JUDGMENT Sabhajeet Yadav, J.
1. By this petition, the petitioner has sought relief of certiorari for quashing the order dated 16.9.2005 passed by the Inspector General of Registration, U.P., Allahabad, contained in Annexure-13 of the writ petition whereby the petitioner has been compulsorily retired from service while working on the post of Sub-Registrar, Nagina, Bijnor in purported exercise of power conferred by Rule 56(c) of U.P. Fundamental Rules contained in Vol. II Part 2 to 4 of U.P. Financial Hand Book and further relief of certiorari was asked for quashing the order dated 12.9.2003 passed by Inspector General of Registration, U.P. Allahabad, contained in Annexure-9 of the writ petition whereby four penalties were inflicted upon the petitioner and further a writ order or direction in the nature of mandamus was sought for not to interfere in the working of the petitioner as Sub Registrar and to pay him regular salary month to month on the said post.
2. The relief sought in the writ petition rests on allegation that petitioner was appointed as Sub Registrar on 15.4.1989 by the Inspector General of Registration after due selection by U.P. Public Service Commission, Allahabad. In pursuance thereof he joined the post and since then he is continuously working on the said post and on successful completion of the period of probation the petitioner was also confirmed on the said post within due course of time. During the entire service career he was posted at different places and is presently posted in district Bijnor since 18.9.2003. During the period 1997 to July 2002 the petitioner was posted as Sub Registrar in District Hathras. Except the penalties awarded against the petitioner vide order dated 12.9.2003 the petitioner has never been awarded any adverse entry in his character roll nor any disciplinary action has ever been taken against him. In August 2002 he was transferred and posted in District Agra. While he was working at district Agra he was placed under suspension vide order dated 31.8.2002 issued by Inspector General of Registration. Thereafter a departmental charge sheet dated 17.9.2002 issued by Assistant Inspector General of Registration, Aligarh levelling two charges against the petitioner was served Upon him. Shortly thereafter another charge sheet dated 29.10.2002 containing one further charge against the petitioner was served upon him. The petitioner replied the aforesaid charges by means of his reply dated 12.10.2002 and 23.12.2002 respectively. After submissions of reply to the charge sheet the inquiry officer has called upon the petitioner to make oral reply of certain questions placed before him. This was done with regard to first charge sheet on 19.10.2002 and with regard to the second charge sheet on 28.12.2002. Apart from the aforesaid dates on which some questions were placed to the petitioner orally no other date was fixed by the inquiry officer for conducting any disciplinary proceeding. It is specifically stated that no evidence of any kind was led before the inquiry officer either documentary or oral in support of the charges contained in the charge sheets. In fact the inquiry officer did not examine a single witness even for proving the documents relied upon against the petitioner and the petitioner was afforded no opportunity to lead any oral evidence in support of his defence. In spite of the aforesaid facts the inquiry officer proceeded to submit inquiry report dated 24.10.2002 and 8.1.2003 holding the petitioner guilty of charges levelled against him by finding mat out of three charges two charges have been fully proved and one charge has been partly proved against him. Based upon the aforesaid two inquiry reports the Inspector General of Registration issued a show cause notice to the petitioner forwarding therewith the copies of two inquiry reports and calling upon the petitioner to submit his objections against the inquiry report and show cause as to why a major penalty be not inflicted upon him. In response to which the petitioner submitted his detailed objections by means of his reply dated 13.5.2003 but on 12.9.2003 the Inspector General of Registration U.P. Allahabad has passed an order reinstating the petitioner in service while awarding him the following penalties.-
(i) Withholding three increments with cumulative effect.
(ii) Declaring the integrity of the petitioner for the concerned year to be doubtful.
(iii) Directing that for the next three years the petitioner would not be posted at Sadar office.
(iv) Awarding adverse entry against the petitioner.
3. On 12.9.2003 itself another show cause notice was issued by the Inspector General of Registration calling upon the petitioner to show cause as to why the arrears of his salary for the period of suspension be not forfeited. In response to Which a detailed reply was submitted by the petitioner. However, no further order has been passed in pursuance to the said show cause notice and arrears of salary of petitioner for the period of suspension continues to be withheld. Aggrieved by the order dated 12.9.2003 the petitioner has filed an appeal dated 8.12.2003 before the State Government, which was forwarded by Assistant Inspector General of Registration to the State Government by means of covering letter dated 11.12.2003. The appeal so filed by the petitioner continues to be pending. Till date no final order has been passed thereon. As a consequence of his reinstatement the petitioner had assumed the charge of his post and has been discharging all duties as Sub Registrar in district Bijnor. On 16.9.2005 impugned order has been passed by Inspector General of Registration directing the compulsory retirement of the petitioner in purported exercise of power under Rule 56(c) of U.P. Fundamental Rules. A true copy of the impugned order dated 16.9.2005 is on record as Annexure-13 of the writ petition.
4. In reply to the allegations and assertions made in the writ petition a detailed counter affidavit has been filed on behalf of respondent No. 2 in the writ petition. In para 8 of the counter affidavit the averments have been made to the effect that a departmental inquiry was held against the petitioner which was ended in inflicting penalties against him vide impugned order dated 12.9.2003. It was also mentioned that vide order dated 21.11.2003 the difference of salary of the petitioner except subsistence allowance paid to him has been forfeited. In para 12 of the counter affidavit in reply to para 13 to 18 of the writ petition only this much has been stated that the inquiry officer has inquired the petitioner as per provisions of Rule 7(9) of U.P. Government Servant (Discipline and appeal) Rules 1999 and the petitioner should have brought all the facts alongwith evidence in his favour in the said inquiry and the petitioner by not producing any evidence in his favour has failed to avail the opportunity afforded to him.
