Allahabad High Court
Moti Lal Iii vs State Of U.P. Thru' Secy. Appointment ... on 30 August, 2013
Bench: Rakesh Tiwari, Bharat Bhushan
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Court No. - 21 Case :- WRIT - A No. - 45644 of 2005 Petitioner :- Moti Lal III Respondent :- State Of U.P. Thru' Secy. Appointment And Another Counsel for Petitioner :- A.S. Srivastava,Kripa Shanker,Sarita Gupta Counsel for Respondent :- C.S.C.,K.R. Sirohi,Yashwant Verma Hon'ble Rakesh Tiwari,J.
Hon'ble Bharat Bhushan,J.
(Delivered by Hon'ble Bharat Bhushan, J.)
1. The petitioner, a former Judicial Officer of Uttar Pradesh, by means of this writ petition has challenged the order dated 17.5.2005 issued by the appointing authority i.e. His Excellency the Governor (annexed as Annexure-1 to the writ petition) whereby he was compulsorily retired from service under Rule 56(c) of the Uttar Pradesh Fundamental Rules on the recommendations of the High Court of Judicature at Allahabad (hereinafter referred to as the Court).
2. The brief facts giving rise to this petition are enumerated as under :-
The Court formed a high level screening committee comprising of five Hon'ble Judges of this Court with a view to screen the Judicial Officers who had attained the age of 50 years. The Committee took into account the entire material on service record, character roll, or confidential reports of 542 Judicial Officers, who on 31.3.2005 had attained the age of 50 years. The Committee submitted its report dated 2.4.2005 that 28 Judicial Officers including the petitioner be retired compulsorily. The report of the Screening Committee dated 2.4.2005 was placed before the Hon'ble Chief Justice, who directed that the report be placed before the Full Court in its meeting held on 30.4.2005.
3. The Full Court in its unanimous decision recommended compulsory retirement of several judicial officers including the petitioner under Rule 56(c) of the Fundamental Rules. The appointing authority i.e. His Excellency the Governor issued order of compulsory retirement of the petitioner vide its office memorandum dated 17.5.2005. This order is under challenge in this writ petition.
4. It appears that the petitioner had passed several orders in criminal cases arising out of Case Crime No. 115 of 2003 under section 392 IPC Police Station Kaptanganj, District Kushi Nagar. A complaint was made to the Court and after obtaining explanation of the petitioner, he was placed under suspension and a departmental enquiry was initiated. The entire thrust of the petitioner is that he had passed reasonable and logical orders in view of the papers and materials placed before him and no adverse departmental action should have been taken on the basis of perceived wrong orders. It appears that the petitioner believes that he has been compulsorily retired on account of a single lapse.
5. The petitioner has further claimed that overall remarks about his service history are overwhelming in his favour and materials considered for his compulsory retirement are not sufficient for passing of the impugned order. He has further submitted that some of the annual remarks were not in fact adverse and at least one adverse remark said to have been considered for his compulsory retirement had not been communicated to him for explanation.
6. The petitioner has also claimed that Rule-2 of the Judicial Officers (Retirement on Superannuation) Rules, 1992 (hereinafter referred to as "1992 Rules") excludes Rule-56 of the Fundamental Rules. The petitioner has stated that judicial officers of Uttar Pradesh can only be retired after attaining the age of 58 years, if the Court finds that the service record of the judicial officer is not good. He has drawn the attention of this Court to the judgment of Apex Court in the case of All India Judges Association versus Union of India (2002) (4) SCC 247. The petitioner, inter alia, has also challenged the competence of the appointing authority and High Court to compulsory retire the judicial officers of the Uttar Pradesh by exercising their powers under Rule 56 (c) of Fundamental Rules.
7. Heard Ms. Sarita Gupta, learned counsel for the petitioner, learned Standing Counsel and Sri Manish Goyal, learned counsel for the Court.
