Hon'ble Ashwani Kumar Mishra,J.
(Delivered by Hon'ble Ashwani Kumar Mishra, J) Petitioner is aggrieved by the order dated 9.12.2005 whereby the Commissioner, Trade Tax, U.P., has compulsorily retired him, in public interest, from the post of Trade Tax Officer. The order is based upon recommendation of a review committee constituted as per Government order to assess the service record of all other similarly placed officials who had completed 50 years of age. The review committee found following adverse material against the petitioner:-
(i)Adverse entry for the year 1995-1996.
(ii)Adverse entry for the year 2000-2001
(iii)Adverse entry for the year 2001-2002.
(iv)Withholding of integrity of the petitioner together with adverse entry for the year 2002-2003.
(v) Awarding of censure entry vide order dated 1.5.2001 and withholding of two increments without cumulative effect.
(iv) Order dated 16.3.2004 awarding censure entry and withholding two increments without cumulative effect.
Petitioner claims that the material relied upon against him, in the meeting of the screening committee, is no longer a valid material, in view of the subsequent orders passed by the authority/ courts, and as such, the order of compulsory retirement cannot be sustained.
The instant writ petition was entertained and reply was called from the respondents. On 9.4.2007, the writ petition was got dismissed as withdrawn on a request made by the counsel for the petitioner. Subsequently, an application was filed by the petitioner for recall of the order dated 9.4.2007 contending that the petitioner had withdrawn the writ petition on account of an order of respondent dated 9.3.2007, according to which the petitioner's representation for review, though found to have substance, could not be considered on account of pendency of writ petition and, therefore, the petitioner had withdrawn the writ petition. However, after withdrawl of the writ petition, the order dated 15.6.2009 has been passed holding the representation of the petitioner against the order impugned to be not maintainable. The recall application was contested by the State and ultimately by an order dated 6.2.2014, the order dated 9.4.2007 has been recalled and the writ petition has been restored to its original number. The writ petition has been heard accordingly and is being decided on merits.
We have heard Sri Ashok Khare, learned senior advocate, assisted by Sri Siddharth Khare for the petitioner and Sri Pankaj Rai, learned Additional Chief Standing Counsel appearing for the Respondent-State.
It is contended by the petitioner that the materials relied upon against the petitioner, for passing the order of the compulsory retirement is not sustainable for the following reasons:-
(i)The adverse entry awarded to the petitioner for the year 1995-96 was communicated to the petitioner on 12.6.1997. The petitioner represented against the said entry vide representation dated 23.7.1997. The petitioner has brought on record an order dated 6.8.1998, accordingly to which the Trade Tax Commissioner has partially expunged the adverse observation made against the petitioner for the year 1995-1996. To the extent, petitioner's representation was not accepted, the petitioner filed Claim Petition No. 1397 of 1999, which came to be allowed by the Public Service Tribunal vide judgment and order dated 22.12.2006. Thus, the adverse entry against the petitioner for the year 1995-1996 has been finally expunged by the order of the Trade Tax Commissioner dated 22.8.2007.
(ii)So far as the awarding of adverse entry for the year 2000-2001 is concerned, the petitioner claims to have represented in the matter and ultimately challenged the adverse action by filing Claim Petition No. 936 of 2004, which has been allowed on 8.3.2007 and the adverse remarks against the petitioner for the year has been expunged and the petitioner's integrity has been certified.
(iii)So far as the adverse entry for the year 2001-2002 is concerned, the same was challenged by the petitioner by filing Claim Petition No. 1020 of 2004 which has been allowed by the Tribunal vide judgment dated 9.3.2007 and the adverse part of the entry for the relevant period has been directed by the Tribunal not to be treated as adverse against the petitioner. A consequent order has been passed by the competent authority dated 23.11.2007, expunging the adverse entry of the petitioner for the year 2001-2002.
(iv)It is next contended that the petitioner was awarded censure entry and his increment with cumulative effect was withheld vide order dated 1.5.2001. This was challenged by the petitioner by filing Claim Petition No. 1534 of 2006. The Claim Petition has been allowed and the punishment order has been quashed.
(v)It is also contended that the order dated16.3.2004 awarding censure entry and withholding two increment without cumulative effect was also challenged by the petitioner by way of Claim Petition No. 1477 of 2006. This Claim Petition has been allowed and the orders of punishment have been set aside due to defect in enquiry by granting liberty to the Opp. Parties to proceed with the enquiry from the stage of framing of charge-sheet against the petitioner in accordance with law. The enquiry was also directed to be concluded within 4 months. The consequential order on 27.6.2008 has also been passed.
