CHANDRA SHEKHAR SHRIVASTAVA Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THIS petition was originally filed before the State Administrative Tribunal at Jabalpur on 15-4-1998. However, on account of abolition of the Tribunal, this petition has been received by this Court for its adjudication.

(2.) BY this petition, the petitioner is challenging the pregnability of the impugned order Annexure A-9, 2-3-1998 by which he has been compulsorily retired under Rule 44 (1) (d) of the M. P. Civil Services (Pension) Rules, 1976 (in short 'pension Rules') w. e. f. 30-6-1998.

(3.) THE contention of Shri Nagu, learned Counsel for the petitioner is that the petitioner was appointed on the post of Block Development Assistant in the pay scale of Rs. 350-650/- on 22-5-72. Later on he was sent on deputation in the same department on 5-5-81 on the post of Assistant Project Officer in District Rural Development Authority in the higher pay scale of Rs. 425-900/ -. The contention of learned Counsel for the petitioner is that though the respondents under the clutches of provisions of Pension Rules have demonstrated that entire service record of the petitioner is not found to be satisfactory, but if the service record of the petitioner is considered in proper perspective it would be difficult to hold as such. In that regard learned Counsel has invited my attention to the averments made in Para 2 of the return in which the service record pertaining to ACRs of the petitioner has been summarized. Learned Counsel submits that grading "d" is in ACR is of years 3/73, 3/74, 3/80 and 3/90 and all the rest ACRs in grade "c". It has also been put forth by the learned Counsel that grading "d" in the ACRs of the years 3/73, 3/74 and 3/80 should not have been considered while passing the impugned order for the simple reason that, thereafter the petitioner was given higher pay scale and has been directed to be posted on the post of Assistant Project Officer in District Rural Development Authority carrying higher pay scale of Rs. 425-900. In that regard learned Counsel for the petitioner by placing reliance on two decisions of the Supreme Court, namely, J. D. Shrivastava v. State of M. P. and Ors. , AIR 1984 SC 630 and Sukhdeo v. Commissioner Amravati Division, Amravati and Anr. , (1996) 5 SCC 103, has submitted that since petitioner was given higher post and was benefited by higher pay scale on 5-5-81, therefore, it would be deemed that "d" grade ACRs earlier to 5-5-81 were condoned and the theory of "washing off" would be applicable. It has also been canvassed by the learned Counsel that in order to pass an order in regard to compulsory retirement, the recent record is to be given more importance and in that regard two decisions of the Supreme Court arc relied and they are Brij Mohan Singh Chopra v. State of Punjab, (1987) 2 SCC 188 and Narasingh Patnaik v. State of Orissa, (1996) 3 SCC 619. Learned Counsel by inviting my attention to Annexure A-12 which is a communication of adverse ACR of March, 1993 has submitted that though it has been labelled as adverse ACR, but it can not be said to be an adverse ACR on going through entire document Annexure A-12 because overall assessment of the year of petitioner was made and there is nothing in the said ACR in order to hold that it was adverse to the petitioner. Learned Counsel has also invited my attention to last column of Annexure A-12 which is said to be an adverse ACR of the year 1992-93 and has submitted that overall assessment of the petitioner was found to be average and his integrity was not found doubtful and he was found to be an honest officer and thus this ACR, according to learned Counsel, can not be based for assessing the case of petitioner for compulsory retirement. Learned Counsel by placing reliance on decision of the Supreme Court in the case of Union of India and Ors. v. R. C. Mishra, ,, (2003 )9 SCC217 , has submitted that if the integrity is not doubtful and the record of an employee is average, then there can not be any compulsory retirement. He has also placed reliance on another decision of the Supreme Court in the case of M. P. Electricity Board v. Shree Baboo,. , [2001 (89 )FLR843 ], JT2001 (4 )SC 431 , (2001 )II LLJ439 SC , (2002 )9 SCC704. Lastly it has been submitted by the learned Counsel by placing reliance on the decision of the Supreme Court in the case of State of Gujarat v. Umedbhai M. Patel, , AIR2001 SC 1109 , [2001 (89 )FLR173 ], (2001 )3 GLR2461 , JT2001 (3 )SC 223 , (2001 )II LLJ1140 SC , 2001 (2 )SCALE261 , (2001 )3 SCC314 , [2001 ]2 SCR170 , 2001 (1 )UJ664 (SC ) that the Supreme Court has laid down certain norms that when an order of compulsory retirement can be passed and when judicial review is permissible. On the basis of these premises submissions it has been prayed by the learned Counsel that this petition be allowed and the impugned order be set aside.