Allahabad High Court
Chandra Shekhar Singh vs State Of U.P. And Anr. on 20 December, 2000
Equivalent citations: (2001)2UPLBEC1100
Author: Pradeep Kant
Bench: Pradeep Kant
JUDGMENT Pradeep Kant, J.
1. The petitioner, who was working in the Forest Department of the Government of U.P., being aggrieved by an order of compulsory retirement dated 15th February, 1992 purported to be passed in exercise of power under Fundamental Rules 56-C, has approached this Court under Article 226 of the Constitution of India.
2. The petitioner was initially appointed as Forest Ranger on 1.4.1967 and thereafter he was promoted to the next higher post of Assistant Conservator of Forests vide order dated 14.7.1978. The petitioner was also selected for promotion to the post of Assistant Conservator of Forests by the Public Service Commission, U.P. and in view of the selection he was continuing on the said post. The order of compulsory retirement dated 15.2.1992 is contained in Annexure-1 to the writ petition which reads that the petitioner is being retired 'in public interest'.
3. Learned Counsel for the petitioner while putting his challenge to the order of compulsory retirement submitted that the order is per se bad, as it cannot be said to have been passed in public interest nor the record of the petitioner's service indicates that there was any material before the appointing authority to reach to a conclusion that the petitioner has lost his utility in service and has turned out to be dead wood so as to oust him from service. Further submission is that since the order of compulsory retirement is not based on objective consideration of the character roll entries and achievement of the petitioner in service, the said order cannot be sustained. Further argument is that weightage has been given to the character roll entries of remote past and the fact of crossing Efficiency Bar after the previous adverse entries and the later entries which were not adverse have not been given due weightage. Learned Counsel for the petitioner also urged that the petitioner's integrity has been certified throughout which constitute one of the major factor in considering the case of compulsory retirement, but the appointing authority has not given any consideration to the said fact. Apart from this, we have been taken through the adverse entries of various years to indicate that the petitioner has been placed in category 'good' but even then such entries have been taken to be adverse and the entries which are advisory in nature have also been relied upon for the purpose of retiring the petitioner compulsorily.
4. In response to the arguments of the petitioner, learned State Counsel submitted that the overall assessment of the record has to be taken into consideration under F.R. 56-C and thus crossing of Efficiency Bar would not wipe out the effect of the adverse entries which existed prior to it. Learned State Counsel also urged that it was on the basis of the material which has been indicated in the counter-affidavit that the decision has been taken to retire the petitioner compulsorily and the decision of compulsory retirement being based on material, no fault can be found out in that. As a corollary, the insufficiency of material cannot be looked into and the case in hand not being a case of no material at all, interference in the order of compulsory retirement is not warranted.
5. Learned Counsel for the petitioner has placed reliance upon the case of Satya Pal Singh v. State of U.P. and Ors., 1998 SCD 238, Dr. Girish Bihari v. State of U.P. and Ors., 1982 L & I.C. 1500, Brij Mohan Singh Chopra v. State of Punjab, AIR 1987 SC 948, Ram Ekbal v. State of Bihar, AIR 1990 SC 1368, Baldeo Raj v. Union of India, AIR 1981 SC 70, Baidya Nath Mohapatra v. State of Orissa, AIR 1989 SC 2218, Baikunth Nath Das and Anr. v. Chief District Medical Officer, Baripada and Anr.. In the case of Baldeo Raj v. Union of India (supra), the Supreme Court observed that an officer whose continuous service for 14 years crossing the efficiency bar and receiving the maximum salary in the scale with not adverse entries atleast for five years immediately before the compulsory retirement could not be cashiered on the score that long years ago, his performance had been poor, although his superiors had allowed him to cross the efficiency bar without claims. The order of compulsory retirement failed because vital material, relevant to the decision, had been ignored arid absolute material, less relevant to the decision, had influenced the decision. The Apex Court further observed that the exercise of power must be bonafide and promote public interest. In the case of Satya Pal Singh (supra) a Division Bench of this Court relying upon the judgment passed by the Apex Court in Gyan Singh Mann v. High Court of Punjab & Haryana and Anr., AIR 1980 SC 1994, made the following observations :
"The Supreme Court observations extracted above indicate that the authority who has to ultimately decide whether or not to retire a Government servant, with the passage of years prematurely ceased to possess the standard of efficiency, competence and utility required of him. The decision has to be bona fide and not capricious, honest and not malicious. It has to be based on overall assessment of the employee's work and conduct which is necessarily reflected in his service record including the Character Roll entries. These entries are to be read and appreciated in the light of the principles laid down by the Supreme Court in its various decisions. Some of the principles for example, are that while scrutinizing the character roll entries of an employee, due weight and significance should be given to more recent entries. Entries which are remote past of an employee should not form the basis of an order of compulsory retirement if the employee has functioned smoothly and efficiently thereafter and earned good entries or promotions and has or has been allowed to cross the Efficiency Bar in due course."
