Allahabad High Court
Ratan Kumar Yadav vs State Of U.P. And 2 Others on 6 May, 2024
Author: Prakash Padia
Bench: Prakash Padia
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 21.03.2024 Delivered on 06.05.2024 A.F.R. Neutral Citation No. - 2024:AHC:81176 Court No. - 35 Case :- WRIT - A No. - 20215 of 2019 Petitioner :- Ratan Kumar Yadav Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Ashish Kumar,Bharat Pratap Singh,Gaurav Singh,Prem Narayan Tiwari,Vijay Gautam(Senior Adv.) Counsel for Respondent :- C.S.C. Hon'ble Prakash Padia,J.
1. Heard Sri Kripa Shankar Singh, learned Senior Counsel assisted by Sri Saurabh Singh, learned counsel for the petitioner and Sri Vijay Shankar Prasad, learned Additional Chief Standing Counsel for respondents.
2. The present writ petition has been filed by the petitioner, with a prayer to quash the order dated 7.11.2019 passed by the State Government, compulsory retiring the petitioner and also quash the order dated 22.10.2019, by which the petitioner was awarded major penalty, i.e., stoppage of two increments for 5 years with temporary effect and one minor penalty of censure in terms of Rules 3 of U.P. Government Servant (Disciplinary & Appeal), Rules, 1999 (hereinafter referred to as "Rules of 1999"). The petitioner has further challenged the order dated 20.9.2018 passed by the Director General of Police, by which the penalty of censure has been imposed upon the petitioner under Rule 3 of aforesaid Rules of 1999 as well as appellate order dated 1.5.2019.
3. The facts as stated by the petitioner in the writ petition are that the petitioner was directly recruited in the year 1998 on the post of Sub-Inspector of Police. During the course of duty in an encounter with Munna Bajrangi gang, the petitioner received five AK-47 bullet injuries. After recovering from the said injuries the petitioner was granted promotion to the post of Inspector in 2001 and he was also awarded with Presidential Medal.
4. The petitioner was subsequently promoted as Deputy Superintendent of Police on 11.7.2016 and was posted at Zamania District Ghazipur on 18.7.2016. He was suspended on 15.11.2016 on the basis of some enquiry conducted by Shri Anil Kumar Singh, Additional Superintendent of Police (Rural) Ghazipur. However, the said suspension was revoked on 3.1.2017. Thereafter he was served a charge-sheet dated 9.9.2017. In the said charge-sheet, following charges were levelled against the petitioner :-
"यह कि वर्ष 2016 में आप द्वारा क्षेत्राधिकारी जमानिया, जनपद गाजीपुर के पद पर कार्यभार ग्रहण करते ही जनपद के सभी थानों से मानक के विपरीत जाकर दो-दो आरक्षी अपने हमराही बुला लिये गये और जनपदीय पुलिस बल कम होने के बाद भी बिना उच्चाधिकारियों के संज्ञान में लाये 12 पुलिस कर्मियों को अपने साथ ड्यूिटी में लगा लिया गया। आपके द्वारा क्षेत्र में भ्रमण करने के समय सरकारी गाड़ी का उपयोग न कर, प्राइवेट वाहन (स्कार्पियो) का प्रयोग किया गया है तथा पीछे के वाहन में 12-13 हमराही बैठाकर चल रहे थे। कई जमीनी विवाद के प्रकरणों में अनावश्यक हस्तक्षेप कर एकपक्षीय कार्यवाही का प्रयास किया जाना परिलक्षित हुआ है। श्रीमती माया सिंह, पूर्व जिला पंचायत सदस्य एवं हिन्दू पी.जी. कॉलेज, छात्रसंघ की पूर्व अध्यक्ष का आवास खाली कराने के सम्बन्ध में गाली-गलौज करने एवं उनके घर पर जाकर अनावश्यक दबाव बनाने आदि के संबंध में राजकीय कर्तव्यपालन के प्रति की गई घोर लापरवाही, उदासीनता एवं अकर्मण्यता/स्वेच्छाचारिता बरतने के आरोप में आपको दोषी पाया गया है।"
5. The petitioner submitted his reply to the said charge- sheet on 11.1.2018. The Enquiry Officer, i.e., Deputy Inspector General of Police, Azamgarh Zone, Azamgarh submitted his enquiry report on 5.7.2018. It is mentioned in paragraph 10 of the writ petition that the Enquiry Officer, while recording its finding in paragraph 9 of the enquiry report, has not at all considered the evidence adduced by the petitioner. The enquiry report dated 5.7.2018 was served upon the petitioner on 27.11.2018, directing him to submit his reply, which was submitted by the petitioner on 5.2.2019. The respondent no. 1 by an order dated 22.10.2019, imposed penalties, i.e., stoppage of two increments for 5 years with temporary effect along with censure entry.
