KAILASH NATH PATHAK Vs. STATE OF U P

JUDGEMENT

(1.) HEARD Sri U.K.Srivastava, learned counsel for the petitioner and Sri Sanjay Bhasin, the learned Additional Chief Standing Counsel for the opposite parties. The petitioner being aggrieved by the order of compulsory retirement dated 02.11.2000 has filed the instant writ petition. The brief facts of the case in a nut shell are that the petitioner was initially appointed on the post of Assistant Engineer on 07.02.1981 and thereafter the services of the petitioner were regularised by the State Government by the order dated 23.08.1986. The petitioner has also alleged that higher pay scale of the post of Executive Engineer was given to the petitioner from 07.02.1986 by the order dated 10.03.1993. Learned counsel for the petitioner submits that while passing the order of compulsory retirement, the entire record of service was not considered by the opposite parties as in the year 1995- 96 a good entry was awarded to the petitioner and for the years 1996-97,1997-98, 1998-99 and 1999- 2000 very good entries were awarded to him. He further submits that the Screening Committee recommended the case of the petitioner for compulsory retirement on the basis of the punishment order dated 26.11.1992 by which one increment was stopped and a censure entry was awarded to the petitioner against which a representation was made by the petitioner on 19.05.1994, which is still pending before the State Government and the adverse entry awarded to the petitioner for the year 1994-95 against which a representation was preferred by the petitioner on 22.06.1996, which is still pending before the State Government. He further submits that the Screening Committee also considered the punishment order dated 23.07.1997 by which a recovery order of Rs.14,350.85 was passed against the petitioner regarding the financial irregularities against which a representation was made on 05.09.1997. He further submits that Fundamental Rule 56(2)(b) of the Financial Hand Book Volume-II Parts 2 to 4 provides that any entry against which a representation is pending may be considered provided the representation is also taken into consideration along with the entry and the Screening Committee while making the recommendation for compulsory retirement of the petitioner considered the adverse entry of the year 1994-95 without considering the representation preferred by the petitioner against the said adverse entry. He further submits that before the Screening Committee, the representations preferred by the petitioner against the punishment order and the adverse entry were not placed by the authorities for the reasons best known to them. Learned counsel for the petitioner has relied upon the decisions of Hon'ble Supreme Court in Baikunth Nath Das v. Chief District Medical Officer reported in (1992) 2 SCC 299; and State of Gujrat and another v. Surya Kant Chunni Lal reported in (1999) 1 SCC 529 and on the strength of the aforesaid decisions, he submits that the integrity was certified by the authorities of all the years which were taken into consideration by the Screening Committee and the Screening Committee while making the recommendation for compulsory retirement of the petitioner has not considered the latest entries awarded to the petitioner in the confidential records. He has also relied upon the decisions of Hon'ble the Supreme Court in Triloki Nath Maini v. State of U.P. and another reported in 2002(20) LCD 545; Baldev Raj Chaddha v. Union of India reported in (1980) 4 S.C.C. 321; and the Division Bench decisions of this Court in Lala Ram Vidyarthi v. Chairman, U.P.Jal Nigam, Lucknow reported in 2007(25) LCD 910 and Mahesh Chandra Agarwal v. State of U.P. and others; reported in 2006(24) LCD 973 and on the strength of the aforesaid decisions, he submits that the petitioner has made improvement subsequent to 1994-95 when adverse entry was awarded to the petitioner and as such it cannot be said that the petitioner is not useful in service and is a dead wood. The learned Additional Chief Standing Counsel appearing on behalf of the opposite parties submits that there is no illegality in the impugned order of compulsory retirement. He further submits that while recommending name of the petitioner for compulsory retirement, the Screening Committee has considered the entire record of the petitioner including the punishment order dated 26.11.1992 by which a censure entry was awarded to the petitioner along with stoppage of one increment; the punishment order dated 23.07.1997 by which a recovery order of Rs.14,350.85 was passed against the petitioner and the adverse entry awarded to the petitioner in his character roll for the year 1994-95. He has relied upon the decision of Hon'ble the Supreme Court in U.P.Jal Nigam and another v. Syed Khadim Waris reported in 1995 Supp(4) S.C.C. 638. He further submits that the order of compulsory retirement has been passed by the State Government in public interest and no interference is required by this Court under Article 226 of the Constitution of India. The learned Additional Chief Standing Counsel has placed before us the record which was considered by the Screening Committee while recommending name of the petitioner for compulsory retirement. We have considered the submissions made by the learned counsel for the parties and gone through the record. It is admitted case of the parties that the petitioner was initially appointed on the post of Assistant Engineer on 07.02.1981 and thereafter the services of the petitioner were regularised by the State Government by the order dated 23.08.1986 and the higher pay scale of the post of Executive Engineer was given to the petitioner from 07.02.1986 by the order dated 10.03.1993. From a perusal of the record, which was placed before us by the learned Additional Chief Standing Counsel it reveals that, the service record of the petitioner from 1990-91 up to 1999-2000 was with the Screening Committee while it took the decision to recommend name of the petitioner for his compulsory retirement. The record also reveals that the Screening Committee has considered the punishment order dated 26.11.1992 by which a censure entry was awarded to the petitioner along with stoppage of one increment; the punishment order dated 23.07.1997 by which a recovery order of Rs.14,350.85 was issued against the petitioner and also the adverse entry awarded to the petitioner in his character roll for the year 1994-95 