6. In the above case, the petitioner was allowed to cross the efficiency bar in 1978 and it was held that one the petitioner was allowed to cross efficiency bar, the earlier adverse entry, namely, adverse entry, for the year 1972-73 lost its relevance particularly when the petitioner was again allowed to cross the efficiency bar in 1981.
7. Reliance has also been placed upon the case of State of Gujarat v. Suryakant Chunnital Shah, (1999) 1 SCC 529. The Apex Court while dealing with a case of compulsory retirement observed that public interest in relation to public administration means that only honest and efficient persons are to be retained in service while dishonest, corrupt and dead wood to be dispensed with. In Para 24 of the report it has been observed as follows :
"The performance of a Government servant is reflected in the annual character roll entries and, therefore, one of the methods for 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 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 Government servant cannot be said to be efficient. Efficiency is a bundle of sticks of personal assets, thickest of which is the stick of' integrity'. If this is missing, the whole bundle would disperse. A Government servant has, therefore, to keep his belt tight." In Para 25 the Apex Court further observed as follows:
"Purpose of adverse entries is primarily to forewarn the Government servant is mend his ways and to improve his performance. This is why, it is required to communicate the adverse entries so that the Government servant to whom the adverse entry is given, may have either opportunity to explain his conduct so as to show that the adverse entry was wholly uncalled for, or to silently brood over the matter and on being convinced that his previous conduct justified such an entry, to improve his performance."
8. Learned State Counsel, on the other hand, relied upon the case of State of Punjab v. Gurdas Singh, (1998) 4 SCC 92. This matter arose out of an order of compulsory retirement passed under the Punjab Civil Services (Premature Retirement) Rules, 1975. The Supreme Court, in this case, on a consideration of the aforesaid Rules observed that 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 in to 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 un-communicated adverse entries as well.
9. Reliance has also been placed upon the case of H.G. Venkatachaliah Setty v. Union of India and other, (1997) 11 SCC 366. In this case the order of compulsory retirement was passed under Rule 2046 (h) (i) of the Railway Establishment Code. The Supreme Court rejected the plea of mala fide and also rejected the plea that adverse entries awarded prior to the promotion could not have been looked into. On the question of retiring a Government servant on the basis of a solitary adverse remarks, the Apex Court observed that the question whether the action for compulsory retirement should be taken on the basis of the solitary adverse entry has to be considered on the facts of each case. In the said case the solitary adverse entry was with respect to the integrity of the employee although preceded by promotion was taken to be sufficient for ordering compulsory retirement.
10. Learned State Counsel also relied upon the case of Union of India v. V.P. Seth and Anr., AIR 1994 SC 1261, in support of his contention that uncommunicated adverse entries in the service record of the Government servant can be considered while passing the order of compulsory retirement. Reliance has also been placed upon the case of Baikunth Nath Das and Anr. v. Chief District Medical Officer, Baripada and Anr., (1992) 2 SCC 299. The last case cited by the learned State Counsel is Secretary to the Government, Harijan and Tribal Welfare Department, Bhubaneshwar (Orissa) and another, 1993 Supp (2) SCC 391. This case again dealt with the rules applicable to Orissa. In this case incumbent was subjected to several departmental inquiries and was placed under suspension for about nine years and a large amount of money was recovered in disciplinary proceedings. The Supreme Court observed that merely on the ground that certain uncommunicated remark was also taken into consideration cannot be a ground for quashing the compulsory retirement. All these cases relate to either the Rules applicable in the State of Punjab or in the Department of Railways or in the State of Orissa. The Rule as applicable to the employees of the State of U.P. was not the subject matter of consideration in these cases.
