Govind Ram Verma vs State of M.P. and Others

Initially, this petition was filed before the Madhya Pradesh State Administrative Tribunal, Jabalpur (for short ''the Tribunal'') as O.A. No. 304/ 1999. After dissolution of the Tribunal, the petition was transferred to this High Court and was registered as W.P.(S) No. 2862/2005.

By this petition, the petitioner seeks quashing of the order dated 25.06.1998 (Annexure A/1) and to reinstate the petitioner in service and to declare the period i.e. from the date of compulsory retirement till reinstatement, as service period with all consequential monetary benefits.

The facts, in nutshell, as projected by the petitioner is that initially the petitioner was appointed as Lower Division Clerk on 20.03.1970 and was posted at Government Regional Press, Rajnandgaon. The petitioner was confirmed in service vide order dated 27.09.1978 w.e.f. 05.01.1973 (Annexure A/3). Thereafter, vide order dated 25.06.1998 (Annexure A/1) issued by the Controller, Government Printing and Stationary, M.P. Bhopal, exercising the powers conferred by clause (b) of sub-rule (1) of Rule 42 of the Madhya Pradesh/Chhattisgarh Civil Services (Pension) Rules, 1976 (for short ''the Rules, 1976'') the petitioner, on attaining the qualifying service of 25 years on 20.03.1995, was retired compulsorily from service w.e.f. 30.06.1998, which is impugned herein.

Shri S. K. Thomas, learned counsel appearing for the petitioner would submit that the petitioner was retired compulsorily on account of adverse remarks in his Annual Confidential Reports (for short ''the ACRs''). None of the adverse remarks were communicated to the petitioner within time. However, after making representation to the respondent authorities, some of the adverse entries were expunged. Shri Thomas would further submit that the petitioner was assigned the work of Upper Division Clerk while he was holding the substantive post of Lower Division Clerk. The petitioner had performed his duties in accordance with law and there was no complaint, whatsoever, with regard to his work and conduct. Shri Thomas would next contend the constitution of the Committee namely "Shashkiya Vibhagon Me Dhilai Tatha Bhrastachar Unmoolan/Anivarya Sevanivritti Samiti" (for short ''the Committee'') was unconstitutional. Thus, the action of the respondent authority by compulsorily retiring the petitioner on the recommendation made by the Committee, is unjust, illegal and deserves to be quashed.

On the other hand, Shri Shrivastava, learned counsel appearing for the respondent No. 1 and 2 would submit that on the recommendation made by Committee constituted pursuant to the circulars dated 27.12.1990 of the Revenue Department and 13.01.1997 of the General Administration Department of the Government of Madhya Pradesh, the petitioner was retired compulsorily. The circular dated 27.12.1990 provides for compulsory retirement if (i) the honesty and integrity of an employee was doubtful, (ii) reduction in physical ability, (iii) the employee has not obtained ''good'' grading for the last three years, and ''average'' for two years and (iv) deficiency in the goodwill and work performance for the last five yeaRs. Shri Shrivastava would further categorically submit that after retirement, the petitioner had accepted all his retrial dues viz, pension, gratuity, family welfare fund, group insurance, general provident fund, leave encashment etc. which goes to show that the petitioner had accepted the order of compulsory retirement and thus, he has no right to challenge the same before this Court. The petitioner had further been granted three months salary in lieu of notice.

Shri Dubey, learned counsel appearing for the respondent No. 3 and 4 would submit that the case of the petitioner was not a case of punishment, but compulsory retirement on having completed 25 years of qualifying service. A Committee, comprising of Shri J.L Sankat, Controller, Government Printing & Stationery, Smt. Beena Chapekar, Deputy Secretary, Government of Madhya Pradesh, Department of Revenue, Bhopal, Shri PC. Seth, Deputy Controller, Government Printing & Stationary Department, Bhopal and Shri Devdatt, Incharge, Deputy Controller, Government Regional Printing Press, Rajnandgaon, was constituted vide order dated 27.11.1997, which was a proper committee as provided under circular dated 13.01.1997 (Annexure A/18). The Committee, headed by the head of the department, assessed the case of the petitioner on the basis of his honesty and integrity, physical capability, performance in the last five years and progress and capability of the petitioner, and made a recommendation accordingly for retiring the petitioner compulsorily. The petitioner has accepted all the retrial dues including pension, gratuity, family welfare fund, group insurance, general provident fund, leave encashment etc.

