Chattisgarh High Court
Chhattisgarh State Renewable Energy ... vs Amritlal on 29 September, 2022
Author: Parth Prateem Sahu
Bench: Arup Kumar Goswami, Parth Prateem Sahu
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WA No. 459 of 2021
1. Chhattisgarh State Renewable Energy Development Agency
(CREDA) Through Its Chief Executive Officer, Core Office,
State Electricity Regulatory Commission Building, Second
Floor, Irrigation Colony, Shanti Nagar, Raipur (CG)
2. The Director, Chhattisgarh State Renewable Energy
Development Agency (CREDA), State Electricity Regulatory
Commission Building, Second Floor, Irrigation Colony, Shanti
Nagar, Raipur Chhattisgarh
3. The Executive Engineer, Chhattisgarh State Renewable
Energy Development Agency (CREDA), Oorja Park,
Rajkishore Nagar, Bilaspur Chhattisgarh
4. The Assistant Engineer, Creda District Office, Near Balmandir,
Annapurna Vihar, B- Type Qtrs., CSEB Colony, Jailgaon
Chowk, Darri, Korba (West), District Korba Chhattisgarh
---- Appellants
Versus
Amritlal S/o Late Shri Anand Ram, Aged About 47 Years R/o
Phase 1/18, Ashok Vihar Colony, Chantidih, Bilaspur
Chhattisgarh, District : Bilaspur, Chhattisgarh
---- Respondent
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For Appellants : Mr. Ranbir Singh Marhas, Advocate
For Respondent : Mr. N. Naha Roy, Advocate
Judgment reserved on 13/7/2022
Judgment delivered on 29/09/2022
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2
Hon'ble Shri Arup Kumar Goswami, CJ
Hon'ble Shri Parth Prateem Sahu, J
CAV ORDER
Per Parth Prateem Sahu, J
1. Challenge in this writ appeal is to the order dated 01.11.2021 passed in WPS No.2303/2012 by which learned Single Judge allowed writ petition filed by respondent-employee and quashed the order dated 8.9.2011 compulsorily retiring the respondent No.1 from service.
2. Facts relevant for disposal of this writ appeal are that on 23.3.1990 respondent employee was appointed as 'Mechanic' in the then Madhya Pradesh Energy Development Corporation Limited. After reorganization of the State of Madhya Pradesh, services of petitioner were allocated to the State of Chhattisgarh. Respondent employee was sent on deputation to Chhattisgarh State Renewable Energy Development Agency (for short 'CREDA'). While working in CREDA, respondent was served with notice dated 9.6.2011 intimating him that he shall stand retired compulsorily from service w.e.f. 8.9.2011. Respondent submitted representation to the Director, CREDA against the said notice of compulsory retirement. Respondent retired compulsorily on 8.9.2011 vide Annexure P-1. Feeling aggrieved by the order of compulsory retirement, the respondent-employee preferred writ petition 3 bearing WPS No.2303/2012 seeking following relief:-
"10.1. Issue an appropriate writ and quash the impugned order dated 08.09.2011 (Annexure P/1) passed by the respondent No.2 herein. 10.2. Issue an appropriate writ and direct the respondents to reinstate the petitioner in his service.
10.3. Issue an appropriate writ and grant all consequential benefits to the petitioner pursuant to his reinstatement in service. 10.4. Grant any other relief, which is deemed fit in the facts and circumstances of the case."
3. The grounds raised in writ petition were that action of the respondent authority in passing order of compulsory retirement (Annexure P-1) is arbitrary and illegal. The order of compulsory retirement is passed under Rule 21.1 of the Chhattisgarh State Renewable Energy Development Agency Employees/Officers Recruitment, Conditions of Service (Classification and Appeal) Rules, 2004 (for short 'the Rules of 2004') which grants unbridled powers to the respondent employer, hence it is not sustainable in law. Petitioner employee was having unblemished service record of last 20 years, except issuance of a notice as he was graded below benchmark i.e. 'C' grade, in his annual confidential report, which was premeditated. Remarks made in ACR are stigmatic in nature and therefore the order of compulsory retirement could not have been passed without holding proper departmental inquiry.
