Nand Lal vs State of U.P.& Ors.

J.C. Gupta, J.

This writ petition under Article 226 of the Constitution of India has been filed for a writ of certiorari to quash the order dated 12190 passed by respondent No. 2, Annexure2 to the writ petition direction compulsory retirement of the petitioner under Clause (2) of the U.P. Fundamental Rule 56 (c).

The petitioner was appointed as Lekhpal on 25th April, 1953. It is alleged by the petitioner that the respondent No. 2 without giving any opportunity of hearing to the petitioner has arbitrarily passed the impugned order prematurely retiring the petitioner, though the work," conduct and performance of the petitioner have always been found to be excellent and during the entire service tenure the petitioner was never communicated any adverse remarks and no disciplinary proceeding was pending against him at the time when impugned action was taken. The petitioner was suspended in December, 1988, but on inquiry the suspension order was revoked in March, 1989 and the petitioner was reinstated. The impugned order was not at all in public interest and is wholly arbitrary and mala fide and is liable to quashed.

In the counter, affidavit, the respondents have tried to defend the impugned order by asserting that the impugned order was passed by respondent No. 2 on a consideration of the report of the Screening Committee. The petitioner remained suspended from 211288 to 15389 as his work was not satisfactory. He was fined in the year 1962. He was of course reinstated within a year of his suspension, but he was censured for being irregular in the discharge of this duties of KRISHI GARNA. Under the relevant Rules there was no provision for giving any prior notice before making an order of compulsory retirement nor principles of natural justice are applicable. The impugned order was passed in public interest on the basis of service record which was examined by the Screening Committee.

In the rejoinder affidavit the petitioner has stated that it was a apparent from the stand taken by the respondents that the sale basis of passing the order was the suspension order dated 21.12.88 wherein after the inquiry the authority found that the charges levelled against the petitioner were baseless and consequently, the suspension order was revoked in 15389 and therefore, the same could not be made the basis for passing the impugned order. The petitioner had never been communicated any adverse remarks during the entire period of his service.

By interim order of this Court dated 29891 it was ordered that the impugned order will not be given effect to and it was further directed that the petitioner would be allowed to perform duties and would also be paid his salary. It further appears that the petitioner thereafter continued in service till he reached the age of superannuation.

In view of the fact that the petitioner has now admittedly retired, the learned Counsel for the petitioner did not press the relief for issuing mandamus commanding the respondents to allow the petitioner to continue in service. The learned Counsel for the petitioner, however, prayed for the quashing of the impugned order because if the same is allowed to stand, that would affect the petitioner''s post retirement benefits.

The only question for consideration is whether respondent No. 2 while exercising his powers of compulsory retiring the petitioner under the provisions of Rule 56 (6) of the U.P. Fundamental Rules, 1973 had exercised his power in public interest and the order is legal?

In the counter affidavit in paragraph 7 it is stated that the impugned order was just and proper and the same was passed after considering the Screening Report of the petitioner. The petitioner remained suspended from 211288 to 15389 as his work was not satisfactory. Annexure C.A.1 annexed with the counteraffidavit makes a reference to the following three entries made aga''.nst the petitioner:

(i) The first entry is dated 1311962, which is to the effect that the petitioner was imposed a fine of Rs, 5/only.

(ii) The next entry is the gist of the order dated 211288 passed by the Subdivisional Magistrate whereby the petitioner was suspended for being negligent in the important work of KRISHIGARNA.

(iii) The third and last entry is dated 15389 which refers to the order of the Subdivisional Magistrate reinstating the petitioner on the conditions that the petitioner would not be paid salary for the period during which he remained suspended and an adverse remarks was ordered to be made in this regard to the effect that he be censured for being irregular in performing important work like KRISHI GARNA.

The learned Counsel for the petitioner submitted before me that since none of the above entires were ever communicated to the petitioner, they were liable to be ignored in law and in any view the authority concerned had no material before him worth consideration on which a decision to retire the petitioner permanently before the due date of superannuation could legally be taken. The petitioner''s assertion that he had never been communicated any adverse remark, has neither been controverted in the counteraffidavit nor has been disputed before me. Learned Standing Counsel for the State placing reliance upon the decision in Baikuntha Nath Das v. Chief District Medical Officer, AIR 1992 SC1020, however, contended that even uncommunicated entries can be taken into consideration while examining the question compulsory retirement of an employee and since the order in question was passed in public interest on the assessment of the work and conduct of the petitioner on the basis of the aforesaid adverse entries, this Court should not interfere.

In Baikuntha Nath Das case the following principles were laid down:

"(i) An order of compulsory retirement is not a punishment 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 ihe context of an order of compulsory retirement. This does not mean that Judicial scrutiny is excluded altogether. While the High Court of this Court would not examine the matter as an appellate Court, they may interfere if they are satisfied that the order is passed (a) malafidt'', 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 a perverse order.

(iv) The Government (or the Review Committee, as the ease may be) shall have to consider the entire record of service before taking a decision in ihe matter of course attaching more importance to record of and performance during the later years. The record to be so considered would natural include the entires 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 prcmofion 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. Ihe circumstance by itself cannot be a basis for interference. Interference is permissible only on the grounds mentioned in (iii) above. This object has been discussed in paras 29 to 31 above.

The learned Counsel for the petitioner, however, argued that in Uttar Pradesh the law regarding compulsory retirement has been amended by the U.P. Fundamental Rule 56 (Amendment) Act, 1976, which introduced a new clause (2) to the U.P. Fundamental Rule 56 and therefore, the principle laid down in Baikunth Nath Das''s case will not be applicable in Uttar Pradesh, so for as it relates to an uncommunicated adverse entry.

