1. Heard Sri Pramendra Kumar Singh, learned counsel for the petitioner and Sri Shailendra Kumar Singh, learned Chief Standing Counsel-III for the State-respondents.
2. At the outset, learned counsel for the petitioner has submitted that the petitioner does not want to press the relief No.v, as prayed for by way of amendment, which is as under:-
"(v) to issue a writ, order or direction in the nature of 'certiorari' quashing the order dated 27.03.2002, passed by the opposite party No.3, as contained in Annexure No.3 to the writ petition, with all consequential benefits."
By means of which, the order of punishment dated 27.03.2002 has been assailed, therefore, petitioner is permitted to not press the relief No.v. Accordingly, this Court is not dealing with the aforesaid relief.
3. The petitioner has impeached the order dated 20/21.09.2002, passed by the Collector/ District Magistrate, Faizabad, opposite party No.3, whereby the petitioner has been compulsorily retired from service invoking the provisions of Fundamental Rule 56 (c) of the Financial Hand Book, Vol.-II, Part-2 to 4.
4. The brief facts of the case are that the petitioner was initially appointed as Seasonal Collection Amin in the year 1970 in Tehsil-Sadar, District-Faizabad and after completion of satisfactory service of seven years, he was regularised on the said post with effect from 01.01.1977. After completion of satisfactory service of ten years the services of the petitioner were confirmed in the year 1980 by the Appointing Authority i.e. the opposite party No.3. The petitioner regularly received his increments and was allowed to cross the efficiency bar vide order dated 12.06.1984 passed by the Sub-Divisional Officer, Tehsil-Sohawal, District-Faizabad-opposite party No.4 and again crossed efficiency bar vide order dated 25.06.1992, passed by the Sub-Divisional Officer, Tehsil-Sohawal, District-Faizabad-opposite party No.4 with effect from 01.01.1992.
5. As per learned counsel for the petitioner, the petitioner was given promotional pay-scale of Rs.1200-2040 vide order dated 08.03.1995. It has further been submitted that on the basis of recommendation of Vth Pay Commission, the pay of the petitioner was revised and on 01.01.1996 it was fixed at Rs.4100/- , on 01.03.1997 it was fixed at Rs.4200/- and on 01.03.1998 it was fixed at Rs.4300/- by orders being passed by the opposite party No.4.
6. Learned counsel for the petitioner has drawn attention of this Court towards order dated 14.09.1998, which is annexed as Annexure No.SA-1 with the application for interim relief filed on 12.01.1995 to show that the District Magistrate, Faizabad provided promotional pay-scale to 33 Collections Amins serving at District-Faizabad including the petitioner, whose name find place at serial no.15 in the said list. The aforesaid order categorically provides that considering the fact that these Collections Amins have discharged their six years satisfactory service in the selection grade, therefore, they have been provided promotional pay scale.
7. As per learned counsel for the petitioner, the impugned compulsory retirement order dated 20/21.09.2002 has been passed in a sear, illegal, arbitrary and unwarranted manner inasmuch as the work and performance of the petitioner was upto the mark, his integrity has always been certified, he has received all service benefits e.g. selection grade and promotional pay-scale etc. and crossed efficiency bar from time to time, therefore, the impugned compulsory retirement order is illegal and unwarranted.
8. Learned counsel for the petitioner has also submitted that there were no proper material with the department to pass compulsory retirement order inasmuch as for passing of the compulsory retirement order the authority concerned must have examined the entire service record of the incumbent and until and unless the service record of the incumbent is blotted with the various punishments, may be major punishment or minor punishment or adverse material, the order of compulsory retirement may not be passed. To the best of information of the petitioner, his service record was not blemished to convince the Competent Authority to issue the compulsory retirement order.
9. As per learned counsel for the petitioner, the impugned compulsory retirement order has been passed in a mechanical manner without considering the adverse material in the service record of the petitioner and without having any subjective satisfaction thereon.