4. Pleadings made in writ petition were controverted by respondents therein by pleading in their reply that the order of 4 compulsory retirement (Annexure P-1) was passed in accordance with the Rules of 2004. Respondents have invoked provisions of Rule 21.1 and complied with all perquisites for passing the order of compulsory retirement. The entire period of 20 years of service of petitioner employee was taken into consideration and only thereafter notice of compulsory retirement dated 9.6.2011 was issued. Rule 56 of the Fundamental Rules provides for evaluation of those employees who have completed 20 years of service and 50 years of age. The norms for considering and evaluating an employee before initiating any action under Rule 21.1 of the Rules of 2004, are also prescribed. Upon evaluation of entire record of service of 20 years of petitioner, he was awarded only '1.2' Grading by the Screening Committee. Decision taken by the respondents and the order of compulsory retirement of petitioner employee is based on impartial, honest and bonafide exercise. There is no allegation or charge or imputation against the petitioner employee to say that the order of compulsory retirement is stigmatic in nature. It was also pleaded that the petitioner employee was not present in the office during entire working hours.
Petitioner submitted rejoinder to reply filed by respondents denying new facts pleaded in reply against his act and conduct.
5. Learned Single Judge considering the pleadings brought on record by respective parties, documents placed on record in 5 writ petition as also submissions of learned counsel for both sides, recorded finding that action taken by respondents of compulsorily retiring the petitioner from service is arbitrary, perverse and contrary to the principles laid down by Hon'ble Supreme Court in case of Baikuntha Nath Das & another V. Chief District Medical Officer, Baripada & another reported in (1992) 2 SCC 299 and accordingly quashed the order of compulsory retirement dated 8.9.2011. It is this order which is assailed in this writ appeal by the appellant employer.
6. Learned counsel for appellant would submit that the learned Single Judge erred in setting aside the order of compulsory retirement passed strictly in accordance with Rule 21.1 of the Rules of 2004, warranting no interference in exercise of extraordinary writ jurisdiction under Article 226 of the Constitution of India. He further submits that even after recording that powers conferred to the authority under Rule 21.1 of the Rules of 2004 cannot be held to be unbridled and unguided powers, had allowed writ petition and therefore the order passed by the learned Single Judge is unsustainable in the eyes of law. The order of compulsory retirement is not a punishment nor it involves any civil consequences. In view of the fact that the Screening Committee after considering the entire service record of the respondent employee, awarded him less than '2' marks, the order of compulsory retirement of respondent from service cannot be said to be, an arbitrary exercise of powers. He contended that the learned Single 6 Judge only took note of the fact that respondent had not faced any departmental inquiry in his entire service tenure and that, his integrity was not doubted. The learned Single Judge failed to take into account efficiency of respondent-employee in discharging his duty. There is no specific pleading or material to show that decision taken by appellants was actuated by mala fide consideration. In support of his contentions, he places reliance on the decision of Hon'ble Supreme Court in case of Dev Dutt vs. Union of India, reported in (2008) 8 SCC 725.
7. On the other hand, learned counsel for the respondent supported the order passed by the learned Single Judge and submitted that perusal of the order Annexure P-1 would go to show that the authority competent to pass order of compulsory retirement of respondent from service had not applied his mind. In fact, the Competent Authority had only considered report / recommendation of the Screening Committee, there was no independent application of mind by Competent Authority before passing the order of compulsory retirement. Respondent was never communicated any deficiency or shortcoming in relation to his performance. He also contended that after passing of the order impugned by learned Single Judge, the appellants have reinstated the respondent in service vide order dated 9.12.2021 and therefore now the appellants cannot be permitted to challenge the order which has already been partially complied with by them, that too, 7 before expiry of the period of limitation of appeal. In support of his contention, he relied upon decisions of Hon'ble Supreme Court in case of Rajesh Gupta vs. State of Jharkhand & other, reported in (2013) 3 SCC 514.
