Genda Lal Sharma vs State of M.P.

A.K. Shrivastava, J.

Feeling aggrieved by the impugned order dated 28.6.88 (Annexure-C) by which the petitioner was retired compulsorily he has filed this petition. This petition was originally filed by petitioner before this Court, which was registered as Misc. Petition No. 3621/88, however, on the establishment of Madhya Pradesh Administrative Tribunal the same was transferred to it and thereafter on abolition of the Tribunal this petition has been received by this Court again.

The impugned order dated 28.6.88 (Annexure-C) which has been challenged by the petitioner, is the order retiring him compulsorily. This order was issued by the State of Madhya Pradesh Local Self Government under Rule 30 of the Madhya Pradesh Municipal Service (Executive) Rules, 1973, which reads as under :-

Retirement in Certain Cases : Notwithstanding anything contained in Rule 29, on the completion of 25 years of service, a member of service may retire from the service with the permission of the State Government. The State Government may suo motu and without assigning any reason retire any member of the service at any time on or after the completion of 25 years of service even if he has not attained the age of superannuation. In all such cases, where the State Government retire a member of service under this rule, they shall either give him three months notice or equivalent pay to him.

The contention of learned counsel for petitioner is that petitioner has been wrongly retired by applying the above said rule. According to him, petitioner was serving on the post of Chief Municipal Officer and, therefore, he is a government employee. In support of his contention he has placed reliance on Full Bench decision of this Court in the case of Suresh Chandra Sharma and Others Vs. State of M.P. and Others, . It has been further contended by learned counsel that if a government servant is required to be retired compulsorily, the relevant provision under the law is F.R. 56 (3). He has invited my attention to the said provision which reads thus :-

(3) A Govt. servant may, in the public interest be retired at any time after he attains the age of 55 years on three months notice without assigning any reason or on payment of three months pay and allowances in lieu of such notice.

It has been propend by learned counsel for the petitioner that the date on which the impugned order (Annexure-C) was passed i.e. 28.6.88 the age of petitioner was 51 years, as he born on 19.1.1937. In that regard he has invited my attention to para 5 of his petition. It has been contended by him that since the petitioner did not complete the age of 55 years and also because he is a government servant, he could not have been compulsorily retired earlier to the age as prescribed in F.R. 56.

On the other hand, Shri Jaideep Singh, learned counsel appearing for the respondents, argued in support of the impugned order.

After having heard the learned counsel for the parties I am of the view that this petition deserves to be allowed.

This fact has not been disputed by the respondents that the petitioner was serving on the post of Chief Municipal Officer when the order retiring him compulsorily was passed and if that be the position, in my opinion, he is a government servant as has been held by the Full Bench of this Court in the case of Suresh Chandra Sharma Vs. State of M.P. and others (supra) and, therefore, Rule 30 of the Madhya Pradesh Municipal Service (Executive) Rules, 1973, has no application and F.R. 56 (3) would be applicable to petitioner, since by applying wrong provision of law the petitioner has been compulsorily retired from his service vide Annexure-C dated 28.6.88, it cannot be allowed to stand in the eyes of law.

The next question is that if the petitioner is a government servant whether he could be retired compulsorily earlier to the age of 55 years. In that regard F.R. 56 (a) (3) is quite clear which I have already quoted hereinabove. On going through the said provision it is luminously clear that a government servant cannot be retired compulsorily earlier to 55 years. Shri Pandey, learned counsel for the petitioner, has also invited my attention to the Division Behch decision of this Court in the case of State of M.P. and another Vs. Noor Jama Khan [2002 (5) M.P.H.T. 537] wherein the Division Bench in para 6 and 10 has laid down the law, which I think it proper to rewrite as under :-

Before we delve into the rival submissions raised at the Bar we must deal with the contention canvassed by Mr. Yadav that the Committee had recorded its subjective satisfaction and once subjective satisfaction has been recorded the Court should not interfere. In support of the aforesaid stand the learned Counsel has placed reliance on the decision rendered in the case of Union of India (UOI) and Others Vs. Dulal Dutt, , wherein a three Judge Bench of the Apex Court has held as under:-

