Allahabad High Court
Ram Babu Sahu vs State Of U.P. And Others on 10 February, 2012
Author: Sunil Ambwani
Bench: Sunil Ambwani, Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Judgment reserved on 24.1.2012 Judgment delivered on 10.2.2012 WRIT A NO. 62964 OF 2010 Ram Babu Sahu vs. State of UP & others Hon'ble Sunil Ambwani, J.
Hon'ble Manoj Misra, J.
1.The petitioner was selected by the U.P. Public Service Commission and was appointed as Assistant Development Officer (Panchayat) on 26.2.1985. He retired on attaining the age of 60 years on 31.1.2010, serving as Incharge District Panchayat Raj Adhikari, Basti. This writ petition has been filed by him against the Office Memorandum dated 2.8.2010, by which the Principal Secretary, Panchayati Raj, Anubhag-I, Government of UP has, on conclusion of the departmental enquiry initiated on 20.2.2003, and which continued even after his retirement, punished him with deduction of 100% pension; forfeiture of gratuity and with directions that he will not be entitled to any amount other than suspension allowance during the period he was under suspension.
2. We have heard Shri Ashok Khare, Senior Advocate assisted by Shri Siddharth Khare for the petitioner. Learned Standing Counsel appears for the State respondents.
3. Brief facts, giving rise to this writ petition, are that the petitioner, appointed as Assistant Development Officer (Panchayat) on 26.2.1985, could not be promoted on the post of District Panchayat Raj Officer, which was the next promotional post, as no meeting of the Departmental Promotion Committee could be convened for 16 years. He was given charge of officiating District Panchayat Raj Officer on 27.2.1999, and was posted as District Panchayat Raj Officer, Basti on 30.7.2009.
4. The petitioner was placed under suspension on 26.2.2008 for irregularities in selection for appointment on eleven posts of Gram Panchayat Adhikari's, in the backlog vacancies under directions of the State Government. A charge sheet was served upon him on 12.3.2008, on the allegations based on the complaint of the members of the Selection Committee to the District Magistrate on 05.2.2008, that they were not taken into confidence while preparing the final select list nor they had signed on the select list. The petitioner did not make the documents relating to selection available to them. It was alleged that the establishment clerk brought the documents relating to the selections on 05.2.2008 from outside the office and that irregularities were committed in the dispatch of the appointment letters. In the enquiry, it was reported that Smt. Usha Devi, the clerk incharge of the dispatch had not dispatched any letters on 29.1.2008 except, three letters and that the despatches were made under the signatures of establishment clerk Shri Anil Kumar Srivastava; the petitioner did not prepare separate merit lists for Other Backward Classes, Scheduled Caste and Scheduled Tribe candidates, whereas the Selection Committee had decided to prepare a separate list. Out of the selected candidates Shri Umesh Chandra, and Km. Reeta Chaudhari were given marks for having participated in sports, whereas they only have certificates of district level, and were irregularly awarded higher marks; one of the candidates Shri Kamlapati was awarded 39 marks by three members of the Selection Committee, 34 marks by the 4th member, whereas the petitioner had given him only 05 marks. In the same manner Sweta Tiwari was given 33 marks by one member, 40, 30 and 39 marks by other members, whereas the petitioner had given her only 06 marks. In the same manner Km. Lalita Maurya was given 24, 28, 27, and 21 marks by the members of the Selection Committee, whereas the petitioner had given her 47 marks and in this manner the petitioner had, in order to give advantage to some of the candidates, given them marks arbitrarily.
5. The petitioner filed a Writ Petition No. 25190 of 2008 against the suspension order, which was disposed of on 22.5.2008 to conclude enquiry. The selections were cancelled by the State Government. The cancellation of selections of 11 candidates in the backlog vacancies by the Principal Secretary, Panchayati Raj, Anubhag-I, Government of UP dated 20.2.2008 was challenged by the selected candidates, in three writ petitions in which the Writ Petition No. 11394 of 2008 (Ram Prakash Singh and others vs. State of UP and others) was made the leading writ petition. The writ petitions were allowed and the order cancelling their selection dated 20.2.2008 passed by the State Government was set aside with the following findings:-
"15. Having heard learned counsel for the parties and perusing the records, I find that any of the seven reasons or all of them taken together could not be the basis of the decision to cancel the entire selection. There are no allegations on record that the selections for backlog vacancies were not widely advertised or that the selected persons did not belong to the categories for which the vacancies were existing. Further there is no complaint that merit list in the descending order of the 1600 candidates was not prepared strictly in accordance with the marks awarded to them in their educational qualifications. The members of the selection committee observed that wherever the marks were found to be erroneously entered in the list the mistakes were immediately corrected. They did not report, that they did not have opportunity or did not award marks for interviews or that the marks awarded by them were not properly shown in the list. The Government Order dated 20.7.2002 for award of marks for achievements on sports was superseded by the U.P. Procedure for Director Recruitment for Group-C posts (Outside the Purview of the U.P. Public Service Commissioner) Rules, 2002, which clearly provided in Rule 5 (3) (c) the number of marks to be awarded for achievement in sports. The members of the Committee did not agree on any common method of awarding marks in the interviews. They did not decide to award any minimum or maximum marks to the candidates and thus it was open to each of the members to award marks on their own assessments. The enquiry committee has found the variance of marks only in case of two candidates namely Kamal Pati and Sweta Kumari. In fact there are no allegations of malafides or any undue favours raised against the District Panchayat Raj Officer, except in stating that he had awarded lesser marks to two candidates in interviews and had not corrected the marks for achievement in sports. Further it is stated that he had maintained undue secrecy in preparing the final results by typing out the appointment letters and their dispatch.