8. We have heard learned counsel for the both sides and perused the record of writ appeal and writ petition as well.
9. The order of compulsory retirement of respondent herein was passed in exercise of powers under Rule 21.1 of the Rules of 2004. Under Rule 21.1 of the Rules of 2004, it is prescribed that, any employee having completed 20 years of service and attained 50 years of age, can be considered for compulsory retirement by the Screening Committee, as provided in Circular dated 12.1.2001. In case at hand, the Screening Committee after evaluating record of entire service period of respondent, recommended for his compulsory retirement from service. The Competent Authority based upon report/ recommendation of the Screening Committee, gave its approval and thereafter on 9.6.2011 three months' notice was issued followed by the order of compulsory retirement on 8.9.2011. Report of the Screening Committee would show that the Screening Committee had considered entire service period of 20 years of petitioner/ respondent in accordance with Rule 22.1 of the Rules of 2004.
10.Learned Single Judge took note of the Circular issued for reviewing the records of an employee who had completed 20 years and 50 years of age. The Screening Committee, 8 considering the service record of respondent employee from the year 1990-91 to 2009-10 and 1.2 marks given to respondent which is less than 'good' or 'average', in its meeting dated 18.5.2011 held as under;-
"32. Reverting to the facts of the present case in the light of the aforesaid principles of law laid down by their Lordships qua the scope of judicial review in the order of compulsory retirement, it is quite vivid that the petitioner's case for premature retirement was taken for review by the screening committee in its last meeting dated 18-5-2011 and on the basis of the circular dated 12-1-2001, he was given total 24 marks for20 years and it came to 1.2, and according to the screening committee, he secured grading "less than good" and his last five years grading was also held to be in descending order, but apart from that,in paragraphs 3 & 4 of the report of the screening committee, the petitioner's absence from duty was noticed and one or two advisories(notices) were also issued to him for improving his performance. However, it is appropriate to notice here that the petitioner was never subjected to any adverse remarks, if any, during his service tenure, particularly in last five years, though he has only been subjected to some advisories vide Annexures R-10, R-11 and P-7 to improve his performance. As such, his performance is found to be less than good or it can be, at the best, said to be unsatisfactory, but his integrity was never doubted by the respondents either in the screening committee report or by the competent authority in its report or in its order, as he was never subjected to departmental enquiry in his entire service period of 20 years and 9 he was never imposed with any minor or major penalty during his service tenure under the relevant conduct rules. Thus, on the basis of mere unsatisfactory performance, the petitioner has been subject to the order of compulsory retirement.
33.The Supreme Court in Suryakant Chunilal Shah's case (supra) has clearly held that if overall categorization of employee is poor or if his character roll is studded with adverse entries and there is material also to cast doubts upon his integrity, such government servant cannot be said to be efficient.
34. Similarly, in R.C. Mishra's case (supra), the Supreme Court has held that integrity of the respondent (therein) was not doubtful or questioned, merely on the basis of unsatisfactory performance, the concerned government servant could be retained in service at least in the lower post, and the order of compulsory retirement set aside by the High Court was maintained by their Lordships of the Supreme Court."
11. Learned Single Judge recorded that the Competent Authority has not recorded subjective satisfaction which is sine qua non for issuing notice of three months for compulsory retiring any employee. It is further observed that the order of compulsory retirement was issued straightaway without examining materials available on record to find out whether case of compulsory retirement is made or not against the respondent employee. Learned Single Judge quashed the order of compulsory retirement of respondent employee giving following findings;-
"36. In view of the aforesaid legal analysis, in the considered opinion of this Court, the 10 order of compulsory retirement is only based on the alleged unsatisfactory performance of the petitioner for the qualifying service period of 20 years and it is not the case of the respondents that his integrity is doubtful or questionable. Moreover, the petitioner was never subjected to any departmental enquiry and was never inflicted with any minor or major penalty under the conduct rules applicable to him i.e. the Rules of 2004 and he was found to be "less than good" in the grading given by the screening committee. As such, merely on the basis of alleged unsatisfactory performance which was subject to improvement, the petitioner has been compulsorily retired and it is based upon the sole recommendation of the screening committee without examining the material on record, particularly when the petitioner's integrity was even not doubted and he was never subjected to any kind of major or minor punishment during his entire service career, the competent authority could not have passed the order of compulsory retirement without weighing pros and cons and balancing the public interest as against the individual interest. It is totally based on no evidence, arbitrary, mala fide and extraneous consideration and is covered by the principle of law laid down by the Supreme Court in Baikuntha Nath Das (supra) {paragraph 34(iii)} and no reasonable person would form requisite opinion on the given material to retire an employee compulsorily, thus, it suffers from perversity. Accordingly, the order of compulsory retirement of the petitioner passed by respondent No.1 is hereby quashed. Respondent No.1 is directed to reinstate the petitioner with all consequential service benefits including back-wages forthwith."11
12. Proceeding dated 18.5.2011 (Annexure R-6) would show that the Screening Committee considered requirement of Rule 21.1 of the Rules of 2004, Rule 56 of Chhattisgarh Fundamental Rules and Rule 42 (b) of the Chhattisgarh Civil Services (Pension) Rules, 1976 (for short 'the Rules of 1976'). Rule 21.1 of the Rules of 2004 says that any employee under the CREDA, who has completed 20 years of service or 50 years of age, whichever is earlier, can be compulsorily retired by the appointing authority by giving three months' prior notice. Rule 42 (b) of the Rules of 1976 is extracted below for ready reference:-
"(b) The appointing authority may in the public interest require a government servant to retire from service at any time after he has completed 25 years' qualifying service with the approval of the State Government by giving him three months' notice in Form 29.