5. In reply to subsequent paragraphs of the writ petition the averments made in para 13 to 19 of the counter affidavit are reproduced as under:
13. That the contents of para 19,20 and 21 of the writ petition are not admitted as stated. The petitioner during the tenure of his posting as Sub Registrar Hathras has violated the statutory provisions of Section 24 and 27 of the Indian Stamp Act and Rule 3 of U.P. Stamp (Valuation of Property) Rules 1997 and caused a heavy loss to the state exchequer in the form of Stamp duty to the tune of Rs. 1,32,81,583 -. The matter was examined by instituting an enquiry for the said conduct of the petitioner and the enquiry officer has proved the charges and the appointing authority after providing full opportunity to the petitioner and considering the reply of the petitioner has awarded the petitioner with the punishment of stopping the three annual increments with cumulative effect and declaring the integrity of the relevant year doubtful together with the order for not posting the petitioner at the District headquarter office upto three years.
14. That the contents of para 22,23,24,25,26 and 27 of the writ petition are admitted to the extent of issuing a show cause to the petitioner for the pay etc. remained to be paid other than the suspension allowance and the reply of the petitioner being found unsatisfactory, the reasoned orders were passed forfeiting the pay etc. of the petitioner. However the representation of the petitioner on which the comments have been forwarded by the I.G. Registration is still pending consideration before the Government.
15. That the contents of para 28 of the writ petition are admitted.
16. That the contents of para 29 of the writ petition are not admitted as stated. The I.G. Registration, U.P., Allahabad has passed a reasoned order in the matter of the petitioner, which is nowhere illegal or against the provisions of the service rules. Even the enquiry office has provided full opportunity to the petitioner and even personal hearing and the appointing authority after going through the enquiry report issued the show cause for awarding major punishment. After considering the reply of the petitioner the deponent passed a reasoned order. With regards to the contention of the petitioner of not providing opportunity for personal hearing the position has already been clarified in the earlier para 16 of the counter affidavit.
17. That the contents of para 30,31 and 32 of the writ petition are not admitted as stated. The punishment order issued to the petitioner is self-explanatory.
18. That the contents of para 33,34,35,36,37 and 38 of the writ petition are not admitted as stated. The punishment given to the petitioner is self-speaking and reasoned.
19. That the contents of para 39,40,41,42,43,44 and 45 of the writ petition are not admitted as stated. The complaints were received against the petitioner and the preliminary enquiry was conducted by the then Assistant Inspector General of Registration. However, the charges leveled against the petitioner were thoroughly examined by the enquiry officer and reasoned orders were passed which do not call for any interference without any valid reason.
6. We have heard Sri Ashok Khare, learned Senior Counsel assisted by Sri Aditya Kumar Singh for the petitioner and Sri Wasim Alam, learned Standing Counsel for the respondents.
7. Since affidavits have been completely exchanged between the parties and the case is ripped for final hearing on merits, therefore, with the consent of learned Counsel for the parties we have heard the case for final disposal.
8. While assailing the impugned order dated 12.9.2003 passed by I.G. Registration, U.P., Allahabad inflicting aforesaid four punishments upon the petitioner, learned Counsel for the petitioner has submitted that the impugned order was passed without any proper inquiry held against the petitioner by inquiry officer. It was incumbent upon the respondents before imposing major penalty to hold a full-fledged disciplinary inquiry against the petitioner in which the department was required to adduce oral and documentary evidence before the inquiry officer in support of the charges levelled against the petitioner and the petitioner was also required to be given opportunity to lead evidence in his defence. As a matter of fact at no point of time any evidence either documentary or oral had been led before the inquiry officer neither even a single witness was examined to prove the documents relied upon against the petitioner nor the petitioner was called upon to cross-examine any such witness. Equally no opportunity had been afforded to the petitioner in leading evidence in his defence. Apart from calling the petitioner on a given date and putting certain questions to the petitioner by inquiry officer no other oral inquiry has been conducted. A bare perusal of inquiry report so submitted would itself demonstrate that no oral inquiry whatsoever had been conducted by inquiry officer in which evidence of any kind may have been led against the petitioner. The inquiry reports further demonstrate that even the documents relied upon against the petitioner were not proved at any point of time by leading any oral testimony to prove the same but disciplinary authority had acted upon the said inquiry report and passed the impugned order in mechanical manner without considering the reply submitted by the petitioner against the show cause notice in correct perspective.
9. The learned Counsel for the petitioner has further urged that on merits too the charges levelled against the petitioner are wholly baseless and do not constitute misconduct against him. By elaborating his submission learned Counsel for the petitioner strenuously urged that Charge No. 1 contained in the charge sheet dated 17.9.2002 pertains to registration of four documents by the petitioner treating the said documents as an assignment of lease and after charging stamp duty in accordance with Article 63 of the Schedule to the Stamp Act, on the basis of the document produced before the petitioner at the time of registration the petitioner was duty bound to register the said document as assignment of lease, which the petitioner correctly did. However, immediately thereafter the petitioner made a reference to the Assistant Inspector General of Registration under Section 47A of the Stamp Act with regard to the four documents on the basis of which a case was registered and an order was passed by the District magistrate by an order dated 26.8.2002 levying additional stamp duty as also imposing penalty with regard to each of the aforesaid four documents. The order of the Collector, Hathras dated 26.8.2002 was the subject matter of challenge by means of writ petition before the High Court, which was however rejected on the ground of availability of remedy before the Chief Controlling Revenue Authority, U.P., Allahabad. In view of the aforesaid stamp revision No. 189 of 2002/03 was filed under Section 33/47-A of the Stamp Act before the Chief Controlling Revenue Authority, U.P., Allahabad. The stamp revision so filed was allowed by the Chief Controlling Revenue Authority by judgment dated 25.3.2004 and the order of the Collector, Hathras dated 26.8.2002 was set aside and the matter was remitted back to the Collector for fresh consideration. The further progress in pursuance to the aforesaid order is not known to the petitioner. So far as the charge No. 2 of the charge sheet dated 17.9.2002 is concerned the same is based upon the allegation to the effect that in registering document No. 40 of 2002 the petitioner had levied stamp duty treating the 1 bigha and four biswansi land as agricultural land which according to the respondents ought to have been charged on the basis of residential land. The said allegation is also wholly unfounded. At the time of the presentation of the said document Khasra and Khatauni pertaining to the said land had been produced before the petitioner, which clearly demonstrated the agricultural nature of the land and on that basis the petitioner was duty bound to register the said document and charged stamp duty on market value of the land treating the land as agricultural land. In doing so the petitioner committed no error whatsoever. With regard to the charge levelled against the petitioner pertaining to the charge sheet dated 29.10.2002 is concerned it is alleged that one bigha 7 biswansi land covered by the document in dispute under the said charge was located within the limits of Nagar Palika and as such ought to have been charged treating the same to be the residential land. In levelling the aforesaid charge the respondents failed to take into account the fact that the petitioner made a reference under Section 47A of the Stamp Act on the basis of which the District Magistrate, Hathras also passed an order treating the land to be agricultural itself. Detailed facts pertaining to each of the charge has been given by the petitioner in his reply to the charge sheet as also in his reply to his show cause notice, which has gone totally unnoticed by the enquiry officer as also by the disciplinary authority. Even in case it is assumed that there existed some default on the part of the petitioner in correctly applying the rules that itself does not amount to any misconduct against the petitioner nor do they entitle any disciplinary action being taken against the petitioner.
