Madhya Pradesh High Court
State Of M.P. And Anr. vs Noor Jama Khan And Anr. on 15 February, 2002
Equivalent citations: 2002(5)MPHT37
Bench: Dipak Misra, Uma Nath Singh
ORDER
1. Invoking the extra-ordinary jurisdiction of this Court under Article 227 of the Constitution of India the petitioners namely, State of Madhya Pradesh and the Director, Town and Country Planning have called in question the sustainability of the order dated 22-2-2000 passed by the Madhya Pradesh State Administrative Tribunal, Bhopal (hereinafter referred to as 'the Tribunal') in Original Application No. 68/2000.
2. The facts as have been exposited in the writ petition are that Noor Jama Khan, the respondent No. 1 herein, was served with the notice compulsorily retiring him from Government Service in Public interest with effect from 29-2-2000 on the basis of recommendation of the Screening Committee dated 26-2-99. During that notice period the respondent No. 1 approached the Tribunal assailing the action of the petitioners herein and the Tribunal by the order impugned quashed the order retiring the incumbent compulsorily. The Tribunal expressed the view that the Screening Committee had not appreciated the factual scenario in proper perspective and the recommendation did not deserve to be accepted. The Tribunal took note of the fact that the Screening Committee had not kept in view the parameters which are to be made applicable for the purpose of compulsory retirement of an employee but had recommended without any proper base or foundation.
3. It is not disputed before us that the respondent No. 1 at the time of passing of the impugned order was working as the Assistant Superintendent in the office of Directorate of Town and Country Planning. He entered into the service as Class IV employee in the year 1965. While so serving, in the year 1975 he was graded 'D'. In the year 1976 he was graded 'C'. It is also not disputed before UK that the respondent No. 1 was promoted sometime in early 1980's and, thereafter, in the year 1985 and lastly in the year 1998 to the post which he was holding at the time of passing of the order of compulsory retirement. It is also not disputed at the Bar that the respondent No. 1 had availed leave on 10 occasions commencing 18-9-95 to 6-6-93.
4. It is submitted by Mr. S.K. Yadav, learned Government Advocate, that the Tribunal has grossly erred in law by quashing the order of compulsory retirement though the respondent No. 1 was not found suitable to remain in service by the Screening Committee which had arrived at the conclusion by recording its subjective satisfaction. Learned Counsel for the State has referred to the guidelines dated 13-1-97 which has been brought on record as Annexure P-3 to highlight that an employee can be compulsorily retired as per the F.R. 56 and Rule 42 of Madhya Pradesh Civil Services (Pension) Rules, 1976 and to work out the same guidelines have been framed. Learned Government Advocate has very fairly conceded that there is no allegation with regard to integrity of respondent No. 1 but the order retiring him compulsorily was passed keeping in view his physical capacity and the service record.
5. Mr. Rajendra Babbar, learned Counsel appearing for the respondent No. 1, has defended the order passed by the Tribunal on the ground that Tribunal has considered the report of the Screening Committee and has taken note of various entries in the A.C.R.'s of the respondent No. 1 and arrived at the conclusion that the order passed by the State Government curtailing the tenure of the respondent No. 1 is indefensible and as the Tribunal has appreciated the material brought on record, in proper perspective, the same should not be lanceted in exercise of jurisdiction under Article 227 of the Constitution of India.
6. Before we delve into the rival submissions raised at the Bar we must deal with the contention canvassed by Mr. Yadav that the Committee had recorded its subjective satisfaction and once subjective satisfaction has been recorded the Court should not Interfere. In support of the aforesaid stand the learned Counsel has placed reliance on the decision rendered in the case of Union of India and Ors. v. Dulal Dull, (1993) 2 SCC 179, wherein a three Judge Bench of the Apex Court has held as under:--
"18. It will be noticed that the Tribunal completely erred in assuming in the circumstances of the case that there ought to have been a speaking order for compulsory retirement. This Court has been repeatedly emphasising right from the case of R.L. Butail v. Union of India and Union of India v. J.N. Sinha, that an order of a compulsory retirement is not .an order of punishment. It is actually a prerogative of the Government but it should be based on a material and has to be passed on the subjective satisfaction of the Government. Very often, on enquiry by the Court the Government may disclose the material but it is very much different from the saying that the order should be a speaking order. No order of compulsory retirement is required to be a speaking order. From the very order of the Tribunal it is clear that the Government had, before it, the report of the Revenue Committee yet it though it fit of compulsorily retiring the respondent. The order cannot be called either malafide or arbitrary In law."
Submission of Mr. Yadav is that as per the law laid down by the Apex Court the order of compulsory retirement is the prerogative of the Government and it can be passed on the subjective satisfaction of the State Government. We may hasten to add the concept of subjective satisfaction does not necessarily mean that there can be no material and the competent authority can take a flight in fancy. An opinion has to be formed by the Review Committee. True it is, as has been said by their Lordships, it is the prerogative of the State Government, but as has also been said by their Lordships, it has to be based on material Appreciation of material has to be done. Subjective satisfaction cannot be done in a manner which a prudent man can never conceive. Satisfaction like discretion has to be based on proper consideration and weighment of material. In the name of subjective satisfaction no one can be allowed to behave in a whimsical or capricious manner. Fancy has no place in law. In our considered opinion subjective satisfaction cannot be scanned as if one is sitting in an appeal, but it must meet the requirement of appreciation expected of a prudent man and the appreciation should be relevant and germane to the purpose apropos to its context. It cannot be conceived for a moment that the subjective satisfaction would take away the order from the perview of judicial scrutiny solely on the basis that the Committee has been subjectively satisfied. It must indicate the satisfaction of a prudent and fair man and there should be no perversity of approach. When we say perversity of approach it means perverse legal approach. In this context we may profitably refer to the decision rendered in the case of Posts and Telegraphs Board v. C.S.N. Murthy, (1992) 2 SCC 317 = AIR 1992 SC 1368, wherein their Lordships have held as under:--
"An order of compulsory retirement is not an order of punishment. F.R. 56(j) authorises the Government to review the working of its employees at the end of their period of service referred to therein and to require the servant to retire from service if, in its opinion, public interest calls for such an order. Whether the conduct of the employee is such as to justify such a conclusion is primarily for the departmental authorities to decide. The nature of the delinquency and whether it is of such a degree as to require the compulsory retirement of the employee are primarily for the Government to decide upon. The Courts will not interfere with the exercise of this power, if arrived at bona fide and on the basis of material available on the record."
