Allahabad High Court
Smt. Kabootra Devi vs State Of U.P. Thru Prin.Secy.Revenue ... on 3 September, 2019
Equivalent citations: AIRONLINE 2019 ALL 1478
Author: Rajesh Singh Chauhan
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 23
Case :- SERVICE SINGLE No. - 30385 of 2017
Petitioner :- Smt. Kabootra Devi
Respondent :- State Of U.P. Thru Prin.Secy.Revenue Deptt.Civil Sectt.&Ors.
Counsel for Petitioner :- Rajendra Singh Chauhan
Counsel for Respondent :- C.S.C.
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Hon'ble Rajesh Singh Chauhan,J.
1. Heard learned counsel for the parties.
2. The learned Additional Chief Standing Counsel has produced the relevant records in compliance of the order of this Court as well as the original copy of the Character Roll of the petitioner.
3. I have also perused the report of the Screening Committee whereby the report in respect of as many as 53 employees has been given. The name of petitioner finds place at serial No.44 in the aforesaid list and perusal thereof reveals that the reasons so indicated in the Screening Committee report against the petitioner are not sufficient to recommend for compulsory retirement of the petitioner and accordingly the order of compulsory retirement could have not been passed. Except some allegation regarding not taking proper interest to the discharge of duties nothing serious has been indicated. Even the service record of the petitioner does not consist any punishment intailing the Competent Authority to pass the order of compulsory retirement.
4. Shorning off the complete details of this case, the brief facts are that the petitioner was serving on Class-IV post i.e. Peon when the impugned order of compulsory retirement dated 22.11.2017 was issued. She was initially appointed on that post on 01.05.1986 under Dying-in-Harness Rules.
5. Learned counsel for the petitioner has drawn attention of this Court towards Annexure No.SA-2 of the application filed on 10.09.2018 for disposal of the writ petition along with affidavit, which is a judgment and order dated 07.08.2018 passed by this Court in Writ Petition No.1275 (S/S) of 2018; Radhey Shyam vs. State of U.P. & others. The name of Sri Radhey Shyam finds place at serial No.8 of the Screening Committee report and the allegations so levelled against the present petitioner and Sri Radhey Shyam are more or less similar. For convenience, the judgment and order dated 07.08.2018 passed by this Court in Writ Petition No.1275 (S/S) of 2018; Radhey Shyam vs. State of U.P. & others, is being reproduced here-in-below:-
"Heard learned counsel for the petitioner and Sri Vinod Kumar Singh, learned Additional Chief Standing counsel along with Sri Nitin Mathur, learned Standing counsel.
By means of the present petition, the petitioner has prayed for the following reliefs:-
"Issue a writ, order or direction in the nature of Certiorari thereby quashing the part of impugned order dated 22.11.2017 passed by opposite party no. 2 contained as Annexure-1 to the writ petition.
Issue a writ, order or direction in the nature of Mandamus commanding and directing the opposite parties specially opposite party no. 2 and 4 to allow the petitioner to work on the post of Nazarat Peon in Collectorate, Bahraich and be paid salary to the petitioner.
Issue any such other suitable writ, order or direction as the Hon'ble Court may deem just and proper in the facts and circumstances of the case; and Allow the writ petition with cost".
The case set forth by the petitioner is that he is a Class-IV employee having been appointed on 01.07.1980 on compassionate grounds under the Dying-In-Harness Rules and since then he is being working under the respondents. It is the case of the petitioner that he is also not being granted the benefit of the Assured Career Progression scheme which is admissible to an employee after ten years and sixteen years of service. The petitioner was placed under suspension on 23.10.2017 through an order a copy of which is annexure-2 to the writ petition by charging him of not taking any interest in the duties to be performed by him. Subsequently, vide order dated 22.11.2017, a copy of which is annexure-1 to the writ petition, the appointing authority by exercising the powers conferred upon him has compulsorily retired the petitioner in public interest.