On consideration of the rival submissions advanced by the learned counsel for the parties, it is evident that the petitioner was retired compulsorily on completion of 25 years qualifying service by order dated 19.6.1998 under the provisions of clause (b) of sub- rule 1 of Rule 42 of the Rules, 1976.

Rule 42(1)(b) of the Rules, 1976, reads as under:

Retirement on completion of [20 years] qualifying service. -(1) (a) A Government servant may retire at any time after completing 20 years qualifying service, by giving a notice in Form 28, to the appointing authority at least three months before the date on which he wishes to retire on payment by him of pay and allowances for the period of three months or for the period, by which the notice actually given by him falls short of three months:

Provided that where the Government servant giving such notice is under suspension, he shall not be allowed to retire from service without the prior permission in writing of the appointing authority

(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.

Earlier, qualifying service was 25 years which was substituted by 20 years vide notification dated 30.05.2000.

The main grievance of the petitioner is that the ACRs which contained adverse entries were not communicated within a period of three months but they were communicated after three months. However, the fact remains that response to the communications were filed by the petitioner and the same were considered before all the ACRs were taken into consideration by the Committee. Thereafter, it was decided not to retain the petitioner in service on attaining qualifying service of 25 yeaRs. It is evident from annexures enclosed by the petitioners that ACR of 1990-1991 was communicated to the petitioner on 28.8.1991 (Annexure A/5) which was responded to and the same was rejected on 11.06.1993 (Annexure A/6). The ACR of 1992 -1993 was also communicated to the petitioner to which the petitioner responded on 18.05.1993, but the same was rejected on 20.01.1994 (Annexure A/7). Adverse entries in ACR of 1994-1995 was communicated on 13.04.1996 which was responded to by the petitioner and on consideration of his response/representation dated 21.05.1996, it was rejected on 12.03.1997 (Annexure A/8). ACR ending till 31.03.1996 was communicated to the petitioner on 15.01.1997. His representation dated 17.04.1997 was considered and was rejected on 23.03.1998 (Annexure A/10). ACR till 31.03.1997 was communicated on 25.11.1997 (Annexure A/11) which was responded to by the petitioner on 06.01.1998 (Annexure A/12). The same was also considered. The impugned compulsory retirement order was passed on 25.6.1998 (Annexure A/1) and before that, all the adverse entries in the ACRs were communicated to the petitioner and the same were responded to by the petitioner. Thus, the contention of the petitioner that the adverse entries in the ACRS were communicated after a period of three months, thus, the proceeding is vitiated, does not merit acceptance.

Without making necessary amendment in the pleadings, the petitioner, in his additional written argument, questions the legality and validity of the Committee, constituted under the circular dated 13.01.1997 of the General Administration Department of the then State of Madhya Pradesh. The circular dated 13.01.1997 (Annexure A/18) provides for constitution of the Screening Committee for compulsory retirement. The main criteria for consideration was honesty and integrity, physical capability, performance of the employee in the last five years and progress and capability of the employee. The Committee, comprising of Shri J. L.Sankat, Controller, Government Printing & Stationery, Smt. Beena Chapekar, Deputy Secretary, Government of Madhya Pradesh, Department of Revenue, Bhopal, Shri P.C. Seth, Deputy Controller, Government Printing & Stationary Department, Bhopal and Shri Devdatt, Incharge, Deputy Controller, Government Regional Printing Press, Rajnandgaon, was constituted vide order dated 27.11.1997, which recommended not for retaining services of the petitioner, considering the overall performance of the petitioner. The Committee was properly constituted as it was headed by the Controller, Government Printing and Stationary Department, wherein the petitioner was working. The pending departmental enquiry was dropped after the order of compulsory retirement was passed and it appears from the recommendation and the order that pendency of the departmental enquiry was not one of the consideration against the petitioner. There is no challenge to the compulsory retirement on any other ground except the ground of non-communication of adverse entries in the ACRs of the petitioner, within time.