10. It is further submitted that the petitioner has filed appeal against the order of Inspector General of Registration, which continues to remain pending. There exists no justification for the appeal of the petitioner not having been decided by the State Government. Equally there exists no justification whatsoever for the order of compulsory retirement being passed by the Inspector General of Registration against the petitioner even while the appeal filed by the petitioner against the order dated 12.9.2003 continues to be pending. The order dated 12.9.2003 passed by Inspector General of Registration is only adverse material existing in the service record of the petitioner and against which appeal is still pending and there does not exist any other adverse material against the petitioner in his service record. Thus there exists no justification for passing impugned order of compulsory retirement of the petitioner on the basis of penalty/punishment dated 12.9.2003 imposed against him. In fact the action taken against the petitioner by respondents violates principles of double jeopardy under which with regard to the same allegation the petitioner has been penalized twice; firstly by order dated 12.9.2003 and secondly by order of compulsory retirement. Thus the order of compulsory retirement cannot be said to be in the public interest and in bonafide exercise of powers.
11. On the basis of rival submissions and pleadings of the parties following questions arise for considerations:
(i) As to whether disciplinary inquiry held against the petitioner is vitiated under law?
(ii) As to whether punishments awarded to the petitioner vide impugned order dated 12.9.2003 passed by I.G. Registration is only basis for compulsory retirement of the petitioner against which the petitioner's appeal is still lying pending before the State Government?
(iii) And what would be the impact of pendency of such appeal before the State Government?
12. Now coming to the first question, it is noteworthy to point out that in this connection the submission of the learned Counsel for the petitioner that on the basis of available material on record the disciplinary inquiry held against the petitioner is contrary to the provisions of rules regarding holding of disciplinary inquiry for imposing major penalties and the inquiry has been held in utter violation of principles of natural justice and charges levelled against the petitioner have not been proved in accordance with the provisions of law, therefore, the whole disciplinary inquiry is vitiated under law. Learned Counsel for the petitioner has further urged that on the basis of allegations made in the charge sheet and material available on record there is nothing to indicate that charges levelled against the petitioner constitute misconduct warranting major penalty imposed upon him. Further it is not in disputed that except the penalties imposed in aforesaid disciplinary proceeding no other material exist so as to support and sustain the order of compulsory retirement passed against the petitioner. In support of his submission learned Counsel for the petitioner has placed strong reliance upon a decision rendered by Hon'ble Apex Court in State of U.P. and Ors. v. Chatersen (2005) 9 S.CC 592 wherein Hon'ble Apex Court has held that order of punishment which was basis or foundation of order of compulsory retirement once set aside by the court, there remains nothing to sustain the order of compulsory retirement. Besides this, against the impugned order of punishments imposed against the petitioner admittedly the appeal filed by him before the State Government is still pending as such it was not open for the respondents to keep the petitioner's appeal pending before the State Government and retire him compulsorily from service by relying upon the punishment inflicted upon him which is subject matter of appeal.
13. Learned Counsel for the petitioner has further submitted mat since against the punishment imposed by I.G. Registration the petitioner's appeal is pending before the State Government and there is vast difference between composition of Screening Committee and State Government as such it was not open for the screening committee to consider the merits of the appeal pending before the State Government against the punishment imposed by I.G. Registration and recommend compulsory retirement of the petitioner by considering his pending appeal before the State Government, therefore, it was necessary for the I.G. Registration to postpone the proceedings of compulsory retirement till the disposal of pending appeal of the petitioner before the State Government but the same has not been done in the case of petitioner. Accordingly the order of compulsory retirement cannot be sustained in the eye of law.
14. Contrary to it learned Standing Counsel appearing on behalf of respondents-State Government has submitted that the whole disciplinary inquiry held against the petitioner was well in accordance with the provisions of law as the petitioner has been given full opportunity of hearing in the aforesaid disciplinary inquiry. He has further submitted that pendency of appeal before the State Government could not debar the Appointing Authority from exercising his power of compulsory retirement of the petitioner conferred under Rule 56(c) of U.P. Fundamental Rules as there is no legal embargo to resort the exercise of power by appointing authority during the pendency of such appeal before the State Government against said penalties and postpone or halt the proceedings of compulsory retirement till the pendency of appeal filed by the petitioner. Thus the action taken against the petitioner is well within the authority under law and cannot be called in question on this score.
