Bateshwar Rai vs State of U.P.& Ors.

R.A. Sharma, J.—The petitioner, who was Executive Engineer, Garhwal Jal Sansthan, Kotdwar, Pauri, has filed this writ petition, challenging the order of his compulsory retirement from service dated 11.12.1991 passed under Fundamental Rule 56 Financial Handbook Volume II Part II to IV The State has filed counter affidavit and the petitioner has filed rejoinder affidavit in reply thereto. We have heard the learned counsel for the parties.

Sri. H. S. Nigam, learned counsel for the petitioner has made the following submissions in support of the writ petition:

(i) while passing an order of compulsory retirement the Government considered the petitioner''s service record of the last ten years only and did not take into account the service record of the whole Service;

(ii) Adverse entries for the years 198687 and 198788 could not have been taken into consideration by the Government while passing the order of compulsory retirement, because the representation filled against those entries was not decided till then;

(iii) Adverse entry for the year 198889 has not become final till the time the order of compulsory retirement was passed and, therefore, it was also not liable to be taken into account for the purposes of compulsory retirement,

(iv) Entry for the year 198990 was a good entry; but it was not taken into consideration when the impugned order was passed and

(v) Adverse entries for the years 198485 and 198586 were not so serious so as to justify the compulsory retirement of the petitioner.

Sri Kushwaha, learned Standing counsel has disputed the above contentions and has also submitted that in view of the facts and circumstances of the case, no interference with the impugned order is called for by this Court under Article 226 of the Constitution of India.

The Government of U.P. by its letter dated 26. 10.85 has provided for constitution of Screening Committee for scrutinising the cases of Government servants for compulsory retirement. The said letter has also laid down that although the record of whole service of the Government servant is liable to be taken into account; but it is the record of the last ten years of his service on which more emphasis should be placed while considering his case for compulsory retirement. In paragraph 43 of the counter affidavit, it has been stated that the petitioners records of service of the last ten years was considered by the Government. Annexure 2 to the counter affidavit contains the summary of the entries, which were awarded to the petitioner during the last ten years of his service. The said entries are as under:

198081 ... Satisfactory

1981 82 ...Satisfactory

198283 ...Very good

198384 ...Satisfactory (30883 to 3/84)

198485 ... Censure

198586 ...Censure

198687 ... Bad ( 9/86 to 3/87)

198788 ...Bad

198889.....Adverse

198990......

199091... Good (27.11.90 to 3/91)

In the said paragraph, it has further been stated that the adverse entry for the years 198889 was not considered by the Screening Committee, because it was not confirmed till then by the higher authorities. It has also been mentioned therein that during the years 198485 and 198586 when the petitioner was posted at Jhansi Jal Sansthan, an inquiry was conducted against him for various irregularities. He was found guilty of several charges by the Inquiry Officer and accepting the report of the Inquiry Officer the Government passed an order censuring his work and conduct for the aforesaid two years. The question is as to whether the petitioner could have been retired compulsorily on the basis of the aforesaid material/Service record?

As regards the compulsory retirement, the Supreme Court in Baikuntha Nath Das v. Chief District Medical Officer (AIR 1992 SC1020) has laid down as under:

"(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 appellate Court, they may interfere if they are satisfied that the order is passed: (a) modified, 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 mala fide perverse order.

(iv) The Government for the Review Committee, as the case may be shall have to consider the entire record of service before taking a decision in the matterof 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."

In view of the law laid down as above although the entire service record of a Government servant is liable to be considered by the Government while considering the case of his compulsory retirement; but the most relevant record is the service record of the later years. In this connection Supreme Court in Baikuntha Nath Das''s case has cited the following extract of it earlier judgment in Brij Bihari Lal Agarwal v. High Court of Madhya Pradesh (AIR 1981 SC594):

"What we would like to add is that when considering the question of compulsory retirement, while it is no doubt desirable to make an overall assessment of the Government servant''s records, more than ordinary value should be attached to the confidential reports pertaining to the years immediately preceding such consideration. It is possible that a Government servant may possess a somewhat erratic record in the early years of service, but with the passage of time he may have so greatly improved that it would be of advantage to continue him in service upto the statutory age of superannuation. Whatever value the confidential reports of earlier years may possess, those pertaining to the later years are not only of direct relevance but also of utmost importance."