16. No exception could be taken nor there were any directions given to the District Panchayat Raj Officer for keeping the records of selection only in his office. His concern in keeping the records of selections had safer place, could not be a ground to cancel the selection. Further there is no allegation that the appointment letters were typed out at a private place. The District Panchayat Raj Adhikari used the computer of Deputy Director of his department for typing the appointment letters and thereafter deleting the entries on the computer to maintain secrecy. Thereafter he ensured that the establishment clerk of his office was engaged in dispatching the appointment letters. Purchase of stamps and the posting of the appointment letters by Railway Mail Service cannot be said to be an illegality. If the appointment letters were posted by a clerk other than the clerk, who was routinely doing dispatches, on the dates, when she did not affect the validity of the selections.
17. The Court finds that the District Panchayat Raj Officer took all reasonable care to avoid unfairness in selections. He was unnecessarily victimised by suspending him and thereafter in lodging an FIR against him and clerks of his office. The Court prima facie finds that the entire action taken against the District Panchayat Raj Officer and the clerks in his office, at the instance of some persons in the State Government, who have not been named, appear to be taken on their frustration in failing to break the secrecy. The members of the Selection Committee and the Enquiry Committee have not found any such illegality, which vitiates the selection or the selection of any candidate. They have failed to point out any violation of the Rules of 2002, which may have affected the final result. It is thus apparent that the District Magistrate was acting either at the behest of the Minister or the Director, Panchayati Raj, who did not succeed in getting their candidates appointed.
18. The selections in this case were made on the backlog vacancies, which were reserved for Other Backward Class and Scheduled Castes candidates. There is no allegation that the selected candidates exceeded the quota or that select list was not prepared category wise. There could be no irregularity assumed in the selections. There is no complaint of any person that select lists were not drawn in accordance with categories or that any person could not secure appointment or had suffered on account of failure to prepare the list category wise.
19. In Anamika Misra and Ors. Vs. U.P. Public Service Commission & Ors, 1990 (Supp.) SCC 692 the Supreme Court held that when no difficulty was pointed out in regard to the written examination and that objection was confined to exclusion of group of successful candidates in the written examination from the interview, there was no justification for cancelling the written part of recruitment examination. On the other hand, the situation could have been appropriately met by setting aside the recruitment and asking for a fresh interview of all eligible candidates on the basis of written examination, and select those, who on the basis of the written and the freshly held interview, became eligible for selection.
20. In Benny T.D. Vs. Registrar of Cooperative Societies, (1998) 5 SCC 269 the Supreme Court repealed a contention raised therein that in view of the findings of the Public Enquiry Commission that there has been tampering of marks in respect of several candidates, and as such there has been no fair and objective selection before the demand of annulment of the entire selection. The Court held that same could not be done, as the same would tantamount to gross violation of the principles of natural justice, which cannot be brushed aside on the ground that public interest demands annulment of the selection.
21. In Onkar Lal Bajaj Vs. Union of India, (2003) 2 SCC 673 the Court dealing with en masse cancellation of the licenses granted to the LPG distributors as result where of, unequals were said to have been clubbed by raising of arbitrary exercise of executive power, held it to be impermissible stating in para 45 that solution of resorting to cancellation of all was verse than the problem. Cure was verse than the disease. Equal treatment to unequals is nothing but inequality. To put both the categories- tainted and the rest- on a part is wholly unjustified, arbitrary unconstitutional being violative of Art.14 of the Constitution.