(Emphasis supplied)
7. In the case of M.S. Bindra v. Union of India, AIR 1998 SC 3058, the Apex Court in Paragraph 11 expressed the view as under:--
"11. Therefore, judicial scrutiny of any order imposing premature compulsory retirement is permissible if the order is either arbitrary or malafide or if it is based on no evidence. The observation that principles of natural justice have no place in the context of compulsory retirement does not mean that if the version of the delinquent officer is necessary to reach the correct conclusion the same can be obviated on the assumption that other materials alone need be looked into."
8. Recently in the case of State of Gujarat v. Umedbhai M. Patel, (2001) 3 SCC 314 = AIR 2001 SC 1109, their Lordships after taking note of series of decisions in the field culled out the principles relating to compulsory retirement in Paragraph 11 which reads as under:--
"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 mere 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."
9. In this context we may also usefully refer to the decision rendered in the case of State of U.P. and Anr. v. Lalsa Ram, (2001) 3 SCC 389 = AIR 2001 SC1137, wherein Paragraph 15 it has been held as under :--
"15. Incidentally, the five guiding principles as laid down in Baikuntha Nath case by this Court stand accepted in another three Judge Bench's judgment of this Court in Posts and Telegraphs Board v. C.S.N. Murthy, wherein this Court observed that whether the conduct of the employee is such as to justify a conclusion of compulsory retirement but the same is primarily for the departmental authorities to decide. The nature of the delinquency and whether it is of such a degree as to require the compulsory retirement, the Courts have no authority or jurisdiction to interfere with the exercise of power if arrived at bonafide on the basis of the material available on record. Usurption of authority is not only unwarranted but contrary to all norms of service jurisprudence."
10. From the aforesaid enunciations of law there remains no iota of doubt that the order of compulsory retirement is not to be passed as short cut to avoid departmental enquiry and the order is to be passed after having due regard to the entire service record of the officer. It also follows that an order has to be tested on the touch stone that no reasonable person would form requisite opinion on the given material. To elucidate, the order should not smack of perversity or based on no material or prima facie malaflde. Quite apart from the above the Apex Court has expressed the view that if the officer has been given promotion despite adverse entries made in the confidential record, that goes in favour of the officer concerned.
11. The present factual matrix has to be tasted on the anvil of the aforesaid principles of law. As has been indicated hereinabove the Committee has referred to three entries in the service career of respondent No. 1. There is no reference to any other entry. We may hasten to add that in a given case there may be circumstances where two or three entries may be sufficient but in the present case the said logic would not be applicable inasmuch as the respondent No. 1 was Graded 'D' in the year 1975; awarded Grade 'C' in the year 1976 and again Graded 'C' in the year 1998. It is worth noting here that the respondent No. 1 was given promotion from time to time and his last promotion, as not disputed by the present petitioners, was in the year 1998. Thereafter, the Screening Committee scrutinised his record and recommended for compulsory retirement. The Tribunal has quoted the entries and recommendations of the Committee and has opined that the same do not stand close scrutiny as per law. The Tribunal has expressed the view that on the basis of three entries alone the officer concerned could not have been treated as unsuitable. Quite apart from the above as we have stated that the respondent No. 1 was given promotion just prior to the passing of the order retiring him compulsorily. In our considered view, the said aspect certainly weighs in favour of the respondent No. 1.
12. As far as physical capacity is concerned Mr. Yadav, learned Government Advocate, has impressed upon this Court to have a look at Annexure P-6 wherefrom it transpires that the petitioner had availed leave on ten occasions from 1995 to 1998. We have perused the said document. True it is, the respondent No. 1 has availed some leave on various intervals in four years for availing treatment, but availing leave for some treatment intermittently would not justify the conclusion that the officer concerned has become physically incapable to work. That apart, the leave which was availed by the respondent No. 1 was of short duration, i.e., 5 to 8 days. On one occasion he had availed leave of 40 days. The matter would have been totally different if the respondent No. 1 would have gone on a very long leave on many an occasion in last four years. That apart, the Committee has not arrived at a categorical and unequivocal conclusion that the physical capacity of the respondent No. 1 had deteriorated. We may also hasten to observe that the Tribunal has observed that respondent No. 1 who was personally present before it appeared to it to be quite physically sound and able to discharge Government duties. We have only mentioned the aforesaid to indicate that the Tribunal has so observed. In absence of any document to show that the respondent No. 1 has become physically incapacitated the finding of the Screening Committee on that score does not appear to be reasonable and, in fact, in our opinion the same is not based on proper appreciation of the material brought on record. On the contrary, it is an inference which has been deduced without a base.
13. In view of the aforesaid premises, we do not find any error in the order passed by the Tribunal and we unhesitatingly give the stamp of approval to the same. It is directed that the respondent No. 1 shall reap all the consequential benefits and receive all emoluments.
14. Resultantly, the writ petition, being sans merit, stands dismissed. However, in the peculiar facts and circumstances of the case there shall be no order as to costs.