While challenging the said order dated 22.11.2017 retiring him compulsorily, learned counsel for the petitioner has contended that the law pertaining to compulsory retirement has been settled beyond doubt by the Hon'ble Supreme Court in a catena of judgments. In this regard, he has placed reliance on the landmark judgment of the Hon'ble Supreme Court reported in 1992 2 SCC 299 Inre; Baikuntha Nath Das and Anr Vs. Chief District Medical Officer Baripada and Anr, a Division Bench judgment of this Court in the case of Chandar Prasad Verma Vs. State of U.P. and Ors reported in 2006 (4) ADJ 202 as well as the judgment of this Court reported in 2006 (3) AWC 2743 Inre; Naresh Chandra Sharma Vs. State of U.P. and Anr to contend that a Court of law upon a challenge being raised to an order of compulsorily retirement may interfere if it is 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.
Per contra, learned Additional Chief Standing counsel on the basis of averments contained in the counter affidavit has argued that the order of compulsory retirement has been passed by the competent authority perfectly in accordance with the rules more particularly Fundamental Rules 56(2) which provides that in order to be satisfied as to whether it is in public interest to require a Government servant to retire under Clause (C), the appointing authority may take into consideration any material relating to the Government servant and nothing therein contained shall be construed to exclude from consideration any entries relating to any period before such Government servant was allowed to cross any efficiency bar or before he was promoted to any post etc. By placing reliance on Fundamental Rules 56 (2), it is the contention on the part of the learned Additional Chief Standing counsel that the screening committee constituted for screening of Class IV employees considered the relevant material aspects and records regarding the work and conduct of the petitioner and recommended for compulsorily retirement of the petitioner in its meeting dated 06.11.2017. Thus it is contended that once the power to retire the petitioner compulsorily has been exercised in a bonafide manner and perfectly in accordance with the rules, consequently this Court may not interfere with the impugned order of compulsorily retirement.
Heard the learned counsel for the contesting parties and perused the records.
In order to see the material which was before the screening committee, this Court vide order dated 27.07.2018 had required the learned Standing counsel to produce the original records which were placed before the screening committee pertaining to the unsuitability of the petitioner which entailed passing of the impugned order. In pursuance thereof, the original records have been produced which have been perused by the Court.
The order of the screening committee is on record which is dated 06.11.2017. The order talks about a screening committee having been formed in the Collectorate, Bahraich in order to consider the employees working in the Sadar Nazarat, Nazarat Tehsil for the purpose of screening. The screening committee comprised of the Sub Divisional Magistrate, the City Magistrate, Bahraich, Senior Treasury Officer, Bahraich and the Additional District Magistrate (Finance and Revenue), Bahraich which has considered the case of 53 employees including the petitioner and thereafter arrived at a particular finding with respect to each employee.
So far as the present controversy is concerned pertaining to the reasons recorded by the screening committee with respect to the petitioner Radhey Shyam, it is seen that it is recorded that the petitioner is working as Nazarat Peon but he does not discharge his duties properly. He is usually found drunk on duty with the result he had been suspended on 23.10.2017. It is also recorded that the petitioner has attained the age of 50 years and his work and conduct is not proper, consequently there is no reason or occasion to continue him in service. Along with the screening committee is also annexed a brief synopsis of service records of various employees including the petitioner whose name is contained at serial no. 8. Interestingly against the service record entry beginning from the year 2006-2007 till 2016-2017 there is a total blank with respect to the entries of the petitioner. Upon a specific query being put to the learned Additional Chief Standing counsel, it appears that no entries have been recorded in the service record.
Thus, it is apparent that when the screening committee sat to consider the cases of the employees including that of the petitioner for the purpose of considering the compulsory retirement and arrived at a finding of the petitioner being unfit, it basically had no entries for the relevant years pertaining to the petitioner. The only ground that have been recorded for retiring the petitioner compulsorily is that he does not take interest in his duties but again there is nothing in the service record to indicate as to whether the petitioner at any stretch of time has been given any warning or any punishment for either not doing his work responsibly or for being drunk on duty, as per the records of the screening committee, consequently it is apparent that there was no adverse material before the screening committee barring a suspension order of 23.10.2017 to retire him compulsorily. Even the service record, as has been admitted by learned Additional Chief Standing counsel does not record anything rather contains no entries whatsoever for that particular period. Consequently, the principle of law laid down by the Hon'ble Supreme Court in the case of Baikuntha Nath Das (supra) is attracted in the facts of the instant case wherein this Court may interfere with an order of compulsory retirement where the order of compulsory retirement is based on no evidence meaning thereby that in the instant case the order of compulsory retirement not being based on any evidence whatsoever for retiring the petitioner compulsorily thus cannot be sustained.