6. It is further stated in the writ petition that in the preliminary enquiry conducted by Shri Keshav Chandra Goswami, ASP, City, Ghazipur, it was held that no charge has been proved against the petitioner. However, inspite of the same without any basis or disagreeing with the preliminary report dated 31.12.2016, the said enquiry report dated 31.12.2016 was forwarded to two officers, i.e., Sri Kamlesh Dixit, ASP and Dr. Anil Kumar Pandey, ASP who were of the equivalent rank i.e., ASP, for reviewing the report dated 31.12.2016. There is no provision for reviewing the preliminary enquiry report under the law. It is important to point out here that both the officers namely Sri Kamlesh Dixit and Dr. Anil Kumar Pandey did not make any enquiry independently rather reviewed the report submitted by Shri Keshav Chandra Goswami dated 31.12.2016 and formed their opinion. The said preliminary enquiry conducted by Shri Keshav Chandra Goswami, A.S.P., City, Ghazipur has not been considered. It is stated that the petitioner has been awarded double punishment i.e. stoppage of increments and censure entry for one and same charge.
7. By an order dated 20.9.2018, the petitioner was granted censure entry under Rule 3(1) of Rules of 1999. It is further stated that for awarding the said censure entry, no reason has been recorded by the Disciplinary Authority and there was no material before him or before the authority, conducting the preliminary enquiry for awarding punishment of censure entry.
8. It is further stated that the petitioner was awarded appreciation letter dated 12.11.2015 by the Senior Superintendent of Police regarding successfully organizing the event during visit of Shri Rajnath Singh, the then Home Minister.
9. The appeal filed by the petitioner against the said censure entry has been rejected by order dated 01.05.2019 by a non-speaking order. It is further stated that while passing the order dated 7.11.2019. whereby the petitioner has been compulsory retired, censure entry of 2017, which was imposed by order dated 2.11.2017 was also considered. However, the said order was never communicated to the petitioner. It is further stated that while passing the order of compulsory retirement, the respondent no.1 has considered the three orders, i.e. (I) censure entry awarded on 2.11.2017;
(II) censure entry awarded on 20.9.2018; and (III) the order dated 22.10.2019, by which the censure entry and stoppage of two increments for 5 years was imposed.
The petitioner in paragraph 38 of the writ petition has stated that since 1999 till 2019, all the entries in service-record are outstanding. Based on the aforesaid outstanding entries, it is stated that the petitioner is not a deadwood.
10. It is further stated in the writ petition that as per Fundamental Rules 56, before compulsory retiring a government servant, an opinion has to be framed by the concerned authority that it is in public interest to retire a person, after considering his entire service record. In the impugned order, there is no mention about consideration of service record of the petitioner and only three orders of punishment has been considered.
11. The petitioner also filed two supplementary affidavits dated 12.12.2019 & 16.3.2021. In 1st supplementary affidavit, it is stated that the compulsory retirement of the petitioner is against the provisions of Fundamental Rules 56(c) of U.P. Financial Handbook Part II-IV, as it has been passed without following the provisions contained under the said rules. It is further stated that the Screening Committee has not been properly constituted as per the provisions contained in the Government Orders dated 26.10.1985, 6.7.2017. 8.9.2017. 21.6.2019 & 1.7.2019. It is further stated in the supplementary affidavit that since the compulsory retirement order refers to the punishment awarded to the petitioner, as such, the said order cast stigma upon the petitioner, and as such, the order being passed without notice and opportunity to the petitioner, is bad in the eyes of law and is liable to be quashed. It is further stated that without considering the annual confidential report/character role of the petitioner, the impugned order has been passed and while passing the said order, efficiency of the petitioner has not been considered.
