JUDGMENT Ashok Bhushan, J.
1. Heard counsel for the petitioner, Sri S.S. Upadhyay and Sri M.R. Jaiswal standing counsel appearing for the respondents. Counter and rejoinder affidavits have been exchanged. With the consent of counsel for the parties the writ petition is being finally decided.
2. By this writ petition the petitioner has prayed for quashing the order dated 31.12.2003 compulsory retiring the petitioner. By an earlier order passed on 28.8.2006 learned standing counsel was directed to produce the original service record of the writ petitioner for perusal of the Court which has been produced and looked into.
3. Brief facts necessary for deciding the writ petition are:
The petitioner Hakim Singh was appointed on 22.4.1969 as Lekhpal and was subsequently promoted as Revenue Inspector on 24.2.1999. By an order dated 31.12.2003 passed by the District Magistrate the petitioner was compulsory retired.
4. Learned Counsel for the petitioner challenging the order of compulsory retirement raised following submissions:
1. The compulsory retirement of the petitioner was discriminatory in view of the fact that along with the petitioner fifteen other employees were compulsorily retired on the same date i.e. 31.12.2003 and with regard to thirteen employees the State Government itself has passed an order re- instating them in service by order dated 27.12.2004 on the basis of the report of the Commissioner dated 3.3.2004, he submits that there was no distinguishing feature in the petitioner's case with those thirteen employees who are re-instated hence the action with regard to the petitioner is discriminatory and arbitrary.
2. Learned Counsel for the petitioner next submitted that there was no material with the respondents to take a decision for compulsory retirement; referring to the supplementary counter affidavit of the respondents where the materials have been mentioned against the petitioner. he submits that there are only two entries with regard to years 2000-2001 and 2001-2002 which have been made as "santoshjanak" with the remark that improvement is required. With regard to censure entry for the year 2002-2003 dated 25.7.2002 he submit that whereas the entry of 2002-2003 is mentioned as "Aprapt". the censure entry dated 25.7.2002 had never been communicated and the petitioner first time came to know about the censure entry from the counter affidavit filed in the writ petition.
3. Learned Counsel for the petitioner further submitted that the Screening Committee was not properly constituted. He has placed reliance on the judgment of this Court passed in writ petition No. 7789 of 2004 decided on 18.11.2005 Naresh Chandra Sharma v. State of U.P. and Ors. Learned Counsel for the petitioner further placed reliance on the judgment of the apex Court M.S. Bindra v. Union of India and Ors. Pritam Singh v. Union of India and other and Ram Chandra Raju v. State of Orissa.
5. The learned Counsel for the respondents refuting contentions of the counsel for the petitioner contended that there was no discrimination qua the petitioner. Learned standing counsel referring to the Screening Committee report, letter dated 3.3.2004 submitted that thirteen persons were reinstated on valid reasons which are apparent from the report of the Commissioner dated 3.3.2004 and there was no discrimination in not reinstating the petitioner. He further submits that censure entry dated 25.7.2002 was duly served on the petitioner. He has so stated in the supplementary counter affidavit and has submitted that the said entry was received by the petitioner and there is endorsement of the receipt also. Learned Counsel for the respondents further submits that there was sufficient materials with the respondents for compulsory retiring the petitioner.
6. I have considered the submissions of counsel for the parties and perused the record.
7. The first submission of counsel for the petitioner is discrimination violating the rights under Articles 14 and 16 of the Constitution. Learned standing counsel has placed the report of the Screening Committee and the letter of the Commissioner dated 3.3.2004 by which the report was sent to the State Government referring retirement of sixteen persons on 31.3.2003. From the report of the Commissioner it is clear that two persons with whom the recommendation for retiring the twenty persons was sent from regular establishment, they were less than fifty years of age and their compulsory retirement was illegal. The retirement with regard to Kailash Behari (peon), Jahani Ram (peon), Randhir Singh (driver) details were given with regard to them and it has been further observed that with regard to those persons there was no adverse entry in the last ten years. Learned standing counsel stated that their case were different from the petitioner. With regard to the Collection establishment, it has been mentioned by the Commissioner that the reports were mentioned with regard to nine employees by the Screening Committee and in the said report they have been recommended to retire on the basis of poor recovery but neither the details of the demand and the recovery nor any annual chart was placed on record. With regard to Ram Narain Dube an adverse entry was mentioned. Learned Standing counsel stated that said Ram Narain Dube was not reinstated. He has further stated that Ram Narain Dube has not challenged the order. The counsel for the petitioner submitted that Ram Narain Dube was ill and he has left the service. From perusal of the Screening Committee report and the letter of the Commissioner dated 3.3.2004 I am satisfied that there is no discrimination for not reinstating the petitioner by the State Government and the submission of discrimination cannot be accepted.
