R.D. Singh vs State of M.P. and Another

A.K. Patnaik, C.J.—This is an appeal against the judgment and order dated 31.8.2006 passed by learned Single Judge in Writ Petition No. 7772/2003, filed u/s 2 of the Madhya Pradesh Uchcha Nyayalaya (Khandpith Ko Appeal) Adhiniyam, 2005.

The facts very briefly are that the Appellant was appointed as Assistant Engineer in the Public Health Engineering Department in the year 1971 and he was promoted as Executive Engineer w.e.f. 1985. On 23.5.2002 the screening committee considered the service record of the Appellant and found that during the entire service period of the Appellant, he had been given the grading of ''D'' (adverse) for two periods, grading of ''D'' (average) for six periods, grading of ''B'' (good) for 11 periods and grading of ''A'' (very good) for one period. The screening committee also found that two cases have been registered with the Lokayukta for enquiry in the offences under Prevention of Corruption Act in the year 1989 and 1999. The screening committee further found that punishments of withholding of increments had been imposed on the Appellant vide orders dated 31.7.1997 and 4.12.2001 and that a censure had also been recorded against the Appellant vide order dated 23.12.1998 in three different departmental proceedings and further that a charge-sheet had been issued in another departmental proceeding. On the basis of the aforesaid materials found in the service record of the Appellant, the screening committee took the view that the Appellant did not satisfy the criteria of ''good'' and recommended for compulsory retirement under Fundamental Rule 56(ii). Pursuant to the recommendation, the State Government by order dated 10.7.2002 compulsory retired the Appellant in the public interest. Aggrieved the Appellant filed writ petition No. 7772/2003 but by the impugned order dated 31.8.2006 the learned Single Judge of this Court did not find any merit in the writ petition and dismissed the same.

Mr. Alok Sharma, learned Counsel for the Appellant, submitted that the law is well settled by the Supreme Court in Baikuntha Nath Das and Anr. v. Chief District Medical Officer, Baripada and Anr. 1992 (64) FLR 1090 (SC) that the High Court can examine an order of compulsory retirement and may interfere if it is 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. He further submitted that in the aforesaid decision in the case of Baikuntha Nath Das and another, the Supreme Court has also held that the Government or the Review Committee 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 and the service record of the Government servant to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. He further submitted that in the aforesaid decision the Supreme Court has further observed that 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 and not upon seniority. That will be clear from the record of Annual Confidential Records particularly of the later years from 1990-91 to 2001-02 that the gradings given to the Appellant for different periods are either ''good'' or ''very good'' and on these materials the screening committee could not have come to the conclusion that the Appellant did not satisfy the criteria of ''good''.

Mr. Sharma further submitted that two cases registered for enquiry with the Lokayukta in the year 1989 and 1999 could not be considered by the authorities as the allegations therein were yet to be established in an appropriate Court of law and in any case after the enquiry charge-sheet was filed in the respective Courts and two cases have ended in acquittal of the Appellant. He cited a decision of the Supreme Court in State of Gujarat and Anr. v. Suryakant Chunilal Shah, 1999 (81) FLR 197 (SC) in which the Supreme Court has held that the opinion formed by the Review Committee that the Government officer was a person of doubtful integrity on the basis of the F.I.Rs. was not correct because the Government servant was still to be tried in the Court of law and the truth has to be found out ultimately by the Court whether the Government servant was guilty of the criminal charges or not.

Mr. Sharma next submitted that so far as the punishments of withholding of two increments are concerned, the punishment order dated 31.7.1997 relates to the period 1989-90 and the order dated 4.12.2001 withholding two increments relates to the period 1984-85 whereas the order of compulsory retirement was passed on 10.7.2002 on the basis of the recommendations of the screening committee''s meeting held on 23.5.2002. He submitted that the periods for which the punishments of withholding of two increments were imposed were remote and in any case during the later periods, the Appellant has earned ''good'' and ''very good'' grading from his reporting officers.

Mr. Brijesh Sharma, learned Government Advocate, on the other hand sought to sustain the order of compulsory retirement and submitted that the Appellant, who was facing two enquiries before the Lokayukta and had suffered two orders of withholding of increments and one order of censure and was also facing another departmental proceeding in which charge-sheet had been issued in 2001, could not have been categorised as ''good'' by the screening committee and the screening committee was right in taking the view in its meeting dated 23.5.2002 that the Appellant ought to be retired compulsory under Fundamental Rule 56(ii).