22. In Inder Preet Singh Kahloon Vs. State of Punjab, (2006) 11 SCC 356 the Supreme Court held that sufficient materials should be collected to be gathered through investigation in fair and transparent manner, and that the illegalities must go to the root of the matter vitiating the entire selection process, and the appointees in majority must be found to be part of the fraudulent purpose or may themselves must be found to be corrupt, to cancel the selections. The Supreme Court observed that High Court should also consider the consequence of enmasse cancellation of selection. It carries a big stigma particularly, when the cancellation of selection is directed on the serious charges of corruption. For the misdeeds of some candidates, honest and good candidates should not suffer in enmasse cancellation. In the interest of all concerned and particularly in the interest of honest candidates the State should have undertaken the task of finding out the illegalities in respect of each selections. The unscrupulous candidates should not be allowed to damage the entire system in such a manner, where innocent people also suffer great ignominy and stigma. The State also must not leave any stone unturned to bring the guilty to book. If there is any stigma, no officer howsoever high should be spared.
23. In the same report the Supreme Court observed in para 71 to 73 that a decision to cancel the selection enmasse should not be taken in undue haste. It was found that a note containing 90 pages was sent to the Chief Secretary of Punjab on 22.5.2002 and that service of all the officers were terminated on the next day. The undue haste was beyond anticipated apprehension. It was necessary for the State to show as to how records moved so as to satisfy the conscience of the Court that there had been proper and due application of mind on the part of authorities concerned. An action taken in undue haste may be held to be malafide vide Bahadur Singh Lakhubhai Gohil Vs. Jagdish Bhai M. Kamalia, (2004) 2 SCC 65. The basic principle underlying the rule is that justice not only be done but must also appear to be done. This rule is not confined to the cases, where judicial power is exercised. It is appropriately extended to all the cases, where an independent mind has to be applied to arrive at a just and fair decision between rival claims of the parties, vide Ashok Kumar Yadav Vs. State of Haryana, (1985) 4 SCC 417. It was held in this case, that justice is not function of the Courts alone; it is also the duty of all those, who are expected to decide fairly between contending party. The strict standards applied to authorities exercising judicial powers are being increasingly applied to administrative bodies, and it is vital to maintain rule of law in welfare of the State, where the jurisdiction of administrative bodies is increasing at a rapid pace that the instrumentality of the State should discharge their functions in a fair and just manner.
24. A large number of selections are held in the State of U.P. every year for appointment in public services. These selections, taking into account the unemployment in the State, are so large that some irregularities may always be found after the selections are held. Unless these illegalities are of such a nature, which may affect the entire selections, the departments should not ordinarily interfere with the selection process. In the present case none of the irregularities pointed out by the selection committee, enquiry committee and the State Government either taken singaly or cumulatively have affected the selections. The officiating District Panchayat Raj Officer was unnecessarily victimised for maintaining secrecy in the procedure of selections.
25. All the three writ petitions are consequently allowed. The order dated 20th February, 2008 passed by the State Government is set aside. A writ of mandamus is issued to the respondents to issue the order of appointment and posting to the petitioners within a month. The petitioners are also entitled to costs of this writ petition from the State Government."
6. A Special Appeal filed by the State Government, against the judgment, is pending.
7. The petitioner filed another Writ Petition No. 19285 of 2009 (Ram Babu Sahu vs. State of UP and others) against the suspension order in which an interim order was passed on 21.4.2009. The State Government filed a Special Leave Petition in the Supreme Court, which was dismissed on 4.9.2009.
8. An enquiry report dated 11.9.2008 was served upon the petitioner on 20.10.2009 in which the enquiry officer found the charge nos. 1, 2, 3, 4 and 6 to be proved against him. The charge no. 5, alleging the arbitrary award of marks, on the sport certificates, was not found proved. The enquiry officer did not believe the denial of the petitioner to the charges and his defence that all the allegations were in relation to the special care taken by him to keep the selection proceedings confidential. The members of the Selection Committee had taken part at every stage of proceedings, and that there is no requirement in the statutory rules or procedures to have their signatures on the final select list. On charges Nos. 1, 2 and 3, the enquiry officer did not accept the defence that the Selection Committee had no role to play in preparing the final result, and that the petitioner had proceeded cautiously in maintaining the secrecy of the selection proceedings. He returned the findings that the members of the Selection Committee were not allowed to participate in the proceedings and were not aware of select list, until the declaration of result. The defence of confidentiality of the proceedings, in which only two of the clerks performed the clerical duties, was not accepted. The enquiry officer also did not accept the defence, that in order to protect the records, the petitioner had removed them from his office for safekeeping. It was found that the petitioner could not prove that the Minister of Panchayati Raj and the Director, Panchayati Raj had called the petitioner to Lucknow several times to put pressure upon him to select certain individuals. He also did not accept the petitioner's defence that the records of the Selection Committee were in petitioner's custody to protect them and further that the despatches were made through a person, who was not the despatch clerk for protecting the confidentiality of the select list.