12. In 2nd supplementary affidavit, it is stated that the Screening Committee has fixed the criteria for retiring a person compulsory who has attained the age of 50 years and who have been charged three or more than three minor penalties and other penalties. It is further stated that the Screening Committee has considered the censure entry awarded on 22.10.2019, which was awarded just a week earlier before meeting of the Screening Committee. The Screening Committee has not considered last 10 years annual confidential report in the service record of the petitioner. The petitioner in 2nd supplementary affidavit has also made averment regarding the communication of the approval of U.P. Public Service Commission for award of punishment and with the said averment he has stated that the commission was not informed properly and was infact forced to approve the punishment awarded to the petitioner by order dated 22.10.2019.
13. A counter affidavit has been filed on behalf of respondent by Shri Rajdhari Saroj, Deputy Superintendent of Police, Police Head Quarter, Prayagraj. In the counter affidavit it is stated that as per the Government Order dated 26.10.1985, any government servant who has completed 50 years of his age, may be retired by the Appointing Authority by giving 3 months notice without assigning any reason. The Screening Committee, as per the government order dated 26.10.1985 has considered the service record of the petitioner and in pursuance of the punishment order passed time to time on 1.11.2019, the Screening Committee recommended for compulsory retirement of the petitioner.
14. It is further stated in the counter affidavit that no representation has been moved by the petitioner against the punishment order dated 22.10.2019. So far as censure entry of 20.9.2018 is concerned, the appeal against the said censure entry has been rejected. In supplementary counter affidavit it is stated that in the government order dated 26.10.1985. exclusive guidelines and provisions had been made for the Screening Committee to examine and assesse the entire service record and formed opinion objectively as to whether an employee is fit to be retained in service or not and subsequently various government orders have also been issued being government orders dated 6.2.1989, 21.5.1998. 23.9.2000, 25.1.2007 & 6.7.2017.
15. It is further stated that the Screening Committee has scrutinized the entire service record of the petitioner and other employee. The petitioner was awarded 4 punishments under Rule 14(2) of Uttar Pradesh Police Officer Subordinate Rank (Punishment & Appeal), Rules 1991. The Screening Committee has submitted its report on 1.11.2019, wherein it has recommended that the petitioner should not be continued in service in public interest and he has been compulsory retired. In pursuance of the recommendation of the Screening Committee, an office-memorandum dated 7.11.2019 under Uttar Pradesh Fundamental Rules 56-C of Financial Handbook Vol. 2 (Part-II-IV) was issued. Since the services of the petitioner was not found satisfactory by the Screening Committee, therefore, the Screening Committee recommended that the petitioner should not be continued in service in public interest and he should be compulsory retired.
16. It is further stated that the order of compulsory retirement is not an punishment. Copy of the report of Screening Committee has also been annexed as annexure-1 to the supplementary counter affidavit. The said report of Screening Committee, in description, there is reference of punishment order dated 20.10.2019 and censure entries dated 2.11.2017 & 20.9.2018 and in recommendation column, the details of punishment and censure entry has been mentioned. The Screening Committee has recommended that to maintain the efficiency in State Police Service, the recommendation for compulsory retirement has been passed. In recommendation of the Screening Committee, it is nowhere mentioned the compulsory retirement is in public interest.
17. Heard learned counsel for the petitioner and learned Standing Counsel for the respondents. With the consent of learned counsel for the parties the present writ petition is being disposed of at the stage of admission.
18. Learned counsel for the petitioner has argued that the order of compulsory retirement has been passed only on the basis of punishment order dated 22.10.2019 and two censure entries dated 2.11.2017 & 20.9.2018, whereas the service record of the petitioner from 2009 to 2019 is outstanding and this fact has not been denied by the respondents in their counter affidavit. The report of Screening Committee filed along with supplementary counter affidavit, clearly demonstrate that only consideration before the Screening Committee was order dated 22.10.2019. 2.11.2017 & 20.9.2018. The service record of the petitioner and other appreciation in performance of the petitioner has not at all been considered by the Screening Committee.
