Central Administrative Tribunal - Allahabad
Rajesh Krishna vs M/O Home Affairs on 26 April, 2023
RESERVED ON 12.04.2023
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH ALLAHABAD
Dated: This the 26th day of APRIL 2023
PRESENT:
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Dr. Sanjiv Kumar, Member (A)
Original Application No. 330/00355/2021
Rajesh Krishna S/o Kunwar Krishna Sinha, R/o House No. 189,
Village Sulthakalan, Tehsil Shahganj, District Jaunpur.
. . . Applicant
By Adv: Shri Anil Kumar Singh/Shri Vibhu Rai/Ms. Anjali Singh
VERSUS
1. Union of India through Secretary, Ministry of Home affairs,
Government of India.
2. State of U.P through Chief Secretary Government of Uttar
Pradesh, Lucknow.
3. Additional Chief Secretary (Home), Government of Uttar
Pradesh, Lucknow.
4. Director General of Police, Lucknow.
. . .Respondent
By Adv: Shri M.K. Sharma/Shri K.P Singh
ORDER
By Hon'ble Mr. Justice Om Prakash VII, Member (J) The instant Original Application has been filed by the applicant under section 19 of Administrative Tribunal Act, 1985 seeking following reliefs:-
"(i) To quash/set aside the impugned order dated 17.3.2021 passed by respondent No.1 and 4 respectively appended as Appendix-1 to the Compilation I.
(ii) To quash/set aside the impugned order dated 21.03.2021 passed by the respondent No. 3 appended as Appendix -1 to the compilation I. Page 2 of 39
(iii) To direct the respondents to calling the records of the recommendation/proposal dated 1.8.2020 and quash the said recommendation/proposal dated 1.8.2020.
(iv) Issue any other and further order or direction which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case.
(v) To award the cost to the applicant".
2. The brief facts of the case are that the applicant was selected in the Provincial Police Service (PPS) Officer in 1987 Batch and he joined his services on 22.11.1987. Applicant was posted as Circle Officer in different Police Stations of Uttar Pradesh. All postings of the applicant as Circle Officer/Deputy Superintendent of Police are as follows:-
1. 10.12.1991 to 26.01.1994 Allahabad
2. 27.01.1994 to 25.11.1994 26 PAC
3. 26.11.1994 to 27.01.1995 Mathura
4. 28.01.1995 to 26.07.1995 Firozabad
5. 27.07.1995 to 09.09.1995 Jhansi
6. 10.09.1995 to 14.05.1997 Fatehpur
7. 15.05.1997 to 26.07.1998 Allahabad
8. 27.05.1998 to 16.06.1999 Meerut
9. 17.06.1999 to 10.09.2000 Haridwar Applicant was promoted to the post of Additional Superintendent of Police in the year 2000. During the period from 2010 and 2011, the applicant was posted as Deputy Commandant in 23rd/24th Battalion PAC, Moradabad and during the said period, the performance and conduct of the applicant has been remarked as outstanding in his annual confidential report. He was also granted selection grade of IPS cadre vide order dated 16.01.2018 and posted various places. During posting in IPS cadre, applicant has no adverse entry in his confidential report and his performance was commended by the higher authorities. Applicant was an IPS Officer of 2012 Batch on the date of compulsory retirement, thereafter he had joined his duties as a Superintendent of Police (SP). In the annual confidential report of the applicant for Page 3 of 39 the period from 2013 to 2014 posted as Superintendent of Police, Bijnor, the performance of the applicant has been recorded by Reporting Authority and Reviewing Authority as 'outstanding'.
Further in the Annual Confidential Report of the applicant for 2014 to 2015, posted as Commandant PAC 10 Battalion, Barabanki, the performance of the applicant has been recorded as 'outstanding'. Further in the Annual Confidential Report of the applicant for 06.11.2015 to 31.3.2016, posted as Superintendent of Police, Fatehgar, the performance of the applicant has been recorded as 'outstanding/excellent'. Further in the Annual Confidential Report of the applicant for 1.4.2017 to 31.3.2018, posted as Commandant of 10th Batallion PAC Barabanki, the performance of the applicant has been recorded as 'outstanding'. Thereafter, in the Annual Confidential Report of the applicant for 1.4.2018 to 31.3.2019, posted as Superintendent of Police, Bijnor, the performance of the applicant has been recorded as 'outstanding'. It is submitted by the applicant in the OA that an First Information Report was registered as Case Crime No. 1424 of 2006, P.S. Kotwali, District Azamgarh under section 419/420 IPC and under section 8/9/13/14 of Prevention of Corruption Act, 1988 due to the reason that in the year 2006, when the applicant was posted as ATC, Sitapur was deputed as a Member of Interview Board for awarding the marks in the interview whereas the interview marks was only 20. The final report was submitted after thorough investigation by the local police of PS Kotwali, District Azamgarh and the name of the applicant was excluded from the charge-sheet. On these charges, disciplinary proceedings were initiated and after enquiry it was found that applicant was not at all guilty and thereafter the then State Government after considering the aforesaid enquiry report, passed a final order on 21.09.2012, wherein the applicant was exonerated and exempted. Matter was further investigated by the Anti-Corruption Organization and it has submitted its report against the applicant after undue delay of 4 years. Thereafter, applicant preferred an application bearing Criminal Misc. Application No. 46537 of 2019 under section 482 of Cr.P.C. before Page 4 of 39 Hon'ble High Court wherein the Hon'ble High Court vide its order dated 17.12.2019 has directed that no coercive steps shall be taken against the applicant. Lastly respondents passed impugned order dated 17.3.2021 whereby applicant has been prematurely retired under Sub Rule 3 of Rule 16 of All India Service (Death cum Retirement Benefits) Rules, 1958 (hereinafter shall be denoted as the Rules) on the basis of the pick and choose policy, without application of mind and by way of illegal and arbitrary manner.
3. On notice, learned counsel for the respondent No. 1 has filed counter affidavit in which it has been stated that the State Government of U.P vide letter dated 08.01.2020 forwarded a copy of minutes of the Review Committee meeting held on 21.11.2019 in connection with review of service records of IPS officers of Uttar Pradesh under the Rules to the Ministry of Home Affairs. According to the minutes of the Review Committee of the State, the Committee after scrutinizing the record, it was found that applicant seems no more to be eligible and suitable to continue in service. Accordingly, the committee recommended for premature retirement of the applicant in public interest under the Rules. Rule has been quoted in their counter affidavit. For proper appreciation of facts, the above Rules are quoted as under:-
"16(3) The Central Government may, in consultation with the State Government concerned, require a member of the service to retire from service in public interest after giving such Member at least three month's previous notice in writing or three month's pay and allowances in lieu of such notice, -
(i) after the review when such Member completes 15 years of qualifying Service; or
(ii) after the review when such Member completes 25 years of qualifying Service or attains the age of 50 years, as the case may be, or
(iii) If the review referred to in (i) or (ii) above has not been conducted after the review of any other time as the Central Government deems fit in respect of such Member".Page 5 of 39
According, the respondent No. 1 after having considered the recommendation of the Review Committee and the aforesaid provisions it considers fit to premature retirement of the applicant from service in public interest under the Rules. On the recommendation of the respondent No.1, the Appointment Committee of the Cabinet, after careful consideration, vide office memorandum dated 16.03.2021 conveyed approval for premature retirement of the applicant in public interest under the Rules with immediate effect by giving three months' pay and allowances in lieu of notice. Thereafter respondent No.1 vide order dated 17.03.2021, retired the applicant in public interest under the Rules by giving three months' pay and allowances in lieu of notice.
4. Respondents No. 2 to 4 have also filed their counter affidavit denying the claim of the applicant mentioned in the OA. Respondent Nos. 2 to 4 have further submitted that vide order dated 17.03.2021, the applicant was found unsuitable to keep him in service in public interest. Accordingly, in compliance of order dated 17.3.2021 under the Rules, the applicant was compulsorily retired in public interest before the age of superannuation vide notification dated 21.03.2021. It has also been submitted that in the year 1994 - 1995, the entry in the Annual Confidential Report of the applicant was given by the Reporting Officer as satisfactory while Reviewing Officer was given good grading. Further in the year 1997-1998, the applicant was given satisfactory grading by the Reporting/Reviewing/Accepting Authority. In the 2006-2007, the integrity of the applicant was reserved and reserved integrity was certified by the DGP, UP. In the year 2007-2008, inquiry in regard to recruitment of Constables was started and reserved integrity of the applicant was certified. It is also stated that applicant was detained in jail in connection with corruption case. At the time of taking decision of compulsory retirement, remarks of Annual Confidential Reports (ACRs) of the applicant was duly considered, hence, applicant has not been compulsorily retired by way of punishment but the applicant has been retired after due Page 6 of 39 consideration of his entire service record following the rules and guidelines.
5. Rejoinder affidavit has also been filed in which the applicant has reiterated the facts as stated in the OA and denied the contents of the counter affidavit.
6. We have heard Shri Anoop Trivedi, learned Senior Counsel assisted by Shri Vibhu Rai, Shri Anil Kumar Singh and Ms. Anjali Singh, learned counsel for the applicant and Shri M.K Sharma, learned counsel for the respondents No. 1 and Shri K.P Singh, learned counsel for the respondents No. 2 to 4 and perused the entire record including the written submissions. We have also perused the original record produced by the respondents' counsel.