10. Per contra, learned Chief Standing Counsel-III has drawn attention of this Court towards the counter affidavit filed on 05.01.2004 therewith the authority concerned has enclosed the report of Screening Committee as Annexure No.CA-2. The perusal thereof reveals that the petitioner was awarded a reprimand entry in the year 1993-94 and was awarded adverse entry in the year 2001-02. The learned Chief Standing Counsel-III for the State-respondents has submitted that on the basis of the aforesaid two entries the petitioner was compulsorily retired. It has also been submitted by the learned Chief Standing Counsel-III that on the basis of the aforesaid two entries, and more particularly the adverse entry in the year 2001-02, the compulsory retirement could have been passed. The learned Chief Standing Counsel-III has vehemently submitted that a single adverse entry would be sufficient to convince the Competent Authority to pass the order of compulsory retirement.
11. Learned counsel for the petitioner has categorically denied the contention of learned Chief Standing Counsel-III so far as the submission in respect of adverse entry in the year 2001-02 is concerned. Learned counsel for the petitioner has submitted with vehemence that in his entire service career, the petitioner has not been awarded any adverse entry to the best of his knowledge. So far as reprimand entry in the year 1993-94 is concerned, it has been submitted by learned counsel for the petitioner that on the basis of single reprimand entry the order of compulsory retirement should have not been passed and more so since the petitioner has been provided the promotional pay-scale in the year 1998 by the Competent Authority considering his six years satisfactory service in the selection grade, therefore, the aforesaid reprimand entry should not be the criteria for passing the order of compulsory retirement.
12. Since learned counsel for the petitioner has submitted that no adverse entry was awarded to the petitioner in his entire service career whereas the Screening Committee has considered one adverse entry in the year 2001-02, therefore, this Court directed for production of original records by means of order dated 13.11.2018.
13. In compliance of order of this Court, the original records were produced and perusal thereof would reveal that no adverse entry was awarded to the petitioner in the year 2001-02. However, for that year, the petitioner was awarded censure entry vide order dated 27.03.2002 issued by the Collector, District-Faizabad, which is contained as Annexure No.3 to the writ petition. However, vide order dated 27.03.2002 besides censure entry the order of withholding three increments of salary for three years has been passed. The petitioner has challenged the aforesaid order dated 27.03.2002 before the Commissioner, Faizabad Division, Faizabad by filing representation. Admittedly, the aforesaid representation has not been disposed of by the Competent Authority i.e. the Commissioner, Faizabad Division, Faizabad on merits, however, the District Magistrate, Faizabad intimated the petitioner that since the aforesaid representation was preferred by the petitioner directly to the Commissioner, whereas it should have been filed through proper channel, therefore, the said representation has not been decided. In any case, the fact remains that the petitioner has challenged the punishment order before the Competent Authority by filing representation and that representation has not been decided.
14, Learned counsel for the petitioner has submitted that since the petitioner has preferred a representation before the Competent Authority challenging the punishment order and that representation has not been decided till date, therefore, the censure entry so awarded against him by means of the aforesaid punishment order, may not be read.
15. The perusal of the original record reveals that no adverse entry has been awarded to the petitioner in his entire service career, therefore, consideration of the adverse entry for the year 2001-02 by the Screening Committee is absolutely unwarranted and uncalled for. Further, on the basis of material available in the service record of the petitioner, the order of compulsory retirement appears to be uncalled for.
