Research › Search › Judgment

Allahabad High Court · body

2019 DIGILAW 762 (ALL)

Ved Prakash Shukla v. State of U. P.

2019-03-27

MANISH MATHUR

body2019
JUDGMENT : Manish Mathur, J. 1. Heard Sri D.R. Mishra learned counsel for the petitioner and the learned Additional Chief Standing Counsel on behalf of the opposite party no.1 to 5. Earlier notices had been issued to the opposite party nos.6 and 7 who were subsequently represented by Sri J. S. Tomar but during the course of present hearing which has continued over a couple of days, no one has put in appearance on behalf of the opposite party no.6 & 7. 2. The present petition has been filed against the order of compulsory retirement dated 21.02.1991 with a further prayer for a direction to the opposite parties to reinstate the petitioner with full arrears of salary and other benefits followed by consequential benefits to the same. As per the averments made in the writ petition, the petitioner was initially appointed as Junior Clerk on 01.10.1964 and his services were subsequently confirmed where after he was promoted to the post of Senior Clerk (Accounts) in the year 1986. While serving on the aforesaid post, the petitioner was served with an adverse entry on 25.04.1989 pertaining to the years 1988-89. A representation was made by the petitioner against the aforesaid. Subsequently, two other adverse entries were also indicated against the petitioner in his service book pertaining to the years 1989-90 and 1990-91. The petitioner apparently represented against the aforesaid adverse entries also. Out of the aforesaid three adverse entries, the representations against two of them were decided on 16.01.1992 and 21.02.1992 respectively while the third remained pending. In the meantime, on account of the fact that the petitioner had attained 50 years of age, a Screening Committee was held to determine the dead wood in the Department. The petitioner’s case was also considered by the Screening Committee and by means of the report dated 05.12.1991, the petitioner's case was found to be fit for screening and a recommendation was made for compulsory retirement of the petitioner. In pursuance of the aforesaid recommendation, the impugned order dated 21.02.1992 has been passed compulsorily retiring the petitioner against which the present petition has been filed. 3. In pursuance of the aforesaid recommendation, the impugned order dated 21.02.1992 has been passed compulsorily retiring the petitioner against which the present petition has been filed. 3. The learned counsel for the petitioner has submitted that the report of the Screening Committee as well as the impugned order are clearly against the settled law pertaining to compulsory retirement on account of the fact that entries pertaining to the service record of the petitioner were looked into by the Screening Committee only for the recent 3 years and the entire gamut of service record of the petitioner for the past 10 years was not taken into account. He has further submitted that the Screening Committee had also ignored the fact that the petitioner’s representations against the aforesaid entries were already pending consideration and had not been decided till the report of the Screening Committee on 05.12.1991. He has submitted that on account of the pendency of the representation of the petitioner, the aforesaid adverse entries for the years 1988-89, 1989-90, 1990-91 should not have been taken into account by the Screening Committee. Had these entries not been taken into account, the very basis of the Screening Committee report would be lost. Apart from the aforesaid submissions, the learned counsel for the petitioner has also submitted that the impugned order is beyond the jurisdiction in view of the fact that it has been passed by the Chief Development Officer whereas the petitioner’s appointing authority is the District Development Officer. He has also alleged mala fide against the opposite party no.6 with the submission that it was on account of a complaint made by the petitioner against the opposite party no.6 that the adverse entries were recorded against the petitioner. Further submission of the learned counsel for the petitioner is with regard to parity with the case of one Yashkaran Lal whose case was also considered by the Screening Committee and it has been submitted that a perusal of the report of the Screening Committee will indicate that the case of Sri Yashkaran Lal was on a worse footing than the petitioner but despite the said fact, he was only given a warning whereas the petitioner’s services were dispensed with, which amounted to hostile discrimination against the petitioner. Furthermore, it has been stated that even the salary for 3 months as indicated in the impugned order has not been provided to the petitioner. Furthermore, it has been stated that even the salary for 3 months as indicated in the impugned order has not been provided to the petitioner. On account of the aforesaid facts, the learned counsel for the petitioner has submitted that the impugned order is illegal since no subjective satisfaction has been recorded by the authority concerned about the public interest involved in compulsorily retiring the petitioner from service. Furthermore, no subjective satisfaction has been recorded by the authority concerned either regarding the entire service record of the petitioner pertaining to the recent 10 years prior to the date of impugned order and that there is no reasoning or conclusion recorded by the authority concerned regarding the fact that the petitioner had become dead wood for the Department. 