Allahabad High Court
Sunil Kumar Sonkar vs State Of U.P.Thru Prin.Secy.Deptt.Of ... on 2 May, 2018
Author: Irshad Ali
Bench: Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 17 Case :- SERVICE SINGLE No. - 24078 of 2017 Petitioner :- Sunil Kumar Sonkar Respondent :- State Of U.P.Thru Prin.Secy.Deptt.Of Excise Civil Sectt.&Ors Counsel for Petitioner :- Laltaprasad Misra,Prafulla Tiwari Counsel for Respondent :- C.S.C. Hon. Irshad Ali, J.
Heard Dr. L.P. Mishra, learned Senior Advocate assisted by Sri Prafulla Tiwari, Advocate for the petitioner and the learned Standing Counsel for the State respondents.
Supplementary rejoinder affidavit filed today is taken on record.
By means of the present writ petition the petitioner has challenged the order dated 30th August, 2017 passed by the respondent no. 1 as well as the recommendation dated 11.08.2017 (Annexure Nos. 1 and 2 to the writ petition), whereby the petitioner has been compulsorily retired from service.
Matrix of the case is that the petitioner under a selection proceedings conducted by the U.P. Public Service Commission, U.P. Allahabad was selected on the post of Excise Inspector and was issued appointment letter on 07.02.1994. In pursuance thereof he joined and started his duties. Thereafter, taking into account his satisfactory services, he was granted promotion on the post of Assistant Excise Commissioner vide order dated 24.02.2006 on officiating basis.
A dispute of seniority list of the Excise Inspectors came before this Court. On the basis of the disputed seniority list promotions were granted on the post of Assistant Excise Commissioner vide order dated 21.05.2008. The claim of the petitioner was not considered for promotion, but he was permitted to continue to hold the officiating post of Assistant Excise Commissioner.
Vide order dated 03.02.2017 disciplinary proceedings against the petitioner were initiated by the respondents by placing him under suspension. A charge-sheet was served upon the petitioner and the disciplinary proceeding is going on.
The State Government vide Government Order dated 06.07.2017 framed a policy under Rule 56 of the Fundamental Rules by means of which a Screening Committee was constituted to screen the service records of the employees on attaining the age of 50 years or more and to recommend compulsory retirement of the deadwood for which final order to be passed by the State Government.
The Screening Committee considered the record of petitioner and recommended his compulsory retirement by its report dated 11.08.2017 and on the said recommendation the State Government passed the impugned order of compulsory retirement dated 30.08.2017.
Assailing the said order Learned counsel for the petitioner Sri L.P. Mishra submitted that the Screening Committee, without examining the service record of the petitioner, has recommended the name of the petitioner for the compulsory retirement. He invited attention of the Court on page 85 of the paper-book, wherein the entries in the service-book of the petitioner have been certified by the competent authority. The said document has been obtained under Right to Information Act, 2005. On the basis of said document it is submitted that for the year 2006-07 departmental enquiry is going on and no final order imposing punishment has been passed against the petitioner. Although the document shows that disciplinary proceeding is pending but the submission of the learned Senior Advocate is that the recital is incorrect.
In regard to the entry for the year 2007-08 remark is ''Utkrisht'. For the year 2008-09 the remark is ''Sadharan'. For the year 2009-10 an adverse entry has been recorded in the service book of the petitioner, against which the petitioner has filed a representation, which has been rejected vide order dated 18.08.2010. Challenging the order dated 18.08.2010 a Claim Petition No. 2249 of 2010 was filed before the State Public Service Tribunal, which is pending consideration, wherein an interim order has been granted on 24.01.2011 (page 88 of the paper-book) and since 2010 to 2014 the petitioner has been found ''good' or ''very good' in his working.
In regard to the year 2014-15 an adverse entry was recorded in the service-book of the petitioner and the representation filed against the same has been rejected, which was assailed before the State Public Service Tribunal in a Claim Petition No. 2020 of 2015, wherein the order of punishment was stayed vide order dated 16.12.2015 (page 105 of the paper-book).
In regard to the entry of the year 2015-16 an adverse entry has been recorded on 06.04.2015 and in this regard submission is that such entry was recorded after the recommendation of the Screening Committee to the State Government, therefore the same is not relevant for the issue involved in the present writ petition.
It is further relevant to state that the entry dated 06.04.2015 was also subject matter of challenge before the State Public Service Tribunal in Claim Petition No. 411 of 2017, wherein vide order dated 05.09.2017 operation of the order was stayed.
In view of the above, Learned counsel for the petitioner submitted that there was no adverse remark against the petitioner at the time of consideration of the claim of the petitioner by the Screening Committee. The Screening Committee acting with malice and mala fide intention has proceeded to make recommendation vide letter dated 11.08.2017 for the compulsory retirement of the petitioner and the State Government has passed impugned order of compulsory retirement.
Learned counsel for the petitioner in support of his submission relied upon a judgment of the Apex Court in the case of Rajesh Gupta vs. State of Jammu and Kashmir, reported in (2013) 3 SCC 514, specifically paragraphs 20, 21, 22, 24, 26, 30 and 31, and submitted that the High Power Committee should come to the conclusion on the subjective satisfaction after verification of service record and then it should make recommendation for the compulsory retirement.
He further relied upon the judgment of the Supreme Court on the point that the authority, while considering the service record of the employee, should consider that whether the adverse entry or any adverse material is in existence or not. He relied upon a judgment in the case of High Court of Punjab & Haryana through R.G. vs. Ishwar Chand Jain and another; (1994) 4 SCC 579, specifically upon paragraphs 28, 29 and 30.
