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2016 DIGILAW 1073 (MP)

J. M. Shukla v. State of Madhya Pradesh

2016-11-24

ANJULI PALO, RAJENDRA MENON

body2016
ORDER : Anjuli Palo, J. This appeal has been filed under Section 2(1) of the Madhya Pradesh Uchcha Nayalaya (Khand Nayayapeeth Ko Appeal) Adhiniyam, 2005 seeking exception to an order dated 5.9.2012 passed in W.P. No. 8403/2007 passed by the Writ Court and also to set aside the order dated 24.3.2007 compulsorily retired the petitioner and to direct the respondents to reinstate the appellant with all consequential benefits. 2. In this intra-Court appeal, the petitioner seeks quashment of order dated 24.3.2007 by which the petitioner is being retired under Clause B of Sub-rule 1 of Rule 42 the M.P. Civil Services (Pension) Rules, 1996 on completion of 20 years of service. 3. Brief facts are that the appellant was working as "Field Man" since the year 1986 in the department of Gramoudyog Sericulture, District Shahdol. He had served for last more than 20 years satisfactorily and his integrity had never been doubtful. Only two adverse confidential reports in the year 2003-2004 and also of the year 2004-2005 were communicated to him. The respondents invoking the powers conferred by Madhya Pradesh Civil Services (Pension) Rules, 1976 vide Rule 42(1)(b), compulsorily retired the appellant w.e.f. 26.3.2007 vide Annexure-P/2. The appellant filed a writ petition before this Court, challenging the legality, validity and propriety of the order dated 24.3.2007, whereby he has been compulsorily retired and also order dated 24.5.2007 by which the departmental appeal preferred by the petitioner has been dismissed. 4. Learned Writ Court on due consideration found that entire service record of the employee was placed before the screening committee which was constituted under the Chairmanship of Commissioner, Silk Board. The screening committee found that in the last five years, adverse entries were recorded in his confidential reports for the years 2003-2004 and 2004-2005. On a overall consideration of the last ten years service record, the screening committee found that service record of the petitioner was "average". They found the annual confidential reports for the years 1986-1987, 1990-1991, 1993-1994, 1995-1996, 1997-1998, 1998-1999 and 1999-2000 graded as "below average", the petitioner was lacking in accepting duties with responsibilities. Also he was not capable of taking decision of his own. 5. It was also found that the petitioner was given warning, once he was punished with an expectation that he will improve his work, but there was no improvement in his work. Also he was not capable of taking decision of his own. 5. It was also found that the petitioner was given warning, once he was punished with an expectation that he will improve his work, but there was no improvement in his work. Therefore, he was graded to be an employee not worthy of being kept in the employment of the State Government any longer. Treating him to be a deadwood and in the light of principle laid down in the case of State of Gujarat v. Umed Bhai M. Patel [2001 (3) SCC 3141] and finding the service record of the petitioner as unsatisfactory, the appeal of the petitioner was dismissed. 6. The learned Writ Court has opined that provision of compulsorily retirement was rightly exercised and petitioner has been rightly retired. Learned Writ Court also found that the compulsory retirement of an employee is not to be treated as punishment. The employee concerned is entitled to all the benefits which he is otherwise entitled to get after his superannuation on completion of his complete tenure. If any loss is caused to the petitioner on this count, he is to be blamed himself because due to his own performance, which is found to be below average or unsatisfactory, the action was taken. Consequently, on such consideration the writ petition was dismissed. 7. The appellant has filed this appeal on the grounds that the screening committee has committed error while considering only two adverse remarks for this purpose. The entire service record of the appellant is average or above average, but not below average. The appellant was communicated about two confidential reports only against which his representations are pending and not yet decided. His integrity had never been doubtful and his overall record was good. There is no material available to show that the appellant is a deadwood and needs to be chopped off. There was no justifiable reason to form such an opinion. The appellant was compulsorily retired on the basis of the sole adverse confidential report for the year 2004-2005, this is nothing but arbitrary exercise of power by the department. 8. On the above grounds, learned counsel for the appellant has prayed for setting aside the impugned order dated 5.9.2012 passed in W.P. No. 8403/2007, orders dated 24.3.2007 and 24.5.2007 passed by the deppt. 