19. The petitioner for the said proposition has relied upon a judgment rendered by Lucknow Bench of this Court in Writ-A No. 1888 of 2005 (S/B) (Mahesh Chand Agarwal Vs. State of U.P. & others) decided on 27.03.2006. In the aforesaid judgment, the Division Bench of this Court has held as under:
"While considering the case of a public servant it is not only the Character Roll which would be relevant either for retaining the officer or public servant in service or for screening him out, but such consideration would also go to the other materials in the service record namely; e.g. appreciation letters or certificates of commendable work by higher or superior authorities or to say of the competent authority of if there is material which though does not find mention in the Character Roll entry but either appreciates or deprecates the work and conduct of the public servant or shows his or her shortcomings or in any other way reflects his or her character, integrity and reputation. All such material cannot be lost sight by the Screening Committee and has to be considered while making an assessment. Thus, relying only upon the award of marks as against the annual remarks on the basis of criteria of promotion strictly on the basis of 'merit cannot be supported to, under the aforesaid provision."
20. For the proposition that once the order of compulsory retirement contain the details of punishment awarded earlier, it cast stigma and for this, the learned counsel for the petitioner has relied upon a judgment of this Court dated 7.8.2018 in Special Appeal (Defective) No. 496 of 2018 (Brijesh Kumar Vs. State of U.P. & others).
21. Coordinate Bench of this Court in Writ-A No. 45254 of 2017 (Ghanshyam Mishra Vs. State of U.P. & others) decided on 09.05.2019 has considered the law, pertaining to the compulsory retirement . The relevant portion of the aforesaid judgement reads as follows:
"In the ultimate analysis, the Court must be satisfied that the formation of opinion is neither whimsical nor arbitrary but in fact based purely upon an objective assessment of the suitability of the employee. It is to be remembered that Courts will not interfere merely because another view could possibly be taken. After all the exercise of power to compulsorily retire is an outcome of the subjective satisfaction so arrived at. It would however, be justified in posing to itself the question whether a reasonable and prudent person would have arrived at the same conclusion as the employer upon an assessment of the entire record.
Often orders of compulsorily retirement are assailed on the ground that they came to be made in order to obviate the requirement to prove allegations of misconduct levelled against an employee. Such a challenge is raised often where the power of compulsorily retirement is exercised either during the pendency of disciplinary proceedings or before a punishment is ultimately inflicted. A challenge on these lines may also be raised whether though a decision to initiate disciplinary proceedings is taken, an enquiry need not have commenced. In such situations the Courts are called upon to consider whether the power of compulsorily retirement was in fact invoked as a ruse and veils the true intent of the employer to avoid the necessity of holding a departmental enquiry. These issues very often call upon the Court to consider whether the misdemeanor alleged and yet to be proven or acted upon formed the motive or foundation of the order of compulsorily retirement.
Reiterating the settled legal position of the power to compulsorily retire and the obligation of the employer to scan the entire service record of a government servant, the Supreme Court in Punjab State Power Corporation held thus:-
"14. In State of Orissa v. Ram Chandra Das: (1996) 5 SCC 331 a three-Judge Bench has emphatically held that object behind compulsory retirement is public interest and, therefore, even if an employee has been subsequently promoted, the previous entries do not melt into insignificance. To quote:
7...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.
15. The aforesaid dictum has been approved and followed in State of Gujarat v. Umedbhai M. Patel: (2001) 3 SCC 314, wherein emphasis has been laid on the factum that entire service record of the government servant is to be examined. Same principle has also been followed in another three-Judge Bench decision in Pyare Mohan Lal v. State of Jharkhand and Ors. (2010) 10 SCC 693. Slightly recently, a Division Bench in Rajasthan SRTC v. Babulal Jangir (2013) 10 SCC 551, after discussing number of authorities, has held thus:
22. It clearly follows from the above that the clarification given by a two-Judge Bench judgment in Badrinath v. State of Tamil Nadu is not correct and the observations of this Court in State of Punjab v. Gurdas Singh: (1998) 4 SCC 92 to the effect that the adverse entries prior to the promotion or crossing of efficiency bar or picking up higher rank are not wiped off and can be taken into account while considering the overall performance of the employee when it comes to the consideration of case of that employee for premature retirement.