Relying on the judgment in the case of Rajasthan State Road Transport Corporation and others vs. Babu Lal Jangir; (2013) 10 SCC 551 (Para 23) learned counsel for the petitioner submitted that if the service record holds old adverse entries or record of old period then, while considering the case, the service record of the immediate past period will be given due credence and weightage, which have not been given in the present case. Therefore, the ratio of the judgment is applicable in the case of the petitioner.
Next submission of the learned counsel for the petitioner is that the guidelines framed under the relevant rules by the State Government has binding effect upon the parties and that should be exercised in reasonable action and in a correct prospect, for which the policy has been framed. In support of his submission he relied upon the judgment of the Apex Court in the case of Vinod Kumar vs. State of Haryana and others; (2013) 16 SCC 293 (Para 25).
Last submission of the learned counsel for the petitioner is that due to pendency of a criminal case the petitioner cannot be victimized by passing the order of compulsory retirement. In support of his submission he relied upon the judgment of the Apex Court in the case of State of Gujarat and another vs. Suryakant Chunilal Shah; (1991) 1 SCC 529 (Para 26 and 27).
Per contra learned counsel for the State submitted that there are serious allegations against the petitioner, disciplinary proceedings as well as criminal proceedings are going on against him. He invited attention of the Court on paragraphs 18 and 20 of the counter affidavit and submitted that the Screening Committee as well as the State Government have not committed any error in passing the impugned order. The impugned order is just and valid order and does not suffer from any illegality or infirmity.
He further submitted that the Screening Committee as well as the respondent no. 1, after examining the material on record and after assessing the relevant entries, have passed the orders under challenge. Therefore, the writ petition is liable to be dismissed by this Court.
I have heard learned counsel for the parties and perused the material on record.
The Court may first examine the legal position as has been laid down in the judgments relied upon by the learned counsel for the petitioner and it would be worthwhile to reproduce paragraph the relevant paragraphs 20, 21, 22, 24, 26, 30 and 31 of the judgment in the case of Rajesh Gupta vs. State of Jammu and Kashmir (supra), which read as follows:
"20. The principles on which a government servant can be ordered to be compulsorily retired were authoritatively laid down by this Court in the case of Baikuntha Nath Das (supra). In Paragraph 34, the principles have been summed up as follows :
"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 a perverse order.
(iv) The government (or the Review Committee, as the case may be) shall have to consider the entire record of service before [pic]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 interference.
Interference is permissible only on the grounds mentioned in (iii) above. This aspect has been discussed in paras 30 to 32 above.
21. The aforesaid principles have been re-examined and reiterated by this Court in the case of Nand Kumar Verma (supra). The principles have been restated as follows :-
34. It is also well settled that the formation of opinion for compulsory retirement is based on the subjective satisfaction of the authority concerned but such satisfaction must be based on a valid material. It is permissible for the courts to ascertain whether a valid material exists or otherwise, on which the subjective satisfaction of the administrative authority is based. In the present matter, what we see is that the High Court, while holding that the track record and service record of the appellant was unsatisfactory, has selectively taken into consideration the service record for certain years only while making extracts of those contents of the ACRs. There appears to be some discrepancy. We say so for the reason that the appellant has produced the copies of the ACRs which were obtained by him from the High Court under the Right to Information Act, 2005 and a comparison of these two would positively indicate that the High Court has not faithfully extracted the contents of the ACRs.
36. The material on which the decision of the compulsory retirement was based, as extracted by the High Court in the impugned judgment, and material furnished by the appellant would reflect that totality of relevant materials were not considered or completely ignored by the High Court. This leads to only one conclusion that the subjective satisfaction of the High Court was not based on the sufficient or relevant material. In this view of the matter, we cannot say that the service record of the appellant was unsatisfactory which would warrant premature retirement from service. Therefore, there was no justification to retire the appellant compulsorily from service.
22. In the case of State of Gujarat vs. Umedbhai M.Patel (supra), the same principles were reiterated in the following words :-
"11. The law relating to compulsory retirement has now crystallised into definite principles, which could be broadly summarised thus:
(i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.
(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.
(iii) For better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer.
(iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.
(v) Even uncommunicated entries in the confidential record can also be taken into consideration.
(vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable.
(vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer.
(viii) Compulsory retirement shall not be imposed as a punitive measure."
24. In Jugal Chandra Saikia (supra), this Court reiterated the principles in the following words:-
"6...It cannot be disputed that the passing of an order of compulsory retirement depends on the subjective satisfaction of the competent authority, of course on objective consideration. Unless it is shown that the order of compulsory retirement was passed arbitrarily and without application of mind or that such formation of opinion to retire compulsorily was based on no evidence or that the order of compulsory retirement was totally perverse, the court cannot interfere."
Examining the record of the appellant therein and the material that was placed before the Screening Committee, the High Court as well as this Court came to the conclusion that on an objective consideration of the material on the record it was not possible to accept the argument that the Screening Committee had acted only on the basis of the report of the Rao Committee. It was found that the recommendations of the Screening Committee were based on relevant material.
26. Examining the fact situation in this case on the basis of the aforesaid principles, it becomes evident that recommendation made by the High Powered Committee was indubitably arbitrary.