Apt would be to reproduce the relevant observation of the Hon'ble Supreme Court in the case of Baikuntha Nath Das (supra) as under:-
"32. The following principles emerge from the above discussion:
(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour.
(ii) The order has to be passed by the government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the government.
(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary - in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be 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".
So far as the competent authority having acted on the basis of recommendation of the screening committee, without the competent authority having himself applied his mind or considered the service records of the petitioner, it would be sufficient to refer to the judgment of this Court in the case of Naresh Chandra Sharma (supra) which held as under:-
"13.From the records of the proceedings as aforesaid this Court is satisfied that there has been non application of mind by the District Magistrate with regards to the character roll entries of the petitioner as well as to the fact as to whether the nature of entries in the character roll was such so as to come to the conclusion that the petitioner was a fit person to be compulsorily retired. The District Magistrate has only approved the proposal of the Screening Committee to the effect that the petitioner may be compulsorily retired. The recommendation of the Screening Committee is only an opinion. It is the satisfaction of appointing authority which should determine as to whether powers under Section 56(C) of the fundamental rules are to be exercised. Such a satisfaction must be arrived at after due application of mind to the service records of concerned government servant. The appointing authority has to decide that the employee has become a dead wood and it is in public interest to retire him compulsorily. Mere acceptance of the report of Screening Committee in the facts of the case by endorsement of the word 'Anumodit" by the appointing authority (District Magistrate) cannot be held to a decision to compulsorily retire the petitioner after due application of mind as required under Fundamental Rule 56(c). The aforesaid conclusion is further supported by the reason that the Screening Committee did not refer to (i) all the entries recorded into the character roll of the petitioner in the previous years (especifically of recent part)-: (ii) the relevant period for which such adverse entries have been recorded, (iii) the nature of adverse entries, (iv) the effect of other entries which were good/outstanding available on the service records of the petitioner.
14. Division Bench of this Court in the case of Sri Narain Saxena v. Principal Secretary reported in 2005 4 SC 2431, after referring to various judgments of the Hon'ble Supreme Court in paragraph 20 of the judgment has held as follows :
Paragraph 20- In view of the above, there is no bar for the Competent Authority to appoint a Screening Committee and consider its recommendations by application of his mind. This view stands fortified by the judgment relied upon by Shri K.Ajit in Kamta Singh v. State of U.P. and Anr. 1993 HVD 2 131, wherein it had been held that the Appointing Authority has to apply his mind independently on the recommendation made by the Screening Committee, failing which the order impugned would stand vitiated.
15. In paragraph 23 and 24 it has been further held as follows : -
23. Undoubtedly, one particular misconduct or adverse entry unless it is of doubtful integrity or involving moral turpitude cannot be the basis of passing the order of compulsory retirement. The entire service record is to be examined for this purpose. Inefficiently of an employee may weigh with the authority concerned in coming to the conclusion whether or not, the employee should be compulsorily retired and in that case the scope of judicial review is very limited. If on the perusal of the service book of the employee and file of the Department, the Court comes to the conclusion that the order has been passed by the competent authority in strict adherence to the statutory required, the order cannot be held to be invalid. (Vide State of Rajasthan and Anr. v. Sripal Jain 1963CriLJ347)
24. It is for the competent authority to examine as to whether the Government employee should be retained in service or not, and to be retained in service is not a fundamental right of the employee. However, a permanent employee has a right to hold the post till he reaches the age of superannuation subject to his remaining fit and efficient and other statutory provisions dealing with the subject. In such circumstances, efficiency may not be the only criteria; the authority has to consider circumstances other than the question of the efficiency also. Therefore, it is in the exclusive domain of the Competent Authority to take a decision after assessing the over all service record. (Kailash Chandra v. Union of India (1961)IILLJ639SC ; L. Butail v. Union of India and Ors. (1970)IILLJ514SC ; Gurdial Singh Fiji v. State of Punjab and Ors. [1979]3SCR518 ).