7. Shri Trivedi, learned senior counsel appearing for the applicant referring to the written submissions filed on behalf of applicant dated 2.3.2023 and 12.4.2023 argued that applicant joins the services in PPS cadre in 1990. He was always appreciated/given commendation for his exemplary services and was promoted to the post of Additional Superintendent of Police in the year 2000 and in that capacity too, he was appreciated and was conferred commendation for exemplary performances of his duties. At this juncture learned senior counsel for the applicant referred to the paragraph Nos. 22 and 24 of the OA and further argued that he was generally rated as 'Outstanding' except few. Due to this reason, applicant was inducted in the IPS cadre from State service in the year 2012. He was also granted selection grade in IPS cadre vide order dated 16.01.2018 and 27.04.2018. Referring to paragraph No. 42 of the OA, next argued that applicant served at many places as IPS officer and he was always given commendation as 'Outstanding' by the higher authorities. Learned counsel further refers to paragraph No. 46 to 74 of the OA regarding the ACRs awarded to the applicant in respective years and argued that applicant proved himself to be an asset to the Government. State Government recommendation for Page 7 of 39 compulsory retirement was based on malafide intention to show the good work. It was next argued that there was only a single criminal case of the year 2006 registered against the applicant in which he was falsely implicated and after investigation he was exonerated by Investigating Officer. State Government also accepted the recommendation of Investigating Officer in the year 2012 and due to this reason, applicant was elevated in IPS cadre in the year 2012 itself. It is next argued that once applicant was promoted to the cadre of IPS in the year 2012, thus entries regarding remote past years become meaningless. Promotion of the applicant in the IPS cadre itself indicates that entries prior to 2012 including FIR lodged in the year 2006 cannot be the basis to compulsory retires the applicant. It is also argued that applicant does not come in the category of dead wood because nothing adverse was found against the applicant in the entire service except the FIR lodged in the year 2006, Applicant was always found an honest and efficient officer. It is also argued that malafide on part of the State Government can also be seen on the basis that when applicant had been exonerated in the criminal case registered against him, there was no occasion to pass order for further investigation. It is next argued that on the basis of order for further investigation, a charge-sheet was submitted against the applicant after promoting him in the IPS cadre. Sanction for prosecution is also based on malice. The applicant has been recommended for compulsory retirement only on the basis of sole FIR. Materials taken into consideration for making recommendation for compulsory retirement of the applicant were never supplied to the applicant. Thus, there was no opportunity to the applicant to explain the facts. Hence, there is a clear violation of principle of natural justice. Learned senior counsel for the applicant also argued that mere pendency of the disciplinary proceedings or criminal proceedings will not be sufficient to form opinion that employee concerned has become dead wood. The entire service record of the applicant has not been taken into consideration. Had the review/screening committee been taken Page 8 of 39 into consideration the entire service record certainly the committee did not recommend the name of applicant for compulsory retirement. Compulsory retirement order has also not been passed in the public interest rather order is cryptic, unreasoned. Thus also indicates that order for compulsory retirement was passed to punish the applicant in arbitrary manner without application of judicial mind. Settled legal position has also not been taken into consideration at the time of making the recommendation. Review/screening committee had adopted the procedure of pick and choose. Total name of 127 officers were placed before the committee but while recommending the name of the applicant for compulsory retirement it did not disclose that as to why remaining 124 officers were not recommended for compulsory retirement. This also shows the arbitrariness on part of the respondents. It was further argued that intent of the provisions of fundamental Rule 56 has not been interpreted in the manner as has been interpreted by the Hon'ble Supreme Court and different Hon'ble High Courts. Since the ACRs of the applicant throughout the service was generally outstanding and integrity was beyond doubt, thus recommendation of the Government for compulsory retirement to the applicant is against the doctrine of pleasure enshrined under Article 310 of Constitution of India. Learned senior counsel specifically refers the paragraph No. 18 of the written argument dated 12.4.2023 and further argued that order for compulsory retirement is stigmatic which has ruined the future of the applicant and the family. It is further argued that no efforts have been made to give more weightage to the recent past entries rather more weightage has been given to the performance of the remote past. Compulsory retirement is aspersion on the conduct and character of the applicant and it is in the form of punishment as provided following the provision of Article 311 (2) of the Constitution of India. Referring to the entire entries awarded to the applicant during the entire service period, learned counsel further argued that no reasonable person would form on perusal of the aforesaid entries that applicant has become dead wood for the Page 9 of 39 department. Thus, impugned order on this score is also illegal and liable to be set aside. Referring to the provisions of the Rules, it was next argued that order for compulsory retirement would only be passed in the circumstances if the officer concerned possesses doubtful integrity and then to weed out such officers who have out- lived their utility and have become inefficient. It is also argued that applicant got key postings and shows his utility at every part of his service and after getting promotion, he served as Senior Superintendent of Police in 5 Districts and was always appreciated by senior officer and received so many commendations. Applicant has also performed duty for the security of the Hon'ble Prime Minister.
8. Learned counsel for the applicant relied upon the catena judgments of Hon'ble High Court and Hon'ble Supreme Court, which are as under:-
(i) Captain Pramod Kumar Bajaj Vs. Union of India and another passed in Civil Appeal No. 6161 of 2022 decided on 03.03.2023 by Hon'ble Supreme Court.
(ii) The State of Gujarat & another Vs. Suryakant Chunilal Shah passed on 03.12.1998 by Hon'ble Supreme Court.
(iii) Ghanshyam Misra Vs. State of UP and others passed in Writ A No. 45254 of 2017 decided on 09.05.2019 by Hon'ble Allahabad High Court.
(iv) Mukesh Bhatnagar Vs. State of U.P and others passed in Service Single No. 205 of 2018 decided on 03.04.2019 by Hon'ble Allahabad High Court.
(v) Sunil Kumar Sonkar Vs. State of UP and others passed in Service Single No. 24078 of 2017 decided on 02.05.2018 by Hon'ble Allahabad High Court.
(vi) Pritam Singh Vs. Union of India and others passed in Appeal (Civil) 6233 of 2004 decided on 22.09.2004 by Hon'ble Supreme Court.
(vii) Swaran Singh Chand Vs. Punjab State Electricity Board & others passed in Civil Appeal No. 3298 of 2009 on 06.05.2009 by Hon'ble Supreme Court.
(viii) Union of India Vs. M.E. Reddy and another reported in 1980AIR 563. Page 10 of 39
(ix) Bikunath Das and another Vs. Chief District Medical Officer, Baripada and another reported in (1992) 2 SCC 299.
(x) M.S Bindra Vs. Union of India and others reported in (1998) 7 SCC 310.
(xi) Hanuman Das Kesari Vs. State of U.P and another reported in 2018 (4) AWC 4187.
(xii) State of Gujarat and another Vs. Suryakant Chunilal Shah passed on 03.12.1998 by Hon'ble Supreme Court.
(xiii) Radheshyam Kejriwal Vs. State of West Bengal & others passed in Criminal Appeal No. 1097/2003 on 18.02.2011 by Hon'ble Supreme Court.
(xiv) P.S. Rajya Vs. The State of Bihar reported in JT 1996 (6) 480.
9. Learned counsel for the respondent No. 1 has contended that after careful consideration of the proposal of State Government and the performance of applicant, the Union of India has come to the conclusion that the applicant is not fit to be retained in service in public interest. Therefore, Central Government has decided to retire the applicant from prematurely from service, in public interest, under the Rules with immediate effect. He contended that various adverse entries are found in his annual confidential reports and many departmental proceedings are underway against him under Rule 8 of the All India Service (Discipline and Appeal) Rules, 1969. Learned counsel for the respondent No. 1 and 2 has further contended that it is settled principle of law that there is a very limited scope of judicial review in case of compulsory retirement and it was permissible only on the ground of non-application of mind, malafide or want of material particular. Power to retire compulsorily a government servant in terms of service rules is absolute and the court cannot look into the merits of the order. To buttress his argument, he relied upon following case laws:-
(a) State of Gujarat Vs. Umed Bhai M. Patel reported in (2001) 3 SCC para 11.
(b) Bikunath Das and another Vs. Chief District Medical Officer, Baripada and another reported in (1992) 2 SCC 299.
(c) Pyare Mohal Lal Vs. State of Jharkhand and others reported in (2010) 10 SCC 693.Page 11 of 39
(d) K. Ramaswamy Vs. Union of India and another reported in (1995) 6 SCC
168.
10. Learned counsel for the respondent Nos. 2 to 4 has argued that before issuing an order of premature retirement of the applicant, all grading in past ACRs and Office Memorandum dated 28.08.2020 have been considered and there is no provision of hearing before passing an order under the Rules. Learned counsel also argued that State Government has decided to retire the officer in public interest, whose integrity is doubtful and who has outlived his utility in the department. Learned counsel further submitted a set of judgment compilation whereby he has relied upon following judgments of Hon'ble Supreme Court:-
"(i) Union of India and others Vs. M. E Reddy and another reported in 1980 AIR (SC) 563
(ii) Baikuntha Nath Das Vs. Chief District Medical Officer, Baripada reported in 1992 (2) SCT 92
(iii) K. Kandaswamy Vs. Union of India and others reported in 1995 (2) CLR 996".
11. We have considered the rival submissions advanced by the learned counsel for the parties and gone through the entire records including the case law relied upon by the parties.
12. Before discussing the submission raised across the bar and comparing the same with the facts of the present case, we find it essential to quote the settled legal preposition, which are as under:-
(i) In the case of M.E. Reddy (supra), the Hon'ble Supreme Court has held as under:-
"23. In a recent decision of this Court in the case of Mayenghoan Rahamohan Singh Vs. Chief Commr. (Admn.) Manipur (1977) 1 SCR 1022 , the Court observed as follows:-
"Compulsory retirement is not a punishment. There is no stigma in compulsory retirement".
"The affidavit evidence is that the order of compulsory retirement was made in public interest. The absence of recital in the order of compulsory retirement that it is made in public interest is not fatal Page 12 of 39 as long as power to make compulsory retirement in public interest is there and the power in fact is shown in the facts and circumstances of the case to have been exercised in public interest".
In this case, the Court was considering the scope of rule 56(j) which, as already indicated, is couched in the same terms as rule 16(3)".
(ii) In the case of K. Kandaswamy (supra), the Hon'ble Supreme Court has held as under:-
"8. As seen in the light of documents and in the light of the specific permission sought by the appellant himself on the basis of the special report submitted by the State Government, the Government of India through its appropriate Committee reached the conclusion that in view of the doubtful integrity it would not be desirable in the public interest to retain the appellant in service. Accordingly, they have compulsorily retired the appellant from service. Compulsory retirement does not amount to dismissal or removal from service within the meaning of Article 311 of the Constitution. It is neither punishment nor visits with loss of retiral benefits; nor does it cast stigma. The officer would be entitled to the pension that he has actually earned and there is no diminution of the accrued benefits. The object of compulsory retirement of the Government employee is public interest. If the appropriate authority bona fide forms that opinion, the correctness thereof on merits cannot be challenged before courts, though it may be open to the aggrieved employee to impugn it. But the same may be challenged on the ground that requisite opinion is based on no evidence or has not been formed or the decision is based for collateral grounds or that it is an arbitrary decision.
9. While exercising the power under Rule 56 (j) of the Fundamental Rules, the appropriate authority has to weigh several circumstances in arriving at the conclusion that the employee requires to be compulsorily retired in public interest. The Government is given power to energise its machinery by weeding out dead wood, inefficient, corrupt and people of doubtful integrity by compulsorily retiring them from service, when the appropriate authority forms bona fide opinion that compulsory retirement of the Government employee is in the public interest, court would not interfere with the order. In S. Ramachandra Raju vs. State of Orissa, 1994 (4) SCT 30 (SC): [(1994) 3 SCC 424, a Bench of this Court to which one of us (K. Ramaswamy, J.) was a member, considered the entire case law and held that "the Government must exercise its power only in the public interest to effectuate the efficiency of the service. The dead wood needs to be removed to augment efficiency. Integrity in public service needs to be maintained.
The exercise of power of compulsory retirement must not be a haunt on Page 13 of 39 public servant but must act as a check and reasonable measure to ensure efficiency of service and free from corruption and incompetence. The officer would live by reputation built around him. In an appropriate case, there may not be sufficient evidence to take punitive disciplinary action of removal from service. But his conduct and reputation is such that his continuance in service would be a menace to public service and injurious to public interest. The entire service record or character rolls or confidential reports maintained would furnish the backdrop material for consideration by the Government or the Review Committee or the appropriate authority. On consideration of the totality of the facts and circumstances alone; the Government should form the opinion that the Government officer needs to be compulsorily retired from service. Therefore, the entire record more particularly, the latest, would form the foundation for the opinion and furnish the base to exercise the power under the relevant rule to compulsorily retire a Government officer."