4. To substantiate his arguments, the learned counsel for the petitioner has relied upon the judgment of the Hon’ble Supreme Court in the case of Baikuntha Nath Das Vs. Chief District Medical Officer reported in 1992 Volume 2 SCC Page 299 in which the principles governing compulsory retirement have been enunciated by the Hon’ble Supreme Court which are as follows :- (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. (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 sence that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be a 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. (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. To the same effect he has referred M.P. State Co-operative Dairy Federation Ltd. vs. Rajnish Kumar Jamindar reported in 2009 Volume 15 SCC Page 221 and the case of State of Gujarat Vs. Umedbhai M. Patel reported in 2001 Volume 3 SCC Page 314. He has also relied upon the judgment of a Division Bench of this Court passed in Special Appeal Defective No. 24 of 2018 in the case of Rizwan Ahmad vs. State of U.P. and others. However, with regard to the case of Baikuntha Nath Das (supra), the learned counsel for the petitioner has drawn attention to the judgment of a Division Bench of this Court in the case of State of U.P. and another vs. Mahesh Chandra Maheshwari reported in (1995 (13 LCD) Page 385) to the effect that the case of Baikuntha Nath Das (supra) has been distinguished and held to be inapplicable in the State of U.P. only for the purposes of the principle that even uncommunicated entries can be taken into account while considering the screening of a government employee for the purposes of compulsory retirement. To the same effect, he has relied upon the judgment of Hon’ble Single Judge of this Court in the case of Sambhunath Srivastava vs. Smt. Sandhya Rani Srivastava, Chairman, Nagar Palika Parishad, City Road Jaunpur Nagar reported in [1988 (16) LCD Page 1302] regarding inapplicability of the case of Baikuntha Nath Das (supra) with regard to taking into account of uncommunicated entries for the purposes of screening for determination of compulsory retirement. 5. 5. Countering the submissions recorded by the learned counsel for the petitioner, the learned Additional Chief Standing Counsel has indicated the averments made in the counter-affidavit to the effect that it was the Chief Development Officer who was the appointing authority of the petitioner and not the District Development Officer. He has drawn attention to the Government Order dated 21.08.1990 in which the appointing authority of all such persons in the Pay Scale of Rs. 1200/-are to be appointed by the Chief Development Officer. In view of the aforesaid Government Order, he has submitted that the petitioner’s appointing authority was the Chief Development Officer on account of the fact that the petitioner was in the aforesaid scale. Even otherwise it has been submitted that the Chief Development Officer being an officer of a higher rank than the District Development Officer was fully within his rights to pass the impugned order. The learned Additional Chief Standing Counsel has also submitted on the basis of averments made in the counter-affidavit that although the entries of recent 3 years have been indicated in the Screening Committee but it is also on record that the petitioner was given a number of warnings in the recent 10 years and that the Screening Committee has also recorded its satisfaction with regard to the fact that on account of the lethargic attitude of the petitioner, the functioning of the Department was being impeaded. On account of the aforesaid facts, it has been submitted that the impugned order has been correctly passed. The learned Additional Chief Standing Counsel has relied upon the judgment of State of U.P. and others vs. Lalsa Ram reported in [AIR 2001 SC Page 1137] to the effect that once the authority has recorded that the services of a government employee are not required in public interest, then no interference is warranted by the Court in such an order of compulsory retirement pertaining to the person having become dead wood on account of public interest. He has also relied upon the said judgment for the purposes that adverse entries prior to crossing of efficiency bar or earning of promotion can be taken into consideration when such promotion is based on seniority and to the effect that such a promotion or crossing of efficiency bar does not wipe out the adverse entries. 6. He has also relied upon the said judgment for the purposes that adverse entries prior to crossing of efficiency bar or earning of promotion can be taken into consideration when such promotion is based on seniority and to the effect that such a promotion or crossing of efficiency bar does not wipe out the adverse entries. 6. I have considered the submissions made by the learned counsel for the parties and perused the record. 7. A perusal of the Screening Committee report dated 05.12.1991, which is on record, having been filed along with a supplementary counter-affidavit, makes it clear that so far as the case of the petitioner is concerned, the Screening Committee has delved primarily on the entries pertaining to the recent three years and has completely ignored the entries pertaining to the last 10 years of service of the petitioner. Even the satisfaction of the Screening Committee with regard to the non-improvement of the petitioner’s services despite the warnings are quite vague in nature since it merely records that ‘there is no improvement in the work of the petitioner and that the work of the department remains pending everyday’. The aforesaid two reasons are the only basis for the recommendation of the Screening Committee for compulsory retirement of the petitioner. A perusal of the said Screening Committee also reveals the case of one Yashkaran Lal whose case was also considered for the purposes of screening for compulsory retirement but was only recommended a warning instead of screening for compulsory retirement for an opportunity to improve his services. 