8. "1992 Rules" were framed pursuant to the directions of the Apex Court passed in "All India Judges Association" (supra) case which enhanced the age of superannuation of the Judicial Officers from 58 years to 60 years. By no stretch of imagination, the enactment of these rules could be seen as deletion of Rule 56(c) of the Fundamental Rules. The compulsory retirement in public interest under Rule 56(c) was in vogue prior to the decision in "All India Judges Association" (supra) case and continued to occupy the field at the time of decision with regard to the petitioner and even today. A careful examination of "1992 Rules" reveals that these rules do not contemplate the deletion of Rule 56(c) of the Fundamental Rules, which provides for compulsory retirement of public servants if in the opinion of the competent authority, the officer has outlived his/her utility and has become deadwood. In fact, in the case of "Nawal Singh vesus State of U.P. 2003 S.C. 4303", the Apex Court specifically held that the Fundamental Rule 56 is applicable to the judicial officers in the State of Uttar Pradesh in the matter of compulsory retirement. For the purpose of clarity, Rule 56 of the Fundamental Rules is reproduced below :
"56. (a) Except as otherwise provided in this Rule, every Government servant other than a Government servant in inferior service shall retire from service on the afternoon of the last day of the month in which he attains the age of fifty eight years. He may be retained in service after the date of compulsory retirement with the sanction of the Government on public grounds which must be recorded in writing, but he must not be retained after the age of 60 years except in very special circumstances.
(b) A Government servant in inferior service shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years. He must not be retained in service after that date, except in very special circumstances and with sanction of the Government.
(c) Notwithstanding anything contained in clause (a) or clause (b), the appointing authority may, at any time by notice to any Government servant (whether permanent or temporary), without assigning any reason, require him to retire after he attains the age of fifty years or such Government servant may by notice to the appointing authority voluntarily retire at any time after attaining the age of forty five years or after he has completed qualifying service of twenty years.
(d) The period of such notice shall be three months:
Provided that.....
(e) A retiring pension shall be payable and other retirement benefits, if any shall be available in accordance with and subject to the provisions of the relevant Rules to every Government servant who retires or is required or allowed to retire under this Rule.
Provided that ....
Explanation: (1) The decision of .. public interest.
(2) In order to be satisfied whether it will be in the public interest to require a Government servant to retire under clause (c) the appointing authority may take into consideration any material relating to the Government servant and nothing herein contained shall be construed to exclude from consideration-
(a) any entries relating to any period before such Government servant was allowed to cross any efficiency bar or before he was promoted to any post in an officiating or substantive capacity or on an ad hoc basis; or
(b) any entry against which a representation is pending, provided that the representation is also taken into consideration along with the entry; or
(c) any report of the Vigilance Establishment constituted under the Uttar Pradesh Vigilance Establishment Act, 1965.
(2-A) Every such decision shall be deemed to have been taken in the public interest.
(3)(4) "
9. As far as "1992 Rules" are concerned, they are related to U.P. Judicial Officers' retirement on superannuation. The submission that effect of Rule-56 of the Fundamental Rules is obliterated after promulgation of 1992 Rules was rejected by the Apex Court in "Nawal Singh (supra) case". The Apex Court has held that:
"Learned counsel for the appellants submitted that Rule 2 would have overriding effect and Rule 56 as a whole would not be applicable to the Judicial Officers. This submission is without any substance. Rule 2 only provides that notwithstanding anything to the contrary contained in Rule 56 of the U.P. Fundamental Rules, a Judicial Officer shall retire from service on superannuation when he attains the age of 60 years. Under Rule 56 (a), the retirement age is 58 years and that part of the Rule would not be applicable as it is contrary to Rule 4 of the 1992 Rules.