15. In order to appreciate the rival contention of learned Counsel for the parties, it is pointed out that it is not in dispute that the petitioner was a Government servant and U.P. Government Servant (Discipline and Appeal) Rules 1999 herein after referred to as Rules 1999 was applicable to the petitioner in connection of disciplinary inquiry held against him. Rule-3 of which deals with the penalties reads as under:
3. Penalties.-The following penalties may, for good and sufficient reason and as hereinafter provided, be imposed upon the Government Servants:-
Minor Penalties:
(i) Censure:
(ii) Withholding of increments for a specified period;
(iii) Stoppage at an efficiency bar;
(iv) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach or orders;
(v) Fine in case of persons holding Group 'D' posts;
Provided that the amount of such fine shall in no case exceed Twenty-five percent of the months pay in which the fine is imposed.
Major Penalties:
(i) Withholding of increments with cumulative effect;
(ii) Reduction to a lower post or grade or time scale or to a lower stage in a time scale:
(iii) Removal from the service which does not disquality from future employment;
(iv) Dismissal from the service which disqualifies from future employment.
Explanation.- The following shall not amount to penalty within the meaning of this rule, namely :-
(i) Withholding of increment of a Government Servant for failure to pass a departmental examination or for failure to fulfil any other condition in accordance with the rules or orders governing the service;
(ii) Stoppage at the efficiency bar in the time scale of pay on account of ones not being found fit to cross the efficiency bar;
(iii) Reversion of a person appointed on probation to the service during or at the end of the period of probation in accordance with the terms of appointment or the rules and orders governing such probation;
(iv) Termination of the service of a person appointed on probation during or at the end of the period of probation in accordance with the terms of the service or the rules and orders governing such probation.
16. From bare perusal of the aforesaid Rules it is clear that withholding of increments for specified period is mentioned as one of the minor penalty whereas withholding of increments with cumulative effect is mentioned as one of the major penalty enumerated under Rule-3 of the Rules 1999. It is not in dispute that vide impugned order dated 12.9.2003 passed by I.G. Registration U.P. Allahabad, the penalty of withholding three increments with cumulative effect has been awarded to the petitioner alongwith other minor penalties inflicted upon him. Thus there can be no scope for doubt to hold that, withholding of three increments of the petitioner with cumulative is one of the major penalty has also been awarded to him along with other minor penalties.
17. Rule-7 of the Rules 1999 provides detail procedure for holding disciplinary inquiry for imposing major penalties against Government Servant. Rule-8 of the said Rules deals with the submission of inquiry report by inquiry officer to the Disciplinary Authority on completion of such inquiry, along with the record of the inquiry. Rule-9 of the said Rules deals with the action on inquiry reports by Disciplinary authority which requires to act upon such inquiry report if the charges are found proved in the inquiry report in the manner provided under aforesaid rules including passing of final order after serving a copy of inquiry report to the delinquent officer and asking his explanation thereon, either exonerating the delinquent employee or by imposing one or more penalties upon him/her mentioned in Rule-3 of the said Rules.
18. At this juncture it is necessary to point out that as to whether the disciplinary inquiry held against the petitioner was conducted in consonance with the provisions of the aforesaid rules of the disciplinary inquiry or in consonance with the principles of natural justice, and as to whether the petitioner was afforded reasonable/adequate and/or fair opportunity of hearing to defend his case or not and as to whether the charges were found proved against the petitioner by inquiry officer in accordance with the well accepted norms or parameters of disciplinary inquiry or not and/or as to whether the charges levelled against the petitioner do not constitute misconduct more so warranting the major penalties or not, and as to whether the action taken by Disciplinary Authority on the basis of said inquiry report is correct or not, in our considered opinion can still be examined by State Government in admittedly pending appeal preferred by the petitioner against impugned punishment order dated 12.9.2003 passed by I.G. Registration, therefore, we are of the considered opinion that in given facts and circumstances of the case the matter should be left to be examined by the State Government and we need not to examine the same on merits. Therefore, we direct the State Government to decide the aforesaid questions in the light of submissions of learned Counsel for the petitioner and reply submitted by the petitioner against show cause notice issued by the Disciplinary Authority, after hearing the petitioner by passing reasoned order thereon within a period of three months from the date of production of certified copy of the order passed by this Court before the concerned Secretary to the Govt. of U.P..
19. Now coming to the next question, it is significant to mention that from careful examination of averments contained in the counter affidavit, there is nothing to indicate that except the penalties inflicted upon the petitioner vide impugned order dated 12.9.2003 passed by I.G. Registration, U.P. Allahabad, there exist any other adverse material against the petitioner to sustain order of compulsory retirement of the petitioner. Therefore, the question that what would be effect or impact of pendency of aforesaid appeal before the State Government in connection of penalties inflicted upon the petitioner vide impugned order dated 12.9.2003 passed by I.G. Registration, U.P. Allahabad upon the compulsory retirement of the petitioner is arises for our consideration. In this connection it would be useful to refer the relevant provision of Rule 56-(c) of UP Fundamental Rules along with the explanation attached therewith contained in Vol. 2 Fart 11 to IV of Financial Hand Book as under:
CHAPTER IX Compulsory Retirement
56. (a) ...
(b) deleted.
(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 Jive years) or after he has completed qualifying service for twenty years.
Explanation:- (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, hut 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 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 adhoc basis; or
(b) any entry against which a representation is pending, provided that 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 pension.
20. While explaining the nature, object and purpose of the aforesaid rules, Hon'ble Apex Court in a recent decisions rendered in State of U.P. and Ors. v. Vijai Kumar Jain on taking note of its earlier decisions in para 10, 11, 12, 13 and 14 observed as under:
10. Before we advert to the question which we are required to decide, it is necessary to notice the nature of an order compulsorily retiring a Government servant under FR 56(c). In Shyam Lal v. State of U.P. , it was held that an order of compulsory retirement is neither a punishment nor any stigma attached to it and it was held therein as thus:
There is no such element of charge or imputation in the case of Compulsory retirement. The two requirements for compulsory retirement are that the officer has completed twenty five years' service and that it is in the public interest to dispense with his further services. It is true that this power of compulsory retirement may he used when the authority exercising this power cannot substantiate the misconduct which may be the real cause for taking the faction but what is important to note is that the directions in the last sentence of Note 1 to Article 465A make it abundantly clear that an imputation or charge is not in terms made a condition for the exercise of the power. In other words, a compulsory retirement has no stigma or implication of misbehaviour or incapacity.