9. On charge no. 4, the enquiry officer found that the petitioner's justification for not following the statutory rules for maintaining separate select list for OBC/SC/ST candidates the petitioner's explanation, that all the 11 posts were reserved for backlog vacancies out of which seven were reserved for OBC, two for OBC and two for SC and that the select list clearly bears the number of marks to all the selected candidates and that no eligible candidate was kept out of the merit list and was placed separately, was not acceptable. The charge was proved on the ground of the statutory requirement of maintaining the select list. On charge no. 6 the enquiry officer did not accept the defence of the petitioner, that the performance sheet, on which each of the members had given marks for interview was kept confidential from amongst the members of the Selection Committee. The enquiry officer did not accept the defence that the marks given by the members of the Selection Committee were on the basis of assessment made by each member; each person has his own view of assessment of the candidates; and that the difference in marks awarded by the members does not indicate that there was any irregularity in the selection. The petitioner submitted a detailed reply on 18.11.2009 to the report of the Enquiry Committee in which he also relied upon the findings recorded by the High Court, by which the order cancelling the select list was set aside.
10. The State Government did not implement the interim order dated 21.4.2009 passed by this Court in Writ Petition No. 19285 of 2009 staying the suspension order of the petitioner on which the petitioner had to file a Contempt Petition No. 2989 of 2009. The State Government by Office Order dated 7.10.2009 carried out the order and allowed the petitioner to function on the post of Incharge District Panchayat Raj Officer, Basti.
11. The petitioner was transferred from District Basti to District Mau. Since he was going to retire on 31.1.2010, this Court in Writ Petition No. 69308 of 2009 (Ram Babu Sahu vs. State of UP and others) passed an order on 18.12.2009 to permit him to continue to function at District Basti.
12. The State Government by its order dated 10.6.2010 on the retirement of the petitioner converted the departmental enquiry into an enquiry under Article 351-A of the Civil Services Regulations and thereafter passed the impugned order dated 2.8.2010, by which his 100% pension was deducted; the entire gratuity was forfeited and the petitioner was deprived the balance of pay and allowance other than suspension allowance during the period he was under suspension.
13. In the Office Memorandum dated 2.8.2010, Shri R.K. Sharma, Principal Secretary, Panchayati Raj has referred to the initiation of the departmental enquiry; the filing of the writ petition against the suspension order; the interim order in pursuance to which he was reinstated in service; retirement of the petitioner; the continuation of the enquiry under Article 351-A of the C.S.R. and the findings of the enquiry officer. In paragraph-4 of the order after referring to the findings of the enquiry officer the State Government found that the enquiry report establishes that the petitioner had committed serious acts of misconduct, when he was posted as District Panchayat Raj Officer at Basti, and thereafter without considering petitioner's reply to the findings recorded by the enquiry officer, it is stated that the enquiry is concluded, and the punishment is recorded.
14. Shri Ashok Khare, learned counsel appearing for the petitioner submits that the punishment order dated 2.4.2010 has been passed in gross violation of the procedure of the departmental enquiry in the case of major penalty. He submits that even if the approval is taken to convert the enquiry under Article 351-A of Civil Services Regulations, the procedure for award of major penalty has to be followed. The entire enquiry proceedings have been conducted contrary to the procedure prescribed under the U.P. Government Servants (Punishment and Appeal) Rules, 1999. The judgment of this Court dated 2.3.2009 setting aside the order cancelling the selection had considered all the grounds and did not find any irregularity in the selections. The same allegations could not be taken as charges for proceedings with the departmental enquiry.
15. Shri Ashok Khare further submits that a departmental enquiry after the retirement of the person can be continued after sanction of the Governor under Article 351-A of the Civil Services Regulations, only if the alleged charges are of gross misconduct, which have resulted into financial loss to the State Government. The seriousness of the misconduct by itself cannot be a ground to continue with the departmental enquiry. He submits that in any case, while awarding the punishment the State Government has not considered the petitioner's reply to the findings of the enquiry officer. There is no reference to the petitioner's reply at all in the order imposing punishment on the petitioner.
16. Shri Khare submits that the pension to a government servant is not an award or a bounty to be paid at the discretion of the State Government. Every government servant has a right to receive pension in accordance with the statutory rules. The pension is a property, which can not be deprived, except in accordance with the law, and after following a procedure prescribed for major penalty which should be fair and reasonable. The punishment order after retirement may deprive a person, if there is any loss caused to the State Government by deducting a part thereof; the entire pension cannot be deducted. In such case, it will not be a deduction of pension but forfeiture of the entire pension, which is not permissible under the rules. In the same manner, the entire gratuity amount cannot be withheld unless there are findings of loss caused to the government to be compensated by the delinquent government servant after his retirement. In any case, he submits that a similar enquiry had to be conducted for forfeiting the amount of pay and allowance over and above the subsistence allowance, and in which the petitioner should have been given an opportunity of hearing.
