writ petitioner though at the later stage, but after receiving the same, if any grievance was there on the part of the writ petitioner against the same, the only course on the part the writ petitioner was to make effective representation against the same and in absence of the same, it can be said that the writ petitioner has impliedly accepted the said shortcomings by not making any effective representation against the same and under the circumstances, we do not find any substance and merit in the above-referred submission made by the learned counsel for the respondent - writ petitioner. Moreover, we have perused the impugned judgment and order dated 19/07/2004 and it appears that above point though submitted by the learned counsel for the appellant - original respondent does not appear to have been touched and considered and as such, the same had been ignored by the Court concerned. 6.5 It has also been vehemently argued by the learned counsel for the respondent - writ petitioner that the writ petitioner has been promoted to the post of Dy. 6.5 It has also been vehemently argued by the learned counsel for the respondent - writ petitioner that the writ petitioner has been promoted to the post of Dy. S.P. on 28/01/1985 and when at the age of 55 years if the adverse remarks were to be considered as has been considered, the adverse remarks related to the period prior to promotion should not be considered and if the report of the Review Committee is considered, it transpires that the adverse remarks related to the period 1983-1984 which is prior to promotion has been taken into consideration and thus it can easily be said that without application of mind, the Review Committee has decided the issue. 6.6 We are not in a position to accept above submission of the learned counsel for the respondent - writ petitioner for the reason that simply the Review committee has written that it had considered the adverse remarks related to year 1983-1984, it cannot be said that there was no application of mind on the part of the Review Committee. The crucial aspect, as referred herein above is that no effort had been made by the writ petitioner after receiving the adverse remarks for the years 1985-1986 to 1988-1989 and as such, now, he cannot make any grievance against the decision taken by the Review Committee. 6.7 One of the contentions raised by the learned counsel for the writ petitioner was that the services of the writ petitioner were appreciated by his superiors by letters of appreciation dated 17/06/1989 and 01/03/1989 and hence, it cannot be said that the writ petitioner was inefficient and deadwood. 6.8 it is undisputed that work of the writ petitioner was appreciated by aforesaid letters however, it is also required to be noted that simply because the writ petitioner had executed some special work entrusted to him and was appreciated by the authority in different capacity than as reporting authority, the effect of adverse remarks would not be diluted. For such evaluation, what should be weighed is, his Confidential Reports which could appraise for the entire period and evaluate his ability, efficiency and caliber, which in the case on hand, is below average and hence, this contention, to the opinion of this Court, does not find favour of the learned counsel for the writ petitioner. For such evaluation, what should be weighed is, his Confidential Reports which could appraise for the entire period and evaluate his ability, efficiency and caliber, which in the case on hand, is below average and hence, this contention, to the opinion of this Court, does not find favour of the learned counsel for the writ petitioner. 6.9 Further, as provided in the aforesaid clause (aa) of Rule 161(1) of the Rules, it empowers the Government to retire a Government servant from Government service, prematurely on his attaining the age of 50 or 55 years, as the case may be, if the Government is satisfied that it is necessary to do so in the public interest. One of the contentions raised by the learned counsel for the respondent - writ petitioner was that such powers, though in the public interest, should be utilized carefully and if unlimited discretion is regarded acceptable for making order of compulsory retirement, it will be the surest menace to public interest and must fall for unreasonableness, arbitrariness and disguised dismissal. The exercise of power must be bona fide and should promote public interest. 6.10 it is true that such powers for protecting the public interest should be utilized carefully. However, the Rule does not lay down any criteria and guidelines for the exercise of power, although public interest is specified in the Rule, which means power has to be exercised in the public interest only. The public interest in relation to public administration envisages retention of honest and efficient employees in service and dispensing the services of those who are inefficient, dead-wood or corrupt and dishonest. Therefore the Rule contemplates premature retirement of the inefficient or corrupt being dead-wood, which would sub-serve the public interest. At the cost of repetition, we deem it pertinent to note that the Confidential Reports of the writ petitioner are below average. He was found to be weak, inefficient, irresponsible, deadwood, lacking prevision, pro-activeness, lacking control over subordinates and not exercising powers conferred upon him and so on. His performance was found to be weak and was found to be not of any help to the police department and was cumbersome. Under the circumstances, we find that exercise of power in the case on hand is bona fide and promoting public interest. 