1. Heard learned counsel for the petitioner and the learned Standing Counsel appearing for the respondents and perused the record.
2. Pleadings between the parties have been exchanged. Pursuant to the order dated 10.12.2015, a detailed supplementary counter affidavit has been filed and in reply a supplementary rejoinder has also been filed. With consent of learned counsel for the parties, this writ petition is being disposed of finally at this stage itself.
3. Petitioner, who was working as Assistant Electrician in Maharani Laxmi Bai Medical College, Jhansi (hereinafter referred to as the 'Medical College'), has come up challenging the order dated 22.9.2008 passed by the respondent no. 2-Principal of the Medical College whereby he has been compulsorily retired. Further prayer is that he may be permitted to discharge his duties without any hindrance and be paid his salary.
4. Brief facts of this case are that the petitioner was appointed as Assistant Engineer in the Medical College in the year 1981. During service, being aggrieved by non-payment of salary on the post of Assistant Electrician, he filed a writ petition no. 28261 of 1995 claiming salary on the basis of equal pay for equal work. According to the petitioner, to attend emergency duty the petitioner was provided one vacant portion of his own official quarter by the Deputy Superintendent of the Medical College. Subsequently, an order dated 20.3.1989 was passed by the Principal of the Medical College for recovery of rent from 3.12.1983 to 30.4.1995 and from 1.11.1995 to 31.1.1999 amounting to Rs. 5040/- from the salary of the petitioner at the rate of Rs. 336/- per month in 15 installments. Aforesaid amount was recovered from the salary of the petitioner and again, when petitioner remained in unauthorized occupation of the said house, an order dated 21.1.2003 was passed whereby a sum of Rs. 2,96,285/- was directed to be recovered from the salary of the petitioner at the rate of Rs. 3871/- per month since 18.3.1996. Thereafter, vide order dated 3.3.2003 passed by the respondent no. 3-Chief Medical Superintendent, the petitioner was directed to attend night duties from 8 pm to 4 am in the hospital. It appears that the petitioner filed one Original Suit No. 110 of 1996 (Diwakar Purohit vs. Principal, Medical College, Jhansi & others) in the Court of Civil Judge, Junior Division regarding the accommodation in his possession. It appears that one Suit No. 72 of 2003 under the Public Premises Act filed by the petitioner was also pending and, therefore, in the light of the aforesaid, the petitioner requested that the deduction of Rs. 1650/- per month, which was being made towards arrears of rent, may not be made. Wife of the petitioner Smt. Saroj Purohit has also filed a writ petition being Writ Petition No. 42895 of 2007 with the prayer that the representation of the petitioner dated 18.7.2007 may be decided by the respondent no. 3. When her representation was not decided, she filed a Contempt Application No. 4376 of 2007 against Dr. Ganesh Kumar, the then Principal of the Medical College, in which after hearing the parties this Court vide order dated 13.12.2007 issued notices to the respondent no. 4, which is pending for orders. It is further alleged that since the salary of the petitioner was stopped since March 2008, the petitioner approached Human Rights Court/Additional District Judge, Jhansi by means of filing a Case No. 1 of 2008 wherein summons were also served upon Dr. Ganesh Kumar, Principal of the Medical College. Certain allegations regarding marking attendance in the attendance register have also been made that the same have been manipulated at the instance of the respondent no. 3 with the assertion that the petitioner was continuously discharging his duties but due to non-availability of the attendance register for a certain period, he could not mark his attendance and one attendance register with his single signature was prepared as per oral direction of the respondent no. 3. Allegation is that the order of the compulsory retirement dated 22.9.2008 was passed by the Principal of the Medical College as he had received summons/order dated 9.10.2008 issued by the Human Rights Court/Additional District Judge, Jhansi and notice issued by this Court in the contempt petition. The order of compulsory retirement was published in the newspaper 'Dainik Jagran' on 5.10.2008.
5. Present petition was filed in the year May 2011. Laches were explained by pointing out that the petitioner had filed a letter petition addressed to the Hon'ble Chief Justice of Allahabad High Court sent through registered post on 18.12.2008. The petitioner was ultimately informed vide letter dated 18.4.2011 that the said letter petition was found not to cover any of the category mentioned in the PIL guidelines for Hon'ble Supreme Court of India and has been consigned to record after approval of Hon'ble Chairman (PIL).
