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Madhya Pradesh High Court · body

2022 DIGILAW 83 (MP)

Bheemrao Bagde v. State of Madhya Pradesh

2022-01-12

NANDITA DUBEY

body2022
JUDGMENT 1. This petition calls in question the legality and validity of the order dated 18.12.2003, whereby the petitioner has been compulsorily retired in public interest exercising the power under Rule 42(1)(b) of M.P. Civil Services (Pension) Rules, 1976. 2. The aforesaid order has been assailed interalia on the ground that the same has been passed without summoning and considering petitioner's entire service record. The stand of the petitioner is that his case was not placed before the duly constituted screening committee and as such the procedure prescribed under the circulars dated 22.08.2000 and 20.03.2003 has not been followed, under the circumstances his compulsory retirement in public interest is wholly unjustifiable. It is further argued that he has been retired as a punishment purely on the basis of a single penalty of reversion. Further no approval was sought from the State Government not notice as required under Rule 56 or 3 months salary as provided under Rule 42 of Pension Rules was paid. 3. Per contra, the stand of respondents is that the impugned order has been passed strictly in accordance with law after considering the entire service record of the petitioner. It is submitted that in accordance with the procedure prescribed in the circular dated 22.08.2000 and 20.03.2003, a screening committee was constituted for scrutiny of the service record of Class III and Class IV employees working in the Directorate of Training. The committee first met on 30.06.2002 and considered the case of petitioner as well as other employees who had completed 50 years of age or 20 years of service as on 01.04.2002. The committee after assessment of the entire service record of petitioner with special emphasis on the CR of the last five years, reached to the conclusion that the petitioner was not fit to be retained in service. The committee found that the over all assessment of the petitioner was below average. Further vide order dated 27.01.2003 he was reverted from the post of Accountant to the post of Assistant Grade III on account of financial irregularities and dereliction in performance of duties. The committee also found that the petitioner was placed under suspension on 07.04.2003. It is contended that the recommendation of the screening committee was placed before the competent authority, i.e., Director, Training, who agreed with the same and issued the impugned order. 4. The committee also found that the petitioner was placed under suspension on 07.04.2003. It is contended that the recommendation of the screening committee was placed before the competent authority, i.e., Director, Training, who agreed with the same and issued the impugned order. 4. Heard the rival submissions of learned counsel for the parties and perused the record. 5. The scope of judicial review of an order of compulsory retirement of a government servant is very restricted and permissible to the extent of finding whether the process in reaching the decision has been observed correctly and not the decision itself, as such in (2020) 1 SCC 801 , Ram Murti Yadav Vs. State of UP and another, the Supreme Court has held :- '6......The scope for judicial review of an order of compulsory retirement based on the subjective satisfaction of the employer is extremely narrow and restricted. Only if it is found to be based on arbitrary or capricious grounds, vitiated by malafides, overlooks relevant materials, could there be limited scope for interference. The court, in judicial review, cannot sit in judgment over the same as an Appellate Authority. Principles of natural justice have no application in a case of compulsory retirement.' 6. In (2011) 10 SCC 1 Rajendra Singh Verma Vs. Lieutenant Governor (NCT of Delhi) and others, the Supreme Court has held thus :- '192.............if the general reputation of an employee is not good though there may not be any tangible material against him, he may be compulsorily retired in public interest. The duty conferred on the appropriate authority to consider the question of continuance of a judicial officer beyond a particular age is an absolute one. If that authority bona fide forms an opinion that the integrity of a particular officer is doubtful, the correctness of that opinion cannot be challenged before courts. When such a constitutional function is exercised on the administrative side of the High Court, any judicial review thereon should be made only with great care and circumspection and it must be confined strictly to the parameters set by this Court in several reported decisions. When the appropriate authority forms bona fide opinion that compulsory retirement of a judicial officer is in public interest, the writ Court under Article 226 or this Court under Article 32 would not interfere with the order.' 7. When the appropriate authority forms bona fide opinion that compulsory retirement of a judicial officer is in public interest, the writ Court under Article 226 or this Court under Article 32 would not interfere with the order.' 7. In (2009) 15 SCC 221 Madhya Pradesh State Cooperative Dairy Federation Limited and another Vs. Rajnesh Kumar Jamindar and others, the Supreme Court has observed that an order of compulsory retirement being penal in nature can be subject to judicial review interalia:- (i) when it is based on no material; (ii) when it is arbitrary; (iii) when it is without application of mind; and (iv) when there is no evidence in support of the case. 8. Before Adverting to the rival submissions, it is apposite to refer to the relevant rules and circulars. Rule 42(1)(b) of M.P. Civil Services (Pension) Rules, 1976 provides that a government servant may be retired from service in public interest, after he has completed 20 years of service or attains the age of 50 years, whichever is earlier. The relevant portion is extracted herein below:- 42. Retirement on completion of (20/25 years) qualifying service :- (1)(a).... (b) The appointing authority may in the public interest require a Government servant to retire from service at any time after he has completed [20 years qualifying service or he attains the age of 50 years whichever is earlier], with the approval of the State Government by giving him three months notice in Form 29 : Provided that such Government servant may be retired forthwith and on such retirement the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing then immediately before his retirement or, as the case may be, for the period by which such notice falls short of three months, as the case may be. 9. The aforesaid provision is on a par with the circular issued by the State Government on 22.08.2000, which prescribes the procedure for scrutiny of record of a government employee, who has attained 50 years of age or completed 20 years of service for his retention in the service. Relevant portion of the circular is reproduced as under :- 10. This circular was subsequently modified by circular dated 20.03.2003 (Anneuxre R-2) as under :- 11. Relevant portion of the circular is reproduced as under :- 10. This circular was subsequently