30. This now takes us to the other material on the basis of which the recommendation has been made by the High Powered Committee. It has been noticed by us earlier that the appellant was required, in the performance of his official duties, to recommend the sanctioning of technical approval to the construction of works of various projects. The allegation with regard to issuing back dated technical sanctions was duly inquired into. The conclusion ultimately reached by inquiry officer noticed in the earlier part of the order indicates that at best the appellant acted in a casual and haphazard manner in the maintenance of records. Such negligence on the part of the appellant cannot per se lead to the conclusion that the appellant was acting in such a manner with an ulterior motive. The conclusions reached by the High Powered Committee also do not co-relate to the assessment of work and integrity of the appellant in the annual performance report. As noticed earlier, in all the annual performance reports, the officer has been rated ''very good', ''excellent' and even ''outstanding'.
31. In view of the aforesaid, the conclusion is inescapable, that the order passed by the State Government suffers from vice of arbitrariness. The High Court erred in arriving at conclusions which were not borne out by the record produced before the High court. In view of the settled law, it is not possible for us to uphold the judgments of the Single Judge as also of the Division Bench."
Paragraphs 28, 29 and 30 of the judgment in the case of High Court of Punjab & Haryana through R.G. vs. Inshwar Chand Jai (supra) reads as follows:
"28. In a recent judgment in Madan Mohan Choudhary v. The State of Bihar and others, JT (1999) 1 SC 459 this Court was considering the order of compulsory retirement of the appellant, who was a member of superior judicial service in the State of Bihar. On a writ petition filed by the appellant in the High Court challenging his order of compulsory retirement by the Full Court of the High Court, the High Court on the judicial side refused to interfere and dismissed the petition. The appellant came in appeal before this Court. This Court found that while on various earlier occasions remarks were given by the High Court but there were no entries in the character roll of the appellant for the years 1991-92, 1992-93 and 1993-94. The entries for these years were recorded at one time simultaneously and the appellant was categorized as "C" Grade Officer. The date on which these entries were made was not indicated either in the original record or in the counter affidavit filed by the respondent. These were communicated to the appellant on 29.11.1996 and were considered by the Full Court on 30.11.1996. It was clear that these entries were recorded at a stage when the Standing Committee had already made up its mind to compulsorily retire the appellant from service as it had directed the office on 6.11.1996 to put up a note for compulsory retirement of the appellant. This Court held that it was a case where mere was no material on the basis of which an opinion could have been reasonably formed that it would be in the public interest to retire the appellant from service pre- maturely. This Court was of the opinion that the entries recorded "at one go" for three years, namely, 1991-92, 1992-93 and 1993-94 could hardly have been taken into consideration. The Court then referred to its earlier decision in Registrar, High Court of Madras v. R. Rajiah, JT(1988)2 SC 567 Where this Court said that the High Court in its administrative jurisdiction has the power to recommend compulsory retirement of the member of the judicial service in accordance with the rules framed in that regard but it cannot act arbitrarily and there has to be material to come to a decision to compulsorily retire the officer. In that case it was also pointed out that the High Court while exercising its power of control over the subordinate judiciary is under a constitutional obligation to guide and protect judicial officers from being harassed or annoyed by trifling complaints relating to judicial orders so that the officers may discharge their duties honestly and independently unconcerned by the ill-conceived or motivated complaints, made by unscrupulous lawyers and litigants.
29. Keeping in view the aforesaid principles we may examine the background under which the order Compulsorily retiring Jain came to be passed. In December, 1995 judges comprising the Full Court were not the same as that in the year 1985 when probation of Jain was terminated. There were hew appointments of judges and there were judges, who had come on transfer from other High Courts. They could not be aware of the circumstances leading to termination of the probation of Jain and ACR given to him for the year 1984-985. In the precis of the ACRs for the Full Court ACR given to Jain For the year 1984-85 was Shown as "C-Below Average." The inspecting judge for the year 1984-85 had graded the officer as "B+Good" but the Full Court modified me same to "C-Below Average."" This Court in earlier appeal filed by Jain against termination of his probation held that the modification of the entry by the High Court was without any material and was not sustainable in law. It meant that the Supreme Court restored the grading of Jain in his ACR for the year 1984-85 as "B+Good." There is no indication of this in the precis prepared by the Registry which certainly would have misled many of the judges Of the Full Court. There is no ACR recorded for the years 1992-93, 1993-94, 1994-95 and for nine months of 1995-96 when the Full Court met on December 12, 1995. In its earlier meeting on September 22, 1995 it recorded ACR for the year 1991-92 grading Jain as "C-integrity doubtful." In coming to this conclusion Full Court relied on the inspection report prepared by the inspecting judge on February 22,1992 where he graded Jain as "integrity doubtful" and gave his note which we have quoted above. There is no material forthcoming as to why the inspection report of February 1992 came to be considered by the Full Court in September, 1995 and why there could be no inspection from that year till holding of the Full Court meeting. Inspection note by the inspecting judge gives an impression that he inspected the Court of Jain and visited the bar room before he gave his report. Fact, however, remains thai the inspecting judge inspected the Court of Jaih only in March, 1992. Inspecting judge also noted that there were some complaints which formed the subject-matter of the disciplinary proceedings against him. This also does not appear to be correct inasmuch as on the date of the inspection report no disciplinary proceedings were pending against Jain. There were also no particulars of the complaints whether these were in writing or oral and if these related to the judicial work performed by the officer. At least some of the cases in which Jain was found to have acted improperly could have been mentioned when there were many complaints from me members of the Bar, The inspection note is certainly flawed and could not have formed the basis by the Full Court to record that integrity of the officer was doubtful and to grade him "C". Moreover we were told at the bar and it was not contradicted that the Inspecting Judge took charge of Jind district only on November 21; 1991 and within three months, i.e., on February 25, 1992 gave his inspection report. This is certainly not satisfactory. The ACR for the year 1991-92 is, therefore to be kept aside. That being the position if we now refer to the precis of the ACRs of Jain there were only four ACRs and these are for the years 1983-84 (B-Average/satistactory), 1984-85 (B+Good), 1988-89 (B- Satisftctory) and 1989-90 (B+good)). On the basis of these ACRs it is difficult to hold that the recommendation of the High Court could be justified under clause (c) of third principle laid in Baikunth Nath Das case.