6. A counter affidavit was filed on 3.12.2011 where allegations of the petitioner were denied generally, however, when this Court was not satisfied with the reply in the counter affidavit, this Court in its order dated 8.12.2015 observed that counter affidavit has been filed without bringing on record full and correct facts and directed the respondent no. 2 to produce the original record relating to the case. After perusal of the record, on 10.12.2015 this Court granted time to file supplementary counter affidavit placing on record all relevant facts and documents. Pursuant thereto, a detailed supplementary counter affidavit has been filed.
7. It is relevant to note the contents of the supplementary counter affidavit, as it is a case of compulsory retirement, the material available against the petitioner on record assumes important.
8. Supplementary counter affidavit indicates that vide office letter no. 4309 dated 3.3.1984 the petitioner was given a warning for not complying the order of the officers; vide office letter no. 4206 dated 9.12.1986 the petitioner was directed to correct himself as he was not working properly; vide office letter no. 2556 dated 2/3.7.1987 he was again warned for not taking interest in work; vide office letter no. 1062 dated 9.3.1987 he was again warned that he is not taking interest in work; vide office letter no. 1789 dated 24.4.1987 he was directed to meet the Principal of the College but he did not come; vide office letter no. 318 dated 16.12.1987 the Incharge officer (Electrical) informed the Principal of the college by means of a detailed complaint that he is not attending the work and is habitual of remaining absent; he is also indiscipline person and all the Incharge officers (Electrical) have made adverse remarks against him; apart from recommending disciplinary action, it was also requested by him that he should be transferred to some other medical college or place; vide office letter no. 992 dated 25.3.1988 the Principal of the College attached him to the department of Chief Medical Superintendent; when he did not work properly, the Chief Medical Superintendent vide its letter no. 980 dated 13.8.1990 released him from the hospital, which was subsequently stayed on 1.9.1990; the Chief Medical Superintendent vide its letter no. 2196 dated 23.5.1992 informed the Principal of the College that it is not possible to take work from the petitioner because he has no administrative control over him; vide office letter no. 2412 dated 16.7.1994 the petitioner was again sent back to the Medical College after recalling his attachment with the hospital; vide office letter no. 4151 dated 7.11.1994 the petitioner was again issued a warning as he was not taking interest in work and was interfering in other official matters and he was also warned that a disciplinary action may be taken against him; vide office letter no. 1235 dated 25.4.1995 because of his dissatisfactory working, he was removed from the electricity department of the college and was attached to the Bhawan and Jal Kal Vibhag for running a tube well; when the petitioner was found almost incurable, the Principal of the College vide office letter no. 1044 dated 21/22.3.1996 wrote a letter to the Director General, Medical Education & Training, Lucknow for transferring the petitioner to some other place; the petitioner by his application dated 25.9.1996 made a complaint against the Incharge officer of Bhawan and Jal Kal Anubhag; again when he was not found to be working properly and was not behaving properly, his attachment to the said anubhag was withdrawn and he was sent back to the electrical department; vide application dated 10.2.1996 after retirement of the Deputy Superintendent, the petitioner moved for allotment of the said house to him, whereupon since the petitioner was not eligible for the said accommodation as he was only an Assistant Electrician and the official accommodation was for the Deputy Superintendent of the Medical College, vide office letter no. 590 dated 16.2.1996 he was informed that he is not eligible for the same; despite of the aforesaid rejection, the petitioner moved another application dated 12.12.1996 that the rent of residence of the Deputy Superintendent be deducted from his salary on which vide office letter no. 5561 dated 27.12.1996 the petitioner was warned against making all such correspondence; subsequently vide office letter no. 676 dated 27.2.1997 the petitioner was suspended from service; Dr. R.K. Gandhi, who was the Inquiry Officer, issued him a charge-sheet; during pendency of the inquiry proceedings, the Inquiry Officer was threatened by the petitioner and, therefore, vide office letter no. 3517 dated 30.9.1997 he was issued a warning; the petitioner had put a wooden kiosk inside the medical college campus and was doing business, which could be removed with great difficulty; vide office letter no.3772 dated 27.10.1997 the petitioner was reinstated in service; vide office letter no. 268 dated 24.8.1998 the petitioner was allotted a quarter no. 1/47 with a direction that the charge of house (official residence of the Deputy Superintendent of the college), which he was occupying, be handed over within a week; vide office letter no. 4368 dated 7.11.2001 he was warned against non-working and that after making signature he goes away and provokes other employees also not to