17. Learned Standing Counsel has relied upon the counter affidavit of Shri Harikesh Bahadur, District Panchayat Raj Officer, Allahabad in which in paragraph-7 he has reiterated the facts that the petitioner committed serious irregularities and illegalities in recruitment of the backlog vacancies in the reserved category. The Committee enquired into the matter and found that there were serious irregularities in the selection process and submitted its report recommending the government to cancel the selection process. The District Magistrate had recommended the government to cancel the selection process and to initiate an enquiry against the guilty persons. The petitioner was reinstated in pursuance to the order of the Court. The enquiry had to be completed under Article 351-A of the Civil Services Regulations after taking approval of the competent authority. Since the petitioner was guilty of serious misconduct, the punishment was awarded to him in accordance with the law.
18. We have considered the submissions, and perused the documents annexed to the writ petition. We find considerable substance in the argument advanced by Shri Ashok Khare, that the findings of misconduct in the irregularities in selection process were subject matter of adjudication by the High Court. This Court had recorded specific findings that the irregularities alleged in the selection could not be a ground to cancel the entire selection. There were no allegation that the selections of backlog vacancies were not advertised or that the selected persons did not belong to the categories in which the vacancies were existing. Further, there was no complaint, that the merit list in the descending order of the 1600 candidates was not prepared strictly in accordance with the marks awarded to them in their educational qualifications, which was the only criteria to award marks and in which there was no discretion given to the Selection Committee. Their discretion was only available in the marks awarded for interviews. The members of the Selection Committee had observed that wherever the marks were found to be erroneously entered in the list, the marks were immediately corrected. None of the members of the Selection Committee had complained that they did not have opportunity to interview the candidates or that the marks awarded by them were not properly shown in the list. The Government Order dated 20.7.2002 for award of marks for achievements on sports was superseded by the UP Procedure for Direct Recruitment for Group 'C' Posts (Outside the Purview of UP Public Service Commission) Rules, 2002, which clearly provided in Rule 5 (3) (c) the number of marks to be awarded in achievement in sports. The members of the Committee did not agree on any common method of awarding marks for the interview. They did not decide to award any minimum or maximum marks to the candidates in interviews and thus it was open to each of the members to award marks on their own assessment. The enquiry committee found variation of marks only in case of two candidates namely Kamlapati and Swata Tiwari. There were no allegations of malafides and any undue favours against District Panchayat Raj Officer except in stating that he had awarded lesser marks to the two candidates in the interviews, and had not corrected the marks for achievements and sports.
19. The Court had also found that the anxiety to maintain secrecy in preparing the final result and by typing them out with the help of two clerks in the department, and its despatches by a person other than the despatch clerks could not by itself be treated to be an irregularity, which vitiated the selections.
20. The Court had also recorded findings that no exception could be taken nor there were any directions given to the District Panchayat Raj Officer, to keep the records of the selection only in his office. His concern for safety of the records could not be a ground to cancel the selections. There was no allegation, that the appointment letters were typed out at a private place. The District Panchayat Raj Officer used the computer of the Deputy Director in his office for typing out the appointment letters and thereafter deleted the entries to maintain the secrecy. The deployment of the establishment clerk in preparing the select list and in despatching the appointment letters after purchasing the stamps and posting by Railway Mail Service cannot be said to be an illegality, which vitiated the selections. If the appointment letters were typed and posted by a clerk other than the clerk, who was routinely doing such despatches, the selection cannot be held to be bad in law. The Court also recorded specific findings that the District Magistrate, either at the behest of the Minister, or Director, Panchayati Raj was making an attempt to break the secrecy, and since he did not succeed in getting their candidates appointed, he prepared a report, which in any case could not dispute the validity of the selection. There was no complaint by any person or any candidate that the select list was not drawn in accordance with the categories, or that any person could not secure appointment or suffered on account of failure to prepare the list category-wise.
21. We have examined the reply given by the petitioner to the report of the enquiry officer, in which he has taken all these points. The impugned order does not even refer to the detailed reply given by the petitioner on 18.11.2009 to the report of the enquiry officer. There is absolutely no mention of the petitioner's defence, which may show the application of mind by the Disciplinary Authority.
22. In our view the enquiry should not have proceeded against the petitioner after findings recorded by this Court of cancelling the select list. We are not aware, whether the judgment of the Court was placed on record and was produced before the competent authority to sanction the continuance of enquiry under Article 351-A of the Civil Services Regulations. Even if that was not done at least the punishment order should have mentioned to the judgment of this Court. The findings of the enquiry officer in the disciplinary enquiry against the petitioner are contrary to the findings recorded by the Court in the writ petitions filed by the selected candidates, upholding the selections. The executive orders of the Government, therefore, recording inconsistent findings cannot stand on the face of the judgment of this Court, which has neither been stayed nor set aside by the appellate court so far.