11. In Union of India v. J.N. Sinha 1971 (1) SCR 701, it was held that an employee compulsorily retired does not lose any right acquired by him before retirement and that the said rule is not intended for taking any penal action against the Government servant and that the order retiring a Government servant compulsorily can only be challenged on the ground that either the order is arbitrary or it is not in public interest. No other ground is available to a Government servant who is sought to be compulsorily retired from service under the relevant rules subject to the conditions provided therein.
12. Coming to the main question whether entries beyond ten years of the service record from the date of compulsory retirement could have been taken into account by the Government while retiring a Government servant under FR 56(c) of the Rules, it is necessary to refer some of the decisions of this Court.
13. In Baikuntha Nath Das and Anr. v. Chief District Medical Officer, Baripada and Anr. , this Court laid down certain principles which are 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.
(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 lose their sting, moreso, 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.
In State of Punjab v. Gurdas Singh , it was held thus:
Before the decision to retire a Government servant prematurely is taken the authorities are required to consider the whole record of service. Any adverse entry prior to earning of promotion or crossing of efficiency bar or picking up higher rank is not wiped out and can be taken into consideration while considering the overall performance of the employee during whole of his tenure of service whether it is in public interest to retain him in the service. The whole record of service of the employee will include any uncommunicated adverse entries as well.
14. The aforesaid decisions unmistakably lay down that the entire service record of a Government servant could be considered by the Government while exercising the power under FR 56c) of the Rules with emphasis on the later entries.
21. Thus in view of settled legal position and foregoing discussions, there remains no scope for doubt to hold that nature of order of compulsory retirement is not of a punishment. It implies neither any stigma nor any suggestion of misbehaviour. The order of compulsory retirement has to be passed by appointing authority which may be Govt. also, on forming opinion that it is in the public interest to retire a Government servant compulsorily. It is no doubt true that the opinion is to be formed on subjective satisfaction but must be based on objective materials and consideration germane to the object and purpose of the rules. It should not be based on irrelevant or extraneous consideration. The purpose and object of the provision appears to eliminate the black -sheeps and to remove the dead woods to clean and to maintain efficiency in the administration. FR 56(c) of the Rules read with Sub-rule (2), enables the Appointing Authority with an absolute power to retire an employee on attaining the age of 50 years. It cannot be disputed that the dead woods need to be removed to maintain efficiency in the service. Integrity of a Government employee is foremost consideration in public service. If a conduct of a Government employee becomes unbecoming to the public services, the Appointing Authority has an absolute right to compulsorily retire such an employee in public interest. While exercising the power of compulsory retirement the Appointing Authority is entitled under Fundamental Rule 56(c) to take into account the entire service record, character roll or confidential report with emphasis on the later entries in the character roll of an employee. In fact, entire service record, character roll or confidential report furnishes the materials to Screening Committee and/or Appointing Authority to find out whether a Government servant has lost his utility in service. It is on consideration of totality of the materials with emphasis on the later entries in the character roll, the Government or the appointing authority as the case may be, is expected to form its opinion whether an employee is to be compulsorily retired or not. That being the settled legal position, in our considered opinion, the order of compulsory retirement can be attacked only on the ground of malafide or it is based on no evidence or if it is found arbitrary in the sense that no reasonable person would form requisite opinion on the given material or in short, if it is found to be perverse and no other grounds.
22. At this juncture, we would also like to emphasise the content and import of expression "malafide". In this connection it would be useful to refer certain observations of Professor H.W.R. Wade from 5th Edition of his monumental work "Administrative Law" at page 391-392 as under:
GOOD FAITH Bad Faith not dishonesty:
The judgements discussed in the last few pages are freely embellished with references to good and bad faith. These add very little to the true sense, and are hardly ever used to mean more than that some action is found to have a lawful or unlawful purpose. It is extremely rare for public authorities to be found guilty of intentional dishonesty; normally they are found to have erred, if at all, by ignorance or misunderstanding. Yet the Courts constantly accuse them of bad faith merely because they have acted unreasonably or on improper grounds.
Again and again it is laid down that powers must be exercised reasonably and in good faith. But in this context 'in good faith' means merely 'for legitimate reasons'. Contrary to the natural sense of the words, they impute no moral obliquity.
A pithy statement of Lord Macnaghten to this effect has already been quoted. He made another in Roberts v. Hopwood, dealing with the power of a local board to pay 'such wages as they think fit':
Firstly, the final words of the section are not absolute, but are subject to an implied qualification of good faith 'as the board may bonafide think fit'. ...Bonafide here cannot simply mean that they are not making a profit out of their office or action in it from private spite, nor is bonafide a short way of saying that the council has acted within the ambit of its powers and therefore not contrary to law. It must mean that they are giving their minds to the comprehension and their wills to the discharge of their duty towards the public, whose money and local business they administer.
Still more pithily, Vaughan Williams L.J. had said in an earlier case:
You are acting malafide if you are seeking to acquire land for a purpose not authorised by the Act.
And Lord Greene M.R., in the passage already quoted, treated bad faith as interchangeable with unreasonableness and extraneous considerations. Bad faith, therefore, scarcely has an independent existence as a distinct ground of invalidity. Any attempt to discuss it as such would merely lead back over the ground already surveyed. Hut a Jew examples will illustrate it in its customary conjunction with unreasonableness and improper purposes.