(iii) In the case of Mukesh Bhatnagar (supra), the Hon'ble Lucknow Bench of Allahabad High Court has held that waitage not given to recent past years and the entries which ought not to have been given waitage have been taken into account while passing order of compulsory retirement, thus, order passed by the competent authority or screening committee was found illegal.
(iv) Hon'ble Supreme Court in the case of Umedbhai M. Patel (supra) has laid down the following principle relating to compulsory retirement:-
"11. The law relating to compulsory retirement has now crystallized 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.Page 14 of 39
(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".
(v) In the case of Sunil Kumar Sonkar (supra), Hon'ble Allahabad High Court (Lucknow Bench) relying upon the case of Umedbhai M. Patel (supra) allowed the petition setting aside the order of compulsory retirement on the ground that entire service record of the petitioner have not been taken into consideration and screening committee have not followed the principle laid down in Umedbhai M. Patel (supra) case.
(vi) In Ghanshyam Misra (supra), Hon'ble Allahabad High Court allowed the petition setting aside the order of compulsory retirement observing that the screening committee proceeded on assumption that the disciplinary proceedings were pending when in fact reports of enquiry officer had been duly placed before PCCF. It has also been held that screening committee has not exercised due application of mind.
(vii) In paragraph No. 33 and 34 of Ashok Kumar Aggarwal Vs. Union of India decided in WP (C) 11177/2020 and CM Appl. 34872/2020 on 22/09/2021, the Division Bench of Hon'ble Delhi High Court has held as under:-
"33. At this stage, we think it appropriate to append a note of clarification. What is normally required to be communicated is adverse remarks -- not every remark, comment or observation made in the confidential rolls. There may be any number of remarks, observations and comments, which do not constitute adverse remarks, but are yet relevant for the purpose of F.R. 56(j) or a rule corresponding to it. The object and purposes for which this power is to be exercised are well stated in J.N. Sinha [(1970) 2 SCC 458 : (1971) 1 SCR 791] and other decisions referred supra.
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 Page 15 of 39 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 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".
It is settled preposition of law that compulsory retirement involves no civil consequences. The Government servant does not loose any of the rights acquired by him before retirement while a minimum service is granted to the Government Servant, the Government is given power to energize its machinery and make more efficient by compulsory retiring those who in its opinion should not continue in the service of the Government in the interest of public.
It is also settled preposition of law on the subject that Fundamental Rule 56(i) in terms does not require that any opportunity should be given to the concerned government servant to show cause against his compulsory retirement. Appropriate authority has the absolute right to retire a government servant if it is of the opinion that it is in the public interest to do so. The right conferred on the appropriate authority is an absolute one. The power can be exercised subject to the conditions mentioned in the rule, one of which is that the concerned authority must be of the opinion that it is in public interest to do so. If that authority bona fide farms that opinion, the correctness of that opinion cannot be challenged before Courts. It is open to an aggrieved parties to contend that the requisite opinion has not been farmed or the decision is based on collateral grounds or that it is an arbitrary decision.
Paras 36, 43 to 45 of the said judgment are also quoted as under:-
"36. So far as the appeals before us are concerned, the High Court which has looked into the relevant record and confidential records has opined that the order of compulsory retirement was based not merely upon the said adverse remarks but other material as well. Secondly, it has also found that the material placed before them does not justify the conclusion that the said remarks were not recorded duly or properly. In the circumstances, it cannot be said that the order of compulsory retirement suffers from mala fides or that it is based on no evidence or that it is arbitrary.‖ (emphasis supplied)
17. Compulsory retirement involves no civil consequences. The Government servant does not loose any of the rights acquired by him before retirement while a minimum service is granted to the Government Servant, the Government is given power to energize its machinery and make more efficient by compulsory retiring those who in its opinion should not continue in the service of the Government in the interest of public.Page 16 of 39
18. It has been held by Hon'ble the Supreme Court in Union of India v. Col. J.N. Sinha 1970(2) SCC 458 in para-8, 9 and 10 as under:-
"8. Fundamental Rule 56(i) in terms does not require that any opportunity should be given to the concerned government servant to show cause against his compulsory retirement. A government servant serving under the Union of India holds his office at the pleasure of the President as provided in Article 310 of the Constitution. But this ―pleasure‖ doctrine is subject to the rules or law made under Article 309 as well as to the conditions prescribed under Article 311. Rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights. As observed by this Court in A.K. Kraipak v. Union of India [(1969) 2 SCC 262 : AIR 1970 SC 150] ―the aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law but supplement it‖. It is true that if a statutory provision can be read consistently with the principles of natural justice, the courts should do so because it must be presumed that the Legislatures and the statutory authorities intend to act in accordance with the principles of natural justice. But if on the other hand a statutory provision either specifically or by necessary implication excludes the application of any or all the principles of natural justice then the court cannot ignore the mandate of the Legislature or the statutory authority and read into the concerned provision the principles of natural justice. Whether the exercise of a power conferred should be made in accordance with any of the principles of natural justice or not depends upon the express words of the provision conferring the power, the nature of the power conferred, the purpose for which it is conferred and the effect of the exercise of that power.
9. Now coming to the express words of Fundamental Rule 56(j) it says that the appropriate authority has the absolute right to retire a government servant if it is of the opinion that it is in the public interest to do so. The right conferred on the appropriate authority is an absolute one. That power can be exercised subject to the conditions mentioned in the rule, one of which is that the concerned authority must be of the opinion that it is in public interest to do so. If that authority bona fide forms that opinion, the correctness of that opinion cannot be challenged before courts. It is open to an aggrieved party to contend that the requisite opinion has not been farmed or the decision is based on collateral grounds or that it is an arbitrary decision. The 1st respondent challenged the opinion formed by the Government on the ground of mala fide. But that ground has failed. The High Court did not accept that plea. The same was not pressed before us. The impugned order was not attacked on the ground that the required opinion was not formed or that the opinion formed was an arbitrary one. One of the conditions of the 1st respondent's service is that the Government can choose to retire him any time after he completes fifty years if it thinks that it is in public interest to do so. Because of his compulsory retirement he does not lose any of the rights acquired by him before retirement. Compulsory retirement involves no civil consequences. The aforementioned Rule 56(j) is not intended for taking any penal action against the government servants. That rule merely embodies one of the facets of the pleasure doctrine embodied in Article 310 of the Constitution. Various considerations may weigh with the appropriate authority while exercising the power conferred under the rule. In some cases, the Government may feel that a particular post may be more usefully held in public interest by an officer more competent than the one who is holding. It may be that the officer Page 17 of 39 who is holding the post is not inefficient but the appropriate authority may prefer to have a more efficient officer. It may further be that in certain key posts public interest may require that a person of undoubted ability and integrity should be there. There is no denying the fact that in all organizations and more so in government organizations, there is good deal of dead wood. It is, in public interest to chop off the same. Fundamental Rule 56(j) holds the balance between the rights of the individual government servant and the interests of the public. While a minimum service is guaranteed to the government servant, the Government is given power to energise its machinery and make it more efficient by compulsorily retiring those who in its opinion should not be there in public interest.
10. It is true that a compulsory retirement is bound to have some adverse effect on the government servant who is compulsorily retired but then as the rule provides that such retirements can be made only after the officer attains the prescribed age. Further, a compulsorily retired government servant does not lose any of the benefits earned by him till the date of his retirement. Three months' notice is provided so as to enable him to find out other suitable employment.‖ (emphasis supplied)
19. Validity of Rule 56(j) of Fundamental Rules has already been upheld by the Hon'ble the Supreme Court in T.G. Shivacharana Singh v. State of Mysore AIR 1965 SC 280. It has been held that a Government servant serving under the Union of India holds office at the pleasure of the President of India as provided under Article 310 of the Constitution of India.
20. It has been held in the aforesaid decision by Hon'ble the Supreme Court that compulsory retirement is bound to have some adverse effect on the Government servant who is compulsorily retired but the rule provides that such retirements can be made only after the officer attains a prescribed age. Compulsorily retired Government Servant does not loose any benefits earned by him till the date of retirement.
21. The fundamental source of compulsorily retiring an employee of the Government is derived from "Doctrine of Pleasure‖ which springs from Article 310 of the Constitution of India. It has been held by Hon'ble the Supreme Court in Nisha Priya Bhatia vs. UOI & Anr. (Supra) in paragraphs, 33,40,42,43 as under:-
"33. Further, it is pertinent to note that the grounds referred to in Rule 135 nowhere contemplate it as a consequence of any fault penal actions, do not stigmatise the outgoing officer or involve loss of benefits already earned by him and there is no element of punishment. Sub-rules (2), (3) and (4) of Rule 135 reinforce this view as the same provide for appropriate benefits such as pension, gratuity, lump sum amount, etc. for the public servant who has been subjected to compulsory retirement. Thus, the employee is not faced with any loss of benefits already earned. We say so because the examination of the characteristics of such a rule is not focussed around the motive or underlying intent behind its enactment, rather, it lies in the consequence and effect of the operation of such a rule on the outgoing employee. The rule does not result into a deprivation of the retired employee of any benefit whatsoever in lieu of such order of compulsory retirement and thus, attracts no stigma or any civil consequence to the retired employee for his/her future. The invocation of this Rule, therefore, falls in sync with the second proposition in Shyam Lal [State of U.P. v. Shyam Lal Sharma, (1971) 2 SCC 514] which looks down upon any loss of profits in a non-stigmatic order of compulsory retirement. Succinctly put, a Page 18 of 39 compulsory retirement without anything more does not attract Article 311(2). We may usefully refer to Dalip Singh v. State of Punjab [Dalip Singh v. State of Punjab, AIR 1960 SC 1305] and Union of India v. Dulal Dutt [Union of India v. Dulal Dutt, (1993) 2 SCC 179 : 1993 SCC (L&S) 406] to bring home the stated position of law.