8. The second submission of counsel for the petitioner is that the compulsory retirement can only be ordered when there are sufficient material to form an opinion to compulsory retire an employee. The judgment in the case of M.S. Bindra v. Union of India and Ors. (supra) has been relied. The apex Court laid down the principle after reiterating the earlier judgment in the case Baikuntha Nath Das and Anr. v. Chief District Medical Officer and Anr. and observed that the High Court can only interfere with the compulsory retirement order when either it was mala fide or based on no evidence or it is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material. Paragraph 7 of the judgment is extracted below:
7. Approving the above principle, a three Judge Bench of this Court has laid down in Baikuntha Nath Das and Anr. v. Chief District Medical Officer and Anr. that five principles should be borne in mind while considering a case of compulsory premature retirement. It is not necessary to extract all the five principles here except No. (iii) which reads thus:
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.
9. With regard to Hakim Singh the Screening Committee relied on three materials, namely, that he was asked to improve his work in the year 2000- 2001 and 2001 - 2002 and further there was a censure entry made on 25.7.2002. I have perused the entries of the year 2000-2001 and 2001 - 2002. From the perusal of said entries it is clear that general grading which has been given by the reporting Officer as "Good" the accepting officer has graded him as "satisfactory" with the remark that the work needs to be improved. The entries of 2000-2001 and 2001-2002, they cannot be treated to be adverse when the accepting officer himself graded him as "satisfactory". after observing that work needed improvement. With regard to censure entry dated 25.7.2002 the petitioner's specific case in the writ petition is that the said entry was never served to the petitioner. Learned standing counsel has submitted that the entry was duly served. He has filed a copy of the censure order dated 25.7.2002 issued to the petitioner on which there are claimed to be short initials of the petitioner dated 30.7.2002, but it does not appeal to reason as to if the petitioner had received the censure entry dated 25.7.2002 why he kept mum and did not even submit any representation or filed any objection. The petitioner's case is that he has not been served with the censure entry, he could not even give his explanation on the allegations against him in censure entry. The Commissioner in his letter dated 3.3.2004 as well as the State Government in its order has mentioned that the entire service record of an employee was required to be seen. From perusal of service record of petitioner it is clear that there are no entries after 1995-1996 till 2000-2001. According to the supplementary counter affidavit the entries for the years 1997-98, 1998-99, 1999-2000 and the last year 2002.2003 were not received.
10. As noted above after observing in annual remarks of 2000-2001 and 2001-2002 that the work needs improvement, the next crucial entry for the year 2002- 2003 was not available. The annual remark of the year 2002-2003 could have disclosed as to whether there was over all improvement in the working of the petitioner but the said entry was not available as per chart annexed with the supplementary counter affidavit. In the last ten years entries looked into by the Screening Committee there were at least four entries which were not available as per chart filed along with the supplementary counter affidavit. In the facts of the present case where four entries out of ten entries which were being looked into by the Screening Committee being not available the Screening Committee ought to have looked into the entire service record of the petitioner. The apex Court in Baikuntha Nath Das and Anr. v. Chief District Medical Officer and Anr. (supra) has laid down in paragraph 34 that the Screening Committee ought to have considered the entire service record before taking a decision in the matter - of course attaching more importance to record of and performance during the later years. Paragraph 34 is extracted below:
34. The following principles emerge from the above discussion:
(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.
(v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it un-communicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference.
Interference is permissible only on the grounds mentioned in (iii) above. This aspect has been discussed in paras 30 to 32 above.
11. The facts on record also do support the case on the petitioner that the censure entry dated 25.7.2002 was not communicated to the petitioner but even if it is accepted for argument shake that the said censure entry was communicated to the petitioner compulsory retirement on sole censure entry is not justified. Thus it is held that there was no sufficient material before the Screening Committee to form an objective opinion that the petitioner was fit to be compulsorily retired.
12. The next submission of the petitioner's counsel is that the Screening Committee was also not properly constituted. Reliance has been placed on the judgment of the learned Single Judge passed in writ petition No. 7789 of 2004 Naresh Chandra Sharma v. State of U.P. and Ors. (supra). In the aforesaid judgment this Court has held that the report of the Screening Committee was vitiated since the District Magistrate who was the appointing authority has not participated in the proceedings rather has only written on the report as "approved". In the present case the District Magistrate himself was chairman of the Screening Committee and had signed the report and had passed the order for compulsory retiring the petitioner.
13. In view of foregoing discussions the writ petition is allowed. The order dated 31.12.2003 is quashed. The petitioner is entitled to all consequential benefits.