work; vide office letter no. 262 dated 26.11.2011 he was again warned that after making signature he is not working; a news item published in the newspaper dated 27.12.2001 is also on record to indicate that the petitioner is running a cybercafe and canteen from the residence of the Deputy Superintendent, which was occupied by him unauthorizedly and was not being vacated despite of the specific directions and several warnings; a copy of the application dated 28.12.2001 was given to the Principal of the College by the petitioner has been placed on record to indicate that some persons have come to his residence and have broken the chairs, computer tables and computer chairs, which indicates that the news published in the newspaper was correct to the extent that he was running a cybercafe; vide office letter no. 1148 dated 5/6.5.2002 the petitioner was asked to submit his explanation why he is not attending the duties despite of the specific directions whereas he is putting his signatures in the attendance register and as such, his payment of salary for the month was stopped; vide office letter no. 2427 dated 7.9.2002 the petitioner was again asked to submit reply that after making his signatures in the attendance register, he is not attending the duties and he was informed that in case no explanation is submitted, disciplinary action may be taken against him but this letter was refused to accept by the petitioner; again on 3.9.2002 vide office letter no. 203 Incharge Officer (Electricity) informed the Principal of the College that he is not attending the work after making signatures; because of his not performing duties in the electricity department of the college, vide office letter no. 1072 dated 3.3.2003 he was again attached to the office of the Chief Medical Superintendent; vide office letter no. 1713 dated 21/23.6.2005 he was directed to deposit arrears of rent to the tune of Rs. 6,94,429/- plus 12% interest as directed by the Investigating Team, Allahabad on the report of Auditor General, UP, Lucknow because of his unauthorized occupation of the residence of Deputy Superintendent; wife of the petitioner had sent one speed post dated 17.6.2006, which contain only a blank paper and as such, vide office letter no. 1781 dated 21.6.2006 she was informed as to why such kind of post was sent by her and the petitioner was also warned that he should not correspond through his wife; when the petitioner was demanding advance from GPF for repair of his house, vide office letter no. 2291 dated 29.7.2006 he was informed to supply details of the house which he has purchased and submit any other official document to indicate for which house he is asking for such advance; one Sri Ratan Lal Ahirwar, MLA of Babina had also written a letter dated 5.5.2015 to the Government complaining that the petitioner is in unauthorized occupation of the house and is running STD booth and canteen; the Government, in turn, had asked the Principal of the College to submit his report in this regard, which was submitted vide office letter no. 883 dated 30.3.2006 with a request that the petitioner be transferred to some other place; Bharat Sanchar Nigam Limited had also asked the petitioner vide its letter dated 10.9.2006 to deposit a sum of Rs. 22,977/- towards payment of electricity charges; the petitioner, time and again vide office letter no. 4191 dated 28.11.2002, was specifically asked to vacate the house of Deputy Superintendent, which was in his unauthorized occupation; since he did not vacate the house, a sum of Rs. 3781/- per month was liable to be paid by him but since more than 50% of the salary could not have been deducted, a sum of Rs. 1650/- was directed to be recovered from his salary and the balance amount was directed to be recovered from his gratuity, pension and other retiral dues.
9. In paragraph 43 of the supplementary counter affidavit, certain other complaints have been noticed. Thereafter in pursuance of the Government Order dated 26.10.1985 as provided in paragraph 7, the Financial Controller was asked to submit a report on the conduct of the petitioner, who submitted his report dated 22.9.2008, which is annexure-29 to the supplementary counter affidavit. A perusal of the aforesaid record clearly indicates that apart from noticing other facts, it has also been noticed that the work and conduct of the petitioner was never satisfactory; he never improved despite of various warnings and the news published in the newspaper; he had never joined despite of the letter dated 29.8.2008 directing last opportunity to attend the office; he had also not cooperated in the inquiry proceedings despite of the fact that a public notice was given in the newspaper to be present to submit his explanation; as such the Financial Controller recommended that since the date of birth of the petitioner is 5.1.1957 and his date of initial appointment is 14.8.1981, he can be retired compulsorily after giving payment in lieu of three months notice. The said report of the Financial Controller was accepted and consequently the order dated 22.9.2008 regarding compulsory retirement of the petitioner was passed by the Principal of the College, which was published in the newspaper. All such documents as mentioned in the report of the Financial Controller have been annexed collectively as Annexure-29 to the supplementary counter affidavit.