43. We further note that generally it is correct to say that the rules governing conditions of service, framed under Article 309, are subject to other provisions of the Constitution, including Article 311. The opening words of Article 309 -- ―Subject to the provisions of this Constitution‖ -- point towards the same analogy. However, this subjection clause shall not operate upon the rules governing compulsory retirement. For, the legal concept of compulsory retirement, as discussed above, is a non-penal measure of the Government and steers clear from the operation of Article 311, unless it is a case of removal or dismissal clothed as compulsory retirement. Had there been a rule providing for removal, dismissal or reduction in rank, it would have been controlled by the safeguards under Article 311. It has also been observed in State of U.P. v. Babu Ram Upadhya [State of U.P. v. Babu Ram Upadhya, AIR 1961 SC 751 : (1961) 1 Cri LJ 773] that the validity of a rule shall be hit by Article 311 only if it seeks to affect the protection offered by Article 311, and not otherwise as in the present case.‖ (emphasis supplied)
22. The Petitioner has been compulsorily retired vide order dated 10.06.2019. Complete service record of the Petitioner was placed before the Review Committee. While taking the decision of compulsorily retiring the Petitioner, the Review Committee was of the opinion that continuation of the Petitioner in services of the Respondent is no longer in public interest. The Committee noted that CBI had registered two cases against the Petitioner:-
it was alleged that Shri Ashok Kumar Aggarwal one Mr. Abhishek Verma were involved in criminal conspiracy by way of forging a document (a fax message) and using it as a genuine document with the intention to create false evidences to implicate one Shri S. C. Barjatya. RC S-19/1999/E-001: The case was registered against Shri Ashok Kumar Aggarwal for alleged possession of disproportionate assets against his known sources of income. The CBI in its report has estimated the total disproportionate assets of Shri Ashok Kumar Aggarwal at Rs.12,04,46,946/-.
23. Charge sheets were filed in both the aforesaid criminal cases against the Petitioner. Sanction for prosecution was also granted vide orders dated 26.06.2002 and 26.11.2002 by the Competent Authority. Delhi High Court quashed the order of granting sanction for prosecution in Criminal Writ Petition and in Criminal Revision Petition against which the Department has preferred the Special Leave Petitions before Hon'ble the Supreme Court being:-
a) SLP(Crl.) No.10083/2016,
b) SLP(Crl.) No.10112/2016,
c) SLP (Crl.) No.418/2017 and
d) SLP (Crl.) No.419/2017.
24. These SLPs are preferred against the common judgment and order dated 13.01.2016 delivered by Delhi High Court. All these SLPs are pending before the Supreme Court.
25. Much has been argued out by learned Senior Counsel appearing on behalf of the Petitioner that there are several litigations initiated by the Petitioner for suspension, quashing of the charge sheets in departmental proceedings, for quashing of the sanction for prosecution, for getting Page 19 of 39 promotions etc. and the Petitioner has succeeded in all these litigations. This constitutes malafide in law on the part of the Respondents.
26. Learned Senior Counsel has also taken this Court to various orders passed by different Courts in varieties of matters filed by him and has pointed out that in few matters, there are observations in the judgment about legal malice on the part of the Respondents.
27. Much emphasis was given by the learned Senior Counsel, Mr. Vikas Singh appearing on behalf of the Petitioner that looking to the observations in the aforesaid matters, there is malice on the part of the Respondents while passing the order of compulsory retirement dated 10.06.2019.
28. We are not in agreement with this contention canvassed by the learned Senior Counsel for the reason that compulsory retirement is absolutely an independent decision arrived at by the Review Committee keeping in mind the entire service record of the Petitioner and usefulness of the Petitioner into the services of the Respondents. In the 34 years span of his career, for 20 years, Petitioner has been busy in litigation with the Respondents. The conduct of the Petitioner has shaken the confidence of the Respondents to post him on public posts which involves public dealing.
29. It has also been pointed out by the learned Counsel for the Respondents that the Petitioner did not file his immovable property returns (IPR) at the time of joining which was required under the law. Correspondences dated 27.03.2000, 02.03.2000, 06.03.2000 and 14.03.2000 have also been annexed as Annexure R-6 to the memo of the counter affidavit filed by the Respondents before the Tribunal. Similar is the position for APARs dossier of the Petitioner.
30. These APARs were also not submitted by the Petitioner which are self appraisal reports for the year 1998-99, 2015-16, 2017-18, 2018-19. As per DoPT, OM No.21011/02/2009 - Esstt.(A) dated 16.02.2009, writing of ACR/APAR is a public trust and responsibility and the Petitioner has failed to perform the public duty of writing the ACR/APARs within the due date. Thus, the Petitioner had developed a tendency of not following Government instructions of writing APARs. Thus, after considering all these materials available on record including relating to the departmental inquiries against the Petitioner and taking a holistic view of the record, the Review Committee concluded that conduct of the Petitioner is such that his continuance in service would be a menace to public service and injurious to public interest. Hence, the services of the Petitioner are no longer useful to the general administration. The conduct of the Petitioner is unbecoming of a public servant and obstructs efficiency in public services. Therefore, the Review Committee had recommended that Petitioner be compulsorily retired in public interest under Rule 56(j) of Fundamental Rules.
31. This decision of the Review Committee is an absolutely independent proceedings and looking to the overall service record of the Petitioner, this subjective satisfaction has been arrived at by the Review Committee. There is no allegation of personal malafide upon the members of the Review Committee. What is contended by learned Senior Counsel for the Petitioner is legal malice by the Respondents because of certain observations made by the competent Courts in the litigation by the Petitioner against the Respondents.
32. Even if there are decisions in the matter of suspension, departmental inquiries and any challenge of grant of sanction for prosecution in favour of the Petitioner, that does not mean that the Petitioner cannot be compulsorily retired by the Respondents. The observations made in the orders while deciding the matter initiated by the Petitioner is one thing whereas, the order of compulsory retirement which is passed on the basis of entire service Page 20 of 39 record of the Petitioner and the decision taken by Review Committee, is altogether another thing. If any employee of the Union of India has succeeded in litigation(s) that does not mean that looking to the overall service record of the Petitioner, after certain age as per rules, he cannot be retired by the Union of India. It ought to be kept in mind that compulsory retirement is a subjective satisfaction which has been formed on the basis of the entire service record. It is not a punishment. Compulsory retirement may have some adverse effect upon the employee but if the Review Committee is of the opinion that in the interest of public his services should be brought to an end by compulsory retirement after prescribed age on the basis of the entire record of service, such an employee has no right to continue into the services after a prescribed age, as per rules.
33. Rule 56(j) of Fundamental Rules is an extension of "Doctrine of Pleasure"¸ If the employer - Union of India is of the opinion that no useful purpose will be served by continuing an employee into the services of the Union of India, in the public interest such an employee can be made compulsorily retired.
34. While taking the decision of the compulsory retirement all the service record of the Petitioner has been considered by the Review Committee.
35. It has been held by Hon'ble Supreme Court in State of Punjab v. Gurdas Singh (1998) 4 SCC 92 in paragraph - 11 as under:-
"11. The facts in the present case are quite similar to that in Union of India v. V.P. Seth [1994 SCC (L&S) 1052 : (1994) 27 ATC 851 :
AIR 1994 SC 1261] . Here also the only ground on which the order prematurely retiring Gurdas Singh was set aside was that two adverse entries after his promotion from the rank of Assistant Sub- Inspector to Sub-Inspector were not communicated to him and earlier adverse entries could not be taken into account because even when those existed Gurdas Singh had earned his promotion. It is not necessary for us to again reiterate the principles where the Court will interfere in the order of premature retirement of an employee as these have been accurately set down by various pronouncements of this Court and particularly in Baikuntha Nath Das case [(1992) 2 SCC 299 : 1993 SCC (L&S) 521 : (1992) 21 ATC 649] . Before the decision to retire a government servant prematurely is taken the authorities are required to consider the whole record of service. 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 into 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 uncommunicated adverse entries as well.‖ (emphasis supplied)
36. It has been held by Hon'ble Supreme Court in Ram chandra Das v. State of Orissa & Others (1996) 5 SCC 331 in paragraph-7 as under:-
"7. It is contended for the respondent that adverse entries for the two years referred to earlier and pending departmental proceedings would not be sufficient to compulsorily retire the government servant on the premises that after promotion they would become irrelevant and minor penalty was imposed. It is true that the government servant was allowed to cross the efficiency bar to enable him to avail of the benefits to draw higher scale of pay after crossing the efficiency bar. The adverse remarks made are after promotion. Even otherwise, the remarks form part of service record and character roll. The record of enquiry on conduct also would be material. Though minor penalty may be imposed on given facts and Page 21 of 39 circumstances to act of misconduct, nevertheless it remains part of the record for overall consideration to retire a government servant compulsorily. The object always is public interest. The material question is whether the entire record of service was considered or not? It is not for the court/tribunal to see whether the decision of the Government to compulsorily retire the government servant is justified or not. It is for the Government to consider the same and take a proper decision in that behalf. As stated earlier, it is settled law that the Government is required to consider the entire record of service. Merely because a promotion has been given even after adverse entries were made, cannot be a ground to note that compulsory retirement of the government servant could not be ordered. The evidence does not become inadmissible or irrelevant as opined by the Tribunal. What would be relevant is whether upon that state of record as a reasonable prudent man would the Government or competent officer reach that decision. We find that selfsame material after promotion may not be taken into consideration only to deny him further promotion, if any. But that material undoubtedly would be available to the Government to consider the overall expediency or necessity to continue the government servant in service after he attained the required length of service or qualified period of service for pension. It is also made clear that in this case adverse entries were made only after promotion and not earlier to promotion. Compulsory retirement is not a punishment. He is entitled to all the pensionary benefits.‖ (emphasis supplied)
37. In view of the aforesaid decision even if promotion has been granted to him, still compulsory retirement can be granted by Union of India under Rule 56(j) of Fundamental Rules as under the said rule the entire service record of the employee is to be seen and if the Review Committee is of the opinion that in the interest of public looking to overall service record, the employee requires to be retired, there is no right vested in the employee to continue in the employment after a prescribed age under the Rules.
38. Much has been argued out by learned Senior Counsel appearing for the Petitioner that as the charges levelled against the Petitioner in departmental inquiry have been quashed, the decision of compulsory retirement dated 10.06.2019 is because of legal malice on the part of the Respondents. This contention of the Petitioner is devoid of any merits. It has been held by Hon'ble Supreme Court in State of U.P. vs. Vijay Kumar Jain, (2002) 3 SCC 641 which relied upon the judgment in Shyamlal vs. State of U.P. AIR 1954 SC 369 in paragraph 10 as under:-
"10. Before we advert to the question which we are required to decide, it is necessary to notice the nature of an order compulsorily retiring a government servant under FR 56(c). In Shyamlal v. State of U.P. [AIR 1954 SC 369 : (1955) 1 SCR 26] it was held that an order of compulsory retirement is neither a punishment nor is any stigma attached to it and it was held therein as thus: (SCR pp. 41-
42) ―There is no such element of charge or imputation in the case of compulsory retirement. The two requirements for compulsory retirement are that the officer has completed twenty-five years' service and that it is in the public interest to dispense with his further services. It is true that this power of compulsory retirement may be used when the authority exercising this power cannot substantiate the misconduct which may be the real cause for taking the action but what is important to note is that the directions in the last sentence in Note 1 to Article 465-A make it abundantly clear that an imputation or charge is not in terms made a condition for the exercise of the power. In other words, a compulsory retirement Page 22 of 39 has no stigma or implication of misbehaviour or incapacity.‖‖ (emphasis supplied)
39. In view of the aforesaid even if there is quashing of charges in a departmental proceedings, still the respondents have all power, jurisdiction and authority under Rule 56(j) of Fundamental Rules for passing an order of compulsory retirement of the Petitioner.