but the representations which the petitioner has made on 19.05.1994 against the punishment order dated 26.11.1992; the representation dated 05.09.1997 which the petitioner has made against the punishment order dated 23.07.1997 and the representation dated 22.06.1996 which the petitioner has made against the adverse entry recorded in his character roll for the year 1994-95 were not placed before the Screening Committee and as such the entire relevant material was not placed before the authority which was required to be placed as per Fundamental Rule 56(2)(b) of the Financial Hand Book Volume-II Parts 2 to 4. In Baikuntha Nath Das (Supra) Hon'ble the Supreme has given the following guidelines as to how in the matter of compulsory retirement the Screening Committee has to function: (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 subjective 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 an appellate court, they may interfere if they are 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; in short, if it is found to be a perverse order. (iv)The government (or Review Committee, 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 adverse. 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. (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. That circumstance by itself can not be a basis for interference. Hon'ble the Supreme Court in K.Kandaswamy Vs. Union of India reported in (1995) 6 SCC 162 has held that while exercising the power under Rule 56 (j) of the Fundamental Rules, the appropriate authority has to weigh several circumstances in arriving at the conclusion that the employee requires to be compulsorily retired in public interest. The Government is given power to energise its machinery by weeding out dead wood, inefficient, corrupt and people of doubtful integrity by compulsorily retiring them from service. When the appropriate authority forms bona fide opinion that compulsory retirement of the government employee is in the public interest, court would not interfere with the order. The Hon'ble Supreme Court has also observed that the opinion must be based on the material on record; otherwise it would amount to arbitrary or colourable exercise of power. Performance of a Government servant is reflected in his character roll entries. In all the years which were taken into consideration by the Screening Committee, the integrity of the petitioner was always certified by the authorities and as in the latest five years, 'good' and 'very good' entries have been awarded to the petitioner in his character roll, it cannot be said that the petitioner is a dead wood. A perusal of the record also reveals that there was no material on the basis of which reasonable opinion could have been formed that the petitioner had outlived his utility as a government servant or that he had lost his efficiency as government servant and had become a dead wood. It would be highly improper to deprive a person with his livelihood without any material or justification. There was no material before the committee to come to the conclusion that the petitioner was of doubtful integrity or was not a fit person to be retained in service. In the circumstances of the case the impugned order was punitive having been passed for the collateral purpose of immediate removal of the petitioner from the service rather than in public interest. Obviously, it is a fit case in which this Court should interfere with the order of the compulsory retirement by quashing the same. It is relevant to mention here that against the punishment order dated 26.11.1992 by which one increment was stopped and a censure entry was awarded to the petitioner, a representation was pending before the State Government and against the adverse entry awarded for the year 1994-95, a representation was preferred by the petitioner on 22.06.1996 which too was pending before the State Government. The representation dated 05.09.1997 against the punishment order dated 23.07.1997 was also pending before the State Government and all these representations were not placed by the authorities before the Screening Committee. Out of the latest entries awarded to the petitioner in his Character Roll, the entry for the year 1995-96 is good and the entries for the years 1996-97,1997-98, 1998-99 and 1999-2000 are very good. A public servant who has improved or is improving cannot be declared as a dead wood or unsuitable as held by Hon'ble the Supreme Court as well as this Court. It is not a fit case where the matter can be remitted to the authorities for taking a decision afresh as good and very good entries were awarded to the petitioner during the recent years, the record of which was also available with the Screening Committee. The integrity of the petitioner was also certified during the entire period which was considered by the Screening Committee. Before passing the order of compulsory retirement, no effort was taken by the Screening Committee to consider whether the petitioner can be retained in service either on some lower post or on the lower pay scale as there is no finding that the petitioner was inefficient and his services were unsatisfactory. Hon'ble the Supreme Court in Union of India and others v. R.C.Mishra reported in (2003) 9 S.C.C. 217 has held that if a person was found inefficient in a promoted post, he could be retained in service at least in the lower post. It is clear from the records that no such consideration was made before the order of compulsory retirement was passed. The case law relied upon by the learned Standing Counsel is not applicable to the facts of the present case. We are of the view that the impugned order of compulsory retirement is legally not sustainable. Keeping in view the law laid down by the Hon'ble Supreme Court in Hindustan Motors Ltd. Vs. Tapan Kumar Bhattacharya (2002) 6 SCC 41, Allahabad Jal Sansthan Vs. Daya Shankar Rai (2005) 5 SCC 124, we are of the view that the ends of justice would be satisfied if the respondents are directed to pay 50 % back wages. In the result, the writ petition succeeds and is hereby allowed. A writ of certiorari is issued quashing the order dated 02.11.2000 by which the petitioner was compulsorily retired from service. The petitioner shall be entitled for 50% back wages from the date of compulsory retirement of the petitioner till today. The opposite parties shall reinstate the petitioner in service. In the circumstance, there shall be no order as to costs.