Provided that such Government servant may be retired forthwith and on such retirement the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rate at which he was drawing immediately before his retirement or, for the period by which such notice falls short of three months."
13. So far as ground taken in writ petition that the provision under Rule 21.1 gives unbridled powers to the employer is concerned, learned Single Judge considering that the respondent employer relied upon the guidelines issued by the State Government dated 12.1.2001 and judgment of Hon'ble Supreme Court in National 12 Aviation Company of India v. S.M.K. Khan, reported in (2009) 5 SCC 732, held that it cannot be said that Rule 21.1 of the Rules of 2004 gives unbridled and unguided powers to the competent authority to retire a government servant.
14.Now it is to be seen whether the order of compulsory retirement of respondent employee was in accordance with law. Learned Single Judge recorded that Rule 21.1 of the Rules of 2004 and the guidelines issued by the State Government dated 12.1.2001, based on earlier Circular dated 22.8.2000, was relied upon. From the above finding recorded by learned Single Judge and not challenged, we also say that while drawing proceedings, Rule 21.1 and the guidelines were considered.
15. Now it is to be seen whether the order of compulsory retirement passed vide Annexure P-1 is arbitrary, mala fide and based on no material.
16. The order dated 8.9.2011 ( Annexure P-1) is an order passed by respondent No.2 under the provisions of Rule 21.1 of the Rules of 2004 read with Rule 42 of the M.P. Civil Services (Pension) Rules, 1976 based on recommendation of the Screening Committee. This order is passed after giving three months' prior notice of compulsory retirement to respondent employee. Copy of notice dated 9.6.2011 is filed as Annexure P-7 to writ petition, in which the Competent Authority -cum- Director of CREDA had reproduced findings recorded by the Screening Committee. Contents of notice of compulsory retirement (Annexure P-7 to writ petition) reveal that all the material available on record was 13 considered by the Authority while issuing notice for compulsory retirement and after expiry of three months' notice period, the order of compulsory retirement of respondent employee was passed. Proceedings of the Screening Committee i.e. minutes of meeting dated 18.5.2011 and 18.11.2010, are available on record as Annexure R-6 collectively. Perusal of these proceedings reveals that Review Committee in its Meeting dated 18.5.2011 considered annual confidential reports of the entire service period of 20 years of respondent employee, which are also extracted by learned Single Judge in Paragraph-28 of the order impugned. The Review Committee also taken into consideration Circular dated 12.1.2001 of the General Administration Department containing guidelines for assessment of the entire service record for the purpose of compulsory retirement; upon assessment of the entire service record of respondent-employee by the Screening Committee, respondent got grading 'below good'. The Screening Committee had further taken note of complaint made by superior officers of respondent for the period from 1.7.2009 to 30.4.2010 during which petitioner was not present in the office for full working hours of a day.
17. The law on the issue of 'compulsory retirement' is now well settled. In case of Baikuntha Nath Das (supra) the Hon'ble Supreme Court in Para-34 laid down following principles relating to compulsory retirement;-
34.The following principles emerge from the above discussion:
14
(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.15
(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."