23. The disciplinary enquiry may be continued against a government servant after his retirement only if there are charges of gross misconduct, or which have resulted into financial loss to the State Government. The misconduct, by itself without there being any allegations of its seriousness, or charge of financial loss, cannot be a ground to punish a retired Government servant. In the present case, apart from irregularities in the selection, which resulted into cancellation of the selection, there is no finding of gross misconduct, or any financial loss caused to the State Government on account of such misconduct.
24. We are informed by Shri Ashok Khare, that the selected candidates have not been paid salary and that the State Government has not taken any such stand that it has incurred any liability on account of subject selections. He submits that once the cancellation of selection was set aside, there could not be a charge of financial loss caused to the State Government.
25. In State of Uttar Pradesh vs. Brahm Datt Sharma and another (1987) 2 SCC 179 the Supreme Court, in a matter arising out of a show cause notice given to the petitioner, who was serving and had retired as Executive Engineer in the Irrigation Department of the State Government to a show cause notice under Article 420 (b) of the Civil Services Regulation calling upon him to show cause as to why his pension and gratuity be not forfeited, held that the grant of pension to employees of the State Government is regulated by the Civil Services Regulations, which have statutory character. Article 348-A provides that pension shall be granted subject to the conditions contained in the regulations. Article 351-A empowers the Governor to withhold or withdraw pension or any part of it, whether permanently or for a specific period and also to order recovery from pension of the whole or part of the pension, for any pecuniary loss caused to the Government, if the pensioner is found guilty in departmental or in judicial proceedings for any misconduct or negligence during his service. Article 353 lays down that no pension shall be granted to an officer dismissed or removed from service for misconduct, insolvency or inefficiency, but compassionate allowance may be granted on special consideration. The claim of pension is determined by length of service, as provided by Articles 474 to 485. Full pension is admissible under the rules not as a matter of course but only if the service rendered by the government employee is approved. The regulations empower the authority sanctioning the pension to make such reduction in the amount of pension as it may think proper. The Supreme Court thereafter held:-
"6.....These provisions indicate that a Government servant is entitled to pension but the claim of pension is determined in accordance with the statutory rules. No doubt pension is no more a bounty; instead it is a right earned by the Government servant on the basis of length of service. Nonetheless grant of full pension depends on the approval of service rendered by the employee. In other words if the service rendered by the Government servant has not been satisfactory he would not be entitled to full pension and it would always be open to the Govt. to withhold or reduce the amount of pension in accordance with the statutory rules. If the Government incurs pecuniary loss on account of misconduct or negligence of a Govt. servant and if he retires from service before any departmental proceedings are taken against him, it is open to the State Govt. to initiate departmental proceedings, and if in those proceedings he is found guilty of misconduct, negligence or any other such act or omission as a result of which Govt. is put to pecuniary loss, the State Govt. is entitled to withhold, reduce or recover the loss suffered by it by forfeiture or reduction of pension. These provisions ordain the Govt. servant to perform his duties faithfully and honestly. Honest and devoted service rendered by a Govt. servant ensures efficiency in public administration. The statutory rules therefore contain provisions for the forfeiture and deduction in the pension of Govt. servant who have not rendered satisfactory service or who have been found guilty of misconduct or negligence resulting in pecuniary loss to the Govt. Merely because a Govt. servant retires from service on attaining the age of superannuation he cannot escape the liability of misconduct and negligence or financial irregularities.