If a local authority were to use its power to erect urinals in order to place one 'in front of any gentleman's house', then 'it would he impossible to hold that to be a bonafide exercise of the powers given by the statute. " If they wish to acquire land, their powers are to be used bonafide for the statutory purpose and for none other. If they refer numerous cases en masse to a rent tribunal without proper consideration, this is not a valid and bonafide exercise of the powers. If a liquor licence is cancelled for political reasons, the minister who brought this about is guilty of a departure from good faith. Such instance could be multiplied indefinitely.
Motives and malice ...but the Court of appeal decided that it was not necessary to go so far as to hold the council 'guilty of bad faith'. Elsewhere in this case 'malafide' was used merely to mean 'for an unauthorised purpose'....
23. In this connection a reference can also be made to observations made by Hon'ble Apex Court in para 22 of the decision rendered by Constitution Bench in Union of India v. H.C. Goel as under:
(22) We are not prepared to accept this contention. Malafide exercise of power can be attacked independently on the ground that it is malaftde. Such an exercise of power is always liable to be quashed on the mam ground that it is not a bonafide exercise of power. But we are not prepared to hold that if malafides are not alleged and bonafides are assumed in favour of the appellant, its conclusion on a question of fact cannot be successfully challenged even if it is manifest that there is no evidence to support it. the two infirmities are separate and distinct though, conceivably. In some cases both may be present. There may be cases of no evidence even where the Government is acting bonafide; the said infirmity may also exist where the Government is acting malaftde and in that case, the conclusion of the Government not supported by any evidence may be the result of malafides but that does not mean that if it is proved that there is no evidence to support the conclusion of the Government, a writ of certiorari will not issue without further proof of malafides....
24. The similar view has been reiterated by Hon'ble Apex Court again in Express Newspapers Pvt. Ltd. and Ors. v. Union of India and Ors. . In para 118 of the decision Hon'ble Apex Court observed as under:
118. Fraud on power voids the order if it is not exercised bonafide for the end design. There is a distinction between exercise of power in good faith and misuse in bad faith. The former arises when an authority misuses its power in breach of law, say, by taking into account bonafide, and with best of intentions, some extraneous matters or by ignoring relevant matters. That would render the impugned act or order ultra vires. It would be a case of fraud on powers. The misuse in bad faith arises when the power is exercised for an improper motive, say, to satisfy a private or personal grudge or for wreaking vengeance of a Minister as in S. Pratap Singh v. State of Punjab . A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise. Use of a power for an 'alien' purpose other than the one for which the power is conferred is malafide use of that power. Same is the position when an order is made for a purpose other than that which finds place in the order. The ulterior or alien purpose clearly speaks of the misuse of the power and it was observed as early as in 1904 by Lord Lindley in General Assembly of Free Church of Scotland v. Overtown 1904 AC 515, 'that there is a condition implied in this as well as in other instruments which create powers, namely, that the powers shall be used bonafide for the purpose for which they are conferred'. It was said by Warrington, C.J. in Short v. Poole Corporation (1926) 1 Ch 66 that:
No public body can be regarded as having statutory authority to act in bad faith or from corrupt motives, and any action purporting to be of that body, but proved to be committed in bad faith or from corrupt motives, would certainly be held to be inoperative.
25. From the aforesaid discussion it is clear that Professor H.W.R. Wade has used the expression "malafide" in reference of case law in the sense that offending act was done for a purpose not authorised under law. The expression "bad faith" has been used in contradistinction to the expression "good faith" and expression "bad faith" was used where the offending act is either unreasonable or based on improper grounds. The expression "bonafide exercise of power" means exercise of power only for the purpose for which it was conferred and for none other. If power is exercised for other purpose or unauthorised purpose or purpose alien to the statute, the exercise of power would be maiafide. The expression "malafide" can be used merely to mean for exercise of powers for an unauthorised purpose or purpose alien to which it is conferred. The aforesaid view has also been approved by Hon'ble Apex Court in the cases referred herein before.
26. Now coming to the issue it is necessary to point out that learned Counsel for the petitioner could not point out any provisions of statutory law or binding case law under which on the basis of pendency of appeal before the State Government against impugned order dated 12.9.2003 containing penalties inflicted upon the petitioner, the exercise of power under the aforesaid fundamental Rules can be postponed or halted awaiting disposal of such appeal. In this connection it is significant to point out that if such device may he permitted, the purpose and object of the aforesaid provisions would be defeated by cunning devices and manipulations, but that does not mean to say that appointing authority or Government would be justified in keeping such appeal or representation against punishment imposed in disciplinary inquiry pending and resort to compulsory retirement of Government servants and in such situation the action of appointing authority can be examined from the angle that as to whether, the action of such authority is bonafide or it can be termed as malafide.
27. In somewhat similar circumstances in connection of consideration of pending representation against adverse entries in A.C.R. of Government employee in para 29, 30 and 31 of the decision rendered in Baikuntha Nath Das and Anr. v. Chief District Medical Officer, Baripada and Anr. , the Hon'ble Apex Court observed as under:
29. On the above premises, it follows, in our respectful opinion that the view taken in J.N. Sinha is the correct one viz., principles of natural justice are not attracted in a case of compulsory retirement under F.R. 56(i) or a rule corresponding to it. In this context, we may point out a practical difficulty arising from the simultaneous operation of two rules enunciated in Brij Mohan Singh Chopra , On one hand, it is stated that only the entries of last ten years should be seen, and (2) on the other hand, it is stated that if there are any adverse remarks therein, they must not only be communicated but the representations made against them should he considered and disposed of before they can be taken into consideration. Where do we draw the line in the matter of disposal of representation. Does it mean, disposal by the appropriate authority alone or does it include appeal as well. Even if the appeal is dismissed, the government servant may file a revision or make a representation to a still higher authority. He may also approach a court or Tribunal for expunging those remarks. Should the Government wait until all these stages are over. All that would naturally take a long time by which time, these reports would also have become stale. A government servant so minded can adopt one or the other proceeding to keep the matter alive. This is an additional reason for holding that the principle of M.E. Reddy should he preferred over Brij Mohan Singh Chopra and Baidyanath Mahapatra , on the question of taking into consideration uncommunicated adverse remarks.