18. In the above decision, Hon'ble Supreme in clause (iii) had observed that High Court or Supreme Court would not examine the matter of compulsory retirement as an appellate Court, the Courts can interfere only if they are satisfied that the order passed is mala fide, it is based on no evidence or; it is arbitrary. It was further observed that order of compulsory retirement is not liable to be quashed by the Court merely on showing that while passing it, uncommunicated adverse remarks were also taken into consideration.
19. In case of S.M.K. Khan (supra), Hon'ble Supreme Court considered effect of non-mention of words "not in the interest of the institution" or "service not of utility to the employer", as in the aforementioned ruling, the Regulation in question provided that no reason need be assigned for compulsory retirement. Hon'ble Supreme Court further considered that 'public interest' would be replaced by 'institutional interest' or 'utility to the employer' where the employer is statutory authority or government company and held thus;-
"23.The learned counsel for the respondent next 16 submitted that recourse to "compulsory retirement"
should be only in "public interest"; and that in this case, as neither the Regulations nor the order of compulsory retirement referred to public interest, the compulsory retirement was vitiated. This contention has no merit. "Public interest" is used in the context of compulsory retirement of government servants while considering service under the State. The concept of public interest would get replaced by "institutional interest" or "utility to the employer"
where the employer is a statutory authority or a government company and not the Government. When the performance of an employee is inefficient or his service is unsatisfactory, it is prejudicial or detrimental to the interest of the institution and is of no utility to the employer. Therefore compulsory retirement can be resorted to (on a review of the service on completion of specified years of service or reaching a specified age) in terms of the relevant rules or regulations, where retention is not in the interests of the institution or of utility to the employer. It is however not necessary to use the words "not in the interests of the institution" or "service not of utility to the employer" in the order of compulsory retirement as the Regulation provides that no reason need be assigned."
20. In case of Nandkumar Kumar Verma Vs. State of Jharkhand & others, reported in (2012) 3 SCC 580, Hon'ble Supreme Court held that formation of opinion for compulsory retirement is based on subjective satisfaction of the authority concerned but such satisfaction must be based on valid material.
21. In case of S. Ramchandra Raju Vs. State of Orissa, reported in (1994) Suppl. 3 SCC 424, Hon'ble Supreme Court held that 17 the Court may not interfere with exercise of such bona fide exercise of power, but the Court has power and duty to exercise power of judicial review not as a Court of appeal but in its exercise of judicial review to consider whether power has been properly exercise or is arbitrary or vitiated either by mala fide or actuated by extraneous considerations in retiring a government officer compulsorily from service.
22. The learned Single Judge while allowing writ petition took note of the fact that Screening Committee considered that respondent employee secured grading 'below good'; his last five years gradings were also in descending order. After this, learned writ Court recorded that integrity of respondent was never doubted and he was never subjected to departmental inquiry in his entire service period of 20 years, and accordingly held that, merely on the basis of alleged unsatisfactory performance, which was subject to improvements, petitioner/respondent herein has been compulsorily retired from service solely on the basis of recommendation of Screening Committee, without examining material available on record. For arriving aforesaid conclusion, learned Single Judge had taken aid of decision of Hon'ble Supreme Court in case of Nand Kumar Verma (supra) wherein Hon'ble Supreme Court has found that the employer had not faithfully extracted contents of ACRs and totality of relevant materials was not considered or completely ignored. On the basis of discrepancy noted by Hon'ble Supreme Court in ACRs, which 18 were taken note of by the employer for compulsorily retiring appellant therein and copies of ACRs obtained under the Right to Information Act, 2005 from the employer, it was held that there was no justification to retire the appellant compulsorily from service.
23. The facts of above decision of Hon'ble Supreme Court relied upon by learned Single Judge while allowing writ petition of respondent herein, are different from the facts of present case. Similarly, decision of Hon'ble Supreme Court in State of Gujarat Vs. Suryakant Chunnilal Shah (1999) 1 SCC 529 is also distinguishable on facts. In that case, consideration was involvement of employee in two criminal cases and in such circumstance, Hon'ble Supreme Court has held that mere involvement of a person in criminal case does not mean that he is guilty. He is still to be tried in the Court of law and truth has to be found out ultimately by Court where prosecution is conducted. It would be highly improper to deprive a person of his livelihood merely on the basis of his alleged involvement. It was further held that mere involvement in a criminal case would constitute relevant material for compulsory retirement or not would depend upon the circumstances of each case and the nature of offence allegedly committed by the employee.