30. From the resolutions of the Full Court of December 12,1995 and January 11, 1996 it is apparent that Jain was retired while under suspension. It appears that the High Court on its administrative side decided to keep disciplinary proceedings against Jain pending for the purpose of imposing the cut on his retiral benefits. The conclusion is obvious that action of the High Court in retiring Jain was based on the allegation of misconduct, which was subject matter of the inquiry before a Judge of the High Court and which appears to us to be the basis for recording of adverse remarks by the High Court in the ACR of the officer for the year 1991 -92. There is substance in the argument of Mr. M.N. Krishanamani, learned counsel for Jain, that the High Court found a short cut to remove Jain from service when the order of retirement was based on the charges of misconduct, subject matter of me inquiry. We agree with Mr. Krishnamani that the impugned order of compulsorily retiring Jain though innocuously worded is in fact an order of his removal from service and cannot be sustained. High Court on its judicial side was correct in setting aside the order compulsorily retiring Jain and allowing the writ petition of Jain to the extent mentioned in the impugned judgment. In this view of the matter it is not necessary for us to consider other submissions made before us if Jain could at all have been compulsorily retired under Rule. 3.26 of the Punjab Civil Service Rules, Volume I, Part 1, being a member of the superior judicial service."
Paragraph 23 of the judgment in the case of Rajasthan State Road Transport Corporation and others vs. Babu Lal Jangir (supra) reads as follows:
"23. The principle of law which is clarified and stands crystallized after the judgment in Pyare Mohan Lal v. State of Jharkhand and Ors.; 2010 (10) SCC 693 is that after the promotion of an employee the adverse entries prior thereto would have no relevance and can be treated as wiped off when the case of the government employee is to be considered for further promotion. However, this ''washed off theory' will have no application when case of an employee is being assessed to determine whether he is fit to be retained in service or requires to be given compulsory retirement. The rationale given is that since such an assessment is based on "entire service record", there is no question of not taking into consideration an earlier old adverse entries or record of the old period. We may hasten to add that while such a record can be taken into consideration, at the same time, the service record of the immediate past period will have to be given due credence and weightage. For example, as against some very old adverse entries where the immediate past record shows exemplary performance, ignoring such a record of recent past and acting only on the basis of old adverse entries, to retire a person will be a clear example of arbitrary exercise of power. However, if old record pertains to integrity of a person then that may be sufficient to justify the order of premature retirement of the government servant."
The relevant paragraph 25 of the judgment in the case of Vinod Kumar vs. State of Haryana (supra) is being quoted herein below:
25. The decision of the administrative authority must be related to the purpose of the enabling provisions of Rules or Statutes, as the case may be. If they are manifestly unjust or outrageous or directed to an unauthorized end, such decisions can be set aside as arbitrary and unreasonable. Likewise, when action taken is ultra vires, such action/decision has no legal basis and can be set aside on that ground. When there are Rules framed delineating the powers of the authority as well as the procedure to be followed while exercising those powers, the authority has to act within the limits defined by those Rules. A repository of power acts ultra vires either when he acts in excess of his power in the narrow sense or when he abuses his power by acting in bad faith or for an inadmissible purpose or on irrelevant grounds or without regard to relevant considerations or with gross unreasonableness. This was so explained in Shri Sitaram Sugar Co.Ltd. v. Union of India (1990) 3 SCC 223 in the following manner:
"51. A repository of power acts ultra vires either when he acts in excess of his power in the narrow sense or when he abuses his power by acting in bad faith or for an inadmissible purpose or on irrelevant grounds or without regard to relevant considerations or with gross unreasonableness. See Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, [1948] 1 K.B. 223. In the words of Lord Macnaghten in Westminster Corporation v. London and North Western Railway Co.
''...It is well settled that a public body invested with statutory powers such as those conferred upon the Corporation must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably. The last proposition is involved in the second, if not in the first."
In Barium Chemicals Ltd. and Anr. v. The Company Law Board and Ors., : [1966] Supp. SCR 311, this Court states: "60. ...Even if (the statutory order) is passed in good faith and with the best of intention to further the purpose of the legislation which confers the powers, since the Authority has to act in accordance with and within the limits of that legislation, its order can also be challenged if it is beyond those limits or is passed on grounds extraneous to the legislation or if there are no grounds at all for passing it or if the grounds are such that no one can reasonably arrive at the opinion or satisfaction requisite under the legislation.
In any one of these situations it can well be said that the authority did not honestly form its opinion or that in forming it, it did not apply its mind to the relevant facts."
In Renusagar, AIR1988SC1737 , Mukharji, J., as he then was, states:
"86. ...The exercise of power whether legislative or administrative will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary. Similarly, if the power has been exercised on a non-consideration or non-application of mind to relevant factors the exercise of power will be regarded as manifestly erroneous. If a power (whether legislative or administrative) is exercised on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated".
52. The true position, therefore, is that any act of the repository of power, whether legislative or administrative or quasi- judicial, is open to challenge if it is in conflict with the Constitution or the governing Act or the general principles of the law of the land or it is so arbitrary or unreasonable that no fair minded authority could ever have made it."