10. In reply, a detailed supplementary rejoinder affidavit has been filed wherein documents regarding recovery of rent from the petitioner; alleged reply given to the inquiry officer in the year 2008, which was allegedly refused by the Inquiry Officer; service book to indicate that the petitioner was permitted to cross efficiency bar and various documents to indicate that he has attended the work, have been annexed. He has also annexed copy of the reply submitted by him, which was initiated against him in the year 1997 and ultimately his suspension order was recalled and he was reinstated in service.
11. For the purpose of deciding the controversy in the present case as to whether there was sufficient material on record against the petitioner on the basis of which he could have been retired compulsorily, record has to be taken into consideration. The fact that the petitioner remained in unauthorized occupation of the official residence of Deputy Superintendent of the Medical College, to which he was not entitled being only an Assistant Electrician, is not in dispute; admitted recovery of arrears of rent and penalty for his unauthorized occupation is also on record; initiation of the disciplinary proceedings against the petitioner in the year 1997 is also not in dispute; although the petitioner was reinstated in service, however, suffice to note that while replying charge no. 3 of the charge-sheet dated 30.4.1997 at page 29 internal page 8 of the supplementary rejoinder affidavit, it has been noticed in paragraph 3 that the petitioner has replied that for the adverse entries made in his character roll in the years 1982-83, 1983-84, 1984-85 and 1985-86 he was never informed separately in each year about such entries and the petitioner was informed about these adverse entries vide letter no. 4206 dated 19.12.1986 intimating therein that he was permitted to cross efficiency bar after three years and he claimed that this exercise was not correct as he should have been informed about the adverse entries so that he could have represented against the same; he further claimed that since he had already been awarded censure entry, as such no further action can be taken against him as he cannot be punished twice for the same charge. Therefore, it appears that there were adverse entries against the petitioner but even if the assertion made by the petitioner that they were never communicated to him, is correct, the fact remains that there were certain adverse entries against him.
12. A perusal of annexure-5 to the supplementary rejoinder affidavit, which includes a reply under the RTI Act dated 27.9.2000 shows that the official residence allotted to Sri K.M. Saxena, Deputy Superintendent of the college, the petitioner was given one room by Sri K.M. Saxena, the then Deputy Superintendent in an unauthorized manner and for retaining the same the petitioner filed a Suit No. 110 of 1996 on 17.3.1996 and, therefore, the Committee was formed to find out as to whether Sri K.M. Saxena is continuing in occupation or not and what amount is payable. It was recorded that Sri K.M. Saxena was not living in the house since 18.3.1996 and the petitioner-Diwakar Purohit was found in unauthorized possession of the same. Recommendation to recover the arrears of rent was also made.
13. Contention of the learned counsel for the petitioner is that the impugned order dated 22.9.2008 of compulsory retirement by the respondent no. 2 (Principal, Maharani Laxmi Bai Medical College, Jhansi) is mala fide, inasmuch as the same has been passed on being annoyed with the petitioner having filed a contempt petition against him by wife of the petitioner and summons having issued by the Human Rights Court/Additional District Judge, Jhansi. He further submits that no public interest is involved in the retirement of the petitioner, inasmuch as there was no adverse entry on last three years and no punishment has been awarded to the petitioner; the impugned order was passed by the Principal in capacity of temporary Incharge Principal of the College and as such, he has no right to pass order of compulsory retirement even if he was confirmed as Principal of the college. As such, the order impugned herein is wholly illegal, unjust and improper.