40. Compulsory retirement has various facets. Compulsory retirement can be passed looking to the overall service record of the Government employee.
Compulsory retirement order can also be passed in public interest with a view to improve efficiency of the administration or to weed out people of doubtful integrity or corrupt employee but sufficient evidence was not available to take disciplinary action in accordance with the rules, so as to inculcate a sense of discipline in the services. Thus, even if for this petitioner, the departmental charges have been quashed and set aside and the sanction granted for prosecution in two criminal cases have been quashed and set aside, still the Respondents can pass an order for compulsory retirement of the Petitioner.
41. It has been held by Hon'ble Supreme Court in State of Orissa and Ors. vs. Ram Chand Das (Supra) in paragraph 3 as under:-
"3. This appeal by special leave arises from the judgment and order passed by the Orissa Administrative Tribunal in OA No. 340 on 1987 on 18-7-1992. The respondent while working as Assistant Conservator of Forests was compulsorily retired from service by proceedings dated 1-8-1983 which came to be challenged by the respondent in the above proceedings. The Tribunal allowed the application on three grounds: (i) the respondent was allowed to cross the efficiency bar; (ii) since he was promoted, after the adverse remarks were made, the records were wiped out; and (iii) the entire record and overall consideration thereof was not done and, therefore, the exercise of the power of compulsory retirement under Rule 71(a) was not valid in law. The question is whether the view taken by the Tribunal is correct in law? It is needless to reiterate that settled legal position is that the Government is empowered and would be entitled to compulsorily retire a government servant in public interest with a view to improve efficiency of the administration or to weed out the people of doubtful integrity or are corrupt but sufficient evidence was not available to take disciplinary action in accordance with the rules so as to inculcate a sense of discipline in the service. But the Government, before taking such decision to retire a government employee compulsorily from service, has to consider the entire record of the government servant including the latest reports.‖ (emphasis supplied)
42. Learned Solicitor General of India on behalf of the Respondents submitted that the Petitioner has been given benefit of technical ground for quashing the orders of sanction for criminal prosecution in 2 CBI cases registered against him, against which SLPs (Crl.) are pending before Hon'ble Supreme Court and, they are as under:-
a) SLP(Crl.) No.10083/2016,
b) SLP(Crl.) No.10112/2016,
c) SLP (Crl.) No.418/2017 and
d) SLP (Crl.) No.419/2017.
43. Learned Solicitor General of India submitted that there are serious charges against the Petitioner in the aforesaid criminal cases which have been investigated by CBI, one of which is regarding disproportionate assets case. The details of these criminal cases have been narrated in the counter Page 23 of 39 affidavit filed by Union of India in O.A. No.1835/2020 before the Tribunal. As these matters are already pending before Hon'ble Supreme Court, this Court is refraining from going into the details of the charges levelled against the Petitioner. Suffice it would be to say that it is the subjective satisfaction arrived at by the Review Committee that looking to the entire service record of the Petitioner including the aforesaid two criminal cases, Union of India do not want to continue this Petitioner into the services and as stated hereinabove Rule 56(j) of Fundamental Rules is an extension of ―Doctrine of Pleasure". After certain minimum prescribed services and after the prescribed age as per rules, there is no right vested in the employee to continue into the services. It depends upon the pleasure of the Union of India to continue him into the services or not looking to his entire service record and his usefulness into the services and his overall performance during the later years. In overall assessment of a Central Government employee, even if there is acquittal from charges, Union of India can always arrive at a conclusion that looking to the entire service record and looking to the usefulness of the Petitioner into the services, he can be made compulsorily retired from the services. This decision is a complex decision and varieties of factors are to be kept in mind by the Review Committee and as stated hereinabove, the Union of India has to weed out the dead woods. Thus, those who are not useful into the services, those who are interested only in litigation in the Court, those who are not obeying the orders of the Government during their service tenure can be retired from the service. This power is given to the Government to energize its machinery and to make it more efficient by compulsorily retiring those, who in its opinion should not be into the services in public interest.
44. Thus, even if this Petitioner has succeeded in few litigations, a subjective satisfaction can always be arrived at by the Respondents looking to the entire service record and performance of the Petitioner to make him compulsory retire.
45. Much has been argued out about the ―honourable acquittal‖ and acquittal on technical ground‖ but we are not going into much detail about this aspect of the matter because the difference between the two is remarkable and noticeable and has been clarified in several decisions referred by the Hon'ble Supreme Court, but, as the Special Leave Petitions are pending, we are not going into the detail analysis of ―honourable acquittal‖ and ―acquittal on technical ground‖ in this case. Suffice it would be to say that even if there is acquittal from the charges levelled against the employee for one or the other reasons, an overall decision can always be taken by the Review Committee looking to the entire service record and the performance of the Central Government employee for taking a decision of compulsory retirement. There is no ban or bar for the respondents that no compulsory retirement order can be passed whenever there is quashing of the charges in any litigation between an employee and the Central Government. What is to be seen is overall assessment of the performance of an employee and his usefulness into the services and not one or two matters and decisions in those matters. This opinion is a subjective satisfaction of the Review Committee. In the present case, there is no procedural error committed by the Review Committee while taking the decision under Rule 56(j) of Fundamental Rules. Even if there are observations about malice in law while deciding few matters between the Petitioner and Union of India, that does not mean that there is presence of malice when Review Committee has taken a decision under Rule 56(j) of Fundamental Rules retiring compulsorily this Petitioner dated 10.06.2019. There is no personal malice alleged by the Petitioner upon the members of the Review Committee.
(viii) Hon'ble Supreme Court in the case of Captain Pramod Kumar Bajaj (supra) in para 39 has held as under:-
Page 24 of 39"9. Dehors the aforesaid allegations of institutional bias and malice, having perused the material placed on record, we find merit in the other grounds taken by the appellant. It is noticed that though FR 56(j) contemplates that the respondents have an absolute right to retire a government servant in public interest and such an order could have been passed against the appellant any time after he had attained the age of fifty years, the respondents did not take any such decision till the very fag end of his career. The impugned order of compulsory retirement was passed in this case on 27th September, 2019 whereas the appellant was to superannuate in ordinary course in January, 2020. There appears an apparent contradiction in the approach of the respondents who had till as late as in July, 2019 continued to grade the appellant as 'Outstanding' and had assessed his integrity as 'Beyond doubt'. But in less than three months reckoned therefrom, the respondents had turned turtle to arrive at the conclusion that he deserved to be compulsorily retired. If the appellant was worthy of being continued in service for little short of a decade after he had attained the age of 50 years and of being granted an overall grade of 9 on the scale of 1 - 10 on 31st July, 2019 it has not been shown as to what had transpired thereafter that made the respondents resort to FR 56(j) and invoke the public interest doctrine to compulsorily retire him with just three months of service left for his retirement, in routine. In such a case, this Court is inclined to pierce the smoke screen and on doing so, we are of the firm view that the order of compulsory retirement in the given facts and circumstances of the case cannot be sustained. The said order is punitive in nature and was passed to short-circuit the disciplinary proceedings pending against the appellant and ensure his immediate removal. The impugned order passed by the respondents does not pass muster as it fails to satisfy the underlying test of serving the interest of the public".
(ix) Hon'ble Supreme Court in the case of Suryakant Chunilal Shah (supra) in pen ultimate para of the judgment has held as under:-
"There being no material before the Review Committee, in as much as there were no adverse remarks in the character roll entries, the integrity was not doubted at any time, the character roll entries subsequent to the respondent's promotion to the post of Asstt. Food Controller (Class II) were not available, it could not come to the conclusion that the respondent was a man of doubtful integrity nor could have anyone else come to the conclusion that the respondent was a fit person to be retired compulsorily from service. The order, in the circumstances of the case, was punitive having been passed for the collateral purpose of his immediate removal, rather than in Page 25 of 39 public interest. The Division Bench, in our opinion, was justified in setting aside the order passed by the Single Judge and directing reinstatement of the respondent".
(x) In the case of Pritam Singh (supra), Hon'ble Supreme Court set aside the order of compulsory retirement observing that "order of compulsory retirement is a glaring example of abuse of disciplinary power of the disciplinary authority as the punishment of compulsory retirement imposed on the appellant who has put in 31 years of long service only because he has supplied the details of absentation to one of the employees, which was neither confidential nor a privileged document. In any event, the appellant bonafide believed that he was right in furnishing the details which the employee had right to ask for". It has also been observed that it was a fit case where High Courts and Tribunals ought to have held that the punishment imposed is vitiated on account of disproportionality.
(xi) Hon'ble Supreme Court in the case of Swarn Singh Chand (supra) discussed the law laid down by the Hon'ble Supreme Court itself in Allahabad Bank Officers' Association and another Vs. Allahabad Bank and others (1996) 4 SCC 504 wherein para 17 are as under:-
"17. The above discussion of case-law makes it clear that if the order of compulsory retirement casts a stigma on the government servant in the sense that it contains a statement casting aspersion on his conduct or character, then the court will treat that order as an order of punishment, attracting provisions of Article 311(2) of the Constitution. The reason is that as a charge or imputation is made the condition for passing the order, the court would infer therefrom that the real intention of the Government was to punish the government servant on the basis of that charge or imputation and not to exercise the power of compulsory retirement. But mere reference to the rule, even if it mentions grounds for compulsory retirement, cannot be regarded as sufficient for treating the order of compulsory retirement as an order of punishment. In such a case, the order can be said to have been passed in terms of the rule and, therefore, a different intention cannot be inferred. So also, if the statement in the order refers only to the assessment of his work and does not at the same time cast an aspersion on the conduct Page 26 of 39 or character of the government servant, then it will not be proper to hold that the order of compulsory retirement is in reality an order of punishment. Whether the statement in the order is stigmatic or not will have to be judged by adopting the test of how a reasonable person would read or understand it."
(xii) In the case of M.S. Bindra (supra), Hon'ble Supreme Court in last but one paragraph of the judgment has held as under:-
"We have no doubt that there is utter dearth of evidence for the Screening committee to conclude that appellant had doubtful integrity. Such a conclusion does not stand judicial scrutiny even within the limited permissible scope. We, therefore, allow this appeal and set aside the order under attack including the order by which premature compulsory retirement was imposed on the appellant. The department concerned shall now work out the reliefs to be granted to the appellant as sequel to this judgment".
(xii) In the case of Hanuman Das Kesri (supra), Hon'ble Supreme Court in paras 14 and 15 has held as under:-
"14. The facts and legal position as discussed above leaves no manner of doubt that merely on initiation of a single departmental proceeding against the petitioner, he was compulsorily retired by the impugned order. Subsequently, in the disciplinary proceedings the grave charges of dereliction in duty, doubtful integrity, misconduct and acts against the interest of department were not found proved. There is not even a whisper in the impugned order of compulsory retirement indicating prima facie any material to form the opinion for compulsory retirement of the petitioner in public interest. The impugned order is based on no evidence. There is no evidence to show that suddenly there was such deterioration in the quality of the petitioner's work that he deserved to be compulsorily retired. Hence, the impugned order deserves to be quashed.