The relevant paragraphs 26 and 27 in the case of State of Gujarat and another vs. Suryakant Chunilal Shah (supra) are being quoted below:
"26. Applying the principles laid down above to the instant case, what comes out is that in compulsorily retiring the respondent from service, the authorities themselves were uncertain about the action which was to be taken ultimately against him. In fact, there was hardly any material on the basis of which a bona fide opinion could have been formed that it would be in public interest to retire the respondent from service compulsorily. The material which was placed before the Review Committee has already been mentioned above. To repeat, respondent was promoted in 1981; the character roll entries for the next two years were not available or record; there were no adverse entries in the respondent's character roll about his integrity; he was involved in two criminal cases, in one of which a final report was submitted while in the other a charge sheet was filed. Although there was no entry in his character roll that the respondent's integrity was doubtful, the Review Committee, on its own, probably on the basis of the FIRs lodged against the respondent, formed the opinion that the respondent was a person of doubtful integrity. The review Committee was constituted to assess the merits of the respondent on the basis of the character roll entries and other relevant material and to recommend whether it would be in public interest to compulsorily retire him from service or not. The Review Committee, after taking into consideration the character roll entries and noticing that there were no adverse entries and his integrity was, at no stage, doubted, proceeded, in excess of its jurisdiction, to form its own opinion with regard to respondent's integrity merely on the basis of the FIRs lodged against him. Whether the integrity of an employee is doubtful or not, whether he is efficient and honest, is the function of the Appointing Authority or the immediate superior of that employee to consider and assess. It is not the function of the Review Committee to brand, and that too, off hand, an employee as a person of doubtful integrity. Moreover, the Review Committee did not recommend compulsory retirement. It was of the opinion that the respondent had committed grave irregularity and that he must be retained in service so that he may ultimately be dealt with and punished severely. The Secretary and the Chief Secretary, who considered the recommendations of the Review committee, had other ideas. They thought that the investigation and subsequent prosecution of the respondent would take a long time and that it would be better to immediately dispense with his services by giving him the temptation of withdrawing the criminal cases and retiring him compulsorily from service, provided he does not approach the court against the order of compulsory retirement. This proposal too was not immediately acted upon and it was thought that nobody could say whether the order of compulsory retirement would be challenged by the respondent before the court or he would merely submit to it on the withdrawn. It was at this stage, that the or the order of compulsory retirement was passed.
27. The whole exercise described above would, therefor, indicate that although there was no material on the basis of which a reasonable opinion could be formed that the respondent had outlived his utility as a Govt. Servant or that he had lost his efficiency and had become a dead wood, he was compulsorily retired merely because of his involvement in two criminal case pertaining to the grant of permits in favour of take and bogus institutions. The involvement of a person in a criminal case does not mean that he is guilty. He is still to be tried in a court of law and the truth has to be found out ultimately by the court where the prosecution is ultimately conducted. But before that stage is reached, it would be highly improper to deprive a person of his livelihood merely on the basis of his involvement. We may, however, hasten to add 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."
In the case of Rajesh Gupta (supra) the Supreme Court has laid down the principle that an order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour. 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. Further it has been held that while exercising such power the State Government shall have to consider the entire record of the service before taking decision in the matter of course attaching more importance to record of 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. It is well settled principles of law that the formation of opinion for compulsory retirement is based on the subjective satisfaction of the authority concerned but such satisfaction must be based on a valid material.
In the present case while examining the record of petitioner regarding compulsory retirement, the Screening Committee has not carefully examined the annual confidential record and the track record of the petitioner. Therefore, in light of the aforesaid principles, there is no subjective satisfaction on the part of the respondents in passing the impugned order of compulsory retirement. Accordingly, the order is totally perverse and is liable to be set aside.
In the case of High Court of Punjab & Haryana through R.G. vs. Ishwar Chand Jain and another (supra) the Apex Court has held that the order of compulsorily retiring the appellant is in fact an order of his removal from service and cannot be sustained. It was a case where there was no material on the basis of which an opinion could have been reasonably formed that it would be in the public interest to retire the appellant from service pre-maturaly, as the Standing Committee had already made up its mind to compulsorily retire the appellant from service without there being character roll of the appellant for last three years and on the asking of the Standing Committee, entries were recorded "at one go" for three years and were supplied to the appellant one day before his case was to be considered for compulsory retirement by the Standing Committee.
So far as the judgment in the case of Rajasthan State Road Transport Corporation and others vs. Babu Lal Jangir (supra) is concerned, it is held by the Apex Court that while determining whether a government employee is fit to be retained in service or requires to be given compulsory retirement, the assessment should be based on "entire service record", there is no question of not taking into consideration an earlier old adverse entries or record of the old period. The Court added that while such a record can be taken into consideration, at the same time, the service record of the immediate past period will have to be given due credence and weightage.
In the case of Vinod Kumar vs. State of Haryana and others (supra) the Apex Court has held that the exercise of power, whether legislative or administrative, should be exercised with the consideration and application of mind to the relevant factors.
On perusal of the recommendation of the Screening Committee, in the present case there does not appear that the Committee have considered the service record of the petitioner or has applied its mind in making recommendation for the compulsory retirement. Therefore, the recommendation of the Screening Committee is manifestly erroneous and the exercise of power stands vitiated.