Further, from the Rules quoted above, it is apparent that the 1992 Rules regulating the retirement on superannuation of the Judicial Officers deal only with the extension of retirement age from 58 to 60 and by giving overriding effect Rule 56 (a) of the Fundamental Rules is substituted for judicial officers of the State of U.P. From this, by no stretch of imagination, it can be said that Rule 56 (b) to (e) and the Explanations (1), (2) or (3) are, in any way, altered, amended or substituted. If the contention of the learned counsel for the appellant is accepted, the other rules which provide for giving such employee retirement benefits as provided in Rule 56 (e), issuance of notice by considering the material relating to government servants for compulsory retirement would be redundant. Such contention is apparently without any basis. Hence, it does not require further elaboration. However, we would refer to the decision in A.G. Varadarajulu and Another v. State of T.N. and Others [(1998) 4 SCC 231] which was relied upon by the learned senior counsel Mr. Dwivedi, wherein [in para 16] this Court held as under:- "16. It is well settled that while dealing with a non obstante clause under which the legislature wants to give overriding effect to a section, the court must try to find out the extent to which the legislature had intended to give one provision overriding effect over another provision. Such intention of the legislature in this behalf is to be gathered from the enacting part of the section. In Aswini Kumar Ghose v. Arabinda Bosee AIR 1952 SC 369, Patanjali Sastri, J. observed"
"The enacting part of a statute must, where it is clear, be taken to control the non obstante clause where both cannot be read harmoniously."
10. In view of the aforesaid judgment of the Apex Court, it is clear that there is no impediment on the competent authority to exercise powers of compulsory retirement under Rule 56 of the Fundamental Rules. We have come to the conclusion that "1992 Rules" merely provide for increase in the age of retirement of the judicial officers and they can not be used to nullify the provision of Rule-56 of the Fundamental Rules, hence, it was open to the High Court to follow the procedure for exercise of powers under Rule 56(c) and procedure prescribed therein. The explanation 2(a) prescribes that such order of compulsory retirement should be in public interest and appointing authority is entitled to take into consideration all materials relating to such officer. It further provides that any entry in the service record against which the representation is pending can also be taken into consideration provided the representation against such entry is also taken into consideration along with entry and to consider report of the the Vigilance Department. A High level Screening Committee was constituted by the Court. The said Committee recommended compulsory retirement of the petitioner. The report of the Screening Committee was placed before the Full Court and Full Court accepted the report of the Screening Committee in toto.
11. Learned counsel for the petitioner has urged that the Screening Committee was formed by the then Acting Chief Justice and in view of the judgment of the Apex Court in Ashok Tanwar versus State of Himachal Pradesh AIR 2005 S.C. 264, the Acting Chief Justice should have refrained from taking any major decision. Learned counsel has argued that the Acting Chief Justice merely had power to take administrative decisions and major decisions should have awaited the appointment of the regular Chief Justice. We are afraid, this argument is not sustainable as the formation of the Screening Committee is merely an administrative decision. In fact, even the recommendations of the screening committee were not final. The decision to compulsory retire the petitioner was taken by the Full Court and not by the Acting Chief Justice or even by the Screening Committee.
12. As regards to the insufficiency of the material for compulsory retirement and failure to observe the principles of natural justice, it is suffice to say that the compulsory retirement, as contemplated under Rule 56(c) of the Fundamental Rules, is not by way of punishment or penalty and it does not caste any stigma. The object of invocation of such provision is to eliminate the dead-wood, worthless and callous. The order of compulsory retirement is based on subjective satisfaction of the appointing authority. The principle of natural justice has no place in exercise of such powers.
13. Aggrieved person, who has compulsorily been retired, can challenge such orders only on the ground that requisite opinion has not been formed or the decision is not based on any material or decision is based on collateral material or decision is arbitrary decision or decision is mala fide. In Baikuntha Nath Das & another versus Chief District Medical Officer, AIR 1992 S.C. 1020, the Apex Court has laid down the following proposition of law in para-32, which are reproduced as under :-
" 32. 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."
14. In the case of Rajendra Singh Verma (Dead) through L.Rs and others vesus Lieutenant Governor (NCT of Delhi) and others, (2011) 10 SCC 1, the Apex Court has held that the service record and performance of the judicial officer must be taken into consideration before exercise of power to compulsory retire the officer from service. The competent authority has to take into consideration the overall service record including some of the adverse remarks which for technical reasons might have been expunged in appeal or revision. The Apex Court has held that in absence of mala fide or arbitrary exercise of powers, the decision of the competent authority should not be interfered with in exercise of powers of judicial review. The possibility of different view can not be a ground for upsetting of decision of the competent authority. If a bona fide decision has been taken based on some material in public interest, for providing efficiency, then such decisions can not be questioned in judicial review.