Clause (2) is reproduced as under: ("(2) In order to be satisfied whether it will be in the public interest to require Government Servant to return under Clause (c) the appointing authority may take into consideration any material relating to the Government servant and nothing herein contained shall 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 alongwith the entry; or

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

A perusal of subclause (b) of Clause 2 aforesaid shows that in entry against which a representation is pending is to be excluded from consideration unless the representation is also taken into consideration alongwith the entry. Now if the entry has not been communicated, there can be no representation. It is, therefore, implicit in the said clause that there should be a communication of the entry to the concerned employee so that he may have an opportunity of making a representation against it. It would thus follow that an uncommunicated entry cannot be taken into consideration for passing a decision of compulsory retirement. A similar view was taken by Hon''ble M. Katju, J. in the case of Krishn Pal Sonkarv. State of U.P. and another, (1993) 2 UPLBEC 1049. Similarly in the case of Main Ullah Khan v. State of U.P. and others, (1994) 1 UPLBEC 518, it was held that the decision of Baikuntha Nath Das is distinguishable and it could have no application to U.P. Government employees because the statutory provisions applicable to the compulsory retirement of employees of Orissa is different from that what is in force in Uttar Pradesh.

In the case of Narendra Singh v. State of U.P. and another, (1993) 1 UPLBEC 347, this Court has held that the order of compulsory retirement passed on the basis of adverse entry, against which representation of an employee was still pending, is wrong and is liable to be vitiated.

It was further held in the said decision that where the impugned order of compulsory retirement is based on no evidence and material and is made arbitrarily in the sense that no reasonable person would form the requisite opinion on the given material, the same cannot be sustained in law, being a perverse order.

On behalf of the petitioner reliance has also been placed on the decision in the case of S. Ramachandra Raju v. State of Orissa, AIR 1995 SC 111, wherein it was obseived that where the Government took only the solitary adverse report for one year against the employee to compulsory retire him from service and the Review Committee also considered only that report and neither earlier reports nor subsequent reports which established that employee had meritorious record of service and that his devotion to service was good, were taken into consideration, the exercise of power by Government was arbitrary and order of compulsory retirement was liable to be set aside.

In the present case, from the counteraffidavit filed on behalf of the respondents, it transpires that the authority concerned had acted upon three entries entered into the Service Book of the petitioner whose copy has been annexed as Annexiire CA1 to the counteraffidavit and whose details I have already mentioned in the earlier part of this judgment. The first entry is dated 13162 which only mentions that a fine of Rs. 5 was imposed on the petitioner. It is not indicated therein on what charge the fine was imposed nor it has been made clear in the counter affidavit as to what circumstances led to the imposition of fine. It such an old entry unsupported by any other material is taken into account, it would amount to an act of digging out the past to get some material to make an order against the employee. No prudent person would have formed the requisite opinion of compulsory retiring a person on the basis of such an insignificant and old entry especially where other remarks recorded during the long interval of about 27 years ranging from the date of this entry to the, date of the impugned order, had not been placed on record. Neither it has been alleged nor brought on record that the petitioner had earned any other adverse remarks during this long interval of 27 years. Therefore, it can very well be presumed that during this period the petitioner had earned good and satisfactory remarks, if not excellent.

In the case of S. Ramachandra Raju v. State of Orissa (supra), it was held by the Hon''ble Supreme Court

".......The entire service or character rolls or confidential reports maintained would furnish the back drop material for consideration by the Government or the Review Committee or ihe appropriate authority. On consideration of the totality of the facts and circumstances alone, the Government should form the opinion that the Government officer needs to be compulsorily retired from service."

The other entry on which reliance has been placed is the order of the SubDivisional Magistrate dated 211288 by which the petitioner was placed under suspension on the charge of being irregular in performing duties of KRISHI GARNA. This suspension order was admittedly revoked subsequently by the order dated 15 389 i.e. much before the date when the impugned order was passed. As such this nonexistent fact was ruled out from consideration.

The third is the uncommunicated censure entry ordered to be made under the order of SubDivisional Magistrate dated 15389. This entry appears to be the basis of passing the impugned order. It has already been noticed above that this entry had not been communicated to the petitioner. It has also been held above that in the State of U.P. under the relevant Rules uncommunicated adverse entry of an employee cannot be included for consideration while forming opinion to compulsory retire him from service. Apart from the fact that this censure entry was not communicated to the petitioner, this solitary entry even otherwise also could not be made basis for making an order of compulsory retirement in public interest when the entire service record of the petitioner was not produced. The formation of the opinion of respondent No. 1 to compulsory retire the petitioner on the basis of this censure entry without taking into account the satisfactory record of the petitioner''s long tenure of service, in my view, suffers from arbitrariness, as no reasonable man would form such an opinion on this material.

In writ jurisdiction while dealing with the order of compulsory retirement of an employee from service, this Court undoubtedly cannot act as a Court of appeal, but it has the power and duty to exercise the power of judicial review. In eXercise of such powers it an interfere, if it is satisfied that the order was passed mala fide or that the same was passed on no material or that it was passed on extraneous consideration of nonexistent facts or that it was arbitrary in the sense that no reasonable man would form the requisite opinion on the given material in short, if it is found to be a perverse order.

In the instant case it has already been found above that the impugned order suffers from arbitrariness and is based on no material and therefore, the same cannot be sustained in law,

For the above reasons, this writ petition is allowed. The order of compulsory retirement dated 12190 passed by respondent No. 2 as contained in Annexure1 to the writ petition, is quashed. The petitioner shall be deemed to be in service till he reached the age of superannuation as if no such order had ever been passed and the petitioner would be entitled to all consequential postretirement benefits. There shall be no order as to costs. Petition allowed.