30. Another factor to be borne in mind is this: most often, the authority which made the adverse remarks and the authority competent to retire him compulsorily are not the same. There is no reason to presume that the authority competent to retire him will not act bona fide or will not consider the entire record dispassionately. As the decided cases show, very often, a Review Committee consisting of more than one responsible official is constituted to examine the cases and make their recommendation to the Government. The Review Committee, or the Government, would not naturally be swayed by one or two remarks, favourable or adverse. They would form an opinion on a totality of consideration of the entire record including representations, if any, made by the government servant against the above remarks of course attaching more importance to later period of his service. Another circumstance to be borne in mind is the unlikelihood of succession of officers making unfounded remarks against a government servant.
31. We may not be understood as saying either that adverse remarks need not be communicated or that the representations, if any, submitted by the government servant (against such remarks) need not be considered or disposed of. The adverse remarks ought to be communicated in the normal course, as required by the Rules orders in that behalf. Any representations made against them would and should also be dealt with in the normal course, with reasonable promptitude. All that we are saying is that the action under F.R. 56(i)(or the Rule corresponding to it) need not await the disposal or final disposal of such representation as the case may be. In some cases, it may happen that some adverse remarks of the recent years are not communicated or if communicated, the representation received in that behalf are pending consideration. On this account alone, the action under F.R. 56(i) need not he held back. There is no reason to presume that the Review Committee or the Government, if it chooses to take into consideration such uncommunicated remarks, would not be conscious or cognizant of the fact that they are not communicated to the government servant and that he was not given an opportunity to explain or rebut the same. Similarly, if any representation made by the government servant is there, it shall also be taken into consideration. We may reiterate that not only the Review Committee is generally composed of high and responsible officers, the power is vested in Government alone and not in a minor official. It is unlikely that adverse remarks over a number of years remain uncommunicated and yet they are made the primary basis of action. Such an unlikely situation, if indeed present, may he indicative of malice in law. We may mention in this connection that the remedy provided by Article 226 of the Constitution is no less an important safeguard. Even with its well known constraints, the remedy is an effective check against mala fide, perverse or arbitrary action.
At this state, we think it appropriate to append a note of clarification. What is normally required to be communicated is adverse remarks, not every remark comment or observation made in the confidential rolls. There may be any number of remarks, observations and comments, which do not constitute adverse remarks, but are yet relevant for the purpose of F.R. 56(i) or a Rule corresponding to ii. The object and purposes for which this power is to be exercised are well settled in J.N. Sinha and other decisions referred supra.
28. Besides the aforesaid settled legal position enunciated by Hon'ble Apex Court in preceding paragraphs of this judgement, we cannot fail to take notice of the provisions of the Uttar Pradesh Government Servants (Disposal of Representation against Adverse Annual Confidential Reports and Allied Matters) Rules, 1995 (hereinafter referred as Rules 1995). Rule 4 of which provides detail provisions regarding the communication of adverse reports and procedure for disposal of representation. Rule 5 of which inter alia deals with the effect or impact of failure to communicate the adverse remarks or disposal of representation against such an adverse report as under:
Rule 4: Communication of adverse report and procedure for disposal of representation.-(1) Where a report in respect of a Government servant is adverse or critical, wholly or in part, hereinafter referred to as adverse report, the whole of the report shall he communicated in writing to the Government servant concerned by the accepting authority or by an officer not below the rank of reporting authority nominated in this behalf by the accepting authority within a period of 45 days from the date of recording the report and a certificate to this effect shall be recorded in the report.
(2) A Government servant may, within a period of 45 days from the date of communication of adverse report under Sub-rule (I), represent in writing directly and also through proper channel to the authority one rank above the accepting authority itself, against the adverse report so communicated:
Provided that if the competent authority or the accepting authority, as the case may be is satisfied that the Government servant concerned had sufficient cause for not submitting the representation within the said period, he may allow a further period of 45 days for submission of such representation.
(3) The competent authority or the accepting authority as the case may be, shall, within a period not exceeding one week from the date of receipt of the representation under Sub-rule (2) transmit the representation to the appropriate authority, who has recorded the adverse report, for his comments, who shall, within a period not exceeding 45 days from the date of receipt of the representation, furnish his comments to the competent authority or the accepting authority, as the case may be :
Provided that no such comments shall be required if the appropriate authority has ceased to he in, or has retired from the service or is under suspension before sending his comments.
(4) The competent authority or the accepting authority as the case may be, shall within a period of 120 days from the date of expiry if 45 days specified in Sub-rule (3), consider the representation along with the comments of the appropriate authority and if no comments have been received without waiting for the comments, and pass speaking orders
(a) rejecting the representation : or
(b) expunging the adverse report wholly or partly as he considers proper.
(5) Where the competent authority due to any administrative reasons, is unable to dispose of the representation within the period specified in Sub-rule (4), he shall report in this regard to his higher authority, who shall pass ch orders as he considers proper for ensuring disposal of the representation within the specified period.
(6) An order passed under Sub-rule (4) shall be communicated in writing to the Government servant concerned.
(7) Where an order expunging the adverse report is passed under Sub-rule (4), the competent authority or the accepting authority, as the case may be shall omit the report so expunged.
(8) The order passed under Sub-rule (4) shall be final.
(9) Where any matter for-
(i) communication of an adverse report.
(ii) representation against an adverse report.
(iii) transmission of representation to the appropriate authority for his comments.
(iv) comments of the appropriate authority; or
(v) Disposal of representation against an adverse report, is pending on the date of the commencement of these rules, such matters shall he dealt with and disposed of within the period prescribed therefor under this rule.
Explanation. -In computing the period prescribed under this rule for any matters specified in this sub-rule, the period already expired on the date of the commencement of these rules shall not be taken into account.
