JUDGMENT J.C. Gupta, J.
1. By means of this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 31.3.93 (Annexure-14) passed by respondent No. 2 whereby the petitioner was compulsorily retired from service. The impugned order has been made by respondent No. 2 in exercise of powers conferred upon him under Rule 56(c) of the Uttar Pradesh Fundamental Rules and the petitioner has prayed for a writ of certiorari for quashing the said order and also for a writ of mandamus commanding the opposite parties to treat him in service and to pay him salary and other emoluments with arrears, and continue to pay the same and not interfere in his working. Undisputedly the relief in the nature of mandamus to treat the petitioner in service and not to interfere in his working has become lnfructuous inasmuch as the petitioner has crossed the age of superannuation during the pendency of the writ petition.
2. Briefly stated the facts as alleged in the writ petition are that the petitioner was appointed as Senior Field Assistant, Sugar Cane Research Station, Shahjahanpur in the year 1960. According to him he was confirmed by the order dated 28.4.78 and was granted selection grade w.e.f. 28.11.1981. During the entire career of his service he earned only a few adverse remarks which all were recorded by Sri B.K. Tyagi, District Agriculture Project Officer, Muzaffarnagar. The adverse remarks recorded in the year 1981-82 and in the year 1982-83, on representations made by the petitioner were expunged by the order dated 4.12.87 passed by the Deputy Director of Agriculture, Muzaffarnagar. Thereafter he was given good entries and in the year 1988-89 Sri Tyagi again recorded adverse remarks against which petitioner made a representation on 10.11.89 and the same was pending when the impugned decision was taken. Another adverse entry was made in the Character Roll of the petitioner in the year 1989-90 and against this entry also the petitioner made a representation which was still undecided when the decision in question was taken.
3. The impugned order dated 31.3.93 retiring the petitioner compulsorily has been challenged on the grounds that the petitioner was given no opportunity of hearing either by the Selection Committee or the respondent No. 2 before taking the ultimate decision. It is further claimed that the Screening Committee did not consider the fact that the entries for the years 1981-82 and 1982-83 had already been expunged and against the adverse remarks for the years 1988-89 and 1989-90 the representations of the petitioner were pending decision. The respondent No. 2 also without applying his mind, just on the basis of the report of the Screening Committee has passed the impugned order compulsorily retiring the petitioner from service, which is arbitrary and illegal.
4. In the counter affidavit filed on behalf of the respondents, however, it is stated that the entire service record of the petitioner was examined and scrutinized by the Screening Committee before recommending the petitioner's case for retiring him compulsorily and the respondent No. 2 passed the impugned order in the public interest. It is further stated that it was wrong to allege that the petitioner got adverse entries only at the hands of Sri B.K. Tyagi but other officers had also recorded bad entries in the Character Roll of the petitioner. It is further stated that the representation of the petitioner against adverse remarks for the year 1988-89 has been rejected vide order dated 16.4.94. The representation made by the petitioner against the adverse remarks recorded for the year 1989-90 had already been decided vide letter No. 1518 dated 19.7.1991 and the same was communicated to the petitioner on 24.7.1991. The order in question has been made by respondent No. 2 in exercise of powers conferred on him under Rule 56(c) of the Fundamental Rules and since it was not a punishment, principle of natural Justice was not applicable.
5. Learned counsel for the parties were heard at length.
6. It was contended on behalf of the petitioner that the impugned order is bad in law mainly for three reasons, firstly that neither the Screening Committee nor the respondent No. 2 gave any opportunity of hearing to the petitioner before making the impugned order; secondly, that the Screening Committee did not apply its mind to the fact that the representations of the petitioner made against the adverse remarks recorded in the years 1988-89 and 1989-90 were still pending consideration before the Competent Authority; and thirdly that no reasons have been recorded either in the report of the Screening Committee or in the impugned order as to why it was thought necessary to retire the petitioner compulsorily.
7. Before I proceed to examine the above contentions in the light of the material placed on record, it may be convenient to look to the rule governing compulsory retirement of Government servants of Uttar Pradesh. It is contained in Rule 56 (c) of the U.P. Fundamental Rules, which runs as follows:
"Notwithstanding anything contained in clauses (a) or (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 no 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."
Explanations to the aforesaid sub-rule reads as under:
"(1) The decision of the appointing authority under clause (c) to require the Government servant to retire as specified therein shall be taken if it appears to the said authority to be in the public interest, but nothing herein contained shall be construed to require any recital, in the order of such decision having been taken in the public interest.