16. Learned counsel for the petitioner has submitted that there was one more identically placed person, namely, Sri Jagannath Prasad Shukla, who was also awarded compulsory retirement on the basis of report of the Screening Committee, as name of Sri Jagannath Prasad Shukla find place at serial No.5 in the Screening Committee report. Sri Jagannath Prasad Shukla had filed writ petition bearing Writ Petition No.5615 (S/S) of 2002 before this Hon'ble Court challenging the order of compulsory retirement and this Court vide judgment and order dated 07.07.2006 quashed the order of compulsory retirement and directed the authority concerned to reinstate that petitioner in service if he has not attained the age of superannuation and if he has attained the age of superannuation, that petitioner be paid all consequential service benefits strictly in accordance with law. The operative portion of the judgment and order dated 07.07.2006 is being reproduced here-in-below:-
"Under the circumstances, I find it is a fit case for interference by this Court and accordingly I hereby quash the impugned order dated 20/21.09.2002, the compulsory retirement of the petitioner from services by issuing a writ of certiorari and a writ of mandamus is issued to reinstate the petitioner in service if he has not attained the age of superannuation and if he has attained the age of superannuation a direction is issued to the respondents to give all consequential benefits which are payable to him as he was in service till the age of superannuation and also release the retrial benefits in favour of the petitioner.
Writ petition is allowed. No order as to costs."
17. I have perused the judgment and order dated 07.07.2006 passed in Writ Petition No.5615(S/S) of 2002; Jagannath Prasad Shukla vs. State of U.P. & others and find that the compulsory retirement order against Sri Shukla was also issued on 20/21.09.2002 when the order of compulsory retirement was passed against the petitioner.
18. Learned counsel for the petitioner has also submitted that despite the order of compulsory retirement being passed on 20/21.09.2002 the petitioner has not been paid anything pursuant to the said order. Taking strong exception out of the said inaction on the part of the opposite parties the specific affidavit to that effect was called by this Court vide order dated 28.11.2018 and the Sub-Divisional Magistrate, Tehsil-Sohawal, District-Ayodhya filed an affidavit dated 10.12.2018 apprising that the petitioner himself has not turned up to complete all the necessary formalities so that the retiral benefits could be paid to him. However, learned counsel for the petitioner has submitted that the petitioner has never been called by the Competent Authority for completing necessary formalities. As a matter of fact, as submitted by learned counsel for the petitioner, since the petitioner has filed this writ petition challenging the order of compulsory retirement, the authorities concerned kept mum and were waiting final outcome of this writ petition. Be that as it may, if the petitioner was compulsorily retired in the year 2002, the authorities concerned should have taken serious endeavour to make payment of all his dues pursuant to the order of compulsory retirement, but it appears that no serious efforts have been taken by the authorities.
19. In the light of what has been considered above, it would be necessary to consider some relevant decisions of Hon'ble Apex Court on the subject so as to arrive at appropriate conclusion.
20. The Hon'ble Apex Court in the case of State of Gujarat and another vs. Suryakant Chunilal Shah reported in MANU/SC/0761/1998: (1999) 1 SCC 529 has held that the judicial scrutiny of any order imposing premature compulsory retirement is permissible if the order is either arbitrary or malafide or if it is based on no evidence. It has further been held that the performance of the government servant is reflected in the Annual Character Roll entries and, therefore, one of the methods of discerning the efficiency, honesty or integrity of a government servant is to look at his character roll entries for the whole tenure from the inception to the date on which the decision for his compulsory retirement is taken.
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21. By means of the aforesaid judgment, the Hon'ble Apex Court has interpreted the term "public interest". As per the Hon'ble Apex Court, the "public interest" is the primary consideration for issuing the order of compulsory retirement inasmuch as only honest and efficient persons are to be retained in service while dishonest, corrupt and the dead wood should be dispensed with. Efficiency and honesty is to be assessed on the basis of material on record, of which confidential reports are an important input and integrity of the employee should not be doubtful. The relevant paras of the aforesaid judgment are paras-19, 20, 22, 23 & 24, which are being reproduced here-in-below:-
"19. The Court, however, added that the opinion must be based on the material on record otherwise it would amount to arbitrary or colorable exercise of power. It was also held that the decision to compulsorily retire an employee can, therefore, be challenged on the ground that requisite opinion was based on no evidence or had not been formed or the decision was based on collateral grounds or that it was an arbitrary decision.