14. Learned counsel for the petitioner has relied upon a decision of Hon'ble Apex Court in the case of State of Gujarat vs. Umedbhai M. Patel, AIR 2001 SC 1109 to contend that there was no adverse entry in the petitioner's record and without awaiting for conclusion of the inquiry officer his services were dispensed with merely on the basis of allegations, which were not proved. He has also relied on decisions of this Court in the case of Dwarika Singh vs. State of U.P. and another, (2010) 2 UPLBEC 1587 and Sidheswar Mishra son of Raghunath Mishra vs. State of U.P. and others, 2006 (9) ADJ 2007 in support of his argument.
15. For ready reference, Rules 56 (c), 2 and 2-A of Chapter IX of Compulsory Retirement of Financial Hand Book are quoted as under:-
"56 (c) Notwithstanding anything contained in Clause (a) of Clause (b), the appointing authority may, at any time, by notice to any Government servant (whether permanent or temporary), without assigning any reason, require him to retire after he attains the age of fifty years or such Government servant may, by notice to the appointing authority, voluntarily retire at any time after attaining the age of forty five years or after he has completed qualifying service for twenty years.
(d).........
(i)..........
(ii)..........
.....................
(2) In order to be satisfied whether it will be in the public interest to require a Government servant to retire under Clause (c) the appointing authority may take into consideration any material relating to the Government servant and nothing herein contained shall be construed to excluded from consideration-
(a) any entries relating to any period before such Government servant was allowed to cross any efficiency may or before he was promoted to any post in an officiating or substantive capacity or on ad hoc basis; or
(b) ................
(c) ...............
(2-A) Every such decision shall be deemed to have been taken in the public interest."
(Emphasis supplied)
16. Learned counsel for the respondents has placed reliance on a judgment of Hon'ble Apex Court in the case of Union of India Vs. Col. J. N. Sinha and another, 1970 (2) SCC 458, wherein powers of the authority under Rule 56 (j) was considered and it was held that the appropriate authority has absolute right to retire the government servant. Paragraph 9 of the aforesaid judgment is quoted as under:-
"9. Now coming to the express words of Fundamental Rule 56(j), it says that the appropriate authority has the absolute right to retire a government servant if it is of the opinion that it is in the public interest to do so. The right conferred on the appropriate authority is an absolute one. That power can be exercised subject to the conditions mentioned in the rule.' one of which is that the concerned authority must be of the opinion that it is in public interest to do so. If that authority bona fide forms that opinion, the correctness of that opinion cannot be challenged before courts. It is open to an aggrieved party to contend that the requisite opinion has not been formed or the decision is based on collateral grounds or that it is an arbitrary decision. The 1st respondent challenged the opinion formed by the government on the ground of mala fide. But that ground has failed. The High Court did not accept that plea. The same was not pressed before us. The impugned order was not attacked on the ground that the required opinion was not formed or that the opinion formed was an arbitrary one. One of the conditions of the 1st respondent's service is that the government can choose to retire him any time after he completes fifty years if it thinks that it is in public interest to do so. Because of his compulsory retirement he does not lose any of the rights acquired by him before retirement. Compulsory retirement involves no civil consequences. The aforementioned rule 56(j) is not intended for taking any penal action against the government servants. That rule merely embodies one of the facets of the pleasure doctrine embodied in Art. - 310 of the Constitution. Various considerations may weigh with, the appropriate authority while exercising the power conferred under the rule. In some cases, the government may feel that a particular post may be more usefully held in public interest by an officer more competent than the one who is holding. It may be that the officer who is holding the post is not inefficient but the appropriate authority may prefer to have a more efficient officer. It may further be that in certain key posts public interest may require that a person of undoubted ability and integrity should be there. There is no denying the fact that in all organizations and more so in government organizations, there is good deal of dead wood. It is in public interest to chop off the same. Fundamental Rule 56(j) holds the balance between the rights of the individual government servant and the interests of the public. 'While a minimum service is guaranteed to the government servant, the government is given power to energise its machinery and make it more efficient by compulsorily retiring those who in its opinion should not be there in public interest."