modified by circular dated 20.03.2003 (Anneuxre R-2) as under :- 11. The aforestated circulars prescribe the formula for determining the fitness of the employee concerned in terms whereof the entire service record of the employee were required to be considered for the purpose of his integrity and honesty being in doubt. Further evaluation of good will and working efficiency of a government servant to be carried out on the basis of his complete service record irrespective of the fact that the adverse entries and/or such comment which can be given the nomenclature of adverse entry may not have been communicated to the employee. The standard No.4 in 20.08.2000 circular regarding employee's declining work efficiency in previous five years was deleted and in its place it was prescribed that at the time of screening, whole record of employee should be checked, however, any government employee should not be held retired on the basis of normal disability, if his previous five years service has been found satisfactory or if he has been promoted on some higher grade in last five years and his service has been found satisfactory on that higher grade. 12. The law relating to compulsory retirement in public interest is no longer res-integra. The provision has been made for weeding out dead wood. In the case of Baikuntha Nath Das and another Vs. Chief District Medical Officer Baripada and another (1992) 2 SCC 299 , the Supreme Court has laid down the following guidelines :- '34. The following principles emerge from the above discussion: (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. 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 interfere. Interference is permissible only on the grounds mentioned in (iii) above. This aspect has been discussed in paras 29 to 31 above.' 13. In the case of State of Gujrat Vs. Umedbhai M. Patel (2001) 3 SCC 314 , the Supreme Court has observed as follows :- '11. The law relating to compulsory retirement has now crystallized into definite principles, which could be broadly summarised thus: (i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest. (ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution. (iii) For better administration, it is necessary to chop off dead- wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer. (ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution. (iii) For better administration, it is necessary to chop off dead- wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer. (iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order. (v) Even uncommunicated entries in the confidential record can also be taken into consideration. (vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable. (vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer. (viii) Compulsory retirement shall not be imposed as a punitive measure.' 14. For the purpose of weeding out the dead wood, the suitability criteria prescribed by the Rules and circulars are required to be followed. Undisputedly, the petitioner was initially appointed as LDC in the Industrial Training Institute, Seoni. Subsequently, he was promoted as UDC on 10.03.1986. Thereafter he was promoted to the post of Accountant (untrained) vide order dated 05.06.1993. He was placed under suspension on the allegation of financial irregularities vide order dated 23.11.2001. The charges were found proved against him in the DE and final order of punishment was passed reverting the petitioner from the post of Accountant to that of Assistant Grade III vide order dated 27.01.2003. He was thereafter again suspended on 07.04.2003 allegedly misbehaving with his superior officer. 15. The proceedings of the screening committee as well as the service record has been produced before this Court. A perusal of the service record of the petitioner as well as record of the screening committee, it is apparent that the committee has considered the entire service record of petitioner. Details of service record of the petitioner are as under :- Report/evalutaion by screening committee is reproduced as under :- 16. Undisputedly, petitioner has completed 50 years of age as well as 20 years of service. Proceedings of screening committee reveals that entire service record of petitioner upto 01.04.2002 was scrutinized and decision was taken after following the procedure prescribed under the circular dated 22.08.2000 and 20.03.2003. Undisputedly, petitioner has completed 50 years of age as well as 20 years of service. Proceedings of screening committee reveals that entire service record of petitioner upto 01.04.2002 was scrutinized and decision was taken after following the procedure prescribed under the circular dated 22.08.2000 and 20.03.2003. The petitioner though promoted on the post of Accountant on 05.06.1993, his services were not found satisfactory and he was reverted from the post of Accountant to Assistant Grade III vide order dated 27.01.2003 on account of committing financial irregularities and dereliction of duties, it is thus clear that the integrity of petitioner was found doubtful. He did not improve his conduct and was again placed under suspension vide order dated 07.4.2003 for misbehaving with the superior officer. 17. The contention of Shri Vaibhav Tiwari, learned counsel for the petitioner that the committee ignored the fact that the petitioner was earlier promoted twice on the post of UDC and then Accountant sans substance, as in promotion cases, different criteria are followed. In promotion for Class III, criteria of seniority subject to fitness is followed and incumbent is required to qualify only minimum bench mark on the basis of last five years and punishment awarded in disciplinary cases. The fact that petitioner may have been promoted is irrelevant for the purpose of consideration of compulsory retirement. In the present case, the service record/grading chart of the petitioner demonstrate his assessment from the year 1977 to 1985, 1989, 1992-93, 1995 to 1998, 2000 and 2002 as 'Fair' and 'Poor', except for two entries as very good in 1986 and 1990 and entries as good in the years 1987, 1988, 1991, 1994, 1999 and 2001. 18. A single adverse entry of integrity was held sufficient for passing an order of compulsory retirement. In Pyare Mohan Lal Vs. State of Jharkhand and others (2010) 10 SCC 693 wherein, the Supreme Court has observed :- '29. The law requires the Authority to consider the "entire service record" of the employee while assessing whether he can be given compulsory retirement irrespective of the fact that the adverse entries had not been communicated to him and the officer had been promoted earlier in spite of those adverse entries. More so, a single adverse entry regarding the integrity of an officer even in remote past is sufficient to award compulsory retirement.............' 19. More so, a single adverse entry regarding the integrity of an officer even in remote past is sufficient to award compulsory retirement.............' 19. The report of screening committee is thus based on re-evaluation of his entire service record and after subjective application of mind. The decision of competent authority is found to be based on facts and record and calls for no interference. 20. The petition is accordingly dismissed. No order as to costs.