In the case of State of Gujrat and another vs. Suryakant Chunilal Shah (supra) the Apex Court, while considering the case of a government servant who was involved in two criminal cases, has held that involvement of a person in a criminal case does not mean that he is guilty. He is still to be tried in a court of law and the truth has to be found out ultimately by the court where the prosecution is ultimately conducted. But before that stage is reached, it would be highly improper to deprive a person of his livelihood merely on the basis of his involvement.
For ready reference the recommendation of the Screening Committee is being quoted herein below:
mRrj izns'k vkcdkjh foHkkx esa dk;Zjr vf/kdkfj;ksa dh lsok esa n{krk lqfuf'pr djus ds fy, vkcdkjh foHkkx ds vij vkcdkjh vk;qDr] la;qDr vkcdkjh vk;qDr] izkfof/kd vf/kdkjh] lgk;d vYdksgy VsDukykftLV] la;qDr funs'kd ¼lkaf[;dh½] mi vkcdkjh vk;qDr ,oa lgk;d vkcdkjh vk;qDrksa dh vfuok;Z lsokfuo`fRr gsrq fnukad 11-08-2017 dks vij eq[; lfpo] vkcdkjh foHkkx] m0iz0 'kklu dh v/;{krk esa gqbZ Ldzhfuax desVh dh cSBd dk dk;Zo`RrA mifLFkfr%& 1- Jh nhid f=osnh] vij eq[; lfpo] vkcdkjh &v/;{k foHkkx] m0iz0 'kkluA 2- Jh /khjt lkgw] vkcdkjh vk;qDr] &lnL;
m0iz0A 3- Jh v'kksd dqekj JhokLro] fo'ks"k lfpo] dkfeZd &lnL;
foHkkx m0iz0 'kkluA mRrj izns'k vkcdkjh foHkkx esa dk;Zjr vf/kdkfj;ksa dh lsok esa n{krk lqfuf'pr djus ds fy, vkcdkjh foHkkx ds vf/kdkfj;ksa dh vfuok;Z lsokfuo`fRr gsrq Ldzhfuax fd;s tkus ds lEcU/k esa eq[; lfpo }kjk vius vkns'k fnukad 06-07-2017 esa fuEu funsZ'k tkjh fd;s x;s gSaa%& 1- 50 o"kZ dh vk;q ds fu/kkZj.k ds fy, dV vkQ MsV fnukad 31-03-2017 gksxh vFkkZr ,sls lsodksa ftudh vk;q fnukad 31-03-2017 dks 50 o"kZ vFkok blls vf/kd gksxh] Ldzhfuax gsrq fopkj {ks= esa vk;saxsA 2- bl lEcU/k esa 'kklukns'k fnukad 26 vDVwcj] 1985 esa ekxZn'kZd funsZ'kksa lfgr vfuok;Z lsokfuo`fRr gsrq xfBr dh tkus okyh Ldzhfuax desfV;ksa dk mYys[k gSA bl iz;kstu gsrq dkfeZd vuqHkkx&1 ds 'kklukns'k fnukad 06 Qjojh] 1989] fnukad 21 ebZ 1998] fnukad 23 flrEcj] 2000 rFkk fnukad 25 tuojh] 2007 fuxZr fd;s x;s gSaA 2- mDr vkns'kksa esa dh x;h O;oLFkk ds vUrxZr fnukad 31-03-2017 dks vkcdkjh foHkkx ds 50 o"kZ dh vk;q iw.kZ dj pqds 01 vij vkcdkjh vk;qDr] 06 la;qDr vkcdkjh vk;qDr] 01 la;qDr funs'kd ¼lkaf[;dh½] 02 izkfof/kd vf/kdkjh] 03 lgk;d vYdksgy VsDukykftLV] 29 mi vkcdkjh vk;qDr ,oa 63 lgk;d vkcdkjh vk;qDr dks vfuok;Z lsokfuo`fRr ds lEcU/k esa Ldzhfuax gsrq fopkj fd;s tkus dk izLrko fuEuor gS%& sdze la0 uke inuke 1 Jh jke lkxj frokjh vij vkcdkjh vk;qDr ¼ykblsaflax ,oa vkS|ksfxd fodkl½ mRrj izns'k 2 Jh fou; dqekj flag la;qDr vkcdkjh vk;qDr 3 Jh gfj'pUnz la;qDr vkcdkjh vk;qDr 4 Jh jkts'k ef.k f=ikBh la;qDr vkcdkjh vk;qDr 5 Jh tax cgknqj flag la;qDr vkcdkjh vk;qDr 6 Jh fxjh'k pUnz la;qDr vkcdkjh vk;qDr 7 Jh vfouk'k ef.k f=ikBh la;qDr vkcdkjh vk;qDr 8 Mk0 tksxsUnz flag la;qDr funs'kd ¼lkaf[;dh½ 9 Jh lHkkthr izkfof/kd vf/kdkjh 10 Jh vfuy dqekj flUgk izkfof/kd vf/kdkjh 11 Jh oh0ih0 nhf{kr lgk;d vYdksgy VsDukWykftLV 12 Jh nhid jLrksxh lgk;d vYdksgy VsDukWykftLV 13 Jherh ohuk jkuh oekZ lgk;d vYdksgy VsDukWykftLV 14 Jh vfuy dqekj JhokLro mi vkcdkjh vk;qDr 15 Jh Mk0 jke fd'kksj mi vkcdkjh vk;qDr 16 Jh egsUnz flag mi vkcdkjh vk;qDr 17 Jh izdk'k frokjh mi vkcdkjh vk;qDr 18 Jh jfo'kadj ikBd mi vkcdkjh vk;qDr 19 Jh /khjt flag mi vkcdkjh vk;qDr 20 Jh jkepUnz feJ mi vkcdkjh vk;qDr 21 Jh v#.k dqekj 'kqDy mi vkcdkjh vk;qDr 22 Jh vjfoUn dqekj jk;