The Supreme Court thereafter held in paragraph-8 as follows:-
"A plain reading of the regulation indicates that full pension is not awarded as a matter of course to a Govt. servant on his retirement instead, it is awarded to him if his satisfactory service is approved. If the service of a Govt. servant has not been thoroughly satisfactory the authority competent to sanction the pension is empowered to make such reduction in the amount of pension as it may think proper. Proviso to the regulation lays down that no order regarding reduction in the amount of pension shall be made without the approval of the appointing authority. Though the Regulations do not expressly provide for affording opportunity to the Govt. Servant before order for the reduction in the pension is issued, but the principles of natural justice ordain that opportunity of hearing must be afforded to the Govt. servant before any order is passed. Art. 311(2) is not attracted, nonetheless the Govt. servant is entitled to opportunity of hearing as the order of reduction in pension affects his right to receive full pension. It is no more in dispute that pension is not bounty; instead it is a right to property earned by the Govt. servant on his rendering satisfactory service to the State. In State of Punjab v. K.R. Erry and Sobhag Rai Mehta, [1973] 2 SCR 405 this Court held that the State Govt. could not direct cut in the pension of officers without giving a reasonable opportunity of bearing to them. In Deokinandan Prasad v. State of Bihar & Ors., [1971] Suppl. SCR 634 it was held that pension is not bounty pay- able at the sweet will and pleasure of the Govt.; instead the right to pension is valuable right vested in a Govt. servant. Again in D.S. Nakara and Ors. v. Union of India, [1983] 2 SCR 165 this Court held that payment of pension does not depend upon the discretion of the Govt. but it is governed by the rules and Govt. servant coming under those rules is entitled to claim pension. A Govt. employee earns his pension by rendering long and efficient service, the claim of pension is regulated by rules, which provide for reduction in the amount of pension if the Govt. servant has failed to render efficient service. In M. Narasimhachar v. State of Mysore, [1960] 1 SCR 981 this Court upheld the order of the State Govt. in reducing pension of a Govt. employee as the rules regulating the grant of pension made provision for reduction of pension on account of his having rendered unsatisfactory service. Rule 6.4 of Punjab Civil Pension Rules provides for the reduction in the amount of pension if the service of the Govt. employee has not been thoroughly satisfactory. The State Govt.'s order directing reduction of pension of the employee of State of Punjab were set aside by this Court in State of Punjab v. K.R. Erry and Sebhag Rai Mehta (Supra) and in State of Punjab & Anr. v. Iqbal Singh, [1976] 3 SCR 360 on the ground that the orders imposing deduction in the pension had been passed in violation of principles of natural justice as the affected employees had not been afforded opportunity of hearing. These decisions leave no scope for any doubt that the State Govt. is competent to direct reduction in pension after affording opportunity of hearing to the Govt. servant."
26. In State of Maharashtra vs. M.H. Mazumdar (1988) 2 SCC 52 the Supreme Court followed the judgment in State of Uttar Pradesh vs. Brahm Datt Sharma (supra) and held in respect of an enquiry on the two charges namely that the delinquent government servant had collected permits from the Kolhapur Central Co-operative Consumers Khatavane with mala fide intention after passing a receipt thereof to the Godown Keeper to shield Shri K.P. Khatavane and his son Baban Khatavane from criminal prosecution and on charge no. 2 that he had deliberately and intentionally denied to have made any enquiry unauthorisedly lifting of 10 bags of sugar on bogus or forged permit by Shri Baban Khatavane and his son with some ulterior motive and abetted them in the disposal of sugar in black market. Considering the punishment of the reduction in pension by 50% as against the recommendation of the Collector to take a lenient view and reducing the pension to the extent of Rs. 1/- per month the Supreme Court held the punishment to be extremely harsh and disproportionate and observed in paragraph-8 as follows:-
"8.On conclusion of the enquiry charge No. 1 was found to have been established while charge No. 2 was partially proved. In his report to the State Government the Collector of Kolhapur held that the respondent's action was helpful to Shri Khatavane to sell the sugar in the black market, and it amounted to a serious default on his part as a Government servant. He recommended that since the respondent had already retired from service a lenient view should be taken and reduction in pension to the extent of Re. 1 per month be made The State Government accepted the findings and passed the impugned order reducing the pension by 50 per cent In our view the reduction of pension 50 per cent was too harsh and disproportionate to the misconduct proved against the respondent. The State Government should have taken into consideration the fact that the respondent had retired from service and the reduction of pension by 50 per cent would seriously affect his living."
27. In State of West Bengal vs. Haresh C. Banerjee and others (2006) 7 SCC 651 the Supreme Court reiterated after following the judgments in Deokinandan Prasad v. State of Bihar (1971) 2 SCC 330; State of Punjab v. K.R. Erry (1973) 1 SCC 120; State of Uttar Pradesh vs. Brahm Datt Sharma (supra); and State of Maharashtra vs. M.H. Mazumdar (supra) in holding that the question of an order withholding or reducing pension being invalid and bad in law on a legally permissible ground is one thing but to hold such a rule to be ultra vires is another. The Supreme Court had observed in State of Uttar Pradesh v. Brahm Datt Sharma's case that if the Government incurs pecuniary loss on account of misconduct or negligence of a Government servant and if he retires from service before any departmental proceedings are taken against him, it is open to the State Government to initiate departmental proceedings, and if in those proceedings, he is found guilty of misconduct, negligence or any other such act or omission as a result of which Government is put to pecuniary loss, the State Government is entitled to withhold, reduce or recover the loss suffered by it by forfeiture or reduction of pension.