15. In view of the above discussion, the impugned order dated 1.9.2005 passed by the respondent No. 3 cannot be sustained and is, hereby, quashed. The matter is remitted back to the competent authority to pass an order afresh in the light of the law laid down by Hon'ble Supreme Court in the case of Baikuntha Nath Das and another (supra)and Nand Kumar Verma (supra) as aforequoted and the facts and evidences available on record including the inquiry report dated 20.11.2014 and the order dated 7.5.2015, passed by the Chief Engineer (A-3) U.P Jal Nigam, Lucknow".Page 27 of 39
13. For adjudication of the case, impugned orders dated 17.03.2021, 21.03.2021 as well recommendation of review committee dated 22.03.2021 are quoted herein as under:-
"No. 30012/16/2016-IPS, II Government of India Ministry of Home Affairs (Police -I Division) North Block, New Delhi 110001 Dated the 17 March, 2021.
ORDER In exercise of the powers conferred under sub- rule 3 of Rule 16 of the All India Services (Death-cum-Retirement Benefits) Rules, 1958, the President in consultation with the State Government of Uttar Pradesh hereby requires Dr. Rakesh Shankar, IPS (UP 2002-SPS), a member of the Indian Police Service, borne on the cadre of Uttar Pradesh to retire in public interest with immediate effect by giving three months' pay and allowances in lieu of notice.
2. A cheque for a sum equivalent to the aggregate amount of his pay and allowances for a period of three months, calculated at the same rate at which he was drawing immediately before the date of this order is enclosed.
By order in the name of President Sd/-
(Sanjeev Kumar) Under Secretary to the Government of India Tel. No. 011-23094517 To, Dr. Rakesh Shankar, IPS (UP: 2002-SPS) C/o Chief Secretary, Government of Uttar Pradesh Lucknow.
No. 30012/16/2016-IPS.II Dated 17 March 2021
Copy forwarded to
1. The Addl. Chief Secretary (Home), Government of Uttar Pradesh, Lucknow (w.r.t. State Government's letter 18/N0iq0ls0-2/2020/522 (43)/17 dated 08.01.2020.
2. Accountant General, Government of Uttar Pradesh, Lucknow.
Sd/-
(Sanjeev Kumar) Under Secretary to the Government of India"
Lka[;k G.I-10C/N0iq0ls0-2/2020 To, Page 28 of 39 The Chief Secretary Government of Uttar Pradesh, Lucknow.
(Kind ATtn; Shri Awanish K. Awasthi, Additional Chief Secretary (Home), Subject: Service Review of UP Cadre IPS Officers under Rule 16 (3) of AIS (DCRB) Rules, 1958.
Sir, I am directed to refer to Government of Uttar Pradesh letter No. 18/N0iq0ls0-2/2020/522 (43)/17 dated 08.01.2020 inter alia recommending the cases of (i) Sh, Amitabh Thakur, IPS (UP 1992 -RR), (ii) Dr. Rakesh Shankar, IPS (UP 2002-SPS) and (iii) Sh. Rajesh Krishna, IPS (UP 2005- SPS) to retire in public interest under sub- rule 3 of Rule 16 of the All India Services (Death-cum-Retirement Benefits) Rules, 1958.
2. The Central Government, after careful consideration of the proposal of the State Government and the performance of (i) Sh. Amitabh Thakur, IPS (UP: 1992-RR), (ii) Dr. Rakesh Shankar, IPS (UP 2002-SPS) and (iii) Sh. Rajesh Krishna, IPS (UP: 2005-SPS), has come to the conclusion that the officers are not fit to be retained in service in public interest. The Central Government has, therefore, decided to retire of (i) Sh. Amitabh Thakur, IPS (UP: 1992-RR), (ii) Dr. Rakesh Shankar, IPS (UP 2002-SPS) and (iii) Sh. Rajesh Krishna, IPS (UP: 2005-SPS) prematurely from service, in public interest under sub-rule 3 of Rule 16 of the AIS (DCRB) Rules, 1958 with immediate effect.
3. I am, therefore, endorsing three copies of the each orders in respect of of (i) Sh. Amitabh Thakur, IPS (UP: 1992-RR), (ii) Dr. Rakesh Shankar, IPS (UP 2002-SPS) and (iii) Sh. Rajesh Krishna, IPS (UP: 2005-SPS) which may please be immediately served on the concerned officer. As per rules, the officers are to be paid a sum equivalent to the amount of his pay plus allowances for a period of three months, calculated at the same rate at which he were drawing immediately before his retirement. Hence, cheques of requisite amounts may be prepared by the State Government and handed over to the officers along with the orders to be served on them.
4. The date on which the orders are served on of (i) Sh. Amitabh Thakur, IPS (UP: 1992-RR), (ii) Dr. Rakesh Shankar, IPS (UP 2002-SPS) and (iii) Sh. Rajesh Krishna, IPS (UP: 2005-SPS) along with the three months' pay and allowances may please be intimated to this Ministry promptly. A copy of the notification issued by the State Government retiring of (i) Sh. Amitabh Thakur, IPS (UP: 1992-RR), (ii) Dr. Rakesh Shankar, IPS (UP 2002-SPS) and (iii) Sh. Rajesh Krishna, IPS (UP: 2005-SPS) from service may also be forwarded to the Ministry.
Yours faithfully Encl: As above (A K Saran) Director (Police) mRrj izns"k "kklu x`g ¼iqfyl lsok;sa½ vuqHkkx&2 la[;k 455@N%iq0ls0&2&21&522¼43½@2017 y[kuÅ fnukad 21 ekpZ 2021 Page 29 of 39 vf/klwpuk x`g ea=ky;] Hkkjr ljdkj] ubZ fnYyh ds vkns"k la[;k 30012@16@2016&IPS.II fnukad 17-03-2021 }kjk MkW jkds"k "kadj] vkbZih,l &,lih,l&2002 dks yksdfgr esa lsok esa cuk;s j[ksa tkus ds mi;qDr u ikrs gq,] vf[ky Hkkjrh; lsok;as ¼Mhlhvkjch½ fu;ekoyh 1958 ds fu;e 16 ds mi fu;e 3 ds vUrxZr yksdfgr esa rkRdkfyd izHkko ls lsok iw.kZ gksus ls iwoZ lsokfuo`Rr fd;s tkus dk fu.kZ; fy;k x;k gSA vr,o] vc x`g ea=ky;] Hkkjr ljdkj] ubZ fnYyh ds vkns"k la[;k 30012@16@2016&IPS.II fnukad 17-03-2021 ds dze esa Jh jkT;iky fu;ekuqlkj MkW0 jkds"k "kadj] vkbZih,l &,lih,l&2002 dks yksdfgr esa rkRdkfyd izHkko ls lsok iw.kZ gksus ls iwoZ lsokfuo`Rr fd;s tkus ,oa mudks 03 eghus ds muds osru vkSj HkRrksa ds cjkcj dh /kujkf"k] tks mudh lsokfuo`fRr ds Bhd iwoZ muds }kjk vgfjr dh tk jgh /kujkf"k ds leku nj ij vkxf.kr dj fn;s tkus ds funsZ"k nsrs gSA vkKk lsa] ¼vouh"k dqekj vkoLFkh½ vij eq[; lfpo xksiuh;@egRoiw.kZ@rRdky eq[;ky; iqfyl egkfuns"kd] mRrj izns"k Vk;j 2] iqfyl Hkou] "kghn IkFk xkserh uxj foLrkj y[kuÅ &226002 Ik= la[;k Mhth&1&72&87 fnukad ekpZ 22] 2021 Jh lat; fla?ky vij iqfyl egkfuns"kd] LFkkiuk] m0 iz0 y[kuÅ fo'k; Mk0 jkds"k "kadj] vkbZih,l &,lih,l&2002 dks vf[ky Hkkjrh; lsok;sa ¼Mhlhvkjch½ fu;ekoyh 1958 ds fu;e 16 ds vUrxZr yksdfgr esa lsokfuo`Rr fd;s tkus ds lEcU/k esaA mi;qZDr fo'k;d Jh vouh"k dqekj voLFkh] vij eq[;
lfpo] m0 iz0 "kklu ds i= la[;k thvkbZ&108@N%iq0ls0&2&21@522¼43½@2017 fnukad 21-03-2021 ,oa mlds lkFk layXu Jh ,0 ds0 "kju] funs"kd ¼iqfyl½ x`g ea+=ky; Hkkjr lajdkj] ubZ fnYyh ds i= la[;k 30012@16@2016&IPS.II fnukad 17-03-2021 ,oa lekad vkns"k fnukad 17-03-2021 dh Nk;k izfr ,oa "kklu dh vf/klwpuk la[;k 455@N%iq0ls0&2&21&522¼43½@2017 fnukad 21-03-2021 ¼nks izfr;ksa esa½ layXu dj izsf'kr gSA Page 30 of 39 2- vuqjks/k gS fd vis{kkuqlkj vij eq[; lfpo] m0 iz0 "kklu ds mDr i= ,oa mlds lkFk layXu Hkkjr ljdkj ds i= fnukad 17-03-2021] vkns"k fnukad 17-03-2021 ,oa m0 iz0 "kklu dh vf/klwpuk fnukad 21-02-2021 dh ,d & ,d izfr Mk0 jkds"k "kadj dks rRdky rkehy djkdj lHkh izi=ksa dh nwljh izfr ij muds izkfIr ds gLrk{kj fnukad lfgr vafdr djkdj bl eq[;ky; dks miyC/k djkus dk d'V djsa rkfd ikorh "kklu dks miyC/k djk;h tk ldsA 3- "kklu ds funsZ"kkuqlkj mDr vkns"k lEcfU/kr vf/kdkjh dks rkehy djkrs le; gh mudks 03 eghus ds muds osru vkSj HkRrksa ds cjkcj dh /kujkf"k ds] tks mudh lsokfuo`fRr ds Bhd iwoZ muds }kjk vkgfjr dh tk jgh /kujkf"k ds leku nj ij vkxf.kr djrs gq,] psd nsus dk d'V djsA 4- d`i;k mijksDrkuqlkj vuqikyu lqfuf"pr djrs gq;s vk[;k v/kksgLrk{kjh dks rRdky miyC/k djkus dk d'V djsa ftlls rnuqlkj "kklu dks voxr djk;k tk ldsA layXud ;Fkksifj ¼,p0 lh0 voLFkh½ iqfyl egkfuns"kd mRrj izns"k 3- vf/kdkjh Jh jkts"k d`'.k] vkbZih,l&,lih,l&2005 Jh jkts"k d`'.k] vkbZih,l&,lih,l&2005 us fnukad 03-03- 1990 dks izkUrh; iqfyl lsok esa ;ksxnku fd;k rnksijkUr fnukad 21-12-2012 dks izkUrh; iqfyl lsok ls Hkkjrh; iqfyl lsok esa izksUur gq, gSA budk vc rd dk lsokdky fookfnr jgk gSA budh izfrdqyrkvksa dk fooj.k fuEuor gS& Ok'kZ 2006 esa tuin vktex< vkj{kh ih,lh dh HkrhZ ds nkSjku lk{kkrdkj ds lnL; Jh jkts"k d`'.k rRdkyhu vij iqfyl v/kh{kd] ,0Vh0lh0 lhrkiqj lEizfr vkbZ0ih0,l0 ¼lsukuk;d 10oh okfguh ih,lh ckjkcadh½ }kjk vkj{kh ih,lh dh HkrhZ gsrq voS/kkfud :Ik ls /kks[kk/kMh djrs gq, fj"or ysus ,oa :Ik;k tek djkus dh f"kdk;r ij fn0 27-08-2006 dks Jh ,u0 ch0 flag {ks+=kf/kdkjh] ykyxat] vktex< ds fur`Ro esa x:.k gksVy] vktex< ij Nkik ekjk x;k eks0 "kdhy }kjk HkrhZ djkus ds uke /ku mxkgh dh f"kdk;r ds lEcU/k esa Fkkuk dksrokyh vktex< esa eq0 v0 la0 1424@2006 /kkjk 419] 420 Hkk0 n0 fo0 ,oa 8@9@13@14 Hk0 fu0vf/k0 1988 Jh jkts"k d`'.k vij iqfyl vf/k{kd o 11 vU; ds