5. Report not to be treated adverse.-- Except as provided in Rule 56 of the Uttar Pradesh Fundamental Rules contained in Financial Handbook Volume 11. Parts II to IV, where an adverse report is not communicated or a representation against an adverse report has not been disposed of in accordance with Rule 4, such report shall not be treated adverse for the purposes of promotion, crossing of Efficiency Bar and other service matters of the Government servant concerned.
29. From a careful consideration of the aforesaid provisions of Rules 1995 it is clear that a time frame schedule has been provided in the aforesaid rules under which the Government servant is required to be communicated with the adverse report in his/her A.C.R. entitling the Government servant to make representation thereon to the competent authority and who in turn is obliged to dispose of the such representation of Government servant, failing which except under Rule 56(c) of Uttar Pradesh Fundamental Rules contained in Financial Handbook Volume 2 Part II to IV where an adverse report is not communicated or representation against an adverse report has not been disposed of in accordance with Rule 4. such report shall not be treated as adverse for the purpose of promotion, crossing of efficiency bar and other service matters of Government servant concerned. It is also noteworthy that Rule 2 of the said rules has made the provisions of said rules having overriding effect upon the other service rules or government orders. Thus it is clear that while making the aforesaid Rules 1995, the rule making authority has consciously excluded Rule 56(c) of U.P. Fundamental Rules from its operation, which goes to clearly suggest that even if the adverse remarks are not communicated or the representation against such adverse report has not been disposed of by the competent authority even then the Appointing Authority is required to consider such adverse remarks under the said rules and if such adverse reports furnish sufficient materials the Screening Committee or Review Committee and/or Appointing Authority can form opinion to retire Government servants compulsorily and on that count alone the effect or impact of adverse report cannot be held to have lost its efficacy or effect or any way obliterated or wiped of thereby, therefore, in our considered opinion the action taken under Rule 56(c) of U.P. Fundamental Rule cannot be attacked on that ground and cannot be said to be vitiated under law on that count for the aforesaid reasons also. Thus. there can be no scope for doubt to hold that the order passed under Rule 56(c) can neither be challenged on the ground that adverse report was not communicated nor on the ground that the representation against such adverse report was not decided by the competent authority rather kept pending before such authority.
30. Similarly in view of aforesaid discussions, we are of the considered opinion that the impugned order of compulsory retirement of petitioner passed by I.G Registration cannot be held to be vitiated under law on account of failure to decide appeal or representation by the State Government in spite of fact that on the basis of aforesaid punishment awarded against the petitioner, which was subject matter of aforesaid appeal or representation, the impugned order compulsorily retiring the petitioner was passed by Appointing Authority. In this connection as indicated in preceding paragraphs the learned Counsel for the petitioner has failed to persuade us by pointing out either any statutory provisions of law or case law under which on account of pendency of such appeal before the higher authority or State Government, the exercise of power under Rule 56(c) of U.P. Fundamental Rules could be halted or postponed awaiting disposal of such pending appeal, thus the submissions of learned Counsel for the petitioner appears to be wholly misconceived and cannot be countenanced rather has to be rejected. But that does not mean to say that appellate authority which is State Government in case in question can be permitted to sit idle tied over the matter for such a long time as admittedly the appeal preferred against the punishment awarded by appointing authority has not been decided by appellate authority i.e. State Government for last more than two years and meanwhile during pendency of such appeal the impugned order has been passed while taking into account the punishments awarded by appointing authority/competent disciplinary authority against the petitioner, therefore, we are constrained to express our strong displeasure about such state of affairs prevalent with the bureaucratic machinery of the State Government. We suggest that except the application of Rule 5 of Rules 1995 the application of provisions of said Rules should also be extended with necessary modification in connection of disposal of pending appeal and/or revision and/or representations against the penalties awarded by Disciplinary Authority by higher authorities and officer responsible in this regard may also be held accountable for committing any default like provisions contained in Rule 7 of the aforesaid Rules in connection of failure to communication of adverse report and disposal of representation against such adverse report and we are also of the considered opinion that the Government servant whose case has to be considered by Screening or Review Committee on attaining the age of 50 years for the purpose of his compulsory retirement, if any punishment has been awarded against him and he has already preferred appeal or revision before the higher authority including the State Government the same may be decided by such authority within a period of three months from the date from which such appeal or revision or representation is preferred and atleast one month earlier to his matter has to be considered by Review or Screening Committee, if the punishments/penalties were awarded in recent past prior to his case is required to be considered for compulsory retirement otherwise such lethargic approach on the part of appellate or revisional authority would unnecessary multiply the litigations of which State Government would also be a party before the courts proceeding. Thus in our considered opinion, to shorten the litigation, this exercise should be completed by the Government functionaries within a time frame, which would be conducive to maintain efficiency in the administration and also be in the larger public interest otherwise in such a state of affairs the court would examine the action of State functionaries from the angle of its being arbitrary and/or malafide.
31. In view of the aforesaid discussions, since the law on the question of malafide as enunciated hereinbefore has not been much crystallised earlier and learned Counsel for the petitioner could not address the court on this aspect of the matter so as to demonstrate any arbitrariness and malafide on the part of Appointing Authority, therefore, we are not inclined to examine the issue from the angle of malafide or malice in law in given facts and circumstances of the case but at the same time we are constraint to hold that such state action is highly deplorable and we strongly deprecate it, In given facts and circumstances of the case, the State Government is directed to decide pending appeal of the petitioner within a period of three months from the date of production of certified copy of this order before the I.G. Registration, U.P. Allahabad as well as concerned Secretary to the Government of U.P. In case the petitioner succeeds in appeal, his case shall he considered or reviewed again by Screening Committee and Appointing Authority within a period of two months thereafter
32. With the aforesaid observations and directions, the writ petition stands disposed of finally.
The Registrar General, High Court, Allahabad is directed to send a copy of this order to the Principal Secretary, Law/Legal Remembrances, Government of U.P. and Secretary, Karmic, Government of U.P. for necessary action.