(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 be 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) any entry against which a representation is pending, provided mat the representation is also taken into consideration along with the entry; or
(c) any report of the Vigilance Establishment constituted under Uttar Pradesh Vigilance Establishment Act, 1965.
(2-A) Every such decision shall be deemed to have been taken in the public interest.
(3) The expression "appointing authority" means the authority which for the time being has the power to make substantive appointments to the post or service from which the Government servant is required or wants to retire; and the expression "qualifying service" shall have the same meaning as in the relevant rules relating to retiring person.
(4) Every order of the appointing authority requiring a Government servant to retire forthwith under the first proviso to clause (d) this rule shall have effect from the forenoon of the date of its issue, provided that, if after the date of its issue, the Government servant concerned, bona fide and in ignorance of that order, performs the duties of his office, his acts shall be deemed to be valid notwithstanding the fact of his having earlier retired."
8. As far as the first contention of the petitioner's Counsel that the petitioner was not afforded any opportunity of hearing before the impugned order was passed is concerned, the law in this regard is now well settled that an order of compulsory retirement does not amount to punishment and that no stigma or implication of misbehaviour is intended or attached to such an order as has been held in the case of Baikuntha Nath Das and Anr. v. Chief District Medical Officer, Baripada and Anr., AIR 1992 SC 1020. In the aforesaid decision the earlier view taken in the case of J.N. Singha, AIR 1971 SC 40, was approved and it was held that the principles of natural justice were not attracted in a case of compulsory retirement under Rule 56 (j) or a rule corresponding to it. In the case of Baikuntha Nath (supra), the following principle were laid down:
"(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) Principle 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 sence that no reasonable person would form the requisite opinion on the given material in short, if it is found to be a perverse order.
(vi) 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 loss 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 cannot be a basis for interference. Interference is permissible only on the grounds mentioned in (ii) above........................................."
9. It is true that principles of natural justice has no application in relation to an order of compulsory retirement but that does not mean that judicial scrutiny or judicial review is excluded altogether. Judicial review is a basic feature of the Constitution but the same cannot be extended to the examination of the correctness or reasonableness of the decision taken by the State like an Appellate Court. The High Court can make interference in its an appellate Court. The High Court can make interference in its writ jurisdiction if it is satisfied that the order passed is mala -fide or that it is passed on no evidence or that it is arbitrary in the sense that no reasonable person would ever form requisite opinion on the given material or in other words it is found to be perverse. Therefore, the mere fact that the petitioner was not allowed to participate in the proceeding before the Screening Committee or that he was not heard by respondent No. 2 before the impugned order was passed would not vitiate the impugned order. The first contention of the petitioner's Counsel thus fails.
10. Now I take up the third contention first before dealing with the second contention raised by the learned Counsel for the petitioner. It has been argued by the learned Counsel for the petitioner that neither the Screening Committee while forwarding the petitioner's case for compulsory retirement nor the respondent No. 2 while passing the impugned order have recorded any reasons whatsoever as to why it was thought necessary to retire the petitioner compulsorily. In support of his contention he. relied upon the following observations made by the Supreme Court in the case of S.N. Mukherjee v. Union of India, AIR 1990 SC 1984, where the Apex Court observed:
"In view of the expanding horizon of the principles of natural justice, the requirement to record reason can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities. The rules of natural justice are not embodied rules. The extent of their application depends upon the particular statutory framwork whereunder Jurisdiction has been conferred on the administrative authority. With regard to the exercise of a particular power by an administrative authority including exercise of judicial or quasi-judicial functions the legislature, while conferring the said power, may feel that it would not be in the larger public interest that the reasons for the order passed by the administrative authority be recorded in the order and be communicated to the aggrieved party and it may dispense with such a requirement. It may do so by making an express provision to that effect, such an exclusion can also arise by necessary implication from the nature of the subject matter, the scheme and the provisions of the enactment. The public interest underlying such a provision would outweigh the salutary purpose served by the requirement to record the reasons. The said requirement cannot, therefore, be insisted upon in such a case. Therefore except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions is required to record the reasons for its decision.
The recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and assures a degree of fairness in the process of decision making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. Therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi- judicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It is however not required that the reasons should be as elaborate as in the decision of a Court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority agrees with the reasons contained in the order under challenge."
