Allahabad High Court
Sone Lal Sankhwar vs Chairman-Cum-Managing Director, U.P. ... on 31 October, 2002
Equivalent citations: (2003)1UPLBEC95
Author: G.P. Mathur
Bench: G.P. Mathur
JUDGMENT N.K. Mehrotra, J.
1. The petitioner, Sone Lal Sankhwar, was an Executive Engineer in U.P. Power Corporation Ltd. He was compulsorily retired by the respondent on 22.4.2002. He has filed this writ petition for quashing the order 22.4.2002 retiring him compulsorily. He was promoted thrice and the third promotion was granted on 26.11.2001. He put in 24 years of service and according to him his annual confidential report has been good and excellent and his integrity has been certified throught-out. According to the petitioner, the only blot in his career are the censure entries dated 23.4.1991, 11.12.1991 and 9.7.21001 and against all these censure entries representations are pending before respondent No. 1. The censure entries are of minor nature. These censure entries were ignored at the time of his promotion in the time scale vide order 26.11.2001. He has challenged the order of compulsory retirement on the grounds that his censure entries prior to the date of promotion cannot be considered for retiring him compulsorily because the promotion has been given after careful assessment of service record, his annual confidential report has been good and excellent; representation against the censure entries are pending before the respondent ; the power of compulsory retirement has been used for punishing the petitioner on account of censure entries; the Screening Committee considered the cases of 19 officers and he alone was chosen for compulsory retirement; the other Engineers, whose promotions were delayed and whose records were inferior, were not retired and this pick and choose method is discriminatory; the censure entries, which were quashed, have also been taken into consideration and he has been singled out for compulsory retirement only to avoid his promotion as Superintending Engineer.
2. We have heard Sri Rakesh Pandey, learned Counsel for the petitioner and Sri Anil Mehrotra, learned Standing Counsel for the respondents.
3. Learned Standing Counsel for U.P. Power Corporation Ltd., has raised preliminary objections about the maintainability of the writ petition on the ground of alternative remedy. Since remedy under Article 226 of the Constitution of India is discretionary remedy and the availability in the relief in Service Tribunal is not a bar to the jurisdiction of this Court under Article 226 of the Constitution of India, the preliminary objection raised by the learned Standing Counsel for the respondent cannot be sustained.
4. A perusal of the record goes to show that the petitioner was awarded censure entries on 23.4.1991, 11.12.1991, 10.6.1996, 21.1.1997, 9.7.2001 and he was given adverse entries in the year 1982-83 and the censure entry by way of punishment on 5.12.1991, which was subsequently expunged on 17.12.1995.
5. The compulsory retirement of the petitioner will be examined in the light of the rules applicable in his case. The U.P. Electricity Board (Employees Retirement) Regulations, 1975 as amended upto date, applies in the case of the petitioner. These Regulations apply in the services of U.P. Power Corporation Ltd., by virtue of Section 6 (10) of U.P. Electricity Reforms Transfer Scheme, 2000 framed under U.P. Electricity Reforms Act, 1999. The aforesaid Regulations were amended by the U.P. State Electricity Board (Employees Retirement) (Second Amendment) Regulations, 1993. Regulation 2(b) and Regulation 2-A are relevant Regulations to be considered for examining the retirement of the petitioner/These Regulations are as follows :
"Regulation 2(b).-Notwithstanding anything contained in clause (a), the Appointing Authority or any authority to which the Appointing Authority is subordinate, may, at any time, by notice to Board's employee (whether permanent or temporary), without assigning any reason, require him to retire, in public interest, provided that such employee has completed 20 years of qualifying service and has attained the age of 50 years.
Any employee of the Board, also, may, by giving three months notice to the Appointing authority, seek voluntary retirement at any time, after attaining the age of 45 years, provided that he has completed minimum qualifying service of 20 years.
Regulation 2-A.-In order to be satisfied whether it will be in the public interest to require a Board's servant to retire under clause (b) the Appointing Authority or any authority to whom the Appointing Authority is subordinate may take into consideration any material relating to the efficiency and suitability of the Boards servant including Service Records, Annual Confidential Reports, any report of the Vigilance Establishment or any other Inquiry Report and other relevant material."
6. We have perused the record of the U.P. Power Corporation Ltd., relating the proceedings of the Screening Committee formed for considering the cases of compulsory retirement. A High Level Committee comprising :
(1) Director (Personnal Management and Administration, U.P. Power Corporation, Ltd., Lucknow;
(2) Director (Transmission), U.P. Power Corporation, Ltd., Lucknow;
(3) Director (Distribution U.P. Power Corporation Ltd., Lucknow.
was constituted. This Committee was constituted to screen the performance/ Service Record of such Engineers/Officers above the rank of Assistant Engineers, who have attained the age of 50 years or above with qualifying service of 20 years and to make its recommendations in the matter. The High Level Committee found ten Engineers not to be fit to be retained in service. The Chairman-cum-Managing Director was satisfied that the ten Executive Engineers, including the petitioner, were not to be retained further in the service and passed orders for their premature retirement in public interest.