11. In the case in hand a counter affidavit has been filed in which in para 17 the following material has been stated to have been relied upon for judging that the petitioner should be retired compulsorily in public interest. Para-17 is being quoted below:
"17. That in reply to the contents of Para 15 of the writ petition, it is stated that the petitioner was promoted as Assistant Conservator of Forest on ad hoc basis on 14. 7. 1978. After promotion, the petitioner got adverse entries, which were given and communicated are described below :
(i) 1978-79 communicated vide P.C.C.F's letter dated 9.11.1979.
(ii) 1980-81 communicated vide P.C.C.F's letter dated 2. 2. 1982.
(iii) 1982-83 communicated vide P.C.C.F's letter dated 8. 9.1983 and 16. 6. 1984.
(iv) 1983-84 communicated vide P.C.C.F's letter dated 28.9.1984.
(v) 1986-87 communicated vide P.C.C.F's letter dated 11.9.87.
(vi) 1989-90 communicated,
(vii) The petitioner was awarded adverse entry for the year 1988-89 by the Reporting Authority but it was modified by the Reviewing Authority.
The copies of the same are being annexed as Annexures A-2, 3, 4, 5, 6 and 7 to this affidavit. It is also pertinent to say that the petitioner also got the several adverse entries when he was Range Officer."
12. All these entries have been brought on record. The adverse entry of 1978- 79 indicates that the petitioner has been put in the category 'good' and his integrity has been certified. Likewise, in the year 1980-81 also he has been categorized as . good' and integrity has been certified. In 1982-83 Column of category has been left blank but the integrity has been certified. In all the aforesaid three entries his public relations have been found good. So far as the entry of the year 1983-84 is concerned, his public relations have been shown as good and his integrity has been certified but he has been rated in the category 'fair'. In the year 1986-87 public relations have been shown as average and though his integrity has been certified but he has been put in the category 'poor'. In the year 1989-90 public relations have been shown good, integrity has been certified and he has been put in the category 'good' again. The entries of the later years upto the date of retirement have not been indicated by either of the parties which necessarily raise a presumption that those entries were not adverse and were good. A bare reading of the aforesaid entries would indicate that the petitioner has been categorized as 'good' in the years 1977-78, 1978-79, 1980-81, 1989-90 whereas the categorization has not been done in the year 1982-83 and he has been rated as 'fair' in the year 1983-84 and there is one entry of 'poor' in the year 1986-87. The integrity of the petitioner was, however, certified throughout even in the year when he has been rated as 'fair' or 'poor'. It is not understandable as to how the entries of 1978-79, 1980-81, 1982-83 and 1989-90 can be termed as adverse entries when the petitioner has been put in the category 'good'. So far as the entry of the year 1983-84 is concerned, he has been rated as 'fair' and that also cannot be taken to be adverse for the purposes of compulsory retirement. The solitary entry which remains and can be termed as adverse is that of the year 1986-87 in which year the petitioner has been awarded 'poor' entry. The petitioner has been allowed to cross the efficiency bar vide order dated 23.7.1986 with effect from 1.9.1986 and, therefore, the entries prior to the aforesaid period, if taken into consideration, could not have been given undue weightage in retiring the petitioner compulsorily. With respect to the entry of the year 1986-87, learned Counsel for the petitioner drew our attention to Column 1, 2-B part, 4 part, 6 part, 7, 8, 9 and 11 of the adverse entry indicated the following :
(i) Swasthya Sthiti-Samanya 2 (kha) Parishrami tatha Kartavyanishtha -Parishrami hain parantu kartavyanishtha men kami hai. (5) Jansanipark-Mridubhashi evam vyavhar kushal hain. Jansampark sainanya raha.
(ii) Pramanpara (ka) Satyanishtha-Pramanit
13. For not attending the duties at Taria Range, it has been submitted that on the basis of the complaints made by the petitioner combing at Taria Range took, place and on he same day, Assistant Conservator of Forests enquired the matter in his report dated 1.2.1987. He submitted that such illicit felling of trees have been taking place with the collusion of Range Officers of Taria Range and the same has been confirmed by the Divisional Forest Officer vide D.O. dated 1.2.1987. In this regard reports submitted by the petitioner vide letter dated 1.2.1987, report of the Assistant Conservator of Forests, Obra and the petitioner's letter dated 7.2.1987, 7.2.1987 and 22.2.1987 have been taken in support by the petitioner. The latter of Chetavani of Van Sanrakshak dated 13.10.1987 has also been taken note of. On the strength of these representations and reports of the petitioner and the higher officers, the petitioner has submitted that there was reasonable ground for the petitioner not to report for duty at Taria Range because there was danger to his life.