(vi) So far as the awarding of adverse entry for the year 2002-2003 was concerned, the petitioner preferred the Claim Petition No. 648 of 2007, which was dismissed by the Tribunal vide order dated 29.7.2009 essentially on the ground that the entry for the year 2002-2003 had been acted upon by the respondents for passing the order of compulsory retirement and since the order of compulsory retirement was not under challenge, as such, the Claim Petition has been dismissed.
Sri Khare has submitted that the materials which had been relied upon by the respondent against the petitioner, referred to above, is no longer available. It is, therefore, contended as there was no valid basis available in law to sustain the subjective satisfaction arrived at by the respondents, for passing the order of compulsory retirement, therefore, the same is not sustainable. It has been submitted that since the formation of subjective satisfaction was based on materials which have been found to be legally unsustainable by Court of competent jurisdiction, as such, the satisfaction of the authority is vitiated in law. As the petitioner is to attain the age of superannuation in January, 2015, therefore, it is submitted that the order impugned be set aside and the petitioner be reinstated in service.
Sri Pankaj Rai, appearing for the respondent -State submitted that the respondent had conducted a exercise, to consider retaining of officers in service who are above 50 years by a Committee constituted by the State Government and as the service record of the petitioner was found persistently poor, therefore, a decision to compulsorily retire the petitioner had been taken . Sri Rai further submitted that all the materials and orders which have come into existence, in favour of the petitioner, are after the review committee's report and even after passing of the order of compulsory retirement. It is, therefore, stated that the decision of the review committee in recommending the petitioner's compulsory retirement was based upon material existing on record, at the relevant point of time and the subsequent expunging of entries would not render the recommendation of the review committee bad in law. It has further been contended that withholding of petitioner's integrity and award of adverse entry for the year 2002-2003 still subsists, which itself is sufficient to justify the passing of the order of compulsory retirement. The respondent, therefore, contends that the order of compulsory retirement, passed against the petitioner, does not require any interference.
We have considered the respective submissions of the learned counsel for the parties and also perused the record. An order of compulsory retirement in the instant case has been passed by invoking the provisions contained under Rule -56 (c) of the Financial Hand Book-II, which is being quoted below:-
"56 (c) Notwithstanding anything contained in clause(a) or clause (b), the appointing authority may, at any time by notice to any Government servant ( whether permanent or temporary), without assigning any reason, require him to retire after he attains the age of fifty years or such Government servant may be notice to the appointing authority voluntarily retire at any time after attaining the age of forty five years or after he shall completed qualifying service of twenty years".
The Power of the State to compulsorily retire an employee has been subject matter of consideration by the Apex Court in various decisions. In Baikunth Nath Das and another Vs. Chief District Medical Officer,Baripada and another, (1992) 2 S.C.C. 299, a three judge Bench of the Apex Court examined the law on the subject and the following conclusions were drawn in para-34 thereof which is being quoted 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 29 to 31 above".
It is also settled that even un-communicated adverse entries or the entries against which the representations are pending can also be taken into consideration by the review committee which has to examine the entire service record of the employee, attaching more importance to the later period of his service.
In the case of State of U.P. and others Vs. Vijay Kumar Jain, (2002)3 S.C.C. 641, noticing the provisions of the U.P. Fundamental Rules, it was held as under:
"11. In Union of India vs. J.N. Sinha, 1971 (1) SCR 791, 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.
16. Withholding of integrity of a government employee is a serious matter. In the present case, what we find is that the integrity of the respondent was withheld by an order dated 13.6.1997 and the said entry in the character roll of the respondent was well within ten years of passing of the order of compulsory retirement. During pendency of the writ petition in the High Court, the U.P. Services Tribunal on a claim petition filed by the respondent, shifted the entry from 1997-98 to 1983-84. Shifting of the said entry to a different period or entry going beyond ten years of passing of order of compulsory retirement does not mean that its vigour and sting of the adverse entry is lost. Vigour or sting of an adverse entry is not wiped out merely it is relatable to 11th or 12th years of passing of the order of compulsory retirement. The aforesaid adverse entry which could have been taken into account while considering the case of the respondent for his compulsory retirement from service, was duly considered by the State Government and said single adverse entry in itself was sufficient to compulsorily retire the respondent from service. We are, therefore, of the view that entire service record or confidential report with emphasis on the later entries in the character roll can be taken into account by the government while considering a case for compulsory retirement of a government servant".
