1. Heard Sri Amit Bose, learned counsel for the petitioner and Dr. Udai Veer Singh, learned Additional Chief Standing Counsel for the State-respondents.
2. By means of this petition, the petitioner has assailed the validity of order dated 10.8.2017 passed by the Director General, Prantiya Rakshak Dal/ Vikas Dal Evam Yuva Kalyan Directorate, U.P., Lucknow whereby the petitioner has been given notice of three months, at the expiry of which period, the petitioner would stand compulsorily retired under the provisions of Fundamental Rule 56 (c) of the Financial Handbook, Part-II, Volumes II to IV.
3. When the aforesaid writ petition was filed, the period of notice was not expired as it was expiring on 15.11.2017, but the writ petition was filed on 7.11.2017. However, since no interim order was granted, therefore, the order of compulsory retirement has been executed.
4. Brief facts of the case are that vide order dated 7.4.1988, the petitioner was appointed on the post of Kshetriya Yuva Kalyan Evam Pradeshik Vikas Dal Adhikari on ad-hoc basis with a clear stipulation that the aforesaid appointment of the petitioner was for one year or till the next selection, whichever is earlier. However, vide order dated 17.8.1991, the service of the petitioner on the said post was regularised and vide order dated 24.8.1998, the petitioner was confirmed on the aforesaid post w.e.f. 19.4.1990.
5. On 13.3.2008, the departmental proceedings were initiated against the petitioner by means of charge sheet issued by the Director General, appointing authority, wherein two charges were levelled against the petitioner, the first being to the effect that by means of Government Order dated 26.2.2001, it had been directed that only trained Constables of the Prantiya Rakshak Dal were to be deputed for duties and in pursuance of the aforesaid Government order, by means of letter dated 27.5.2003 issued by the Directorate of the petitioner, Constables of Prantiya Rakshak Dal were to be deputed for duties in the U.P. State Road Transport Corporation, but in violation of aforesaid Government Order and later, the petitioner had deputed 173 untrained Constables and Constables belonging to other districts had been deputed for duties as contractual Conductors and by means of letters dated 3.9.2003 and 5.9.2003, further 11 untrained Constables and Constables of other districts were recommended for being deputed for duties as contractual Conductors before the Zila Yuva Kalyan Evam Pradeshik Vikas Dal Adhikari, Lucknow. The second charge levelled against the petitioner in the aforesaid charge sheet was to the effect that the letters whereby 173 Constables were deputed for duties had not been dispatched from the office. Out of these 173 Constables, 172 Constables were untrained and no sanction was obtained from the competent authority to depute 172 Constables for duties in the U.P. State Road Transport Corporation and these Constables were deputed for duties straight away by the petitioner.
6. After the full fledged departmental enquiry conducted against the petitioner by means of an order dated 29.6.2010 passed by the disciplinary authority, the petitioner was found guilty for both the aforesaid two charges levelled against him and punishment of stoppage of two increments permanently, a censure entry and his integrity was considered as doubtful was imposed upon the petitioner.
7. The petitioner filed an appeal against the aforesaid punishment order before the State Government, which was rejected by means of order dated 24.7.2012 passed by the Secretary, Youth Welfare Department, Government of U.P., Lucknow. It is to be noted here that by means of Government Order dated 6.7.2017, it was decided that all the subordinate employees in every department of the State Government, who had attained the age of 50 years or more as on 31.3.2017 be screened for the purpose of their compulsory retirement. It was further directed in the aforesaid Government Order that process of screening the employees concerned should be completed by 31.7.2017.
8. Pursuant to the aforesaid Government Order, by means of order dated 28.7.2017, the Disciplinary Authority constituted a committee comprising of Assistant Director-cum-Commandant, Prantiya Rakshak Dal/ Vikas Dal Evam Yuva Kalyan U.P., Lucknow, Zila Yuva Kalyan Evam Pradeshik Vikas Dal Adhikari, Prantiya Rakshak Dal/ Vikas Dal Evam Yuva Kalyan Headquarters, U.P., Lucknow and Zila Yuva Kalyan Evam Pradeshik Vikas Dal Adhikari, Prantiya Rakshak Dal/ Vikas Dal Evam Yuva Kalyan Headquarters, U.P., Lucknow as Members. The aforesaid committee was required to meet at the earliest to send its recommendation to the disciplinary authority/ competent authority. It is learnt that on the basis of recommendation of the Screening Committee, the order dated 10.8.2017 has been passed by the disciplinary authority whereby the petitioner has been given notice of three months in respect of his compulsory retirement under the Fundamental Rules 56 (c) of the Financial Handbook, Part-II, Volumes II to IV.
9. Impeaching the aforesaid order dated 10.8.2017, learned counsel for the petitioner has submitted that single order of punishment in more than 29 years of service cannot, under any circumstances, be made the basis of order for compulsory retirement and if such action is taken, such order of compulsory retirement would be patently illegal and arbitrary. Sri Amit Bose has also submitted that other than said punishment, no other punishment has been imposed upon the petitioner, therefore, on the basis of single punishment, the petitioner may not be retired compulsorily.
10. Sri Amit Bose has also submitted that the Screening Committee was not possessing the entries of the petitioner pertaining to the years 2013-14 to 2016-17 and therefore, in absence of those entries, the Screening Committee could have not recommended the compulsory retirement of the petitioner.