16. Reference may also be made to the Division Bench judgment of this Court in the case of Kamta Singh v. State of U.P. 1993 2 HVD 131, Paragraph 6 whereof reads as follows :
F.R. 56(c) empowers the appointing authority, the State Government in this case, to require the petitioner to retire after attaining the age of fifty years "if it appears to the said authority to be in the public interest." This provision supposes that the State Government has formed the opinion that it is in the public interest to retire the petitioner compulsorily. If the decision of the State Government is based merely on the opinion of an extraneous body like the Screening Committee it cannot be said that the State Government has exercised its jurisdiction in accordance with the said rule. It is not shown that the Screening Committee is a committee of the Government which has been constituted under the Rules of Business made under Article 166 of the Constitution.
The I.G. Prisons who is not part of the organization known as Government, was also a member of the Screening Committee. The Screening Committee cannot be regarded as an instrumentality of the Government. The role of Screening Committee is to assist the State Government and after a careful examination of the relevant materials to report whether there is a prima facie case to require the Government servant concerned to retire compulsorily in public interest. The function to do so is that of the Government to do so is that of the Government and the order is passed on the subjective satisfaction of the Government. Subjective satisfaction cannot be a matter of delegation and the satisfaction of the Screening Committee cannot be the satisfaction of the Government. This is not to say that the law requires a second examination of the materials by the Government, as apprehended by the learned Standing Counsel. But, circumstances must exist which would indicate that the State Government (or the appointing authority) has itself applied its mind to all the relevant materials and was satisfied that the concerned government servant has become a dead wood and public interest would suffer more by allowing him to continue to perform the duties and functions of his office till superannuation in the normal course and that it is in public interest to order compulsory retirement and that in taking such action it has not merely acted on the basis of the report of the Screening Committee. We have come to the conclusion after giving out most thoughtful consideration to the facts and circumstances of the present case that the impugned order of compulsory retirement has not been passed by the State Government after applying its mind to all the relevant materials on record. The impugned order is, therefore, clearly arbitrary, the requisite opinion having not been formed in the requisite manner as required by law, and it is liable to be quashed.
17. With reference to aforesaid legal principles enunciated, this Court is satisfied, that in the facts of the present case the order of compulsory retirement passed by the District Magistrate dated 12.1.2004 is legally not justified as he has not exercised his jurisdiction in accordance with the Rule 56(c) and, therefore, is hereby quashed. "
Accordingly, keeping in view the aforesaid facts and submissions the law laid down by the Hon'ble Supreme Court in the case of Baikuntha Nath Das (supra) and this Court in the case of Naresh Chandra Sharma (supra) the impugned order of compulsory retirement, a copy of which is contained as annexure-1 to the writ petition dated 22.11.2017 is quashed and set aside. Consequences to follow.
The original records are returned back to the learned Additional Chief Standing counsel."
6. In the aforesaid judgment, this Court has considered various dictum of Hon'ble Supreme Court including Baikuntha Nath Das and Anr. vs. Chief District Medical Officer, Baripada and Anr reported in [1992] (2) SCC 299 which is leading judgment in the issue in question and placing reliance on the aforesaid judgments, the judgment and order dated 07.08.2018 has been passed.
7. I have heard learned counsel for the parties and perused the material available on record as well as the judgment and order dated 07.08.2018 passed in the case of Radhey Shyam (supra) and I find that the present petitioner being identically placed is entitled to get the benefit of judgment and order dated 07.08.2018 passed by this Court.
8. Accordingly, keeping in view the facts and circumstances of the issue as well as the dictum of Hon'ble Supreme Court in re: Baikuntha Nath Das and Anr. (supra) and one more judgment which has been considered by this Court in the judgment and order dated 07.08.2018 i.e. Naresh Chandra Sharma (supra), the impugned order of compulsory retirement dated 22.11.2017, a copy whereof is contained as Annexure No.1 to the writ petition, is quashed and set aside. Consequences to follow.
9. Accordingly, the writ petition is allowed.
10. No order as to costs.
11. The original record, which was directed to be produced, is returned back to the learned Additional Chief Standing Counsel.
Order Date :- 3.9.2019 Suresh/ [Rajesh Singh Chauhan,J.]