23. The principle of law which is clarified and stands crystallised after the judgment in Pyare Mohan Lal v. State of Jharkhand is that after the promotion of an employee the adverse entries prior thereto would have no relevance and can be treated as wiped off when the case of the government employee is to be considered for further promotion. However, this "washed-off theory" will have no application when the case of an employee is being assessed to determine whether he is fit to be retained in service or requires to be given compulsory retirement. The rationale given is that since such an assessment is based on "entire service record", there is no question of not taking into consideration the earlier old adverse entries or record of the old period. We may hasten to add that while such a record can be taken into consideration, at the same time, the service record of the immediate past period will have to be given due credence and weightage. For example, as against some very old adverse entries where the immediate past record shows exemplary performance, ignoring such a record of recent past and acting only on the basis of old adverse entries, to retire a person will be a clear example of arbitrary exercise of power. However, if old record pertains to integrity of a person then that may be sufficient to justify the order of premature retirement of the government servant."
Dealing with a case where an order of compulsorily retirement comes to be made during the pendency of disciplinary proceedings, the Supreme Court in State of U.P. And another Vs. Abhai Kishore Masta made the following pertinent observations:
"7. So far as the order of compulsory retirement under Fundamental Rule 56-J is concerned, we are of the opinion that the principle enunciated by the High Court in J.N. Bajpai and followed in the Judgment under appeal is unsustainable in law. It cannot be said as a matter of law nor can it be stated as invariable rule, that any and every order of compulsory retirement made under Fundamental Rule 56-J (or other provision corresponding thereto) during the pendency of disciplinary proceedings is necessarily penal. It may be or it may not be. It is a matter to be decided on a verification of the relevant record or the material on which the order is based.
8. In the State of Uttar Pradesh v. Madan Mohan Nagar (1967)IILLJ63SC it has been held by a Constitution Bench that the test to be applied in such matters is "does the order of compulsory retirement cast an aspersion or attach a stigma to the officer when it purports to retire him compulsory?" It was observed that if the charge or imputation against the officer is made the condition of the exercise of the power it must be held to be by way of punishment-otherwise not. In other words if it is found that the authority has adopted an easier course of retiring the employee under Rule 56-J instead of proceeding with and concluding the enquiry or where it is found that the main reason for compulsorily retiring the employee is the pendency of the disciplinary proceeding or the levelling of the charges, as the case may be, it would be a case for holding it to be penal. But there may also be a case where the order of compulsory retirement is not really or mainly based upon the charges or the pendency of disciplinary enquiry. As a matter of fact, in many cases, it may happen that the authority competent to retire compulsorily under Rule 56-J and authority competent to impose the punishment in the disciplinary enquiry are different. It may also be that the charges communicated or the pendency of the disciplinary enquiry is only one of the several circumstances taken into consideration. In such cases it cannot be said that merely because the order of compulsory retirement is made after the charges are communicated or during the pendency of disciplinary enquiry, it is penal in nature.
9. It is true that merely because the order of compulsory retirement is couched in innocuous language without making imputations against the government servant, the Court need not conclude that it is not penal in nature. In appropriate cases the Court can lift the veil to find out whether, in truth, the order is penal in nature vide Ram Ekbal Sharma v. State of Bihar."
It ultimately held:-
12. We are, therefore, of the opinion that the High Court was in error in holding that merely because the order of compulsory retirement was passed during the pendency of a disciplinary enquiry, it must be necessarily deemed to be penal in nature, is unsustainable in law. The Judgment of the High Court is accordingly set aside and the matter is remitted to the High Court to determine, in the light of the observations made herein, whether the order of compulsory retirement is, in truth, penal in nature? There shall be no order as to costs."