(emphasis supplied)
17. He has further placed reliance on a judgment of Hon'ble Single Judge of this Court in Yogendra Nath Tripathi Vs. Inspector General, CISF and others, 2008 (6) ALJ 57. Relevant paragraphs of the aforesaid judgment is quoted as under:-
"In view of the aforesaid decisions, it is clear that the Fundamental Rules confer an absolute right to retire an employee on the happening of certain events, namely, that the employee attains the age of 50 years. Further, the Courts have no authority or jurisdiction to interfere with the exercise of powers if it is arrived at bonafidely on the basis of the material available on the record. Further, premature retirement is required to be made in public interest in the case where the Government servant has outlived his utility or has become a dead wood. The conduct and the performance of the Government servant is reflected in his service record which forms the basis of consideration in public interest in the matter of premature retirement.
In the present case, the entire service record has been taken into consideration by the authorities, including the adverse entries. Consequently, the submission of the learned counsel for the petitioner that the adverse entries lost its sting, and could not be taken into consideration when he was promoted after issuance of these censure entries, is patently erroneous. The Supreme Court in the case of Baikuntha Nath Das (Supra) and in the case of State of Uttar Pradesh Vs. Vijay Kumar Jain (Supra) has clearly stated that the entire service is required to be taken into consideration and that the vigour or sting of an adverse entry is not wiped out on the ground of lapse of time. The contention of the learned counsel for the petitioner that the adverse entries was for a limited period which came to an end upon its expiry and could not be considered while taking action under Rule 56 (j) of the Fundamental Rules is patently erroneous. The respondents have categorically submitted in their counter affidavit that the entire service record was taken into consideration and it was found that the petitioner was not found fit for further retention in service in public interest on the basis of his poor service record. This fact has not been denied by the petitioner in his rejoinder affidavit and the only ground urged is that no prudent man could form an opinion of not finding the petitioner fit for service on the material available on the service record of the petitioner.
In my opinion, since the petitioner has not denied the fact that the entire service record of the petitioner was not considered and only the adverse entries was considered, consequently, the Court is not inclined to go into a roving and fishing enquiry and it would be sufficient for this Court to hold that the order was passed by the authority on forming an opinion that it was in public interest to retire the petitioner prematurely and that the said order was passed on the subjective satisfaction of the authority. In view of the aforesaid, this Court is not inclined to interfere with the impugned order whereby the petitioner has been prematurely retired under clause (j) of Rule 56 of the Fundamental Rules." (Emphasis supplied)
18. A reference may also be made to Rule 56 (j) of the Fundamental Rules as considered in the above noted decisions, which is quoted as under:-
"(j) Notwithstanding anything contained in the rule, the appropriate authority shall, if it is of the opinion that it is in the public interest so to do, have the absolute right to retire any Government servant by giving him notice of not less than three months in writing or three months' pay and allowances in lieu of such notice."
19. A reference may also be made to a latest judgment of Hon'ble Apex Court in the case of Rajasthan State Road Transport Corporation and others Vs. Babu Lal Jangir, 2013 (10) SCC 551. Paragraph 24 and 27 of the aforesaid judgment is quoted as under:-
"24. Having taken note of the correct principles which need to be applied, we can safely conclude that the order of the High Court based solely on the judgment in the case of Brij Mohan Singh Chopra was not correct. The High Court could not have set aside the order merely on the ground that service record pertaining to the period 1978-90 being old and stale could not be taken into consideration at all. As per the law laid down in the aforesaid judgments, it is clear that entire service record is relevant for deciding as to whether the government servant needs to be eased out prematurely. Of course, at the same time, subsequent record is also relevant, and immediate past record, preceding the date on which decision is to be taken would be of more value, qualitatively. What is to be examined is the "overall performance" on the basis of "entire service record" to come to the conclusion as to whether the concerned employee has become a deadwood and it is public interest to retire him compulsorily. The Authority must consider and examine the overall effect of the entries of the officer concerned and not an isolated entry, as it may well be in some cases that in spite of satisfactory performance, the Authority may desire to compulsorily retire an employee in public interest, as in the opinion of the said authority, the post has to be manned by a more efficient and dynamic person and if there is sufficient material on record to show that the employee "rendered himself a liability to the institution", there is no occasion for the Court to interfere in the exercise of its limited power of judicial review."