11. The report of the Screening Committee has been annexed as Annexure-13 of the writ petition which states that the name of the petitioner, a class III employee, was being forwarded to the respondent No. 2 alongwith his character roll for necessary action. Names of only those employees were forwarded who in the opinion of the Screening Committee were not found fit for being retained and continued in service. Copy of the impugned order passed by respondent No. 2 has been annexed as Annexure-14 to the writ petition. It indicates that the respondent No. 2 in exercise of powers conferred on him under the Financial Hand Book, Part II, passed the order retiring the petitioner in the public interest from the date of the order and it was further directed that he would be entitled to get his due salary as was being paid to him before his retirement. It was, therefore, argued that neither the Committee nor the respondent No. 2 have disclosed the reasons as to why the petitioner was being compulsorily retired in public interest and thus according to the petitioner's Counsel in the absence of recorded reasons, the impugned order is vitiated in law as being against the dictum laid down by Apex Court in the aforesaid decision. This argument of the learned Counsel for the petitioner though appears to be fanciful but it has no legs to stand inasmuch as it would appear from Rule 56 (c) that the requirement of recording reasons has been dispensed with expressly. It says that notwithstanding anything contained in clauses (a) or (b), the appointing authority may at any time by a notice to Government Servant, with out assigning any reason require him to retire after he attains the age of 50 years. Further the Explanation I says that such a decision shall be taken in public interest but it is not necessary to recite the same in the order that such decision has been taken in the public interest. In the decision in S.N. Mukherjee's case (supra), relied upon by the petitioner's Counsel, it was itself held that recording of reasons in an order affecting one's rights depend upon the particular statutory framework whereunder jurisdiction has been conferred on the administrative authority, and it is open to the Legislature, while confering such a jurisdiction, to make an express provision dispensing with the said requirement it feels that it may not be in the large public interest that the authority concerned should record reasons in the order and communicate the same to the aggrieved party. The Apex Court went to observe that the requirement to record reasons is regarded as one of the principles of natural justice. But since the principle of natural justice is not applicable to the cases of compulsory retirement, failure to record reasons, especially when the said requirement has been expressly excluded in the Rule governing compulsory retirement, will not make the order invalid. In Mukherjee's case it was further observed that exclusioin of recording of reasons can also arise by necessary implication from the nature of the subject matter, the scheme and the provisions of the enactment and the public interest underlying such a provision would outweigh the salutary purpose served by the requirement to record the reasons. The said requirement cannot, therefore, be insisted upon in such a case.
12. It appears that while framing Rule 56 (c), the law makers thought that it would be not in the larger public interest that the appointing authority must necessarily record reasons and communicate the same to the aggrieved person and therefore, the order retiring an employee compulsorily would not be rendered invalid merely on the ground of not recording of reasons, if there is material to support the decision. The third contention raised by the petitioner's Counsel also cannot be accepted.
13. Now coming to the second contention, it has to be examined and find out whether the impugned order was based on no material or the same was arbitrary.
14. Before adverting to the facts of the case in hand, it may be necessary to bear in mind as to with what object provision in Rule 56 (c) has been made to retire a Government employee compulsorily even before he reaches the age of superannuation. The development of State largely depends upon public administration which is done by public servants. The business of a State is complicated one and has necessarily to be conducted through efficient, honest and deserving servants. Unless this machinery is manned by honest, hard working, sincere and efficient officers/employees, the object of providing public service will not be achieved. Therefore, the law makers thought that in "public interest" only that category of employees should be allowed to be retained in service who have been discharging such duties honestly and faithfully and in the best interest of the State. The provision of compulsory retirement thus appears to have been made with a view to get rid of those Government servants whose efficiency has been impaired and who in the opinion of the State have become a burden on it rather than of any help to the State as their services were no longer useful for the department. The purpose of the rule is to weed out worthless and inefficient servants without punitive extremes covered by Article 311 of the Constitution in order to make administration clean and efficient by competent and worthy employees.
15. The question which now requires serious consideration is whether the impugned order is arbitrary in the sense that no reasonable person could have ever taken the impugned decision on the material placed before the Screening Committee and the respondent No. 2.
16. learned Counsel for the petitioner argued that the adverse remarks recorded against the petitioner in the years 1981-82 and 1982-83 already stood expunged by the order dated 4.12.87 and there were only two other adverse remarks recorded during the years 1988-89 and 1989-90 and against riot these remarks petitioner's representations were pending decision before the higher authorities. The decision impugned does not indicate that while examining the character roll of the petitioner and taking the aforesaid adverse remarks into considerations, the petitioner's representations were also considered.