Under the circular dated 13.01.1997 (Annexure A/18), it was provided to constitute a Committee for screening of the employees as under:

Reliance of the petitioner on a decision of the Supreme Court in Kusum Ingots and Alloys Ltd. Vs. Union of India (UOI) and Another, , is not relevant to the facts of the case as the case deals with situs of cause of action, which is not in question in the facts of the case. The another decision viz. State of Maharashtra Vs. Jagannath Achyut Karandikar, , is also not relevant to the facts of the case as the said case was not on compulsory retirement but on appointment of the persons who fall into the category of ''Late Passing''. Further, the case of C.L. Verma Vs. State of M.P. and another, , holds that the administrative instructions cannot compete with a statutory rule and if there be contrary provisions in the rule, the administrative instructions must give way and the rule shall prevail. But in the instant case, that is not the question as there is clear provision under the Rules, 1976 to retire an employee on completion of 20 / 25 years qualifying service. In the case on hand, the Committee comprising of four members and was convened by the Head of the Department i.e. the Controller, Government Printing & Stationary Department, thus, the order passed by the Madhya Pradesh State Administrative Tribunal in S. Laxmi Chand Awadhiya v. State of M.P. & Others, (O.A. No. 3061, decided on 20.03.1998), relied on by the petitioner and was affirmed by the High Court of Madhya Pradesh, is also not applicable to the facts of the present case.

The case of Ram Kishore Goutam Vs. State of M.P. (Now C.G.) and Others, , of this Court, relied on by the petitioner, was in regard to imposition of penalty of compulsory retirement after departmental enquiry, and as such, the same is not applicable to the facts of this case as in the instant case, the petitioner was retired compulsorily on the basis of overall performance and assessment on having completed 25 years of qualifying service under the provisions of Rule 42 of the Rules, 1976.

In State of M.P. and Others Vs. Indra Sen Jain, , compulsory retirement of the petitioner was in question on the ground of malafide. The Supreme Court held that the order of compulsory retirement must be made in bonafide exercise of power and in public interest. In the case on hand, there is no allegation of malafide. In the instant case, some of the adverse entries in the ACRs were deleted which goes to indicate that there was no malafide against the petitioner. The Supreme Court, in State of M.P. and Others Vs. Indra Sen Jain, , held that "if in earlier enquiries the respondent was either exonerated or on appeal the adverse orders against him were set aside, this would go to show that there were no malafides against the respondent and that his case was fairly considered by the authorities concerned".

The Supreme Court, in M.L. Binjolkar Vs. State of Madhya Pradesh, the Supreme Court has considered the aspect of compulsory retirement, observed as under:

5....It is a trite law that an order of compulsory retirement is not a punishment. The employer takes into account various factors emanating from the employee''s past records and takes a view whether it would be in the interest of the employer to continue services of the employee concerned. It can certainly pass an order of compulsory retirement when the employee is considered to be a dead wood and practically of no utility to the employer. The purpose and object of premature retirement of a government employee is to weed out the inefficient, the corrupt, the dishonest or the dead wood from the government service. As noted above, in the background facts of these cases, we do not consider it necessary to go into the merits.

In National Aviation Company of India Ltd. Vs. S.M.K. Khan, , the Supreme Court observed as under:

The unsatisfactory service of the employee which may include any persistent misconduct or inefficiency furnishes the background for taking a decision that the employee has become a dead wood and that he should be retired compulsorily. Such "compulsory retirement" is different and distinct from imposition of a punishment of compulsory retirement (or dismissal / removal) on a specific charge of misconduct, where the misconduct is the basis for the punishment. The difference is on account of two factors: firstly, the employee on account of completing a particular age or number of years of service falls within the zone where his performance calls for assessment as to whether he is of continued utility to the employer or has become a dead wood or liability for the employer. Secondly, the record of service, which may include poor performance, unsatisfactory service or incidentally any recent conduct (which if separately considered may constitute a misconduct subject to punishment) when considered as a whole, leads the reviewing authority to the conclusion that the employee in question is not fit to be continued in service and not of utility to the employer. Therefore, any incidental reference to unsatisfactory service or any remarks in the context of explaining the reason for compulsory retirement under the relevant rule, in the letter of compulsory retirement will not be considered as stigmatic, even though read out of context, they may be capable of being construed as allegations of misconduct.

In State of Gujarat Vs. Umedbhai M. Patel, , the Supreme Court crystallized the law relating to compulsory retirement, as under:

The law relating to compulsory retirement has now crystallized into definite principles, which could be broadly summarized 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.

(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 he imposed as a punitive measure.

For the reasons mentioned hereinabove and applying the well-settled principles of law in respect of compulsory retirement, to the facts of the instant case, there is no merit in the case. The petition accordingly fails and is dismissed.

There shall be no order as to costs.