Likewise, decision of Hon'ble Supreme Court in case of S. Ramachandra Raju (supra), relied upon by learned Single Judge while allowing writ petition of respondent, is also distinguishable on facts. In this case, the Principal of college 19 submitted adverse report against appellant therein for the year 1987-88. On 5.12.1988 the Government expunged adverse remarks for the year 1987-88. Another Principal in his report dated 13.5.1989 for the year 1988-89 stated that appellant 's knowledge on the subject is good and he is very responsible and disciplined teacher. Consideration for retiring appellant compulsorily from service was gross adverse remarks for the period 1.4.1987 to 29.2.1988 and recommendation of the Screening Committee. In these circumstances, Hon'ble Supreme Court has held that exercise of power by the Government falls in the category of arbitrary exercise of powers as it failed to take total record of service into consideration objectively. It was also considered that appellant was promoted as Reader after the adverse report for the year 1987-88.
24. Other decision of Hon'ble Supreme Court in case of Union of India vs. UC Mishra, reported in (2003) 9 SCC 217, relied upon by learned writ Court, is also on different facts. In that case, Tribunal while considering challenge made to the order of compulsory retirement, had considered the rules contained in the Indian Railway Establishment Manual, Vol-II and Instructions contained in Letter No.E (P&A) L-77/RT-53 dated 15.11.1979, and allowed original application and set aside the order of compulsory retirement. The High Court while considering challenge made to the order of Tribunal affirmed the order passed by Tribunal and dismissed writ petition. Hon'ble 20 Supreme Court considering the order passed by Tribunal and High Court as also submission of counsel for respondent employee that the order of compulsory retirement was passed without following elaborated guidelines and instructions dated 15.11.1979, had passed the order of compulsory retirement, held thus:-
"5.In the impugned order it is further noticed that the Committee reviewed the cases of a few doctors including the respondent and found that they had earned unsatisfactory CRs for the last 10 years. It is on the basis of the unsatisfactory performance they recommended their cases to the Railway Board for their premature retirement. It is also recorded in order of Tribunal that the Committee had not drawn any other proceedings except what is stated above. It is not the case of the appellants that the integrity of the respondent was doubtful or questionable. All that is said against the respondent is that his services were unsatisfactory and he was inefficient. If that be so, as rightly pointed out by the Tribunal the authorities should have considered the case of the respondent whether he could be retained in service in a lower post from which he was promoted to a higher post. If a person was found inefficient in a promoted post, he could be retained in service at least in the lower post. This is one of the requirements of the instructions aforementioned. It is clear from the records that no such consideration was made before the order of compulsory retirement was passed./..."
Hon'ble Supreme Court further considered that specific allegations of mala fide against appellant No.3 therein was also made by respondent employee, which were not denied or refuted. In the said facts of the case, Hon'ble Supreme Court 21 dismissed appeal filed by the employer. In case at hand, as discussed by learned Single Judge in Para-28, appellant employer had considered the entire service period of petitioner, evaluated the points earned in entire service period based on guidelines as prescribed by the State Government and thereafter the Screening Committee recommended for compulsory retirement of respondent employee. It is not the case of respondent employee that any of guidelines or instruction prescribed for assessing efficiency of any employee by the Screening Committee was not followed.
25. As per above decisions of Hon'ble Supreme Court, which were considered by learned Single Judge in the impugned order, it is manifest that the power of High Court is not an appellate power, but interference can be made in exercise of power of judicial review only in certain circumstances as described by Hon'ble Supreme Court in case of Baikuntha Nath Das (supra). Correctness of decision making authority based on subjective satisfaction is not to be substituted by the Court unless and until the grounds raised by an employee make out a case of mala fide; decision based on no evidence or it is arbitrary.
26. Upon perusal of the proceedings of Screening Committee and considerations made by it for recommending compulsory retirement of respondent, we find that neither of three circumstances, as held by Hon'ble Supreme Court, exist in case at hand to invalidate the order of compulsory retirement.