17. In some of the decisions of the Supreme Court it has been held that an order of compulsory retirement is not liable to be quashed in judicial review merely on the ground that while passing it, uncommunicated adverse remarks were also taken into consideration and that circumstance cannot be the basis of interference. However, as far as the U.P. Government servants are concerned, there is a specific rule governing their compulsory, retirement and the same is contained in Rule 56 (c). The Explanation (2) to the aforesaid sub- rule states that in order to be satisfied whether it will be in the public interest to require a Government servant to retire under clause (c) the appropriate authority may take into consideration any material relating to the Government servant and nothing herein contained shall be construed to exclude from consideration-(a) any entries relating to any period before such Government servant was allowed to cross any efficiency bar or before he was promoted to any post in an officiating or substantive capacity or on ad hoc basis; or (b) any entry against which a representation is pending provided that the representation is also taken into consideration alongwith the entry. A perusal of the aforesaid provision clearly indicates that the rule applicable to the employees of State of U.P. is different in some respect from the rules applicable in other States with regard to compulsory retirement. In U.P., the rule provides that entries relating to any period before such Government servant was allowed to cross any efficiency bar or before he was promoted to any post in an officiating or substantive capacity or on ad hoc basis are not excluded from consideration. Similarly where the adverse entry had been communicated and a representation has been made by the concerned employee, the adverse remarks alongwith representation are capable of being considered at the time of the screening of the employee concerned. It is true that uncommunicated entry cannot be taken into consideration for forming any opinion whether or not to retire a Government employee compulsorily because if the adverse entry is not communicated, the delinquent would be deprived of making of any representation and thus in the absence of representation, adverse entry cannot be looked into.
18. In the present case it has clearly stated in the counter affidavit that when the case of the petitioner was considered, the entire service record of the petitioner and the relevant material were placed before the Screening Committee as well as the respondent No. 2. A perusal of the averments made in the counter affidavit clearly indicates that the Character Roll entries of the petitioner during the period 1969-70, 1973-74 were not found satisfactory and he was even suspended during the period from 11.7.73 to 19.8.74. It is further stated that the petitioner was again suspended during the period 1977 to 1981 and was punished by the order dated 2.9.1982 in a case of embezzlement and the petitioner had to deposit a sum of Rs. 3281.30 P. It was further ordered that in future petitioner would not be give charge of any seed store and agriculture farms. It, therefore, could not be said that the work and conduct of the petitioner was satisfactory or that he was an efficient and honest employee. Besides the aforesaid adverse entries, the petitioner earned two more adverse entries in the years 1988-89 and 1989-90. The impugned decision was taken on 31.3.93. These adverse remarks were thus of recent past. As far as the adverse entry for the year 1989-90 is concerned, it has been specifically stated in the counter affidavit that the petitioner's representation against those remarks had already been decided vide Confidential Letter No. 1518 dated 19.7.91. As regards the adverse remarks for the year 1988-89 the petitioner's case is that against those remarks also he had made a representation which according to him was still pending decision before the higher authorities, when the case of the petitioner was examined by the Screening Committee and the respondent No. 2. There is nothing on record to hold that the said representation was not taken into consideration by the Screening Committee especially when it is stated in the counter affidavit that the entire service record and other material was placed before the Screening Committee for consideration of the petitioner's case for compulsory retirement. There is a presumption in Illustration (e) of Section 114 of the Evidence Act that judicial and official acts have been rightly performed. This presumption flows from the maxim 'ominia' pracsumuntur rite legitime solemniter esse acta donee probetur in contrarium'. In view of this presumption which could not be rebutted by any cogent material, it cannot be said conclusively that when the impugned decision was taken, the petitioner's representation was not taken into consideration. In any view of the matter there was other sufficient material before the Screening Committee and the respondent No. 2 to form the requisite opinion for taking the decision to retire the petitioner compulsorily. The material which was placed before the authorities concerned included the entire service record of -the petitioner and from the examination thereof it cannot be held that no reasonable person could have taken the impugned decision on the basis of the service record of the petitioner. For taking such a decision the entire record of service of the concerned employee was to be considered, of course, attaching more importance to the performance during the later years. As has been already pointed out above the service antecedents of the petitioner have not at all been satisfactory. He was earlier suspended for embezzlement and was punished and he had to deposit a certain sum of amount. He was also deprived of holding any independent charge of seed store and agriculture farms. There was also material before the authority concerned that the petitioner was a habitual absentee and used to shirk his responsibilities and was negligent in performing his duties. On these materials, if the decision was taken that the petitioner's services were no longer useful for the Government and he had outlived his utility, there was not arbitrariness in retiring the petitioner compulsorily under the provisions of Rule 56 (c) and no interference of this Court is required in the impugned decision of the respondent No. 2 that the retention of the petitioner in Government service was not the public interest.
19. For the foregoing reasons and discussion, this writ petition must fail and is hereby dismissed with costs made easy.