In S. Ramachandra Raju v. State of Orissa (AIR 1995 SC III) Supreme Court has reiterated the same principle regarding relevance of the service record of the later years of service of an employee for the purpose of compulsory retirement by laying down as under:

"Therefore, the entire service record particularly the latest, would form the foundation for the opinion and furnish the base to exercise the power under the relevant rule to compulsorily retire a Government servant."

Therefore, what is most relevant and of utmost importance is the record of the later years of service of the Government servant. In the instant case the Government has stated in its counter affidavit that it has taken into consideration the service record of the petitioner of the last ten years preceding the date of his compulsory retirement. Even if it is presumed, although the entries of the earlier years are not on the record, that petitioner''s service record of the earlier years was good, he cannot successfully challenge the order of his compulsory retirement, if his record of service of later years is not satisfactory and good. In Post & Telegraph Board v. C. S. N. Murty, AIR 1992 SC 1368, the order of compulsory retirement was upheld on the basis of solitary adverse entry, although the earlier record of service of the concerned employees was good. In the instant case the service record of the later years of service of the petitioner is undoubtedly not good and satisfactory. The impugned order, therefore, cannot be said to be bad merely on the ground that the record of the earlier years of the service of the petitioner was not taken into consideration. Hence the first contention of the petitioner has to be rejected.

As regards the adverse entries for the years 198687 and 198788 are concerned, it is true that the petitioner has filed representation against them and the same was not disposed of till the order of compulsory retirement was passed. Supreme Court in Brij Mohan Singh Chopra v. State of Punjab AIR 1987 SC 948, has taken the view that it is "unjust and unfair and contrary to the principles of natural justice to retire prematurely a Government employee on the basis of adverse entries which are either not communicated to him or if communicated representation made against those entries are not considered and disposed of." Same view was taken in Baidyanath Mahapatra v. State of Orissa AIR 1989 SC 2218. But the Supreme Court in BaUamth Nath Das v. Chief District Medical Officer (supra) reconsidered this question and has laid down that its view in Brij Mohan Singh Chopra v. State of Punjab and Baidyanath Mahapatra v. State of Orissa (Supra) is not the correct view. In this connection paragraph 29 of the decision of Baikuntha Nath Das''s case is reproduced below:

"On the above premises, it follows in our respectful opinion that the view taken in J. N. Sinha AIR 1971 SC 40 is the correct one viz., principles of natural justice are not attracted in a case of compulsory retirement under F.R. 56 (j) or a rule corresponding to it. In this context, we may point out a practical difficulty arising from the simultaneous operation of two rules enunciated in Brij Mohan Singh Chopra AIR 1987 SC 948. On one hand it is stated that only the entries of last ten years should be seen and (2) on the other hand, it is stated that if there are any adverse remarks therein, they must not only be communicated but the representations made against them should be considered and disposed of before they can be taken into consideration. Where do we draw the line in the matter of disposal of representation. Does it mean, disposal by the appropriate authority alone or does it include appeal as well. Even if the appeal is dismissed, the Government Servant may file a reason or make a representation to a still higher authority. He may also approach a court or Tribunal for expunging those remarks. Should the Government wait until all these stages are over. All that would naturally take a long time by which time these reports would also have become stale. A Government Servant so minded can adopt one or the other proceeding to keep the matter alive. This is an additional reason for holding that the principle of M.E. Reddy (AIR 1987 SC 563) should be preferred over Brij Mohan Singh Chopra AIR 1987 SC 948 and Baidyanath Mahapatra, AIR 1989 SC 2218, on the question of taking into consideration un communicated adverse remarks."

In the case of Baikunth Nath Das v. Chief District Medical Officer (supra) the Supreme Court has further laid down that while considering the case for compulsory retirement of a Government servant, it is open to the Government to take into consideration the adverse entry against which a representation in pending, but the Government has also to consider the representation along with it. This is clear from paragraph 31 of the judgment of the said case, relevant extract of which is reproduced below.