7. The report of the Screening Committee depicts the details of the punishment awarded and the fact that the petitioner was considered for promotion to the next higher post of Superintending Engineer but the grading value of the A.C.R.'s of the petitioner were so low as to render him unsuitable for the promotion and resulting in supercession in the five consecutive selections held on dated 30.8.1997, 3.8.1998, 6.2.1999, 14.9.2000 and 23.8.2001. As is mentioned in the report of the Screening Committee, the petitioner could never secure the minimum requisite 120 marks for promotion. The relevant portion of the report of the Screening Report is as follows :
"The State of his performance as disclosed from his service records leads to the reasonable conclusion that the petitioner has no potentials to render excellent efficient, effective and continued useful services to the organisation and keeping in view as provided in Regulation 2-A of the 1975 Regulations (as amended in 1993), it was rightly found in public interest to premature retire the petitioner. The petitioner was rightly considered to be Dead Wood."
8. In Union of India v. Col. J.N. Sinha and Anr., 1970 (2) Supreme Court Cases 458, it was held by the Supreme Court that Officer may not be inefficient but the appropriate authority may prefer to have more excellent officers.
9. The order of compulsory retirement is passed on forming the opinion that it is public interest to retire an employee compulsorily and the order is passed on subjective satisfaction of the employer. The relevant factor is whether upon the State of Record as a reasonable prudent man would the Government or the Competent Officer reach this decision.
10. We are of the view that promotion of the petitioner was not a promotion on merit. In the instant case, the petitioner was granted time scale and not promotion on merit.
11. The respondent has filed the copy of the circular issued by the Additional Secretary, U.P. State Electricity Board, which is applicable in the instant case for showing criteria laid down for the purpose of grant of time bound higher pay scale, service record for limited time period i.e., the record of preceding five years from the due date is to be considered.
12. Learned Counsel for the petitioner has relied on State of Rajasthan v. Fateh Chand Soni, JT 1995 (9)SC 523. It is relevant because of the circular of the UP. Power Corporation Ltd., for grant of time scale. The criteria is basically seniority, subject to rejection of unfit. For the time bound scale, the record for limited period is to be seen and for the compulsory retirement in public interest, the entire record is to be looked into.
13. In Baikunth Nath Das v. Chief District Medical Officer, 1992 SCC 1020, five principles were laid down by the Supreme Court. The fourth principle states that if a Government Servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, if the promotion is based upon merit (selection) and not upon seniority.
14. In the instant case, also the award of time scale is based upon seniority and not on merit and it is not the promotion to the higher post. Therefore, State of Rajasthan v. Fateh Chand Soni (supra) relied upon by the learned Counsel for the petitioner is not relevant in the instant case.
15. We are of the opinion that the grant of time scale is not the promotion and it has been laid down by the Supreme Court in number of decisions that mere promotion given even after adverse entries were made or crossing of efficiency bar/picking up higher rank after the adverse entries does not wipe out the adverse entries or the said entries/evidence does not become inadmissible or irrelevant (See State of Orissa v. Ram Chandra Dass, 1996 SCC (L & S) 1169; State of Punjab v. Gurdas Singh, 1998 SCC (L & S) 1004 and State of U.P. and Anr. v. Lalsa Ram, 2001 SCC(L&S)593.
16. Therefore, we are of the opinion that grant of promotion in the instant case cannot be a ground to debar the authority from considering the petitioner for compulsory retirement:
17. In State of Orissa v. Ram Chandra Das (supra), it has been held by the Supreme Court that it is for the authorities concerned to decide the question of public interest and not for the Court or the Tribunal. The Courts would not examine the order of compulsory retirement as Appellate Court. In Baikunth Nath Das v. Chief District Medical Officer (supra), one another principle was laid down, which is as follows :
"Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an Appellate Court, they may interfere if they are satisfied that the order is passed (a) malafide 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."
18. In the instant case it is neither the case of malafide nor it is a case of no evidence or arbitrariness. In the absence of any malafide exercise of power or arbitrary exercise of power a possible different conclusion would not be a ground for interference by the Court/Tribunal (See State of U.P. and Anr. v. Bihari Lal, AIR 1995 Supreme Court 1161).
19. Lastly, it has been alleged by the petitioner that certain other officers have more bad record and they have not been retired compulsorily. 20. In our opinion this ground has also no force because this cannot be a ground for interference by this Court because the record of such Officers are not before us nor they are parties to this writ petition.
21. The main question is whether the impugned order dated 22.4.2002 has been passed bona fidely in accordance with the Regulation 2-A of the 1975 Retirement Regulation (as amended by the 1993 Regulations) after considering the entire service record of the petitioner.
22. We find that the entire service record of the petitioner including the fact that the petitioner was considered five times for promotion but he could not secure the minimum requisite marks and after considering the entire record, a reasonable conclusion was drawn that the petitioner has no potentials to render excellent, effective, efficient and continued useful service to the Organisation.
23. In view of the reasons above, the writ petition is devoid of any merit and it is liable to be dismissed.
24. The writ petition is, accordingly, dismissed at the admission stage.