BATESHWAR RAI Vs. STATE OF U P

JUDGEMENT

(1.) THE petitioner, who was Executive Engineer, Garhwal Jal Sansthan, Kotdwar, Pauri, has filed this writ petition, challenging the order of his com pulsory retirement from service dated 11. 12. 1991 passed under Fundamental Rule 56 Financial Handbook Volume II Part II to IV THE State has filed counter affidavit and the petitioner has filed rejoinder affidavit in reply thereto. We have heard the learned counsel for the parties.

(2.) SRI. H. S. Nigam, learned counsel for the petitioner has made the following sub missions in support of the writ petition: (i) while passing an order of compul sory retirement the Government con sidered the petitioner's service record of the last ten years only and did not take into account the service record of the whole Ser vice; (ii) Adverse entries for the years 1986-87 and 1987-88 could not have been taken into consideration by the Government while passing the order of compulsory retirement, because the representation filled against those entries was not decided till then; (iii) Adverse entry for the year 1988-89 has not become final till the time the order of compulsory retirement was passed and, therefore, it was also not liable to be taken into account for the purposes of compulsory retirement, (iv) Entry for the year 1989-90 was a good entry; but it was not taken into con sideration when the impugned order was passed and (v) Adverse entries for the years 1984-85 and 1985-86 were not so serious so as to justify the compulsory retirement of the petitioner.

(3.) AS regards the compulsory retire ment, the Supreme Court in Baikuntha Nath Das v. Chief District Medical Officer (AIR 1992 SC1020) has laid down as under: " (i) An order of compulsory retirement is not a punishment. It 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 subjec tive satisfaction of the Government. (iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as appellate Court, they may interfere if they are satisfied that the order is passed: (a) modified, 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 mala fide perverse order. (iv) The Government for the Review Com mittee, as the case may be 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. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and ad verse. 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 (selection) and not upon seniority. " In view of the law laid down as above although the entire service record of a Government servant is liable to be con sidered by the Government while consider ing the case of his compulsory retirement; but the most relevant record is the service record of the later years. In this connection Supreme Court in Baikuntha Nath Das's case has cited the following extract of it earlier judgment in Brij Bihari Lal Agarwal v. High Court of Madhya Pradesh (AIR 1981 SC594): "what we would like to add is that when considering the question of compulsory retire ment, while it is no doubt desirable to make an overall assessment of the Government servant's records, more than ordinary value should be at tached to the confidential reports pertaining to the years immediately preceding such consideration. It is possible that a Government servant may possess a somewhat erratic record in the early years of service, but with the passage of time he may have so greatly improved that it would be of advantage to continue him in service upto the statutory age of superannuation. Whatever value the confidential reports of earlier years may pos sess, those pertaining to the later years are not only of direct relevance but also of utmost impor tance. " In S. Ramachandra Raju v. State of Orissa (AIR 1995 SC III) Supreme Court has reiterated the same principle regarding relevance of the service record of the later years of service of an employee for the pur pose of compulsory retirement by laying down as under: "therefore, the entire service record par ticularly the latest, would form the foundation for the opinion and furnish the base to exercise the power under the relevant rule to compulsorily retire a Government servant. " Therefore, what is most relevant and of utmost importance is the record of the later years of service of the Government servant. In the instant case the Government has stated in its counter affidavit that it has taken into consideration the service record of the petitioner of the last ten years preceding the date of his compulsory retirement. Even if it is presumed, although the entries of the earlier years are not on the record, that petitioner's service record of the earlier years was good, he cannot successfully chal lenge the order of his compulsory retire ment, if his record of service of later years is not satisfactory and good. In Post and Telegraph Board v. C. S. N. Murty, AIR 1992 SC 1368, the order of compulsory retire ment was upheld on the basis of solitary adverse entry, although the earlier record of service of the concerned employees was good. In the instant case the service record of the later years of service of the petitioner is undoubtedly not good and satisfactory. The impugned order, therefore, cannot be said to be bad merely on the ground that the record of the earlier years of the service of the petitioner was not taken into considera tion. Hence the first contention of the petitioner has to be rejected.