Dealing with the decision rendered by a learned Judge of the Court in Mukesh Bhatnagar and upon which great emphasis was laid by Sri Mishra, this Court finds itself unable to either adopt or subscribe to the proposition as broadly formulated by the learned Judge in that decision. In Mukesh Bhatnagar, the learned Judge noticing the fact that two disciplinary proceedings were pending prior to the order of compulsorily retirement being passed proceeded to observe that compulsorily retirement must not be imposed as a punitive measure and as a short cut to avoid a departmental enquiry when such course is more desirable. While noting thus, the learned Judge sought to draw sustenance from the principles as formulated by the Supreme Court in State of Gujarat Vs. Umedbhai M Patel reported in (2001) 3 SCC 314. Firstly, no such absolute proposition was culled out or propounded in Umedhai M. Patel. Secondly and with due respect to the learned Judge, this Court finds itself unable to tread this path bearing in mind the principles as enunciated by the Supreme Court in State of U.P. As was observed there, the Supreme Court held that it cannot be said as a matter of law or as an invariable rule that an order of compulsorily retirement made during the pendency of disciplinary proceedings is necessarily penal. It held that whether it was penal or not would be a matter to be decided on verification of the relevant record. The position was then further elaborated with the Court observing that only in a case where it is found that the main reason for compulsorily retiring the employee was the charge which formed the subject matter of the disciplinary proceedings could it be said to be penal. It held that even in a case where the pendency of disciplinary proceedings is only one of several circumstances which are taken into consideration by the employer, in such a situation it could not be said that the order of compulsorily retirement was penal in nature. The above exposition is necessitated only in light of the great emphasis laid by Sri Mishra upon the decision in Mukesh Bhatnagar. However the above observations are not to be construed as an expression of any opinion on the correctness of the ultimate conclusion arrived at by the learned Judge in that matter. Ultimately it would be for this Court to consider whether in the facts of the present case, the order of compulsory retirement was based solely upon the pendency of disciplinary proceedings against the petitioner or whether it was founded upon other relevant considerations.
In the present case as this Court reads the reasons recorded by the Screening Committee while recommending the compulsory retirement of the petitioner, it does not find that the same was based solely upon the charges which formed the subject matter of the disciplinary proceedings. The Screening Committee while framing its recommendations has taken into consideration the annual confidential entries, disciplinary proceedings, orders of punishment, reports of the Vigilance Department cumulatively. At least that is what the recommendation recites and records. No other material was relied upon to establish that the ultimate conclusion recorded by the Screening Committee hinged and rested solely on the departmental enquiries stated to be pending. The fact that this opinion was formed without the Screening Committee taking into consideration the fact that the petitioner stood exonerated of all the charges levelled against him by the Enquiry Officer and its ultimate impact on the order of compulsorily retirement itself is an aspect which is left over to be considered in the subsequent passages of this decision. The Court in the facts of this case finds itself, therefore, unable to hold that the order of compulsorily retirement was penal in character. The record as prepared by the Screening Committee does not establish that the recommendation came to be formulated solely on the basis of the enquiry proceedings which were stated to be pending.
22. The counsel for the petitioner has also relied upon the case of Allahabad Bank Officer Association Vs. Allahabad Bank and others reported in AIR 1996 SC (2030) for the proposition that once the order of compulsory retirement cast stigma, it is not sustainable. The relevant paragraph is as follows :-
"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 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."
23. The learned counsel for the petitioner has further relied upon a judgment, reported in AIR 2012 SCW 1791 (Nand Kishore Verma Vs. State of Jharkhand & others) in which it is held that :-
"Keeping this object in view, the contention of the appellant has to be appreciated on the basis of the settled law on the subject of Compulsory retirement. In Baikuntha Nath Das v. Chief District Medical Officer, (1992) 2 SCC 299, three Judge Bench of this Court has laid down the principles regarding the Order of Compulsory retirement in public interest:
34. The following principles emerge from the above discussion:
(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour.
(ii) The order has to be passed by the government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the government.
(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary -- in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be a perverse order.
(iv) The government (or the Review Committee, as the case may be) shall have to consider the entire record of service before 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."
24. The learned counsel for the petitioner has also relied upon a judgment of this Court in Special Appeal (Defective) No. 24 of 2018 (Rizvan Ahmad Vs. State of U.P. & others) in which it is held that :-
"14. Before we delve into the rival submissions raised at the bar we must deal with the contention canvassed by learned Standing Counsel that the committee had recorded its subjective satisfaction and once subjective satisfaction has been recorded the Court should not interfere. We may hasten to add the concept of subjective satisfaction does not necessarily mean that there can be no material and the competent authority can take a flight in fancy. Subjective satisfaction cannot be done in a manner which a prudent man can never conceive. Satisfaction like discretion has to be based on proper consideration and weighment of material. In our considered opinion subjective satisfaction cannot be scanned as if one is sitting in an appeal, but it must meet the requirement of appreciation expected of a prudent man and the appreciation should be relevant and germane to the purpose apropos to its context. It cannot be conceived for a moment that the subjective satisfaction would take away the order from the purview of judicial scrutiny solely on the basis that the Committee has been subjectively satisfied.