fo:} iathd`r gqvk foospuk LFkkuh; iqfyl }kjk dh x;h foospuk ds nkSjku rRdkyhu vij iqfyl Page 31 of 39 v/kh{kd dks vfHk;qDr gksuk ikrs gq, fnukad 28-08-2006 ls 07@09@2006 rd fxjQrkj gksdj U;kf;d vfHkj{kk esa tuin dkjkxkj vktex< esa jgsA Jh jkts"k d`'.k dks fnukad 06-09-2016 dks fo"ks'k U;k;k/kh"k Hk0 fu0 xksj[kiqj }kjk tekur ij fjgk fd;s x;sA foospuksijkUr LFkkuh; iqfyl }kjk vfHk;qDr eks0 "kdhy] iou dqekj] jktsUnz Hkkjrh] vfer vkuUn pkS/kjh] deys"k pkS/kjh o vfer oekZ ds fo:} vkjksi i= U;k;ky; dks izsf'kr fd;k x;k vfHk;qDr v"kksd pkS/kjh uke irk vKkr ds lEcU/k esa dksbZ tkudkjh miyC/k u gks ikus rFkk Jh jkts"k d`'.k vij iqfyl v/kh{kd] c`ts"k dqekj ;kno] "kSysUnz flag] Jo.k dqekj ;kno ds fo:} foospuk ls lk{; izkIr u gks ikus ds dkj.k foospuk vfUre fjiksVZ }kjk lekIr dh x;hA mijksDr vfHk;ksx dh vfxze foospuk fnukad 30-06-2010 dks Hk0 fu0 laxBu dks gLrkUrfjr dh x;h Hk0 fu0 laxBu dh foospuk ds nkSjku vfHk;qDr ij yxk;s x;s vkjksiks dh iqf'V xokgksa }kjk dh x;hA foospuk ds nkSjku ladfyr fd;s x;s lk{; ls vfHk;qDr jkts"k d`'.k] rRdkyhu vij iqfyl v/kh{kd] ,Vhlh lhrkiqj lEizfr vkbZ0 ih0 ,l0 ds fo:} /kkjk 419@420 Hkk0 n0 fo0 ,oa 8@9@13@14 Hk0 fu0 vf/k0 1988 dk vijk/k izFke n`'V;k izekf.kr ik;k x;kA Ekkeys dh ifjfLFkfr;ksa dk iw.kZ :Iks.k o lko/kkuh iwoZd ijh{k.k djus ds mijkUr "kklu ds dk;kZy; vkns"k la[;k 619@N%iq0ls0&2@18@522 ¼7½2017 fnukad 29-10-2018 }kjk Jh jkts"k d`'.k rRdkyhu vij iqfyl v/kh{kd] ,0Vh0Lkh0 lhrkiqj lEizfr vkbZ ih ,l ¼lsukuk;d 10oh okfguh ih,lh ckjkcadh½ ds fo:} eqdnek la[;k 1424@2006 /kkjk 419@420 Hkk0n0fo0 ,oa 8@9@13@14 Hkk0 fu0vf/k0 1988 ds vUrxZr ek0 U;k;ky; esa ¼;fn ek0 U;k;ky; dk dksbZ vU;Fkk vkns"k u gks rk½ vfHk;ksx pyk;s tkus dh Lohd`fr iznku dh x;h gSA Hk0 fu0 laxBu ds i= fnukad 25-06-2019 }kjk voxr djk;k x;k gS fd vfHk;kstu Lohd`fr izkIr gksus ij vkjksi i= la[;k 20@2018 fn0 30@05@2019 dks ek0 U;k;ky; ih0lh0 dksVZ&3 okjk.klh esa nkf[ky dj fn;k x;k gSA izdj.k ek0 U;k;ky; esa fopkjk/khu gSA "kklu ds dk;kZy; vkns"k la[;k 3724@N%iq0ls0&1&2006] fnukad 28-08-2006 ess mYys[k fd;k x;k gS fd Jh jkts"k d`'.k] vij iqfyl v/kh{kd ,Vhlh lhrkiqj HkrhZ cksMZ esa 20oh okfguh ih,lh vktex< vk;s Fks og vius lkFk ,d lkFkh "kdhy dks yk;s Fks vkSj mlds ek/;e ls /ku mxkgh dh tk jgh FkhA og O;fDr x:.k gksVy es Bgjk Fkk buds ikl ls 11 yk[k 22 gtkj :Ik;k cjken fd;k x;kA "kdhy uke dk O;fDr Jh jkts"k d `'.k] vij iqfyl v/kh{kd ds fe= ik;s x;s vkSj Jh jkts"k d`'.k ds "kkldh; okgu ls ih,lh xsLV gkml esa vk;s FksA Jh jkts"k d`'.k Page 32 of 39 ds fo:} foHkkxh; dk;Zokgh lafLFkr djrs gq, fuyfEcr fd;k x;kA "kklu ds dk;kZy; vkns"k la[;k 2008@N%iq0ls0&1&2007] fnukad 09-05-2007 }kjk foHkkxh; dk;Zokgh ;Fkkor j[krs gq, fuyEcu ls cgky fd;k x;kA Jh jkts"k d`'.k dh okf'kZd izfof'V;ksa ds voyksdu ls fuEukafdr izfrdwy rF;k laKkfud gS& 1- Jh jkts"k d`'.k] iqfyl mik/kh{kd] tuin bykgkckn esa fnukad 16-01-1994 rd fu;qDr jgs ,oa fnukad 28-01-1994 ls 30@04@1994 rd fuyfEcr jgs gSSA 2- o'kZ 1994&1995 Lkeh{kd vf/kdkjh }kjk 02-08-1994 ls 25-11-1994 rd dh vof/k dk eUrO; vafdr djrs gq, mYYsk[k fd;k x;k fd bUgsa foHkkx ds dk;kZs ds lEcU/k esa vuqHko ,oa ifjiDork izkIr djus dh vkSj vko";drk gSA LohdrkZ vf/kdkjh }kjk dk;Z ,oa vkpj.k vPNk vafdr fd;k x;kA fnukad 03-02-1995 ls 31-03-1995 rd dh vof/k eas izfrosnd vf/kdkjh }kjk laUrks'ktud Js.kh nh x;h rFkk leh{kd vf/kdkjh }kjk Good Js.kh vafdr fd;k x;kA 3- o'kZ 1997&1998 izfrosnd@leh{kd@LohdrkZ vf/kdkjh }kjk lUrks'ktud Js.kh es eUrO; vafdr fd;k x;kA 4- o'kZ 2006&07 fnukad 01-04-2006 ls 27-08-2006 rd dh izfo'V esa izfrosnd vf/kdkjh }kjk Jh jkts"k d`'.k vij iqfyl v/kh{kd dh vkyksP; vof/k dh lR;fu'Bk mDr vfHk;ksx ds vfUre fu.kZ; gksus rd vkjf{kr dh x;hA leh{kd vf/kdkjh }kjk Hkh vfHk;ksx ds vfUre fu.kZ; rd lR;fu'Bk vkjf{kr dh x;hA "kklukns"k la[;k 672N%iq0ls0&1&12&09&¼37½@2006 fnukad 21-09-2012 }kjk foHkkxh; dk;Zokgh lekIr fd;s tkus ds QyLo:Ik rRdkyhu iqfyl egkfuns"kd m0iz0 ds dk;kZy; vkns"k fnukad 24-11-2012 }kjk Jh jkts"k d`'.k dh fjtoZ dh x;h mDr lR;fu'Bk dks izekf.kr fd;k x;kA 5- o'kZ 2007&08 fnukad 23-06-2007 ls 31-03-2008 rd dh vof/k dh lR;fu'Bk rRdkyhu iqfyl egkfuns"kd] m0iz0 }kjk HkrhZ izdj.k dh tkap ds lEcU/k es vkjf{kr dh x;h] "kklu ds dk;kZy; Kki la[;k 1404@N%iq0ls0&1&2012&9¼50½ 2012 fnukad 11-10-2012 Page 33 of 39 }kjk iqfyl egkfuns"kd m0 iz0 }kjk fn;s x;s eUrO; dks foyqIr djrs gq, vkjf{kr dh x;h lR;fu'Bk dks izekf.kr fd;k x;kA 6- o'kZ 2015&16 Iqkfyl v/kh{kd] Qrsgx< ds in ij fu;qfDr vof/k dh fnukad 06-11-2015 ls 31-3-2016 rd dh vof/k dh izfof'V esa izfrosnd vf/kdkjh rRdkyhu iqfyl miegkfujh{kd] dkuiqj ijf{ks= }kjk The only scope of improvement may be to learn to take a stronger stand on issues that affect independence and integrity in the working of the police force in the district. fVIi.kh vafdr dh x;h rFkk leh{kd ,oa LohdkrkZ vf/kdkjh }kjk lgefr O;Dr dh x;hA mijksDr rF;ksa@ifjfLFkfr;ksa ds ifj"khyu o fo"ys'k.k ls bl ckr dh iqf'V gksrh gS fd Jh jkts"k d`'.k] vkbZih,l&,lih,l&2006 dkjkxkj ls fu:} jg pqds gSA iqfyl HkrhZ tSls egRoiw.kZ dk;Z lkSis tkus ij buds }kjk foHkkx ds fy;s "keZukd fLFkfr mRiUu dh x;hA buds dqd`R; ls iqfyl HkrhZ tSls ifo= dk;Z ij iz"ufpUg yxkA budh dk;Z iz.kkyh esa fu'i{krk] lR;fu'Bk dh deh ik;h x;hA "kklu }kjk buds fo:} foospuk esa nks'kh ik;s tkus ds QyLo:Ik buds fo:} U;k;ky; esa vfHk;kstu pyk;s tkus dh Lohd`fr iznku dh tk pqdh gSA Jh jkts"k d`'.k o`gn Lrj ij fooknkLiu gksus ds ckn Hkkjrh; iqfyl lsok esa cuk,a j[kus ;ksX; ugh gSA budks yksdfgr esa Hkkjrh; iqfyl lsok esa cuk;s j[kuk mi;qDr ugha gksxk D;ksfad iqfyl foHkkx tSls laosnu"khy foHkkx esa vc bUgsa egRoiw.kZ nkf;Ro lkSiuk foHkkx ds fgr esa ugh jgsxkA fu'i{k tkWp ,atsUlh dh tkWp esa nks'kh ik;s tkus ds ckn U;k;ky; esa vfHk;kstu pyus ds n`'Vxr vc buesa dksbZ lq/kkj dh lEHkkouk ugh jg x;h gSA iqfyl foHkkx tSls laosnu"khy foHkkx ds fy;s vuqi;qDr gks x;s gSaA orZeku esa Hkkjr o'kZ dh vkradokn] uDlyokn o ns"k dh vkUrfjd lqj{kk dh lEkL;kvksa ds n`'Vxr viuk ns"k orZeku esa fofHkUu pqukSfr;ksa ls lkeuk dj jgk gS] bl le; iqfyl foHkkx dks lqpk: :Ik ls pykus ds fy;s ubZ ubZ igy ds iz;ksx dks vey esa ykus okys vf/kdkfj;ksa dh vko";drk gSA mPpdksfV dh dk;Z{kerk ,oa lR;fu'Bk dks iz"kklfud fgr esa cuk;s j[kuk "kklu dh izkFkfedrk gSA mijksDr leLr rF;ksa ds vkyksd esa vf[ky Hkkjrh; lsok;sa ¼Mhlhvkjch½ fu;eokoyh & 1958 ds fu;e &16 ¼3½ ds vUrxZr Jh jkts"k d`'.k] vkbZih,l&,lih,l&2005 dks vfuok;Z lsokfuo`fRr fd;s tkus gsrq laLrqfr dh tkrh gSA lfefr }kjk mijksDr vf/kdkfj;ksa ds pfj= iaftdkvksa@O;fDrxr i=kofy;ks ,oa lqlaxr vfHkys[kksa dk Page 34 of 39 voyksdu fd;k x;kA lfefr }kjk 03 vf/kdkfj;ksa dks vfuok;Z lsokfuo`fRr gsrq mi;qDr ikrs gq;s] 03 vf/kdkfj;ksa ds lEcU/k esa izdj.k vkLFkfxr djrs gq;s vU; lHkh vf/kdkfj;ksa dks vfuok;Z lsokfuo`fRr fd;s tkus dh laLrqfr ugh dh tkrh gSA ¼vouh"k dqekj voLFkh½ ¼lqjs"k pUnzk½ ¼vfuy jrqMh½ lnL; lfpo@vij eq[; lfpo lnL;@izeq[k lfpo lnL;@iqfyl egkfuns"kd x`g foHkkx] m0 iz0 "kklu Je ,oa lsok;kstu foHkkx mRrjk[k.M m0 iz0 "kklu ¼vks0ih0 flag½ ¼jktsUnz dqekj frokjh½ lnL;@iqfyl egkfuns"kd v/;{k@eq[; lfpo mRrj izns"k m0 iz0 "kklu
14. In this matter, it is evident from the record that applicant joined the services as direct recruitee on the post of Deputy Superintendent of Police in the PPS cadre in the State Government of Uttar Pradesh in the year 1990. He has been awarded IPS cadre in the year 2012. He has also crossed 50 years of age. Thus, applicant along with other IPS officers whose names find place in the list furnished before the Review Committee were within the consideration zone of scrutiny for compulsory retirement.
15. Perusal of documents submitted by the respondents also reveals that review committee/screening committee has been constituted in the matter as per guideline. A list of 127 IPS officers were placed before the review committee, who were under consideration zone. Committee, after screening of the service record, submitted recommendation for compulsory retirement to the applicant and two other IPS officers. Recommendation was processed as per the Rules and thereafter on the basis of approval of ACC, process for compulsory retirement was started. It is also evident from the impugned orders that applicant was compulsorily retired from service in the public interest after scrutiny of entire service record after paying 3 months' salary plus DA.