In Pyarey Mohan Lal Vs. State of Jharkhand and others, reported in 2010 (10) S.C.C.693, the law on the subject was again reiterated in the context of a judicial officer and it was held that even single adverse entry withholding integrity was enough to impose punishment of compulsory retirement.
In Rajasthan State Road Transport Corporation and others Vs.Babu Lal Jangir (2013) 10 S.C.C. 551, it was emphasized that the subjective satisfaction of the employer for passing an order of compulsory retirement has to be based on holistic view of entire service record. The scope of interference in such matter under Article 226 of the Constitution of India has been summarized in para-27 in following words. Para-27 is being quoted below:-
" 27. It hardly needs to be emphasised that the order of compulsory retirement is neither punitive nor stigmatic. It is based on subjective satisfactin of the employer and a very limited scope of judicial review is available in such cases. Interference is permissible only on the ground of non-application of mind, malafide, perverse, or arbitrary or if there is non-compliance with statutory duty by the statutory authority. Power to retire compulsorily the government servant in terms of service rule is absolute, provided the authority concerned forms a bonafide opinion that compulsory retirement is in public interest. (See posts and telegraphs Board Vs. L.S.N. Murthy).
In light of the law as laid down by the Apex Court, the facts of the present case have been examined by us. It is not disputed that at the time when the review committee examined the case of the petitioner, the successive adverse material for different years were available on record against the petitioner. The review committee at the stage when it proceeded to examine the petitioner's service career, was clearly justified in coming to the conclusion that the petitioner was liable to be compulsorily retired in public interest.
In the facts of the present case, we find that withholding of petitioner's integrity and awarding of adverse entry to him to the year 2002-2003 remain intact. In respect of other entries, which have been expunged under the orders of the Tribunal, it transpires that awarding of the adverse entry for the year 1995-1996 was expunged by the Tribunal on the ground that the petitioner's allegations against the then Deputy Commissioner in the Claim Petition of annoyance and malice was not denied by filing any counter affidavit, the representation of the petitioner against entry was rejected after more than a year, as against the requirement of its disposal within 165 days from the date of communication of entry.
So far as the entry for the year 2000-2001 is concerned, the Tribunal was of the view that the reply submitted by the petitioner ought to have been inquired further and if his statement in the representation was not found correct, then action ought to have been taken but as this was not done, the adverse remarks have been expunged.
So far as the adverse entry awarded to the petitioner for the year 2001-2002 is concerned, the Trubunal accepted the un-controverted plea made in para 4.11 of the Claim Petition that the complaints against petitioner were directly entertained by the Assistant Commissioner, Trade Tax, and were not supplied to the petitioner, therefore, recording of entry regarding complaints vide order dated 11.2.2004 was bad, in law, particularly as the representation has been rejected without passing reasoned and speaking order. The punishment order dated 1.5.2001 has been quashed on the ground that since the warning in character roll is not a punishment prescribed, thus it cannot be awarded. The further order passed in the Claim Petition No. 1477 of 2006 had noticed the defect in enquiry and, therefore, quashed the punishment by permitting fresh enquiry to be conducted.
All these orders have been passed after the petitioner has been compulsorily retired and, therefore, these materials were not available at the time of passing of the order dated 9.12.2005. Even after noticing these subsequent orders passed in favour of petitioner, we still find that the adverse entry against the petitioner as well as withholding of integrity for the year 2002-2003 still remain intact.
In view of the law laid down, referred to above, even a single adverse entry withholding the integrity would be sufficient to sustain an order of compulsory retirement. Moreover, there are no mitigating circumstances available in the present case, in the nature of any subsequent promotion on merit etc. and, therefore, theory of washed off principle is not attracted.
The formation of subjective satisfaction by the State that further continuance in service of petitioner was not in public interest, cannot be said to be perverse or arbitrary. No allegations of malafide have been pleaded either.
In view of the consideration of the entire case, we are of the view that the decision of the reviewing authority and consequential order of compulsory retirement passed against the petitioner, does not suffer from any infirmity in the eyes of law, which may justify interference by this Court in the instant petition.
Consequently, the writ petition fails and is hereby dismissed.
Order Date :- 14th March, 2014 n.u.