20. In. S.R. Venkataraman vs. Union of India. (1979) 2 SCC 491, this Court held the order of compulsory retirement as a gross abuse of power as there was nothing on the record to justify and support the order.
22. Baikuntha Nath's case (supra) was considered by this Court in M.S. Bindra vs. Union of India & Ors. JT 1998 (6) SC 34 and it was laid down as under:
'Judicial scrutiny of any order imposing premature compulsory retirement is permissible if the order is either arbitrary or mala fide or if it is based on no evidence. The observation that principles of natural justice have no place in the conext of compulsory retirement does not mean that if the version of the delinquent officer is necessary to reach the correct conclusion the same can be obviated on the assumption that other materials alone need be looked into.' It was further observed as under:
'13. While viewing this case from the next angle for judicial scrutiny, i.e. want of evidence or material to reach such a conclusion, we may add that want of any material is almost equivalent to the next situation that form the available materials no reasonable man would reach such a conclusion.'
23. In order, therefore, to find out whether any Govt. servant has outlived his utility and is to be compulsorily retired in public interest for maintaining an efficient administration, an objective view of overall performance of that Govt. servant has to be taken before deciding, after he has attained the age of 50 years, either to retain him further in service or to dispense with his services in public interest, by giving him three months' notice or pay in lieu thereof.
24. The performance of a Govt. servant is reflected in the annual character roll entries and, therefore, one of the methods of discerning the efficiency, honesty of integrity of a Govt. servant is to look to his character roll entries for the whole tenure from the inception to the date on which decision for his compulsory retirement is taken. It is obvious that if the character roll is studded with adverse entries or the overall categorization of the employee is poor and there is material also to cast doubts upon his integrity, such a Govt. servant cannot be said to be efficient. Efficiency is a bundle of sticks of personal assets, thickest of which is the stick of "Integrity". It this is missing the whole bundle would disperse. A Govt. servant has, therefore, to keep his belt tight."
22. The Hon'ble Apex Court in re: S. Ramachandra Raju vs. State of Orissa reported in 1994 (Supp.) (3) SCC 424 has held that the subjective satisfaction must be based on adverse material of the incumbent. The relevant para of the aforesaid judgment is para-8, which is being reproduced here-in-below:-
"8. In Baikuntha Nath Das vs. Chief District Medical Officer, MANU/SC/0193/1992 : [1992] 2 SCC 299, a bench of three Judges of this Court was to consider whether Uncommunicated adverse remarks would be considered to order compulsory retirement. This court considering the scope of Fundamental Rule 56(j) on the anvil of administrative law, held that the order of compulsory retirement has to be passed on forming the opinion that it is in the public interest to retire a government servant compulsorily Though the order is passed on the subjective satisfaction of the government, tie government or the Review Committee 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 so considered would naturally include the entries in the confidential records Character rolls, both favourable and adverse. The order of compulsory retirement is not liable to be quashed on mere showing that while passing it uncommunicated adverse remarks were taken into consideration. Further this does not mean that judicial scrutiny is excluded altogether. Though the court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is mala fide or passed on no evidence or that is arbitrary, in the sense that no reasonable person would form the requisite opinion or the given material, in short, if it is found to be a perverse order, the remedy under Article 226 is an important safeguard, since the remedy is an effective check against arbitrary, mala fide or perverse actions."
23. Learned Chief Standing Counsel-III has referred the judgment of Hon'ble Apex Court in re: Rajasthan State Road Transport Corporation and others vs. Babu Lal Jangir reported in MANU/SC/0940/2013 : 2013 (1) SCC 551; submitting that the order of compulsory retirement is not punitive or stigmatic order and the judicial scrutiny is not permissible. Though the aforesaid order of the Hon'ble Apex Court has been cited against the petitioner but by means of the aforesaid judgment of Hon'ble Apex Court the entire law in respect of compulsory retirement has been examined and the relevant dictums of Hon'ble Apex Court has been considered and referred. By means of the aforesaid judgment of the Hon'ble Apex Court, the settled proposition of law in re: Baikuntha Nath Das vs. District Medical Officer reported in MANU/SC/0193/1992 (1992) 2 SCC 299 has been considered.