27. The Screening Committee constituted in terms of Rule 42 (b) of 22 the Rules of 1976 and Rule 56 of the Fundamental Rules of which the Director of CREDA is the Chairman. Proceedings of Screening Committee were forwarded to the Competent Authority and after receiving letter of approval dated 8.9.2011 for compulsorily retiring respondent employee, three months' notice for compulsory retirement was issued on 9.6.2011, which is mentioned in the order dated 8.9.2011 (Annexure P-1) i.e. order of compulsory retirement of petitioner. Respondent No.2, who had issued order Annexure P-1, was the Chairman of Screening Committee. Reasons assigned for allowing writ petition by learned Single Judge are; integrity of petitioner- employee is not doubtful or questionable, he was not subjected to any departmental inquiry and he was compulsorily retired only on the basis of his alleged unsatisfactory performance. Said finding recorded by learned Single Judge is not in conformity with the principles laid down by Hon'ble Supreme Court in case of Baikuntha Nath Das (supra) and SMK Khan (Supra). Learned counsel for respondent herein has not made any submission of any mala fide against the members of Screening Committee or Competent Authority or the authority who had issued notice and order of compulsory retirement. As held by Hon'ble Supreme Court, the entire service record of respondent employee was evaluated by the Screening Committee, as deliberated in meeting of Screening Committee dated 18.5.2011 (Annexure R-6).
28. Decision in case of Rajesh Gupta (Supra) relied upon by 23 learned counsel for respondent employee is distinguishable on facts. In that case, appellant was posted as Assistant Engineer, he was promoted to the post of Assistant Executive Engineer and during his posting on promoted post, three criminal cases came to be registered against him. During investigation, allegations made in three FIRs were found to be "not proved". In one FIR there was however recommendation to initiate departmental action against appellant and other erring officers. No departmental action was ever taken against appellant. Subsequently, appellant was again promoted to the post of Executive Engineer, which was not given effect to and action of respondent employer was put to challenge. Writ petition filed by appellant was allowed and he was permitted to join on promoted post of Executive Engineer. While performing duty as Executive Engineer, he was required to recommend sanctioning of technical approval to the construction works. Writ Court considered that appellant therein had a spotless service record throughout 24 years and in spite of having blame free record of service, he was directed to be prematurely retire. Hon'ble Supreme Court came to the conclusion that the Enquiry Officer's notes in earlier part of the order indicate that at best appellant acted in a casual and haphazard manner in the management of record and such negligence on the part of appellant cannot per se lead to conclusion that appellant was acting in such a manner with ulterior motive. It is in the aforementioned facts of the case, Hon'ble Supreme Court held that the order passed by the State Government suffers from 24 vice of arbitrariness.
29. For the foregoing discussions and reasons, we do not concur with the findings recorded by the learned Single Judge while interfering with the order of compulsory retirement of respondent employee and therefore, the order of learned Single Judge is liable to be set aside.
30. We do not find any force in the submission of learned counsel for respondent that as the order passed by learned Single Judge has been complied with by appellants herein by reinstating respondent in service, therefore, this writ appeal is not maintainable. A copy of order dated 9.12.2021 reinstating respondent in service is filed by learned counsel for respondent along with Covering Memo dated 28.6.2022. In Para-2 of the order dated 9.12.2021 it is specifically mentioned by appellants that an appeal against the order dated 1.11.2021 is to be filed by appellants and all consequential benefits of the order shall be subject to outcome of appeal. Hence, it is manifest that decision was already taken by appellant employer to challenge the order of learned Single Judge by filing an appeal under the provisions of the Chhattisgarh High Court (Appeal to Division Bench) Rules, 2006 before issuance of order dated 1.112021 and therefore, in the order dated 9.12.2021 the entitlement of benefits of respondent was made subject to final outcome of appeal to be filed. In these circumstances, reinstatement of respondent in compliance of the order impugned of learned Single Judge will not render this writ appeal as not 25 maintainable.
31. Accordingly, writ appeal is allowed; impugned order dated 01.11.2021 (Annexure A-1) passed by learned Single Judge is set aside and consequently, writ petition of respondent herein stands dismissed. No order as to costs.
Sd/- Sd/-
(Arup Kumar Goswami) (Parth Prateem Sahu)
Chief Justice Judge
roshan/-