15. In the case of State of Gujrat Vs. Umedbhai M. Patel (2001) 3 SCC 314, the Hon'ble Supreme Court held:
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 deach wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer.
(iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.
(v) Even uncommunicated entries in the confidential record can also be taken into consideration.
(vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable.
(vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer.
(viii) Compulsory retirement shall not be imposed as a punitive measure."
16. In the case of State of U.P. Vs. Lalsa Ram (2001) 3 SCC 383 the Apex Court in para-15 of the judgment held as under:
"15. Incidentally, the five guiding principles as laid down in Baikuntha Nath's case (supra) by this Court stands accepted in another three-Judges Bench's judgment of this Court in Posts and Telegraphs Board v. CSN Murthy wherein this Court observed that whether the conduct of the employee is such as to justify a conclusion of compulsory retirement but the same is primarily for the departmental authorities to decide. The nature of the delinquency and whether it is of such a degree as to require the compulsory retirement, the courts have no authority or jurisdiction to interfere with the exercise of power if arrived at bona fide on the basis of the material available on record: Usurpation of authority is not only unwarranted but contrary to all norms of service jurisprudence."
17. From the aforesaid enunciations of law there remains no iota of doubt that the order of compulsory retirement is not to be passed as short cut to avoid departmental enquiry and that order is to be passed after having due regard to the entire service record of the officer. It is also follows that an order has to be tested on the touchstone that no reasonable person would form requisite opinion on the given material. To elucidate, the order should not smack of perversity or based on no material or prima facie malafide."
25. A perusal of the report of the Screening Committee dated 31.3.2019 (annexed by the respondent as annexure-1 to the supplementary counter affidavit dated 07.02.2020), it is evident that the case of the petitioner has been considered and the said report is as under.
4. रतन कुमार यादव 30.12.1967 आदेश दिनांक 22.10.2019 द्वारा परिनिन्दा एवं 02 वेतनवृद्धि अस्थायी रूप से 05 वर्ष के लिये रोकी गयी।
परिनिन्दा दि० 02.11.2017 एवं 20.09.2018 03 लघु दण्ड, 01 अर्थदण्ड
1. वर्ष 2016 में क्षेत्राधिकारी जमानियां, जनपद गाजीपुर में तैनाती के दौरान सभी थानों से मानक से विपरीत 02-02 आरक्षी अपने हमराही के रूप में बुला लेने और जनपदीय पुलिस बल कम होने के बाद भी बिना उच्चाधिकारियों के संज्ञान में लाये 12 पुलिस कर्मियों को अपने साथ ड्यूटी में लगाने, क्षेत्र के भ्रमण के समय सरकारी गाड़ी का उपयोग न कर प्राईवेट वाहन का प्रयोग करने, पीछे के वाहन में 12-13 हमराही बैठाकर चलने, कई जमीनी विवादों के प्रकरणों में अनावश्यक हस्तक्षेप करके 01 पक्षीय कार्यवाही का प्रयास करने तथा श्रीमती माया सिंह, पूर्व सदस्य जिला पंचायत तचा हिन्दू पी०जी० कालेज छात्र संघ की पूर्व अध्यक्ष का आवास खाली कराये जाने के संबंध में गाली गलौज करने तथा उनके घर जाकर अनावश्यक दबाव बनाने के सबंध में जांचोपरान्त दोषी पाते हुए शासन के आदेश दिनांक 22.10.2019 द्वारा परिनिन्दा एवं 02 वेतन वृद्धि 05 वर्ष के लिये अस्थायी तौर पर रोके जाने का दण्ड दिया गया।