It will be noticed that the Tribunal completely erred in assuming in the circumstances of the case that there ought to have been a speaking order for compulsory retirement. This Court has been repeatedly emphasizing right from the case of R.L. Butail Vs. Union of India and Union of India Vs. J.N. Sinha, that an order of a compulsory retirement is not an order of punishment. It is actually a prerogative of the Government but it should be based on a material and has to be passed on the subjective satisfaction of the Government. Very often, on enquiry by the Court the Government may disclose the material but it is very much different from the saying that the order should be a speaking order. No order of compulsory retirement is required to be a speaking order. From the very order of the Tribunal it is clear that the Government had, before it, the report of the Revenue Committee yet it thought it fit of compulsorily retiring the respondent. The Order cannot be called either malafide or arbitrary in law.

Submission of Mr. Yadav is that as per the law laid down by the Apex Court the order of compulsory retirement is the prerogative of the Government and it can be passed on the subjective satisfaction of the State Government. We may hasten to add the concept of subjective satisfaction does not necessarily mean that there can be no material and the competent authority can take a flight in fancy. An opinion has to be formed by the review committee. True it is, as has been said by their Lordships, it is the prerogative of the State Government, but as has also been said by their Lordships, it has to be based on material. Appreciation of material has to be done.

Subjective satisfaction cannot be done in a manner which a prudent man can never conceive. Satisfaction like discretion has to be based on proper consideration and weighment of material. In the name of subjective satisfaction no one can be allowed to behave in a whimsical or capricious manner. Fancy has no place in law. In our considered opinion subjective satisfaction cannot be scanned as if one is sitting in an appeal, but it must meet the requirement of appreciation expected of a prudent man and the appreciation should be relevant and germane to the purpose apropos to its context. It cannot be conceived for a moment that the subjective satisfaction would take away the order from the purview of judicial scrutiny solely on the basis that the Committee has been subjectively satisfied. It must indicate the satisfaction of a prudent and fair man and there should be no perversity of approach. When we say perversity of approach it mean perverse legal approach. In this context we may profitably refer to the decision rendered in the case of Posts and Telegraphs Board and others Vs. C.S.N. Murthy, , wherein their Lordships has held as under:-

An order of compulsory retirement is not an order of punishment. F.R. 56 (j) authorizes the Government to review the working of its employees at the end of their period of service referred to therein and to require the servant to retire from service we if, in its opinion, public interest calls for such an order. Whether the conduct of the employee is such as to justify such a conclusion is primarily for the departmental authorities to decide. The nature of the delinquency and whether it is of such a degree as to require the compulsory retirement of the employee are primarily for the Government to decide upon. The Courts will not interfere with the exercise of this power, if arrived at bona fide and on the basis of material available on the record.

(Emphasis supplied)

From the aforesaid enunciations of law there remains no iota of doubt that the order of compulsory retirement is not to be passed as short cut to avoid departmental enquiry and 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 tested on the touch stone that no reasonable person would form requisite opinion on the given material. To elucidate, the order should not smack of perversity or based on no material or prima facie malafide. Quite apart from the above the Apex Court has expressed the view that if the officer has been given promotion despite adverse entries made in the confidential record, that goes in favor of the officer concerned.

If the ratio of the case of Noor Jama Khan (supra) is tested on the present facts and circumstances of the case, one can safely say that the impugned order is not only arbitrary but cannot be allowed to remain stand.

Since the impugned order retiring the petitioner compulsorily has been passed by applying incorrect law, for this reason also the same cannot be allowed to remain stand.

In the result the petition succeeds and is hereby allowed. The impugned order dated 28.6.88 (Annexure-C) issued by the respondent No. 1 is hereby quashed. The respondents shall bear costs of the petitioner. Counsel fee Rs. 2,000/- if pre-certified.