Shyam Sundar Sharma vs State Of Bihar

Heard learned counsel for the petitioner and learned counsel for the State.

The petitioner is aggrieved by the notification dated 18.6.2020 (Annexure-1) issued by the Additional Secretary, Building Construction Department, Bihar, Patna (Respondent No 3) whereby invoking powers under Rule 74 of the Bihar Service Code, 1952, the petitioner has been compulsorily retired from service. The relevant extract of the order showing consideration preceding the order is as follows:-

It is submitted by the petitioner’s counsel that the petitioner was never served with any charge memo or show cause. The second submission is that as per the Govt. Resolution dated 23-07-2020 as contained in Annexure-5 of rejoinder to the counter affidavit on behalf of the petitioner, the petitioner’s entire service performance was to be considered and the adverse entry in the ACR, if any, is also required to be taken into consideration. The third submission is that the petitioner has not been served with notice nor, he has been paid three months of salary in lieu of notice. The petitioner's counsel has relied upon decision of this Court in the case of Mahfooz Alam vs. The State of Bihar & Ors. in CWJC No 23655 of 2018 as well as decision of the Division Bench in the case of Bihar State Road Transport Corporation vs. Vidya Nand Sharma reported in 2009 (2) PLJR 559 : 2009(1) BLJud 155. The submission is that if the order is beyond the scope of Rule 74 of the Bihar Service Code, the same is not sustainable.

The learned counsel for the State, on the other hand, submits that consideration which is manifest from the notification is containing the reasons as required in term of Rule 74 of the Bihar Service Code. The relevant extract of which is being reproduced herein:

“74.(a) The State Government may require any Government servant who has completed twenty one years of duty and twenty-five years of total service calculated from the date of his first appointment to retire from Government service, if it considers that his efficiency or conduct is not such as to justify his retention in service. Where any Government servant is so required to retire no claim to any special compensation shall be entertained.

[(b)(i) Notwithstanding anything contained in the preceding sub-rule a Government servant may, after giving at least three months previous notice, in writing, to the appointing authority concerned retire from service on the date on which such a Government servant completes thirty years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice:

Provided that no Government servant under suspension shall retire from service except with the specific approval of the State Government :] 2[Provided further that in case of the officers and servants of the Patna High Court (including those of Circuit Bench at Ranchi) under the rule making authority of the Chief Justice, no such officer and servant under suspension shall retire from service except with the specific approval of the Chief Justice.]

3[ii The appointing authority concerned may after giving a Government servant at least three month's previous notice in writing, or an amount equal to three month's pay and allowance in lieu of such notice, require him in public interest, to retire from service on the date on which such a Government servant completes thirty years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice.]

¹(iii) A Government servant who retires voluntarily is required to retire in public interest under this rule on attaining the age of 50 years, or completing qualifying service of 30 years, shall be entitled to retiring pension and death cum-retirement gratuity.]”

It is submitted that the petitioner's case is not similar to the case of Mahfooz Alam (supra). This court in the case of Mahfooz Alam (supra) had taken notice of the fact that the petitioner therein had been visited with a proposal to initiate proceedings and to get over the rigours of a duly constituted proceedings, the authorities had resorted to power under Rule 74 of the Bihar Service Code. Under such circumstances, the Court found resort to Rule 74 of the Bihar Service Code to be not in accordance with law. Decision of the Division Bench is also not applicable in the petitioner’s case, as in the said judgment the order/notification of compulsory retirement itself contained a stigma, which has been taken note of in para 13 of the decision passed by the Division Bench.

The Court on consideration of rival submissions finds that the impugned order dated 18-06-2020, purporting to be under Rule 74 of the Bihar Service Code contains statements of the petitioner’s indictment for misconduct/s. Relevant extract of impugned notification reads as follows:-

The impugned notification as is, apparent from bare reading of the same is not based on consideration in terms of Rule 74 of the Bihar Service Code. The same casts aspersions, and alleges misconduct, which is clearly beyond the purview of Rule 74 (a) of the Bihar Service Code, quoted above.

The notification, therefore, leaves the petitioner with stigma, and is apparently, as a consequence of the various alleged acts of omission and commission, as per the impugned order, extracted above. The impugned notification, therefore, is apparently punitive in nature, and beyond the scope of Rule 74 of the Bihar Service Code. The decision of the Division Bench in the case of Vidya Nand Sharma (supra) supports such conclusion of this Court in the instant writ proceedings. The impugned notification, in the above noted facts and circumstances, and the settled legal position based on decision of the Division Bench, noted above, is clearly unsustainable in the eyes of law.

The impugned notification dated 18-06-2020 (Annexure- 1) is, therefore, quashed.

Accordingly, writ petition is allowed.