JUDGMENT B.A. Zaidi, J.
1. The petitioner was posted as an Executive Engineer since June 18, 1996 in Uttar Pradesh Jal Nigan with respondents No. 1, 2 and 3 and was functioning as Pariyojna Prabandhak, Yamuna Pollution Control Unit, U.P. Jal Nigam, Arga, when has been compulsorily retired by respondent No. 1 vide order dated 1.9.2005 passed by Managing Director of U.P. Jal Nigam, copy of which is Annexure 2 on the record. He seeks a writ of certiorari for quashing this order and to reinstate, also claiming a few more reliefs.
2. The order of compulsory retirement of a Sate employee including an employee in the U.P. Jal Nigam is passed under Rule 56(c) of "U.P. Fundamental Rules", which is as below:
56(c) Notwithstanding anything contained in Clause (a) or 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 of twenty years .
3. The contention of the petitioner is that the order of his compulsory retirement is malafide, arbitrary, unreasonable and deserves, therefore, to be set aside.
4. While dealing with cases of Compulsory Retirement we should bear in mind that power vested in the State under the requisite Rules is discretionary. Compulsory Retirement is not to be set aside, on flimsy groungs, or on considerations, which, have no direct bearing, on the issue.
5. The petitioner was one of those Fifteen Officers of Jal Nigam who were compulsory retired after their records were examined and scrutinized by the Screening Committee and the Committee comprised a Superintending Engineer, Additional Local Commissioner to be its members and its Chairman being the managing Director U.P. Jal Nigam, Lucknow.
6. Before proceeding further we must look into the guidelines laid down by the Supreme Court in matters of compulsory retirement. In the case of Shri Baikuntha Nath Das and Anr. v. Chief District Medical Officer, Baripada and Anr. this is what the Supreme Court said:
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 compulsory. 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) malafide 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 orders..
(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 confidental 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 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 (in) above. This aspect has been discussed in paras 30 to 32 above.
7. In the case of Chief General Manager, State Bank of India Bhubaneswar and Ors. v. Suresh Chandra Bahera quoting to the Supreme Court's case Supra. This is what the Supreme Court said;
in the present case, looking to the findings arrived at by the Reviewing Committee after a detailed examination of the service record of the respondent, the order of compulsory retirement cannot be faulted on any ground. The High Court cannot examine for itself the service record of any employee and substitute its own judgment for the judgment of the Reviewing Committee. The power under the third proviso of paragraph 19(1) has been properly exercised in this case on relevant considerations in public interest. The order cannot be termed as either arbitrary or malafide.
8. What we have, therefore, to see is whether there was no ground whatsoever to come to the conclusion that the performance of the petitioner was not up to the mark and that will also decide the question whether the order of compulsory retirement is arbitrary or malafide?
9. It will appear from Annexure 18 (character roll entries is spreading from the year 1994-95 to 2004-05) of the counter-affidavit, copy of which is annexed herewith for ready reference, that the Screening Committee considered the performance of the petitioner as Below Par and he was considered to be incompetent and insufficient and which was in conformity with Government's order No. 13/48/85- Karmik dated Oct. 26,1985 relating to ascertainment of Efficiency by Screening Committee for Compulsory Retirement. These adverse entries and Remarks with which he was visited was given to him on 18.4.2002, 23.11.2004 and lastly on 4.1.2005 which find place in column No. 13 of this Annexure. An inference about his disintegrity also arises from his entry to remain more careful in future, which is dated 18.4.2002 (Annexure C.A.-18 of the counter affidavit).
10. In view of the above entries, of three later years of service which mattered most and it cannot be said that the petitioner was acting as competent or efficient officer. There are no grounds, therefore, to assume that the view of the Screening Committee was either malafide or arbitrary.
11. It is easy to make allegations of arbitrariness and malafides but a heavy onus lies on the persons who allege the existence of such phenomenon. There is nothing on record and there are no such circumstances from which any inference of arbitrariness or malafides may be drawn.
12. One more point, which was argued by the counsel for the petitioner, was that Fundamental Rule 56 referred above envisages that the order of compulsory retirement has to be passed by the appointing authority and in this case it was passed by officiating Managing Director. The Appointing Authority of the petitioner is with the Managing Director and the impugned order of retirement of petitioner has been passed by the Officiating Managing Director.
13. There is no merit whatsoever in this argument as the Officiating Managing Director is as good as the Managing Director and whoever was Officiating as Managing Director at the particular time was supposed to pass the impugned order.
14. The counsel for the petitioner has referred to the commentary "Departmental Enquiries and Government Servants" by Eijaz which refers to Rule 12 of "Central Civil Services Rules, 1965" at page 935, in which it has been said:
Officers performing current duties of a post cannot exercise statutory powers under the rules:
An officer appointed to perform the current duties of an appointment can exercise administrative or financial power vested in the full-fledged incumbent of the post, but he cannot exercise statutory powers, whether those powers are derived direct from an Act of Parliament (i.e., Income Tax Act) or Rules, Regulations and Bye-Laws made under various Articles of the Constitution (e.g., Fundamental Rules, Classification, Control and Appeal Rules, Civil Services Regulations, Delegation of Financial Powers Rules etc.).
It has been decided that an order appointing an officer to hold the current charge of the duties of a post should, in the absence of any specific direction to the contrary, be deemed to clothe the officer with all the powers vested in the full-fledged incumbent of that post. Such an officer should not, however, modify or override the orders of the regular incumbent of the post except in an emergency without obtaining the orders of the next higher authority.
Where the appointment to hold the current duties of a post involves the exercise of statutory or such other power conferred on the holders of the post, the appointment should also be notified in the Gazette.
An officer who is merely looking after the current duties of a higher officer is not competent to exercise disciplinary or appellate powers of the latter, if he himself is not vested with such current powers in his own post. The following questions have been raised in this connection-
(1) Who should pass the final punishment or appellate orders in the absence of the competent authority on leave or deputation etc?
(2) Who should place an official under suspension in the absence of the competent authority?
The difficulty arises only in cases of suspension when the order of suspension has to be issued immediately. Therefore, so far as (1) is concerned, necessary investigation etc., may be completed in the absence of the competent authority, and final orders in the case should be held over pending the return of the competent authority who should pass the necessary orders in the matter. As regards (2) suspension pending investigation into alleged misconduct etc., does not amount to a penalty. In cases which cannot brook delay, the officer holding current charge of the duties of a higher post can exercise the powers of the competent authority in so far as passing of order of suspension pending investigation is concerned.
15. Before commenting upon this commentary it can be noted that no case law has been cited in support of this contention. As regards the view of the author contained in the book noted above we entirely disagree with what the author has said. The simple reason for our view is that there are numerous occasions when the authority concerned is not available for a long time for one reason or the other, and urgent situations arise for the exercise of authority. It would be a great problem and even chaos if the commentator's proposition is to be accepted. Right from the time of British Administration it has been the tradition and the procedure that officiating Authority exercises all the powers and authority of the post on which it was functioning and that tradition has continued even now.
16. What is an Officiating Officer? For all practical purposes he steps in the shoes of the officer he is officiating otherwise the very purpose of his being officiating officer will be nullified. It is wholly illusory to draw a line that an officiating officer, can do this, and cannot do that. The proposition propounded by the commentator is, therefore, wholly unpalatable.
17. Compulsory retirement is a prerogative of the Government, provided of course it is not based on extraneous considerations or is not arbitrary or malafide. The court is not supposed to interfere in the discretion of the State Government unless a very clear case for interference is made out.
18. There is, therefore, no illegality involved in the impugned order of retirement on this ground.
19. Petition dismissed. Costs made easy.