14. Apart from this, it has been stated in aforesaid Para 17 that the petitioner was awarded adverse entries while he was working as Range Officer. The entries have not been detailed and as such the vague and bald allegations cannot be accepted that the petitioner was having any adverse entry so as to warrant his compulsory retirement. The petitioner was admittedly promoted on 14.7.1978 as Assistant Conservator of Forests from the post of Range Officer and, therefore, even if some entry existed at the time of his working as Range Officer, it could not have been made the basis for compulsorily retiring the petitioner and in case such a material has been taken into consideration that itself vitiates the decision of the appointing authority.
15. It is sufficient to note that in the entry of the year 1989-90, the petitioner has been found fit for promotion, as such without considering the effect of such remarks the appointing authority could not have passed the order of compulsory retirement. It is the cumulative effect of the service record which is to be objectively scrutinized by the appointing authority for deciding as to whether the Government servant has lost his utility and has become a dead wood or not. The entries of the years 1978-79, 1980-81, 1982-83, 1983-84 which overall categories the petitioner as 'good' and his integrity has been certified throughout could not have been termed as adverse for the purpose of compulsorily retiring the petitioner. The entries awarded to the petitioner prior to his promotion as Assistant Conservator of Forests, which promotion was made on 14.7.1978 could also not have been relied upon, as the same was wholly irrelevant material, which, if taken into consideration vitiates the order. The entry for the year 1989-90 is also good with integrity certified and finds the petitioner fit for promotion to the next higher post. If the petitioner has been found fit for promotion in the year 1989-90 on the higher post then in what circumstances the said entry could be treated as adverse for the purpose of compulsory retirement could not be explained by the learned State Counsel. This brings us to only one adverse entry of the year 1986-87 which is for the period commencing from 1.4.1986 to 31.3.1987 whereas the petitioner was allowed to cross the efficiency bar with effect from 1.9.1986. Since the compulsory retirement on the basis of the solitary entry has to be decided on the facts of each case, it was incumbent upon the appointing authority to consider this aspect of the matter along with the explanation of the petitioner giving reasons because of which the petitioner could not perform his duties upto the mark. It has been stated in the writ petition that the petitioner was selected for promotion on the post of Assistant Conservator of Forests by the Public Service Commission and the candidates who could not qualify for promotion were reverted to the post of Range Officer whereas the petitioner was allowed to continue on the higher post of Assistant Conservator of Forests. In the case of State of Gujarat v. Suryakant Chunnital Shah (supra), the Apex Court observed that if the character of roll of the employee is studded with adverse entries or the over all categorization of the employee is poor and there is material also to cast doubts upon his integrity, such a Government servant cannot be said to be efficient. Great emphasis has been put upon the 'integrity' of the Government servant. From, the record, we find that barring the entry of the year 1986-87, the other entries relied upon cannot be taken to be adverse material for the purpose of compulsorily retiring the petitioner. So far as the one entry of the year 1986-97 is concerned, that also, in our opinion, in the given facts and circumstances of the case, could not have been made the basis of compulsory retirement, the petitioner having been found fit for promotion for the next higher post of Assistant Conservator of Forests as reflected by the entry for the year 1989-90 and having not only been selected for the post by the Public Service Commission but was also permitted to continue on the said higher post till the date of his compulsory retirement with no adverse entry to. his credit thereafter. Obviously, these facts establish that the petitioner had not lost his utility in service and was not a dead wood. After the adverse entry for the year 1986-87, no adverse material has been brought on record by the State nor has been produced before us. So far as the entries for the years 1987-88, 1988-89, 1989-90, 1990-91 are concerned, these entries we have found not to be adverse material for the purpose of compulsory retirement. The subsequent entries after 1986-87 has thus not been given any weight in consideration by the appointing authority nor the fact that the petitioner was found fit for promotion in the year 1989-90 has been considered.
16. For the reasons stated above, we are on the opinion that there was no material with the appointing authority to form an opinion against the petitioner so as to retire him compulsorily and the material relied upon was neither relevant nor could constitute adverse material against the petitioner.
17. The order of compulsory retirement of the petitioner dated 15.2.1992 contained in Annexure-1 to the writ petition is thus hereby quashed. Let a writ of certiorari be issued accordingly. The petitioner shall also be entitled to all consequential benefits. The writ petition is allowed. No order as to costs.