8. So far as the recommendation of the Screening Committee is concerned, the same appears to be contrary to the law laid down by the Hon’ble Supreme Court in the case of Baikuntha Nath Das (supra) inasmuch as that the subjective satisfaction recorded by the Screening Committee to weed out the petitioner is not based on any material that could be said to indicate the adverse working of the petitioner which would affect the functioning of the department to such a grave extent that he would require to be compulsorily retired. Furthermore, the Hon’ble Supreme Court in the aforesaid case has clearly held that the Review Committee shall have to consider the entire record of service before taking a decision in the matter, with of course more importance being given to the record of performance during the latter years. 9. Furthermore, the Hon’ble Supreme Court in the aforesaid case has clearly held that the Review Committee shall have to consider the entire record of service before taking a decision in the matter, with of course more importance being given to the record of performance during the latter years. 9. The Screening Committee report pertaining to the petitioner clearly indicates that its recommendations have been based only on the basis of the performance of the petitioner in the last 3 years prior to his compulsory retirement and that the entire record of service of the last 10 years of service of the petitioner has been completely ignored. Even assuming that the service record of the petitioner for the last 3 years was not up to the mark, the Screening Committee should have taken into account the fact that the performance of the petitioner for the preceding 7 years of service was not adverse and was in fact quite satisfactory. Without any such subjective satisfaction being recorded by the Screening Committee, the recommendations being based only on the last 3 years' performance can be said to be quite arbitrary. 10. Furthermore even the reasoning recorded by the Screening Committee that there is no improvement in the service of the petitioner is absolutely vague in nature since in such a serious matter, it was incumbent upon the Screening Committee to have recorded a satisfaction as to the nature of work which was not being improved upon by the petitioner and that his services were detrimental to the Department to such an extent that it was affecting the working of the Department adversely, which would therefore require his being weeded out from the Department. However, a perusal of the Screening Committee report clearly indicates that no such subjective satisfaction has been recorded by the Screening Committee. 11. Even if the last 3 years service record of the petitioner was only to be taken into account, even then it was incumbent upon the Screening Committee to have noticed the fact that the said adverse entries had not become final and that the representation of the petitioner against the said adverse entries was still pending consideration with the authority concerned. In such a situation, the haste of the Screening Committee in recommending the compulsory retirement of the petitioner without waiting for a decision on the representations is not understandable. 12. In such a situation, the haste of the Screening Committee in recommending the compulsory retirement of the petitioner without waiting for a decision on the representations is not understandable. 12. The learned counsel for the petitioner has placed reliance on a Division Bench judgment of this Court in the case of Rizwan Ahmad (supra) in which this Court after noticing the various judgments of the Hon’ble Supreme Court on the issue has held that there is no iota of doubt that the order of compulsory retirement is not to be passed to avoid departmental enquiry and that the order is to be passed after having due regard to the entire service record of the officer. It also follows that an order has to be prescribed on the touchstone that no reasonable person would form a requisite opinion on the given material. It has been further held that the past conduct, performance, behaviour and service records are to be seen only for the purpose of finding out as to whether the officer has lost his utility and has become dead wood. The officer may have committed irregularities or may have failed in the fruitful discharge of his duties but who may have improved in the given passage of time, cannot be declared as dead wood. 13. I am of the opinion that the aforesaid judgment squarely applies to the facts of the present case inasmuch as no subjective satisfaction has been recorded neither by the Screening Committee nor by the competent authority to the effect that the petitioner had lost his utility for the Department and had become dead wood or that he was incapable of any further improvement despite warning having been given to him. 14. The learned Additional Chief Standing Counsel has placed reliance on the judgment of Lalsaram (supra) with the submission that once the appropriate authority has recorded that it would be in public interest to retire an employee under the rules, then it would amount to subjective satisfaction which should not be interfered with by the Courts. I have