24. Learned Additional Chief Standing Counsel-III has also drawn attention of this Court towards the judgment of Hon'ble Apex Court in re: State of Punjab vs. Gurdas Singh reported in (1998) 4 SCC 92 submitting that if any adverse remarks is prior to the promotion of an incumbent, that remarks may be taken into consideration in case of compulsory retirement of an incumbent. With utmost respect of the aforesaid judgment of the Hon'ble Apex Court, I find that the facts and circumstances of the case in hand are different from the cited judgment, therefore, it would not apply in this case.
25. In the light of the aforesaid settled proposition of law by Hon'ble Apex Court and also in the light of the facts and circumstances of the instant case, this Court is unable to comprehend as to how the material against the petitioner was examined by the Screening Committee inasmuch as there was no adverse entry against the petitioner in his entire service record but the Screening Committee has considered the censure entry of the petitioner for the year 2001-02 as adverse entry. Needless to say that there is a lot of difference between 'adverse entry' and the 'censure entry' and if the authority concerned has termed censure entry as adverse entry, it means that the Screening Committee has not applied his judicious mind while considering the adverse material against the petitioner available in his service record. Further, the representation so preferred by the petitioner against the punishment order whereby the censure entry has been awarded to the petitioner, has not been decided by the authority concerned on merits, therefore, the said averse material should not have been considered by the Screening Committee unless any suitable decision is taken by the Competent Authority, i.e. the Commissioner of the Division in the instant case. Besides, this Court in an identical circumstances set aside the compulsory retirement order of one Sri Jagannath Prasad Shukla against whom the compulsory retirement order was issued on the same date i.e. 20./21.09.2002 when the order of compulsory retirement order was issued against the petitioner.
26. Keeping in a view what has been discussed above, I would observe that although the purpose of FR 56 was to weed out worthless employees without punitive extremes, if, under the guise of "public interest", an order of premature retirement is made for any other purpose, it would be the surest menace to public interest and the order must fail for unreasonableness, arbitrariness and "disguised dismissal".
27. Therefore, the recommendation against the petitioner in the instant case to make compulsory retirement is not simplicitor but is punitive in nature and resultantly, the order of compulsory retirement which has been issued pursuant to the aforesaid recommendation against the petitioner cannot be sustained in the eyes of law.
28. In the light of the facts and circumstances of the issue, I find that the impugned order of compulsory retirement dated 20/21.09.2002, passed by the Collector, Faizabad is a punitive order and the same cannot be said to be a simpliciter order besides, being issued without application of judicious mind and without considering the adverse material of service record of the petitioner properly and strictly in accordance with law. Therefore, such order of compulsory retirement cannot be sustained in the eyes of law being illegal, arbitrary, unwarranted and the same would be termed as disguised dismissal.
29. In view of the foregoing discussions, the writ petition deserves to be allowed. The writ petition is, therefore, allowed. The writ in the nature of certiorari is issued quashing the order dated 20/21.09.2002, passed by the Collector, Faizabad, which is contained as Annexure No.1 to the writ petition.
30. Since the petitioner has already retired from service, therefore, the authorities are directed to provide all consequential benefits to the petitioner treating him in continuous service with effect from the date of issuance of compulsory retirement order i.e. 20/21.09.2002 till the actual date of his superannuation. The petitioner shall also be paid 50% back wages, as arrears of salary for the aforesaid period.
31. The compliance of this order shall be made by the Collector, Faizabad (opposite party No.3) within a period of three months from the date of production of certified copy of this order.
32. No order as to costs.
Order Date :-December 19 , 2018 Suresh/ [Rajesh Singh Chauhan, J.]