RAMJILAL BURMAN Vs. UNION OF INDIA

JUDGEMENT

(1.) INVOKING the supervisory jurisdiction of this Court under Article 226/227 of the constitution of India by challenging the tenability of order dated 18.9.2007 (Annexure-P/10) passed by the Central Administrative Tribunal dismissing the Original Application No. 1210/2005 filed by the petitioner, assailing the order of compulsory retirement dated 26.8.2004 and also of rejection of representation after decision of review committee dated 26.8.2005 petitioner has filed the present writ petition.

(2.) THE facts in brief are that the petitioner was appointed as Monument Attendant on 11.10.1971. The benefit of Assured Career Progression Scheme (hereinafter it be called as 'the ACP Scheme') was granted w.e.f. 9.8.1999 as per order dated 13.2.2001. Vide order dated 26.8.2004, in exercise of power under Section 56 (j) of Central Fundamental Rules, he was retired compulsorily in public interest on completion of 50 years of age and 33 years of service. Assailing the said order an OA No.986/2004 was filed, which was disposed of as per order dated 1.4.2005 with the direction to the respondents to decide the representation of the petitioner dated 27.11.2004 and to pass the detailed, reasoned and speaking order within the period of two months from the date of receipt of certified copy of the order of the Tribunal. Thereafter the respondents have rejected the representation on 26th of August, 2005 upholding the order of compulsory retirement dated 26.8.2004. Thus the Original Application was filed before the Central Administrative Tribunal inter- alia contending that petitioner was extended the benefit of the ACP Scheme in the year 2001 based upon the recommendation of scrutiny committee, examining the performance and the records, however no room left with the department to treat him to be a deadwood and to retire him compulsorily in public interest. It is further contended that the scrutiny committee has merely considered the period of unauthorized leave, which was sanctioned by the department, however it would have no impediment on a service career. If the allegation of absence from duties has been denied, it is required to be examined by initiating the departmental enquiry and the order of compulsory retirement ought not to be passed solely for the said reason, as nothing is adverse after granting him the benefit of ACP scheme. It is said that the action so taken by the department is discriminatory because many of the employees whose service record is worse but their cases have not been scrutinized to retire them compulsorily taking appropriate action. . It was also stated that passing of an order in exercise of power under FR 56 (j) without completion of 55 years of age merely on the basis of 33 years of service is not in accordance to law, therefore, the order of compulsory retirement and rejection of representation may be quashed.

(3.) THE Central Administrative Tribunal after hearing him recorded the finding that the order passed in the case of N.P. Samadariya Vs. Union of India and Ors in OA No.691 of 2003 dated 23.6.2004 relied upon by the petitioner is having no application to the facts of the present case. In view of the judgment of Apex Court in the case of Baikuntha Nath Das Vs. Chief District Medical Officer, Baripad (1992) 2 SCC 299 and in the case of Post and Telegraph Board and others Vs. C.S. No. Murthy, 1993 SCC (L &s) 710 and after examining the ACP Scheme it was held that extending the benefit of financial upgradation, which is based upon the seniority-cum-fitness and not upon the merit, it is of no help to the petitioner. The Tribunal while dealing with the issue of not attaining the age of 55 years after referring FR 56(j) has observed that the case of the petitioner falls under sub clause (ii) and not under sub clause (i) of FR 56(j), therefore the order has rightly been passed. In addition thereto, it has been observed that he has completed 30 years of service which has not been denied, however considering the service record of the petitioner, he can be retired under rule 48 of the CCS (Pension) Rules, 1972. The Tribunal found that the order retiring the petitioner compulsorily is after following the procedure laid down and as per the recommendations of the Committee which do not appear to be mala fide or suffer from vice of arbitrariness.