8. On the above grounds, learned counsel for the appellant has prayed for setting aside the impugned order dated 5.9.2012 passed in W.P. No. 8403/2007, orders dated 24.3.2007 and 24.5.2007 passed by the deppt. of Sericulture and prayed to issue of a direction to the respondents to reinstate the appellant with all consequential benefits. 9. Heard the learned counsel for the parties and perused the record. 10. It is clear that the appellant did not have an unblemished service record all along. He has been graded average on several occasions. He was assessed below average in the year 2003-2004 and 2004-2005 His service was not found satisfactory. It is not the scope of judicial review to go into the adequacy or sufficiency of such material, which form the basis for taking the decision. 11. Learned counsel for the appellant submitted that compulsory retirement of the appellant on the basis of an adverse entry recorded in the year 2003-2004 and subsequently adverse entries for the year 2004-05 was wholly unjustified. Learned counsel also referred to guidelines dated 22.08.2000 issued by the Government and submitted that no order of compulsory retirement could be passed on the basis of incapacity of an employee within the last 5 years, when during the entire service period his performance remained satisfactory. 12. The State Government is competent enough to issue administrative instructions and guidelines for the purposes of consideration of the case for compulsory retirement. In this respect, the General Administration Department of Madhya Pradesh has issued a circular on 24.8.2000, in which it is categorically provided that cases of those employees who have completed 50 years of age or 20 years of qualifying service are required to be considered for compulsory retirement, it was tried to be argued that in the present case the guidelines or administration have been ignored. 13. In the case of State of Gujarat v. M Patel reported in 2001 AIR SCW 862, it was held that an order of compulsory retirement is not liable to be quashed by a Court merely on the ground that while passing such an order uncommunicated adverse remarks were also taken into consideration, this circumstances by itself cannot be a basis for interference. In the case of "Baikuntha Nath Dass v. Chief District Medical Officer, Baripada reported in AIR 1992 SC 1020 " and "Union of India v. J.N. Sahu reported in AIR 1971 SC 40 , the same principles was reiterated. 14. Whenever, the service of public servant is found to be no longer useful or is not in administrative interest, the employee can be compulsorily retired on public interest, for better administration it is necessary to chop out the dead woods in the department from time to time. But an order of compulsory retirement can be passed only after having due regard to the entire service record of the employee. Any adverse entries made in the confidential record can be taken note of and given due weightage for passing such order and even uncommunicated entries in the confidential record can also be taken into consideration. 15. In the case of R.C. Chandel v. High Court of M.P. (2012) 8 SCC 58 , it was held that while considering the case of an officer and while taking a decision as to whether he should be continued in service or compulsorily retired, his entire service record upto that date on which consideration is made, has to be taken into account. What weightage should be attached to earlier entries as compared to recent entries is a matter of evaluation, but there is no manner of doubt that consideration has to be of the entries in the entire service record. The fact that an officer after an earlier adverse entry was promoted does not wipe out the effect of an earlier adverse entry. Even if in spite of an earlier adverse entry an officer was promoted that by itself would not preclude the authority for considering the earlier adverse entry. 16. The law mandates that the entire service record has to be taken into consideration, the earlier adverse entry, which forms as part of the service record, would also be relevant irrespective of the fact whether the officer concerned was granted certain benefits. In Rajendra Singh Verma v. Lt. Governor (NCI of Delhi) (2011) 10 SCC 1 , Hon'ble Supreme Court has held that compulsorily retirement from service is neither dismissal nor removal. An order of compulsorily retirement being not an order of stigmatic in nature and being without any penal consequence, hence, the principles of natural justice have no application in such cases. 17. Governor (NCI of Delhi) (2011) 10 SCC 1 , Hon'ble Supreme Court has held that compulsorily retirement from service is neither dismissal nor removal. An order of compulsorily retirement being not an order of stigmatic in nature and being without any penal consequence, hence, the principles of natural justice have no application in such cases. 17. The consideration of learned Writ Court seems to be proper and reasonable. Hence, no interference is required into the findings of the learned Writ Court. 18. Accordingly, the appeal stands dismissed.