perused the judgment of the Hon’ble Supreme Court which clearly holds that it is the absolute right of the Government or an appropriate authority to compulsorily retire any employee if it is of the opinion that it would be in public interest to retire any such employee. I have perused the judgment of the Hon’ble Supreme Court which clearly holds that it is the absolute right of the Government or an appropriate authority to compulsorily retire any employee if it is of the opinion that it would be in public interest to retire any such employee. However in the same judgment, the Hon’ble Supreme Court has held that the matter shall have to be considered as to whether it is in public interest to retain such an officer in service and the whole service records of the employees shall have to be considered in order to form an opinion that it would be in public interest to compulsorily retire such a person. 15. In my opinion the aforesaid judgment of the Hon’ble Supreme Court does not come to the help of the opposite parties inasmuch as in the same judgment the Hon’ble Supreme Court itself has held that there should be some material on the basis of which a subjective satisfaction of the authority concerned has to be made with regard to the formation of an opinion that it would be in public interest to weed out any such Government employee. In the case in hand, neither the Screening Committee report nor the impugned order records any such subjective satisfaction that the continuance of the petitioner in the Department would be gravely detrimental to the functioning of the Department. In the absence of any such subjective satisfaction, merely indicating the fact that it would not be in public interest to continue the officer in service, in my opinion, amounts to no reasoning at all for recording any such satisfaction. In view of the above, the impugned order merely indicating that it would be in public interest to compulsorily retire the petitioner would run contrary to the settled law as enunciated by the Hon’ble Supreme Court. 16. On a perusal of even the impugned order itself, the same appears to have been passed without any application of mind whatsoever since it is based merely on the recommendations made by the Screening Committee without any independent recording of any subjective satisfaction with regard to the petitioner having become dead wood for the Department requiring his services to be compulsorily retired. In my opinion, even if the competent authority is basing the order of compulsory retirement on the recommendations of the Screening Committee, it would be incumbent upon the appropriate authority to independently apply his mind to the service record of the petitioner and return a subjective finding on the basis of material on record that he also concurs with the Screening Committee recommendation for weeding out any such official. The competent authority cannot merely parrot the Screening Committee recommendations and come to a conclusion without any independent application of mind with regard to the utility of the Government official in the Department or otherwise. 17. The submissions of the learned counsel for the petitioner with regard to jurisdiction of the Chief Development Officer and of mala fide against the opposite party no.6 however, do not hold good ground on account of the fact that the Chief Development Officer appears to be the appointing authority of the petitioner and even otherwise was an officer higher in rank to the District Development Officer, who the petitioner claims to be his appointing authority. Similarly, the ground of mala fide against the opposite party no.6 raised by the petitioner also does not hold good ground on account of the fact that out of the 3 adverse entries that were recorded against the petitioner, only one such entry was made by the opposite party no.6. 18. However, the submission pertaining to parity of the petitioner with Yashkaran Lal merits consideration on account of the fact that the Screening Committee in its report has placed the said Yashkaran Lal at par with the petitioner but without adverting to the service record of Sri Yashkaran Lal has merely recommended a warning to be issued to him. Once the Screening Committee report itself found the cases of the petitioner and Sri Yashkaran Lal to be similar in nature with regard to adverse entries, it does not hold to reason as to under what circumstances different recommendations were made in lieu of the said persons with only a warning being recommended against Sri Yashkaran Lal and the petitioner being recommended for compulsory retirement, which clearly amounts to hostile discrimination. 19. In view of the above, the writ petition is allowed and a writ in the nature of Certiorari is issued quashing the order of compulsory retirement of the petitioner dated 21.02.1991. 19. In view of the above, the writ petition is allowed and a writ in the nature of Certiorari is issued quashing the order of compulsory retirement of the petitioner dated 21.02.1991. Since it has been stated that the petitioner even otherwise would have attained superannuation prior to year 2000, the opposite party no.3, i.e. the Chief Development Officer, Sitapur is directed to refix the scale of pay of the petitioner as revised from time to time and to pay the post retiral benefits due to the petitioner on account of such re-fixation within a period of six months from the date a copy of this order is produced before him. However, the same is to be done on a notional basis only and no salary or arrears of salary are payable to the petitioner for the remaining period of service.