27. It hardly needs to be emphasized that the order of compulsory retirement is neither punitive nor stigmatic. It is based on subjective satisfaction of the employer and a very limited scope of judicial review is available in such cases. Interference is permissible only on the ground of non application of mind, malafide, perverse, or arbitrary or if there is non-compliance of statutory duty by the statutory authority. Power to retire compulsorily, the government servant in terms of service rule is absolute, provided the authority concerned forms a bonafide opinion that compulsory retirement is in public interest."
(emphasis supplied)
20. It is a settled law that the appropriate authority has the absolute power to retire a government servant if it is in the public interest to do so. The Hon'ble Apex Court held that the right conferred on the appropriate authority is an absolute one. There is no requirement of giving any show cause notice or opportunity of hearing in such matters. It is the satisfaction of the appointing authority in the present that the services of the petitioner are no longer required in public interest and he should not continue in public interest.
21. From perusal of the observations made by the Hon'ble Apex Court in the case of Union of India Vs. Col. J.N. Sinha (supra) and of Rajsthan State Road Transport Corporation and others Vs. Babu Lal Jangir (supra) clearly, it is the overall performance, on the basis of entire service record is to be seen by the authority concerned and in spite of satisfactory performance, the Authority may desire to compulsorily retire an employee in public interest, if in the opinion of the said authority, the post has to be manned by a more efficient and dynamic person and if there is sufficient material on record to show that the employee rendered himself a liability to the institution and there is no occasion for the Court to interfere in the exercise of its limited power of judicial review. It is a settled law that the order of compulsory retirement is neither punitive nor stigmatic and if is based on subjective satisfaction of the employer a very limited scope of judicial review is available in such cases.
22. A reference may also be made to the decision of Hon'ble Apex court in the case of Baikuntha Nath Das and another vs. Chief District Medical Officer Baripada and another, (1992) 2 SCC 299 wherein the Hon'ble Apex Court has observed 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 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 the 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.
"11. The Uttar Pradesh Fundamental Rules governing the service conditions of the respondent herein, in particular, 56(c), 56((2)(a), (b) and (c) specifically provide that nothing in the rules should be construed to exclude from con-sideration of any entry relating to any period before a government servant was allowed to cross any efficiency bar or he was promoted to any post in an officiating or a substantive capacity or on an ad hoc basis. The important words used : nothing herein contained shall be construed to exclude from consideration : the exclusion thus is prohibited in terms of the rule. The concerned authority by reason wherefor has thus a liberty to consider even entries relating to the period before the government servant was allowed to cross any efficiency bar or before he was promoted. It is true that one of the guiding principles as enunciated above in Baikuntha Nath 's case (supra) with regard to performance during the later years ought to be attached more importance but that does not exclude the consideration of the entire record of service..........
13. Rule 56 (c) of the U.P. Fundamental Rules read with sub-rule (2) as noted herein before provides an authority to the Board with an absolute right to retire an employee on the date on which he attains the age of 50 years. The option for the government servant to voluntarily retire however has been attributed to the concerned employee at any time after attaining the age of 45 years or after he has completed qualifying service of 20 years. The fundamental rules thus confer a right absolute to retire an employee on the happening of certain event namely the latter attains 50 years of age - the right being absolute and in the even the same is not contra to the conditions as embodied in Rule 56 of the Fundamental Rules, question of violation of any legal right of the respondent herein does not and cannot arise. The factum of the doctrine of natural justice being not available to an employee so retired compulsorily stands well settled and we need not dilate thereon.
(5) Incidentally, the five guiding principles as laid down in Baikuntha Nath's case (supra) by this Court stands accepted in another three-Judges Bench's judgment of this Court in Posts and Telegraphs Board v. C.S.N. Murthy, [1992] 2 SCC 317 wherein this Court observed that whether the conduct of the employee is such as to justify a conclusion of compulsory retirement but the same is primarily for the departmental authorities to decide. The nature of the delinquency and whether it is of such a degree as to require the compulsory retirement, the courts have no authority or jurisdiction to interfere with the exercise of power if arrived at bona fide on the basis of the material available on record : Usurpation of authority is not only unwarranted but contrary to all norms of service jurisprudence. (Emphasis Supplied)
24. From the law as discussed above, it is settled that the order of compulsory retirement is not a punishment and principles of natural justice are not attracted in a case of compulsory retirement as the same implies no stigma nor any suggestion of misbehaviour. It is the subjective satisfaction of the appointing authority to retire a person compulsorily. This right is absolute in nature and question of violation of any legal right of an employee does and cannot be arise. Only very limited scope of judicial review is available in such cases and the High Court can interfere only if it is satisfied that the order passed is (a) mala fide; or (b) it is based on no evidence; or (c) it is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material and that the order of compulsory retirement is not liable to be quashed merely on the basis that uncommunicated adverse remarks were taken into consideration.