02 वर्ष 2017 में प्रभारी निरीक्षक कैण्ट के पद पर तैनाती के पश्चात दिनांक 01.03.2016 को स्थानान्तरण के उपरान्त अपने पास 01 साइकिल, 02 अदद बुलेटप्रूफ जाकेट तथा 01 अदद ब्लाक पिस्टल मय मैगजीन व कारतूस थाना कैण्ट वाराणसी से प्राप्त किया गया तथा उसे दिनांक 28.03.2016 को थाना कैण्ट में जमा कराया गया था। इसके अतिरक्ति थाना चेतगंज में तैनाती के दौरान 01 अदद वयरलेस हेण्डसेट, सीसीआर/डीसीआर/थाना कैण्ट में जमा नहीं कराये गये। व्यक्तिगत सुरक्षा हेतु पुलिस लाईन वाराणसी के शस्त्रागार से 01 अदद एके 47 प्राप्त किया गया। स्थानान्तरण के पश्चात इनके सरकारी सामानों को संबंधित स्थानों पर जमा नहीं कराया गया। पूर्व में प्राप्त एके-47 पुलिस लाईन में बिना किसी सक्षम अधिकारी के अनुमति/आदेश के मानमाने तरीके से अरमरी में जमा किया गया, उसके स्थान पर 01 अदद मशीनगन (एम०पी०-5) बिना किसी अनुमति/आदेश के प्राप्त कर लिया गया, जिसे इनके द्वारा जमा नहीं कराया गया। प्रकरण में जॉचोरपरान्त दोषी पाये जाने पर पुलिस महानिदेशक, उत्तर प्रदेश द्वारा दिनांक 02.11.2017 को परिनिन्दा प्रदान की गयी।
3. वर्ष 2015 में जनपद वाराणसी में प्रभारी निरीक्षक कैण्ट के पद पर तैनाती के दौरान दिनांक 01.11.2015 को मा० गृह मन्त्री, भारत सरकार के जनपद आगमन पर उपयुक्त सुरक्षा व्यवस्था सुनिश्चित न कराये जाने के दृष्टिगत प्रकरण की जांचोपरान्त दिनाक 20.09.2018 को अपर पुलिस महानिदेशक द्वारा परिनिन्दा का दण्ड प्रदान किया गया।
26. A perusal of aforesaid report clearly established that only punishment order and censure entry has been mentioned in the report, which has been considered by the Screening Committee. There is no subjective satisfaction recorded by the Screening Committee. The entire service record of the petitioner and various appreciation letter has not at all been considered by the respondent, while passing the impugned order. No finding has been recorded by the Screening Committee that the continuation of the petitioner in public service is not in interest of the public. Only fact recorded by the Screening Committee is as under:
"इस प्रकार सरकारी सेवाओं में दक्षता सुनिश्चित करने के लिए प्रान्तीय पुलिस सेवा के अपर पुलिस अधीक्षक/पुलिस उपाधीक्षक स्तर के अधिकारियों की अनिवार्य सेवानिवृत्ति हेतु गठित स्क्रीनिंग कमेटी सम्यक् विचारोपरान्त सर्वश्री अरूण कुमार, विनोद कुमार राना, नरेन्द्र सिंह राना, रतन कुमार यादव, तेजवीर सिंह यादव, संतोष कुमार सिंह व तनवीर अहमद खाँ पुलिस उपाधीक्षकगण को उपयुक्त पाते हुए अनिवार्य सेवानिवृत्त किये जाने की संस्तुति करती है।"
27. Thus, it is clear that the Screening Committee has not recorded any subjective satisfaction and in vague term has recorded the findings that the petitioner is fit for compulsory retirement and that too without considering individual cases of the government servant. The report further established that the service record has not at all been considered by the respondent while passing the impugned order of compulsory retirement. The order dated 07.11.2019 further contain the detail of punishment orders dated 22.10.2019, 02.11.2017 and 20.9.2018. Thus, the order dated 7.11.2019 cast stigma and also amount double punishment. As such, the order dated 7.11.2019 passed by the respondent no. 1 is not sustainable being contrary to law and is hereby quashed. So far as the orders dated 22.10.2019, 02.09.2018 and 02.11.2017 awarding punishment to the petitioner is concerned, he is granted liberty to file representation/appeal against the said order in accordance with the relevant rules.
28. In this view of the matter respondents are directed to pass orders for joining of the petiitoner within three weeks from today. Respondents are further directed to provide all the consequential benefits to the petitioner including arrears of salary, seniority and other benefits in this regard within a period of 6 weeks from today.
29. The writ petition is partly allowed.
30. No order as to costs.
31. Registrar (Compliance) is directed to communicate copy of this order to respondent no.1-Additional Chief Secretary, Ministry of Home, U.P. Secretariat, Lucknow within 24 hours.
Order Date :- 06/05/2024 Pramod Tripathi