"We may not be understood as saying either that adverse remarks need not be communicated or that the representation, if any, submitted by the Government servant (against such remarks) need not be considered or disposed of. The adverse remarks ought to be communicated in the normal course, as required by the Rules/orders in that behalf. Any representations made against them would and should also be dealt within the normal course, with reasonable promptitude. All that we are saying is that the action under F.R. 56 (j) (or the rule corresponding to it) need not await the disposal or final disposal of such representation as the case may be. In some cases, it may happen that some adverse remarks of the recent years are not communicated or if communicated, the representation received in that behalf are pending consideration. On this account alone, the action under F.R. 56 (j) need not be held back. There is no reason to presume that the Review Committee or the Government, if it chooses to take into consideration such uncommunicated remarks, would not be conscious or cognizant of the fact that they are not communicated to the Government servant and that he was not given an opportunity to explain or rebut the same. Similarly, if any representation made by the Government servant is there, it shall also be taken into consideration.

Learned counsel for the petitioner has, however, contended that the decision of the Supreme Court in Baikuntha Nath Das''s case (supra) cannot be applicable to the U.P. Government employees. In his support, he has placed reliance on decision of learned Single Judge in Krishan Pal Sonkar v. State of U.P. and another, (1993) UPLBEC 1049, wherein, in this connection, it was laid down as under:

"It has no doubt been held by the Supreme Court in Baikuntha Nath Das v. Chief Medical Officer, AIR 1992 SC 1020 that even an uncommunicated adverse entry can be taken into consideration while passing an order of compulsory retirement. However, in my opinion this decision is distinguishable and it will have no application to U.P. Government employees to the extent that it says that an uncommunicated entry can be relied upon. It may be noticed that Baikuntha Nath Dais case related to an employee of the Orissa Government. The law in Orissa regarding compulsory retirement is different from the law in U.P. In U.P. the law regarding compulsory retirement was amended by the U.P, Fundamental Rule 56 (Amendment) Act 1976 which introduced a new Clause (2) to the U.P. Fundamental Rule 56. This Clause (2) states:

"(2) In order to be satisfied whether it will be in the public interest to require a Government servant to retire under Clause (c) the appointing authority may take into consideration any material relating to the Government servant and nothing herein contained shall be construed to exclude from consideration

(a) any entries relating to any period before such Government servant was allowed to cross any efficiency bar or before he was promoted to any post in an officiating or substantive capacity or on an ad hoc basis; or

(b) an entry against which a representation is pending, provided that the representation is also taken into consideration along with the entry: or

(c) any report of the vigilance Establishment constituted under the Uttar Pradesh Vigilance Establishment Act, 1965.

(2A) Every such decision shall be deemed to have been taken in the public interest."

A perusal of Clause (2) (b) shows that the authority which is to pass the order of compulsory retirement must consider the representation which is pending against an adverse entry. Now there can be no representation if the adverse entry is not communicated. Hence, it is implicit in the said clause that the entry must be communicated to the concerned employee so that he has an opportunity, of making a representation against it and an uncommunicated entry cannot be relief upon for passing an order of compulsory retirement."

Controversy before the learned Single Judge in the aforesaid case of Krishan Pal Sonkar v. State of U.P and another was as to whether an adverse entry, which has not been communicated, could be taken into account by the Government for passing the order of compulsory retirement. That is not the position in the instant case. Here the adverse entries for the years 198687 and 198788 were communicated to the petitioner against which he has filed representation; but they were not disposed of till the order of compulsory retirement was passed. Clause (b) of subrule(2) of Fundamental Rule 56, as amended in this State, which is relevant in this connection has already been quoted above, being part of the extract of the judgment of the learned Single Judge in the case of Krishan Pal Sonkar v. State of UP and another (supra). The said clause merely requires that if the Government considers an adverse entry against which the representation is pending, it has also to consider the representation along with the entry while passing the order of compulsory retirement. The Supreme Court in the case of Baikuntha Nath Das (supra) has also laid down in paragraph 31 of its judgment that if the Government considers the adverse entry against which a representation is pending, it should also consider the representation along with it. The decision of the Supreme Court in Baikuntha Nath Das''s case is, therefore, not contrary to what is contained in Fundamental Rule 56 as applicable to the State of U.P. and in fact it is in conscience with the said rule. The law, as regard consideration of adverse entry against which representation is pending, laid down by the Supreme Court in Baikuntha Nath Das''s case is thus fully applicable to this State also. In the instant case, it has not been stated by the petitioner that the Government has not considered his representation along with the adverse entry for the years 198687 and 198788. The second submission of the learned counsel for the petitioner is also rejected.