mi vkcdkjh vk;qDr 23 Jh izdk'k jko mi vkcdkjh vk;qDr 24 Jh f'kogfj feJ mi vkcdkjh vk;qDr 25 Jh tSusUnz mik/;k;
mi vkcdkjh vk;qDr 26 Jh dqWoj LdUn flag mi vkcdkjh vk;qDr 27 Jh lquhy dqekj feJ mi vkcdkjh vk;qDr 28 Jh fot; dqekj feJ mi vkcdkjh vk;qDr 29 Jh ';ke izdk'k pkS/kjh mi vkcdkjh vk;qDr 30 Jh fnus'k flag mi vkcdkjh vk;qDr 31 Jh jkds'k dqekj prqosZnh mi vkcdkjh vk;qDr 32 Jh jfoUnz dqekj fuxe mi vkcdkjh vk;qDr 33 Jh jkts'k dqekj flUgk mi vkcdkjh vk;qDr 34 Jh ykyef.k ;kno mi vkcdkjh vk;qDr 35 Jh vt; dqekj flag mi vkcdkjh vk;qDr 36 Jh jkt'ks[kj mik/;k;
mi vkcdkjh vk;qDr 37 Jh yky cgknqj feJk mi vkcdkjh vk;qDr 38 Jh 'kSysUnz dqekj jk;
mi vkcdkjh vk;qDr 39 Jh ftrsUnz cgknqj flag mi vkcdkjh vk;qDr 40 Jh lqjsUnz pUnz mi vkcdkjh vk;qDr 41 Jh lnkUkUn pkSjfl;k mi vkcdkjh vk;qDr 42 Jh v'kksd dqekj mi vkcdkjh vk;qDr 43 Jh Hkqvky th flag lgk;d vkcdkjh vk;qDr 44 Jh vkuUn 'kadj jk;
lgk;d vkcdkjh vk;qDr 45 Jh jktsUnz dqekj 'kekZ lgk;d vkcdkjh vk;qDr 46 Jh nsojkt flag ;kno lgk;d vkcdkjh vk;qDr 47 Jh vtc flag pkgj lgk;d vkcdkjh vk;qDr 48 Jh pUnzdkUr flag lgk;d vkcdkjh vk;qDr 49 Jh jek'kadj flag lgk;d vkcdkjh vk;qDr 50 Jh vkse izdk'k flag lgk;d vkcdkjh vk;qDr 51 Jh deyk izlkn ik.Ms;
lgk;d vkcdkjh vk;qDr 52 Jh eqUuk yky lgk;d vkcdkjh vk;qDr 53 Jh fous'k dqekj 'kekZ lgk;d vkcdkjh vk;qDr 54 Jh fnyhi dqekj ef.k frokjh lgk;d vkcdkjh vk;qDr 55 Jh jk/ks';ke 'kqDy lgk;d vkcdkjh vk;qDr 56 Jh QwypUnz iky lgk;d vkcdkjh vk;qDr 57 Jh fnus'k pUnz dfV;kj lgk;d vkcdkjh vk;qDr 58 Jh tax cgknqj ;kno lgk;d vkcdkjh vk;qDr 59 Jh lquhy dqekj lksudj lgk;d vkcdkjh vk;qDr 60 Jh /kesZUnz dqekj lgk;d vkcdkjh vk;qDr 61 Jh iz.kohj flag lsaxj lgk;d vkcdkjh vk;qDr 62 Jh ;ksxsUnz ukFk jkew flag ;kno lgk;d vkcdkjh vk;qDr 63 Jh yky cgknqj ;kno lgk;d vkcdkjh vk;qDr 64 Jh jkt ujk;.k flag ;kno lgk;d vkcdkjh vk;qDr 65 Jh jke mtkfxj ekS;kZ lgk;d vkcdkjh vk;qDr 66 Jh deyk izlkn ;kno lgk;d vkcdkjh vk;qDr 67 Jh lsok yky lgk;d vkcdkjh vk;qDr 68 Jh vks0ih0 pkSjfl;k lgk;d vkcdkjh vk;qDr 69 Jh uUn fd'kksj ;kno lgk;d vkcdkjh vk;qDr 70 Jh bZ'oj izlkn lgk;d vkcdkjh vk;qDr 71 Jh d`".kdkUr 'kqDy lgk;d vkcdkjh vk;qDr 72 Jh jktsUnz dqekj lgk;d vkcdkjh vk;qDr 73 Jh pUnz 'ks[kj lgk;d vkcdkjh vk;qDr 74 Jh egs'k izlkn lgk;d vkcdkjh vk;qDr 75 Jh ikjl ukFk lgk;d vkcdkjh vk;qDr 76 Jh jked`r jke lgk;d vkcdkjh vk;qDr 77 Jh jke 'kj.k lgk;d vkcdkjh vk;qDr 78 Jh lriky flag lgk;d vkcdkjh vk;qDr 79 Jh izse ukjk;.k lgk;d vkcdkjh vk;qDr 80 Jh jkt lthou&2 lgk;d vkcdkjh vk;qDr 81 Jh larks"k dqekj Jhokl lgk;d vkcdkjh vk;qDr 82 Mk0 lrh'k pUnz lgk;d vkcdkjh vk;qDr 83 Jh jkt dqekj lgk;d vkcdkjh vk;qDr 84 Jh izse lkxj lgk;d vkcdkjh vk;qDr 85 Jh vkuUn izdk'k ¼esjB½ 1988 cSp lgk;d vkcdkjh vk;qDr 86 Jh gqdqe flag lgk;d vkcdkjh vk;qDr 87 Jh jkts'k dqekj flag lgk;d vkcdkjh vk;qDr 88 Jh ;ksxsUnz dqekj flag lgk;d vkcdkjh vk;qDr 89 Jh jktho flUgk lgk;d vkcdkjh vk;qDr 90 Jh fnfXot; ukjk;.k flag lgk;d vkcdkjh vk;qDr 91 Jh vf[kys'k dqekj flag lgk;d vkcdkjh vk;qDr 92 Jh vkseohj flag lgk;d vkcdkjh vk;qDr 93 Jh dqynhi flag ;kno