Page 35 of 3916. It is also settled principle of law that for forming opinion for compulsory retirement of officers who were under consideration zone there is no requirement to give opportunity of hearing to such officer before compulsory retiring him/her. It is the subjective satisfaction of the Government formed on the basis of entire service record because Article 310 of the Constitution of India specifically provides that such officer shall continue in the service on the basis of doctrine of pleasure of the Hon'ble President/Governor. Compulsory retirement as has been held in the aforesaid judgments is neither stigma nor any suggestion of misbehaviour. Courts shall not examine the matter as an Appellate Court. The order of compulsory retirement can only be interfered on the ground (a) malafide or (b) that it is based on no evidence or
(c) it is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material (perverse order).
17. It is also evident from the record that applicant has been promoted in the cadre of IPS and remained posted for many years in several districts as Superintendent of Police. On the day of compulsory retirement, applicant was posted as Commandant 10th Battalion, PAC Barabanki.
18. First question for consideration in light of the submission raised across the bar is whether there was legal requirement for providing opportunity of hearing to the applicant before passing the order of compulsory retirement. If the submission raised across the bar on this point is compared with the settled preposition of law as has been discussed hereinabove, following of principle of natural justice to provide opportunity of hearing before passing of order of compulsory retirement have no place. There is also no requirement that recommendation made by the Review Committee should have been served upon the applicant before processing it. Thus, submission raised on behalf of Page 36 of 39 applicant to this extent is not acceptable. Order for compulsory retirement cannot be said to be illegal on the aforesaid ground.
19. Certainly in this matter from perusal of the entire records, it transpires that many more entries (ACRs) regarding the applicant either were 'Very Good' or 'Out Standing' but perusal of the impugned orders as well as recommendation of the review committee also reveals that committee has considered the entire service record of the applicant which also contains few adverse remarks as well as criminal case in form of charge-sheet pending against the applicant. Submission of the learned counsel for the applicant is that FIR lodged against the applicant was investigated but Investigating Officer has submitted final report which has been accepted by the Competent Authority in the year 2012 itself and thereafter applicant was promoted in the IPS cadre. If the aforesaid facts are taken into consideration in light of the facts disclosed in the recommendation note of the review committee, it is evident that committee has considered the entire service record of the applicant for forming opinion. Although applicant was exonerated in the criminal charge lodged against him at initial stage but on the basis of further investigation, a chargesheet was submitted against him and sanction for prosecution has also been accorded, trial is going on, and applicant was also behind the bar in connection with the aforesaid crime. Committee at the time of recommending the name of the applicant for compulsory retirement took a view that allegations leveled against the applicant is very serious, which create doubt about integrity of the applicant. If such was the position, opinion formed by the review committee on the basis of entire service record cannot be said to be bad in the eye of law or it cannot be said that there was no evidence against the applicant for recommending his name for compulsory retirement. Committee has also taken note of certain adverse remarks of the remote past entries as well as recent past entries, particularly for the year 1994 to 1995, 1997 to 1998, 2006 to 2007, 2007 to 2008 as well 2015 to 2016, which have been Page 37 of 39 disclosed by the review committee in its recommendation. State Government has recommended the name of the applicant for compulsory retirement on the basis of material available against the applicant and this exercise was based on the subjective satisfaction of the competent authority. Nothing is on record to observe that recommendation made by the review committee and opinion formed by the State Government was based on malafide or it was based on no evidence. Mere order for further investigation in the criminal case lodged against the applicant under Prevention of Corruption Act, it cannot be presumed that action of the respondents is malafide. Order for further investigation is passed in accordance with law as provided under Code of Criminal Procedure. It is to be noted here that after further investigation, a chargesheet has been submitted and sanction for prosecution has also been accorded. Thus the action of the respondents for compulsorily retiring the applicant can also not be said to be arbitrary. It can also not be said that on the basis of material available against the applicant, no reasonable person would form opinion for compulsory retirement of the applicant. The period of promotion in the IPS cadre is prior in time to the date of filing of chargesheet. Thus, impugned orders can also not be quashed on this ground that despite adverse remarks applicant has been promoted. Promotion of the applicant has been made prior to the filing of the chargesheet. Thus, case laws relied upon by the learned counsel for the applicant in this regard is not helpful to the applicant. Hon'ble Supreme Court in the case of Ram Chandra Das (supra) has also held that even if promotion has been granted to the officer concerned, still compulsory retirement can be granted by Union of India under Rule 56 (j) of Fundamental Rule on the basis of scrutiny of entire service record. In this matter, review committee after scrutiny of the entire service record has form the opinion that services of the officer concerned in the public interest are not required to the State. Thus, it can safely be held that opinion formed by the review committee and recommendation made by the State Government are based on Page 38 of 39 subjective satisfaction. Order for compulsory retirement was passed in the interest of public. Thus, all the requirements which are mandatory to be taken into consideration before recommending for compulsory retirement of a Government employee and forming subjective satisfaction have been followed in the matter. Order for compulsory retirement has also not been passed in this matter to punish the applicant. Committee after considering the entire service record of the applicant was of the view that applicant has become dead wood and has lost its utility to the Government job. Thus State Government has rightly recommended for compulsory retirement.
20. It is worth mentioning here that if recommendation was made only for few officers then also it cannot be said that action of the respondents was malafide action or it was discriminatory. Recommendation/opinion has to be formed on the basis of service record of the individual employee/officer. The employee who has been compulsory retired after following the due process of law cannot take a plea that since such and such persons have not been compulsory retired, applicant should also have not been compulsory retired. Since action of the respondents is based on the material evidence available against the applicant, therefore, plea taken by the learned counsel for the applicant to the extent that order for compulsory retirement was passed to punish the applicant is also not acceptable. It may be mentioned here that there is little scope of judicial review of the order for compulsory retirement and to interfere in the subjective satisfaction of the Government. Thus Court is of the opinion that there is no illegality or infirmity in the impugned orders passed by the respondents. Applicant was within consideration zone, recommendation is based on sufficient material and subjective satisfaction of the State Government is also based on sufficient material. Thus, after analyzing the entire facts and evidence and taking into account the settled principles of law and also discussion made hereinabove, we are of the view that prayers made by the Page 39 of 39 applicant in the present OA are not liable to be allowed and OA is liable to be dismissed. Hence, OA is dismissed. All associated MAs are also stand disposed of. No order as to costs.
(Dr. Sanjiv Kumar) (Justice Om Prakash-VII)
Member (A) Member (J)
Manish/-