15. In Union of India versus V.P. Seth 1994 SCC (L & S) 1052, it has been held that uncommunicated adverse remarks can be taken into consideration while passing the order of compulsory retirement. In "Rajendra Singh Verma (supra) case", the Apex Court has held thus:
"183. It is well settled by a catena of decisions of this Court that while considering the case of an officer as to whether he should be continued in service or compulsorily retired, his entire service record up to that date on which consideration is made has to be taken into account. What weight should be attached to earlier entries as compared to recent entries is a matter of evaluation, but there is no manner of doubt that consideration has to be of the entire service record. The fact that an officer, after an earlier adverse entry was promoted does not wipe out earlier adverse entry at all. It would be wrong to contend that merely for the reason that after an earlier adverse entry an officer was promoted that by itself would preclude the authority from considering the earlier adverse entry. When the law says that the entire service record has to be taken into consideration, the earlier adverse entry, which forms a part of the service record, would also be relevant irrespective of the fact whether the officer concerned was promoted to higher position or whether he was granted certain benefits like increments, etc.
192. Normally, the adverse entry reflecting on the integrity would be based on formulations of impressions which would be the result of multiple factors simultaneously playing in the mind. Though the perceptions may differ, in the very nature of things there is a difficulty nearing on impossibility in subjecting the entries in the confidential rolls to judicial review. Sometimes, if the general reputation of an employee is not good though there may not be any tangible material against him, he may be compulsorily retired in public interest. The duty conferred on the appropriate authority to consider the question of continuance of a Judicial Officers beyond a particular age is an absolute one. If that authority bona fide forms an opinion that the integrity of a particular officer is doubtful, the correctness of that opinion cannot be challenged before courts. When such a constitutional function is exercised on the administrative side of the High Court, any judicial review thereon should be made only with great care and circumspection and it must be confined strictly to the parameters set by this Court in several reported decisions. When the appropriate authority forms bona fide opinion that compulsory retirement of a Judicial Officers is in public interest, the writ court under Article 226 or this Court under Article 32 would not interfere with the order.
193. While undertaking judicial review, the Court in an appropriate case may still quash the decision of the Full Court on administrative side if it is found that there is no basis or material on which the ACR of the Judicial Officers was recorded, but while undertaking this exercise of judicial review and trying to find out whether there is any material on record or not, it is the duty of the Court to keep in mind the nature of function being discharged by the Judicial Officers, the delicate nature of the exercise to be performed by the High Court on administrative side while recording the ACR and the mechanism/system adopted in recording such ACR."
16. Ordinarily the Courts are not interested in sufficiency of materials upon which the order of compulsory retirement is based. It is well settled that formation of opinion for compulsory retirement is based on subjective satisfaction of the authority concerned. The Courts can certainly look whether the valid material exists or not, or whether the order of compulsory retirement is based on some material or not, but sufficiency of material can not be ground for setting aside the order of compulsory retirement.
17. We have carefully considered all the materials in this Case. The Screening Committee had examined the entire service records of the petitioner before forming an opinion. This entire material was placed before the Full Court and after considering it, the Full Court recommended for compulsory retirement of the petitioner. Based on this recommendation, the appointing authority passed the final and formal order of compulsory retirement of the petitioner. The order was not based merely on adverse remarks of a single year. The overall conduct of entire career of petitioner was considered and then he was found fit for compulsory retirement. It is apparent that suitability, utility and desirability to continue in service as a Judicial Officer in public interest was the sole consideration for passing of the impugned order and no stigma is attached to his retirement. The petitioner is entitled to receive all admissible retiral benefits.
18. We have carefully considered all the material records and are convinced from it that the impugned order was passed in public interest. The impugned order was based on cogent material on record and can not be termed as mala fide or arbitrary. We, therefore, uphold the impugned order dated 17.5.2005, which requires no interference from this Court in exercise of powers under Article 226 of the Constitution of India.
19. The writ petition is devoid of merit and is liable to be dismissed. The writ petition is accordingly dismissed. The parties to bear their own costs.
Order Date :- 30.8.2013 SU.