7. His performance was found to be weak and was found to be not of any help to the police department and was cumbersome. Under the circumstances, we find that exercise of power in the case on hand is bona fide and promoting public interest. 7. We have also carefully gone through the case law on which the learned counsel for the writ petitioner has placed reliance. So far as the decision in D.G. Desouza (supra) is concerned, the adverse entries though not communicated, were considered and said action was considered arbitrary and unreasonable. The facts of the present case are different as discussed above and hence, in our view, this decision is not helpful to the writ petitioner. 7.1 So far as the decision in Umedbhai M. Patel (supra) is concerned, there were no adverse entries and last two efficiency bars were successfully crossed and so, the Apex Court had held that action of compulsory retirement was based on extraneous consideration. The facts of the case on hand are altogether different and hence, in our view, the aforesaid decision also would be of no help to the respondent - writ petitioner. 7.2 On the point of bias, the learned counsel for the writ petitioner has placed reliance upon a decision in Cantonment Executive Officer and Others Vs. Vijay D. Wani and Others (supra), wherein, the Apex Court has held that the Court should act on real bias and not likelihood. It was submitted that Mr. M.M. Singh, DG & IG of Police who had served adverse remarks for the period 1985-1986 vide letter dated 06/01/1988 to the respondent - writ petitioner, was one of the members of the Review Committee which vitiates the decision of the premature retirement. We are not much impressed by the above-referred submission made by the learned counsel for the respondent - writ petitioner for the reason that it is well settled that question of bias is always a question of fact and the Court should only act on real bias and not merely on likelihood of bias. In the present case, the respondent - writ petitioner had not made any effort to get expunged the adverse remarks by following the due procedures for the same. Under the circumstances, whichever documentary evidence were with the Reviewing Committee they proceeded further with the same. In the present case, the respondent - writ petitioner had not made any effort to get expunged the adverse remarks by following the due procedures for the same. Under the circumstances, whichever documentary evidence were with the Reviewing Committee they proceeded further with the same. Thus, in our view it cannot be said that the respondent - writ petitioner was prejudiced by the same. Hence, the above-referred decision, in our view, is also not of any help to the respondent - writ petitioner. 8. In view of the above and for the reasons stated above, we find that the learned Single Judge has committed error in allowing writ petition filed by the writ petitioner, quashing and setting the order impugned in it and hence, present appeal deserves to be allowed and is accordingly allowed. The judgment and order dated 19/07/2004 passed by the learned Single Judge in Special Civil Application No. 5732 of 1989 is hereby quashed and set aside and order dated 01/08/1989 passed by the Deputy Secretary to the Government in Home Department, Government of Gujarat, Gandhinagar prematurely retiring the respondent - original petitioner - writ petitioner is hereby upheld and the main Special Civil Application shall stand dismissed. No order as to costs. FURTHER ORDER: 1. After pronouncement of the judgment, Mr. Harsh Gajjar, learned counsel for Mr. Nanavati for respondent has stated that after the hearing was concluded, before the judgment is pronounced, the respondent has expired and the said aspect is brought to the notice of the Court. 2. It is well settled that even in writ proceedings under Article 226 of the Constitution, the principles analogous to the provisions of the Civil Procedure Code would be applicable. As per Order XXII Rule 6 of the Code, it has been provided as under: "R.6. No abatement by reason of death after hearing Notwithstanding anything contained in the foregoing rules, whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncing of the judgment, but judgment may in such case be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place." 3. The aforesaid shows that if after the conclusion of the hearing before the judgment is pronounced, any party to the proceeding expires, the judgment will have the same effect as if pronouncement prior to the death of the party. In the present case, it is an admitted position that after the hearing was concluded, as declared by the learned counsel for the respondent-orig. petitioner, the original petitioner has expired. Under the circumstances, we do not find that any change is required to be made.