25. Insofar as the allegation of mala fide is concerned, although the then Principal of the College Dr. Ganesh Kumar was impleaded as respondent no. 4 to the petition, however no specific allegation has been made against him and this Court did not find it proper to even issue notice to him. The only allegation made against him is general in nature that being annoyed by the contempt petition filed against him by the wife of the petitioner and summons issued by the Human Right Court, the impugned order was passed and he had passed the order while he was working in temporary capacity as Incharge of the college. This allegation by itself cannot be taken as allegation of mala fide by itself as no further material alleged or placed before this Court to prove his mala fide. Undisputedly, the burden to prove mala fide was on the petitioner, which in the opinion of the Court he failed to prove. Apart from that this Court finds that there was sufficient material on record for exercising absolute power to compulsorily retire the petitioner and as such, in view of the material available on record, it cannot be said that the exercise of such absolute right by the employer was mala fide in nature. The material as noted in the supplementary counter affidavit which came to be filed only after this Court had gone through the original record relating to the petitioner, is sufficient to indicate that as a matter of fact it was only the petitioner who was prima facie able to prevail upon the respondent authorities and instead of warnings having been issued to the petitioner right since the year 1984 nothing could be done by the respondent authorities against him. Hence the ground of mala faide is rejected.
26. Regarding mala fide, a reference may also be made to observations made by Hon'ble Apex Court in the case of Gulam Mustafa and others vs. The State of Maharashtra and others, (1976) 1 SCC 800. The relevant extract of paragraph 2 whereof is quoted as under:
"2. Striking down any act for mala fide exercise of power is a judicial reserve power exercised lethally, but rately. The charge of mala fide against public bodies and authorities is more easily made than made out. It is the last refuge of a losing litigant........." (Emphasis supplied)
27. Insofar as the contention that since there was no adverse entry for the last three years and no punishment has been awarded to the petitioner, no public interest was involved in the present case and order of compulsory retirement is illegal, is concerned, sufficient to note that overall performance on the basis of entire service record is to be concerned and even uncommunicated adverse entries can be considered for this purpose. Overall performance, as per the material available on record, clearly indicates that the conduct of the petitioner was never satisfactory and since 1984 he was being constantly issued warning letters for disobedience of the order of the authorities and not attending the work and remaining absent after marking attendance. Allegation of instigating other employees to refrain from work are also on record. He was suspended and subjected to disciplinary action twice, he was found running cybercafe and canteen from the premises, which was in his unauthorized occupation and was subjected to payment of arrears of rent of the unauthorized occupied premises. In such view of the matter, exercising powers under Rules 56 considering the entire material on record, the impugned order was passed, which cannot be faulted with. Moreover, Rule 2-A specifically provides that every such decision shall be deemed to have been taken in public interest. Hence, if compulsory retirement is challenged on the ground that no public interest is involved, the onus lay heavily on the petitioner to prove otherwise, which he has miserably failed to discharge.
28. The ground that the order was passed by the Incharge Pricipal was taken half heartedly and was not pressed. Even otherwise the Incharge Principal had passed the order, which he had jurisdiction to pass and subsequently the same Principal was undisputedly confirmed as Principal of the college.
29. Thus, in view of the law as discussed above in the light of the facts of this case, I am of the opinion that the cases of Umedbhai M. Patel (supra), Dwarika Singh (supra) and Sidheswar Mishra (supra) as relied on by the learned counsel for the petitioner are of no help to the petitioner.
30. As such, I do not find any illegality in the order impugned herein.
31. The writ petition lacks merit and is, accordingly, dismissed. No order as to costs.
Order Date :- 01.4.2016 Abhishek