So far as the adverse entry for the year 198889 is concerned, the Government has itself stated in its counter affidavit that it was not taken into consideration while passing the order of compulsory retirement, because till then it was not confirmed by the higher authorities. As the Government itself has not considered the said entry, there is no occasion for the petitioner to raise any grievance about it. The third contention, therefore cannot be accepted.

In paragraph 43 of the counter affidavit, it has been stated that the entries, which are mentioned in Annexure CA2 were placed before the Screening Committee. Annexure CA2 does not contain any entry for the year 198990. Whether any entry was awarded to the petitioner for the years 198990 is not clear from the material placed before the Court; but in the same paragraph 43 of the counter affidavit, it has been stated that the service record of the petitioner for last ten years of his service was taken into account while considering the case for this compulsory retirement. Petitioner was retired compulsorily in 1991 and the year 198990 falls within the last ten years of his service. Even if it is accepted that the petitioner''s service record for the year 198990 was good, he cannot succeed in this writ petition in view of the adverse entries during previous four years, namely, 198384, 198485, 198788 and 198889. Good entry for one year cannot have the effect of wiping out the adverse service record of the preceding years. This contention is also rejected.

So far as the adverse entries for the years 198485 and 1985 86 are concerned, it may be mentioned that in those years the petitioner was posted at Jhansi and disciplinary inquiry with regard to certain irregularities committed by him was initiated. The petitioner was chargesheeted and an Inquiry Officer was appointed. Petitioner was held guilty of charges No. 1,2, 4 and 8. Charges No. 3,5 and 7 were partially proved against him. As an adverse entry regarding Charge No.1 has already been recorded against the petitioner earlier, the Government took the view that no further punishment is to be given to him regarding the said charge. The Government, however, passed an order recording a censure entry, condemning the work and conduct of the petitioner in those two years. This order has become final. Entries for those two years are not simple adverse entries. Petitioner''s conduct has been condemned and censured. Even if all other entries are ignored, the entries for these two years are sufficient to pass the impugned order. In Post & Telegraph Board v. C. S. N. Murthy (AIR 1992 SC 136), the Supreme Court upheld the order of compulsory retirement under Fundamental Rule 56 on the basis of one adverse entry for the years 197172 although earlier record of the concerned employee was good. S. Ramachandra Raju v. State of Orissa (AIR 1995 SC 111) and Narsingh Patnaik v. State of Orissa (1996) 3 SCC 619) on which, in this connection, reliance has been placed by the learned counsel for the petitioners, are of no help to him. In S. Ramachandra Raju v. State of Orissa (supra) the order of compulsory retirement, which was passed only on the basis of an adverse entry for the years 198788, was set aside, because the Review Committee neither considered the earlier service record nor the subsequent reports. That apart, the concerned employee was also promoted to a higher post after the adverse entry. It is now well settled that if an employee has been promoted to higher post after the adverse entry such an entry loses its sting and, therefore, should not be made the foundation for his compulsory retirement. In Narasingh Patnaikv. State of Orissa (supra) the order of compulsory retirement was passed on the basis of the recommendation of the Review Committee, which was based on several circumstantaces, such as, adverse entires, pendency of vigilance cases, framing of charges etc. Ultimately all the proceedings/inquiries were either dropped or final report in connection therewith were submitted and what remained were only the adverse remark for the years 197576 and 197778. But after those adverse entries the appellant therein was promoted to higher post and his work and conduct were appraised as "good". The Supreme Court set aside the order of compulsory retirement and one of the reasons given was the promotion of the appellant therein after the adverse entries were recorded. In the instant case the Government has passed the order taking into consideration the adverse entries censuring the work and conduct of the petitioners for the years 198485 and 198586 as well as the adverse remarks recorded for the years 198788 and 198889. The impugned order, therefore, cannot be said to be arbitrary or illegal.

For the reasons given above, this writ petition is dismissed. In view of the facts and circumstances of the case, there shall be no order as to costs. Petition dismissed.