lgk;d vkcdkjh vk;qDr 94 Jh uUn fd'kksj lpku lgk;d vkcdkjh vk;qDr 95 Jh egs'k dqekj oekZ lgk;d vkcdkjh vk;qDr 96 Jh fofiu lgk; ;kno lgk;d vkcdkjh vk;qDr 97 Jh jek'kadj xqIr lgk;d vkcdkjh vk;qDr 98 Jh jkeflag lgk;d vkcdkjh vk;qDr 99 Jh vuqjkx feJk lgk;d vkcdkjh vk;qDr 100 Jh prjlsu lgk;d vkcdkjh vk;qDr 101 Jh xaxk jke lgk;d vkcdkjh vk;qDr 102 Jh jke LokjFk lgk;d vkcdkjh vk;qDr 103 Jh vt; dqekj oekZ lgk;d vkcdkjh vk;qDr 104 Jh fot; dqekj flag lgk;d vkcdkjh vk;qDr 105 Jh vt; dqekj feJk lgk;d vkcdkjh vk;qDr 3- mDr lwph ds 01 vij vkcdkjh vk;qDr] 06 la;qDr vkcdkjh vk;qDr] 01 la;qDr funs'kd ¼lkaf[;dh½] 02 izkfof/kd vf/kdkjh] 03 lgk;d vYdksgy VsDukykftLV] 29 mi vkcdkjh vk;qDr ,oa 63 lgk;d vkcdkjh vk;qDr esa ls dzekad&14 ij vafdr Jh vfuy dqekj JhokLro ,oa dzekad&48 ij vafdr Jh pUnzdkUr flag ls lacaf/kr okf"kZd izkfof"V;kW ,oa laxr vfHkys[kksa ds iw.kZ u gksus ds dkj.k buds izdj.k vkLFkfxr j[krs gq, okf"kZd izkfof"V;kW ,oa laxr vfHkys[kksa ds vk/kkj ij Ldzhfuax desVh }kjk 'ks"k vf/kdkjhx.k esa ls fuEufyf[kr vf/kdkfj;ksa dks vfuok;Z lsokfuo`RRk gsrq mi;qDr ik;k x;kA dze la0 uke inuke 59 Jh lquhy dqekj lksudj lgk;d vkcdkjh vk;qDr 79 Jh isze ukjk;.k lgk;d vkcdkjh vk;qDr 97 Jh jek'kadj xqIr lgk;d vkcdkjh vk;qDr 105 Jh vt; dqekj feJk lgk;d vkcdkjh vk;qDr mDr oxhZdj.k ,oa laxr vfHkys[kksa ds n`f"Vxr Ldzhfuax desVh }kjk lE;d fopkjksijkUr mi;qZDr 04 lgk;d vk;qDrksa dks vfuok;Z lsokfuo`fRr fd;s tkus gsrq laLrqfr dh tkrh gSA lfefr }kjk ;g vis{kk dh tkrh gS fd mDr izLrj&3 esa mfYyf[kr vf/kdkfj;ksa dh okf"kZd izfof"V;kW ,oa vfHkys[k 'kh?kz iw.kZ djkdj lfefr ds fopkjkFkZ izLrqr fd;k tk;A g0 ¼/khjt lkgw½ g0 vkcdkjh vk;qDr ¼v'kksd dqekj JhokLro½ mRrj izns'kA fo'ks"k lfpo] dkfeZd foHkkxA g0 ¼nhid f=osnh½ vij eq[; lfpo] vkcdkjh foHkkxA On perusal of the recommendation of the Screening Committee it is crystal clear that the Screening Committee nowhere recorded subjective satisfaction or reasons while considering the case of the petitioner for compulsory retirement. The impugned order also does not record subjective satisfaction or reasons otherwise than the recommendation of the Screening Committee. Therefore, the order passed on the basis of such recommendation cannot be justified in law. In view of the ratio laid down by the Apex Court in the aforesaid judgments, it is crystal clear on perusal of report of the Screening Committee and impugned order that the respondents have nowhere followed the principles laid down in making recommendation by the Screening Committee and in passing the impugned order. Therefore, the impugned orders dated 30th August, 2017 as well as the recommendation dated 11.08.2017 (Annexure Nos. 1 and 2 to the writ petition), being not sustainable in law, are hereby set aside. The writ petition succeeds and is allowed.
A writ of mandamus is issued directing the respondent no. 1 to reinstate the petitioner in service and allow him to discharge his duties on the post of officiating Assistant Excise Commissioner and he be paid regular monthly salary and other allowances strictly in accordance with law. However, it is left open to the respondents to pass a fresh order in accordance with law. No order as to costs.
dated:02.05.2018 Pkb/24078-17