11. Per contra, Dr. Udai Veer Singh, learned Addl. Chief Standing Counsel has submitted that even if the entries for the aforesaid period were not available with the Screening Committee, even then the recommendation for compulsory retirement of the petitioner could have been issued only on the basis of punishment awarded to the petitioner on 29.6.2010 whereby not only the petitioner has been awarded the punishment of withholding of two increments of salary permanently and censure entry but also the integrity of the petitioner was found doubtful and the same was withheld. As per Dr. Udai Veer Singh, if the entries of the petitioner for that years i.e. for the years 2013-14 to 2016-17 are found satisfactory, for the argument's sake, even then the order of compulsory retirement could have been issued against the petitioner.
12. Sri Amit Bose, learned counsel for the petitioner has referred the judgment of the Hon'ble Apex Court in re; Baikuntha Nath Das and another v. Chief District Medical Officer, Baripada and another, (1992) 2 SCC 299 referring para-34, which is being reproduced herein 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 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 uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interfere.
Interference is permissible only on the grounds mentioned in (iii) above. This aspect has been discussed in paras 30 to 32 above."
13. Perusal of para-34 of the judgment in re: Baikuntha Nath Das (supra) clearly mandates that the order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour. It further provides that the order of compulsory retirement should be passed on the basis of subjective satisfaction of the authority concerned and there is no place of principles of natural justice in the matter of compulsory retirement. The Hon'ble Apex Court in re; Shyam Lal v. State of U.P., AIR 1954 SC 369 has held that the compulsory retirement is not a punishment offending Article 311 of the Constitution of India.
14. It is true that the employee may consider himself punished but there is a clear distinction between loss of benefits party earned and loss of prospects to earn something more.
15. Besides, the Hon'ble Apex Court in re; Allahabad Bank Officers' Association & another Vs. Allahabad Bank and others, (1996) 4 SCC 504, has held that if the integrity of any employee is doubtful and the same has been withheld, it may be the sole reason to pass the order of compulsory retirement. Relevant extract of para-5 of the aforesaid judgement is being reproduced hereunder:-
"The object of compulsory retirement is to weed out the dead wood in order to maintain efficiency and initiative in service and also to dispense with the services of those whose integrity is doubtful so as to preserve purity in the administration." (para-5) (emphasis added)
16. The Hon'ble Apex Court in S. Ram Chandra Raju Vs. State of Orissa, AIR 1995 SC 111, has held that "the dead wood need to be removed to augment efficiency. Integrity in public service need to be maintained."
17. In State of Orissa and others Vs. Ram Chandra Das, (1996) 5 SCC 331, the Hon'ble Apex Court said:
" ....It is needless to reiterate that the settled position is that the government is empowered and would be entitled to compulsorily retire a government servant in public interest with a view to improve efficiency of administration or to weed out the people of doubtful integrity or are corrupt but sufficient evidence was not available to take disciplinary action in accordance with the rules so as to inculcate a sense of discipline in the service." ( para 3)
18. The said principles have been re-observed and reiterated with some further conditions in State of Gujrat Vs. Umed Bhai M.Patel (2001) 3 SCC 314, holding:
"(i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.
(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.
(iii) For better administration, it is necessary to chop off dead-wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer.
(iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.
(v) Even uncommunicated entries in the confidential record can also be taken into consideration.
(vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable.
(vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer.
(viii) Compulsory retirement shall not be imposed as a punitive measure."
19. It is evident from the above that an order of compulsory retirement is actually and necessarily a prerogative of employer, in particular, the Government.
20. Though an order of compulsory retirement ought to be based on some material but need not be mentioned in the order itself. Whenever challenged on the ground of lack of material, employer may disclose material to Court. The principles of natural justice have been completely excluded in the matter of compulsory retirement under Fundamental Rule 56. It is not a punishment.
21. Further, the order of compulsory retirement need not be a speaking order as said in Union of India & Anr. Vs. Daulat Dutt, (1993) 2 SCC 179 where Court said:
"Very often, on enquiry by the Court the Government may disclose the material but it is very much different from the saying that the order should be a speaking order. No order of compulsory retirement is required to be a speaking order."
22. When the competent authority after considering service record of a Government Servant, forms an opinion that his continuance in service is not in public interest, he being rendered dead wood or otherwise should not be allowed to continue, such decision and formation of opinion of the competent authority shall not be interfered by Court in exercise of power of judicial review, if arrived at bona fide and on the basis of material on record. Whether conduct of the employee is such as to justify such a conclusion is primarily for the departmental authorities to decide.
23. Considering the rival submissions of learned counsel for the respective parties, perusing the material available on record and considering the dictum of the Hon'ble Apex Court (supra), I am of the considered view that there is no infirmity, illegality or perversity in the order dated 10.8.2017 passed by the Director General, Prantiya Rakshak Dal/ Vikas Dal Evam Yuva Kalyan Directorate, U.P., Lucknow as contained in Annexure No.1 to the writ petition and also there is no infirmity or illegality in the report of the screening committee on the basis of which the impugned order dated 10.8.2017 has been passed being the integrity of the petitioner doubtful is sufficient to pass order of compulsory retirement under Fundamental Rule 56 (c) of the Financial Handbook Part-II, Volumes II to IV.
24. Argument of Sri Amit Bose that the entries of the petitioner for the year 2013-14, 2014-15, 2015-16 and 2016-17 have been treated as satisfactory and integrity for those period has been certified would not help the petitioner for declaring the order of compulsory retirement as void inasmuch as if those entries were with the screening committee, even then the order of compulsory retirement could have been passed.
25. Accordingly, the writ petition is dismissed being misconceived.
26. No order as to costs.
[Rajesh Singh Chauhan,J.] Order Date :- 29th May, 2019 RBS/-