We have considered the submissions of the learned Counsel for the parties and we find that in Baikuntha Nath Das and Anr. v. Chief District Medical Officer, Baripada and Anr. (supra), the Supreme Court has held that the Government or the Review Committee will have to consider not only the adverse entries in the Annual Confidential Records but also the favourable entries in the Confidential Records/Character Rolls and while the entire record of service shall have to be considered for taking a decision in the matter, more importance will have to be attached to the record and performance during the later years.

We find from the chart of the gradings given in the Annual Confidential Records of the Appellant for different periods produced before us that during the years 1990-91, 1991-92, 1994-95, 1995-96 and 1996-97 the Appellant had been graded as ''good'' by the Engineering-in-Chief. During March 1997 to November 1997 although the Superintending Engineer graded the Appellant as ''good'', the Engineering-in-Chief graded him as ''average'' presumably because the first order of withholding of two increments in the disciplinary proceedings for the misconduct in 1989-90 was passed on 31.7.1997. Therefore, the grading of ''average'' given to the Appellant for the period March 19, 1997 to November 1997 is really related to the performance of the Appellant during the period 1989-90 and not March 1997 to November 1997. Hence, the grading of the Appellant has to be taken, as ''good'' as given by the Superintending Engineer for the period March 1997 to November 1997. For the period December 1997 to March 1998 the Appellant has been graded as ''good''. For the period 1998-99 he has been graded again as ''good''. For the period 1999-2000 he has been graded as ''average'' by the Engineering-in-Chief, although the Collector under whom he was working has graded him as ''good''. During the period 1999-2000 since the Appellant was working under the Collector and not, under the Engineering-in-Chief, the favourable grading of ''good'' could not have been ignored by the screening committee. For the period 2000-01 the Appellant has been graded as ''very good''. For the period 2001-02 the Collector, under whom he was working, has graded the Appellant as ''very good'' but the Engineering-in-Chief has graded him as ''average'', presumably because of the second order of punishment dated 4.12.2001, by which two increments of the Appellant were withheld for the misconduct which took place in the year 1984-85. This grading of ''average'' reflects the performance of the Appellant during 1984-85. It is, therefore, clear from the aforesaid discussion that for the period from 1990-91 to 2001-02, the Appellant has been consistently graded as either ''good'' or ''very good''.

Thus, the opinion of the screening committee that the Appellant cannot be categorised as ''good'' is based not on the gradings given to the Appellant particularly in the later year 1990-91 to 2001-02 in his A.C.Rs. but on the facts that two criminal cases were registered for enquiry with the Lokayukta and two orders had been passed imposing punishments of withholding increments on the Appellant and one disciplinary proceeding against the Appellant was still pending and order of censure has also been passed on the Appellant on 23.12.1998. As has been held by the Supreme Court in State of Gujarat and Anr. v. Suryakant Chunilal Shah (supra), the charges in a criminal case are to be tried only in the Court of law and as a matter of fact two criminal cases in respect of which the enquiries were pending before the Lokayukta have ended in the acquittal of the Appellant. The fact that the cases were pending for enquiry before the Lokayukta should not have weighed with the screening committee to take a view that the Appellant was not good and should not be retained in service. The punishments of withholding of two increments, as we have seen related to the period 1984-85 and 1989-90 and were remote to the order of compulsory retirement. On the other hand, as we have seen for the period from 1990-91 till the 2001-2002 the Appellant had consistently been graded as ''good'' and for some period ''very good'' by the authorities in his A.C.Rs. What remains is an order of censure passed on 23.12.1998 and a pending departmental proceeding. On the basis of one order of censure passed on 23.12.1998 and a pending departmental proceeding in which the guilt of the Appellant was yet to be established the services of the Appellant cannot be categorised as not good when the gradings given to the Appellant from 1990-91 to 2001-02 have been mostly ''good'' and sometimes ''very good''.

In the result, we hold that the opinion of the screening committee was arbitrary in the sense that no reasonable person would form the opinion that the Appellant cannot be categorised as ''good'' on the basis of the materials before the screening committee. Consequently, the order of compulsory retirement has to be quashed.

We accordingly allow this writ appeal, set aside the impugned order passed by the learned Single Judge and quash the order of compulsory retirement. Since the Appellant has already crossed the age of superannuation he will be given all consequential service benefits financial and otherwise. The amount paid to him as pension will be adjusted against the financial benefits. No costs.