28. In State of U.P. vs. Harihar Bholenath (2006) INSC) 734 dated 1.11.2006, and Secretary, Forest Department and others vs. Abdur Rasul Chowdhury (2009) 7 SCC the Supreme Court, following the afore-referred judgments, reiterated the same principle that if in the proceedings drawn against a government servant on the charges of misconduct in a departmental enquiry which has proceeded beyond his retirement, the State Government is entitled to withhold, reduce or recover the loss suffered by it for forfeiture and reduction of pension after giving reasonable opportunity of hearing to such government servant.
29. In the present case, the petitioner was charged with irregularities in holding selections of eleven posts of clerks in the backlog vacancies in his office. He was charged with allegations of not getting the signatures of all the members of the Selection Committee on the final select list; keeping of the records of selection at his residence instead of keeping them in his office; the irregularity in despatch of the appointment letters; the irregularity of award of marks for sports quota; the wide variation in award of marks in interviews by the members of the Selection Committee; allowing only two clerks of his office to prepare the results, which were not prepared separately for each of the categories of reserved categories and in despatching the appointment letters through clerk, who was not assigned with the duties of dispatch in his office. The entire selection was cancelled by the State Government on the recommendations of the District Magistrate on 20.2.2008. The petitioner was placed under suspension on 26.2.2008. The order cancelling the selection was set aside by this Court on 2.3.2009 in Writ Petition No. 11394 of 2008. The order of suspension was stayed by this Court on 21.4.2009 in Writ Petition No. 29285 of 2009. The petitioner was reinstated after notices were issued in Contempt Petition No. 2989 of 2009 dated 7.10.2009. On 28.10.2009, his transfer was stayed by this Court in Writ Petition No. 69308 of 2009. The petitioner retired on 30.1.2010. The departmental enquiry was allowed to continue vide sanction under Article 351-A of the Civil Services Regulations on 10.6.2010 and in which the enquiry report was submitted on 20.10.2009. The petitioner submitted his reply to the enquiry report dated 18.11.2009 and the punishment order was passed on 2.8.2010. In all these proceedings there were no allegations against the petitioner for having caused any pecuniary loss to the State Government on account of the allegation of misconduct. The order cancelling the process of selection was set aside by this Court on 2.3.2009 after adjudication. The order still stands and has not been set aside by this Court in appeal. The enquiry officer did not make any enquiries with regard to any loss caused to the State Government nor there is any findings or even any observation in the punishment order that on the allegations, which were found to be proved, the Government has suffered any loss.
30. In the circumstances, when the charges of misconduct are based on the same allegations on which the cancellation of the select list was found by this Court to be unjustified, and in which no allegations of any irregularity or financial loss to the State Government were reported or found to be established, the reduction of 100% of the pension and thereby depriving of the petitioner any amount towards pension and the forfeiture of entire gratuity as well as the remaining amount of the suspension period is arbitrary, and illegal.
31. We find substance in the submissions of Shri Ashok Khare, that the enquiry proceedings could not have continued on the allegations made against the petitioner after his retirement as there were no allegations of gross misconduct leading to financial loss to the State Government. The sanction given under Article 351-A of the Civil Services Regulations was thus arbitrary and cannot be sustained. We also find substance in the arguments, that the failure to consider the reply given by the petitioner to the report of the enquiry officer amounts to violation of principles of natural justice in passing the punishment order and further in the absence of any charge and findings of any financial loss caused to the State Government the reduction in pension is not justified. The reduction of pension of 100% and the forfeiture of the entire amount of gratuity is highly disproportionate. No reasonable person can justify reduction of 100% pension with forfeiture of entire gratuity on such charges even if they were proved. The principles of proportionality have been grossly violated in awarding the punishment.
32. We also find substance in the argument, that if the amount of pay and allowance over and above the suspension allowance during the suspension period had to be denied, the petitioner should have been given a separate show cause notice and an opportunity of hearing before passing the order.
33. Ordinarily we would have allowed the Disciplinary Authority to consider the reply of the petitioner, and to reconsider the punishment awarded to him but since in this case we find that this Court has already adjudicated the allegations on the complaint of the persons, who were selected and has upheld the selections and further there was no imputation of allegations in the charges for having caused any pecuniary loss to the State Government, the State Government could not have proceeded to hold the enquiry, which has resulted into reduction of pension, forfeiture of gratuity and the denial of full pay during suspension period.
34. The writ petition is allowed. The impugned order dated 30.7.2010/2.8.2010 passed by the Principal Secretary, Panchayati Raj, Anubhag-I, Government of UP, Lucknow is set aside. A writ of mandamus is issued commanding the respondents to pay the entire retiral dues accrued to the petitioner with interest @ 9% within a month; fix the pension within a month and pay pension regularly every month. The petitioner will be entitled to Rs. 10,000/- as cost of the writ petition from the State Government.
Dt.10.2.2012 RKP/