Allahabad High Court
Mukesh Bhatnagar vs State Of U.P. Thru. Prin. Secy. Deptt. Of ... on 3 April, 2019
Equivalent citations: AIRONLINE 2019 ALL 835, (2019) 4 ADJ 542 (ALL) (2019) 4 ALL WC 3194, (2019) 4 ALL WC 3194
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Judgment Reserved AFR (In Chamber) Case :- SERVICE SINGLE No. - 205 of 2018 Petitioner :- Mukesh Bhatnagar Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Of Forest & Others, C Counsel for Petitioner :- Girish Kumar Pandey Counsel for Respondent :- C.S.C. Hon'ble Saurabh Lavania,J.
By means of the present writ petition, the petitioner has challenged the order dated 05.09.2017 whereby, the petitioner has been compulsorily retired.
The facts, in brief, as borne out from the pleadings on record are that the petitioner was appointed on the post of Forest Ranger on 05.11.1990 and thereafter, the petitioner was confirmed on the said post on 03.12.2012 (Annexure No. 3 to the writ petition).
The reports of the service of the petitioner for the last ten years, which were considered by the screening committee and appointing authority for compulsory retirement of petitioner, as per para- 7 of the couter affidavit, are as under:-
Sl.
No. Year Ramarks
1.
2007-08 ACR-Bad, Integrity-Uncertified Communicated
2. 2008-09 ACR-Bad, Integrity-Uncertified Communicated
3. 2009-10 ACR-Uttam (Good), Integrity-Certified from 27.10.2009 to 31.03.2010
4. 2010-11 ACR-Bad, Integrity-withheld/Not certified Communication of entry- not mentioned
5. 2011-12 ACR-Bad, Integrity- certified Communication of entry- not mentioned
6. 2012-13 ACR-Satisfactory, Integrity- certified Communication of entry- not mentioned
7. 2013-14 ACR-Ati Uttam (very good) Integrity- certified
8. 2014-15 ACR- Uttam (good) Integrity- certified
9. 2015-16 No ACR was written from the authorities or Hamirpur
10. 2016-17 Grade-7 Integrity- certifed "Report" as per the U.P. Government Servant (Disposal of Representation Against Annual Confidential Reports and Allied Matters) Rule, 1995, means annual confidential report regarding the wrok, conduct and integrity of a Government Servant for each year recorded by an appropriate authority, who has seen the performance of the Government Servant for not less than a continuous period of three months.
Noteworthy to state here that prior to passing of the order dated 05.09.2017, impugned in the writ petition, the petitioner was charge-sheeted and disciplinary proceedings were pending and in the said disciplinary proceedings, one order was passed on 09.10.2017 awarding the punishment of recovery of Rs. 1,52,374.00 and another order was passed on 25.10.2017 for recovery of sum of Rs. 24,512.00. The said fact is evident from the orders of the appellate authority dated 28.08.2018 and 05.02.2019, which have been placed on record by way of supplementary affidavit dated 12.02.2019.
Admittedly, both the orders have been passed after passing of order of compulsory retirement, under challenge, dated 05.09.2017 and discipliary proceedings were pending with respect to the orders passed on 09.10.2017 and 25.10.2017 at the time of order of compulsory retirement dated 05.09.2017.
The submission of the counsel for the petitioner is that the order of compulsory retirement has been passed without application of mind and without considering the relevant later entries i.e. the entries of 2012-13, 2013-14, 2014-15, 2015-16 and 2016-17 which only were required to be considered, as vide order dated 03.12.2012, the petitioner was confirmed and accordingly previous entries ought not to have been considered by the Screening Committee or the Competent Authority-Opposite Party No. 2 for the purposes of compulsory retirement of the petitioner.
Further submitted that the order of compulsory retirement is in utter violation of the provisions of the Government Order dated 25.01.1969 which provides that no order of compulsory retirement should be passed during the pendency of the departmental enquiry.
The relevant portion of the Government Order dated 25.01.1969 is quoted below for ready reference:-
"foRr¼[k½ foHkkx 'kklukns'k la[;k 17@7@68 fu;qfDRk¼[k½] y[kuÅ] fnukad 25 tuojh] 1969 fo"k;& ml vof/k esa tc vuq'kklfud dk;Zokfg;ka py jgh gks] 55 o"kZ dh vk;q izkIr dj ysus ij ljdkjh deZpkfj;ksa dks 3 eghus dh uksfVl nsdj mudh lsok&fuo`fRrA eq>s ;g dgus dk funs'k gqvk gS fd Qkbusaf'k;y gSaMcqd] [k.M 2] Hkkx 2 ls 4 ds QUMkesUVy :y ewy fu;e 56 ds v/khu fdlh ljdkjh deZpkjh dks 55 o"kZ dh vk;q izkIr dj ysus ij 3 eghus dk uksfVl ;k mlds cnys 3 eghus dk osru nsdj lsok fuo`Rr fd;k tk ldrk gSA ,d iz'u ;g mBk gS fd D;k bl izdkj dk uksfVl ml vof/k esa] tc fd mlds fo:) vuq'kklfud dk;Zokfg;ka py jgh gksa] ml ij rkehy fd;k tk ldrk gS\ ljdkj dks ;g ijke'kZ fn;k x;k gS fd bl izdkj dh dk;Zokgh dks lafo/kku ds vuqPNsn 311 ds vk'k; ds vUrxZr n.M le>s tkus dh lEHkkouk gSA bl izdkj dh lsok&fuo`Rr ds vkns'k esa fdlh fof/kd =qfV dh lEHkkouk u jgus nsus ds fy, ;g fu'p; fd;k x;k gS fd& ¼1½ dksbZ ljdkjh deZpkjh] ftlds fo:) foHkkxh; dk;Zokfg;ka py jgh gksa] ,slh dk;Zokfg;ksa dh lekfIr rd 3 eghus dh uksfVl nsdj lsok&fuo`Rr u fd;k tk; ;s dk;Zokfg;ka ;Fkk'kh?kz iwjh dh tkuh pkfg;sA ;fn fn;k x;k n.M lsok ls cj[kkLrxh ;k gVk;k tkuk ugh gS] rks ml ij foHkkxh; dk;Zokfg;ka lekIr gksus ds fnukad ls leqfpr le; ¼15 fnu ;k ,d ekg½ ds ckn QUMkesUVy :y 56 ds v/khu lsok&fuo`fRr dk vkns'k rkehy fd;k tk ldrk gSA ¼2½ ;fn lkoZtfud fgr esa ;g le>k tk; fd fdlh ljdkjh deZpkjh dks mlds fo:) py jgh foHkkxh; dk;Zokfg;ksa dh lekfIr dh izrh{kk fd;s cxSj lsok&fuo`Rr djuk vko';d gS rks vf/kd vPNk rjhdk ;g gksxk fd ,slh dk;Zokfg;ksa dks vkSipkfjd :i ls okil ys fy;k tk; rks mldh lwpuk ml deZpkjh dks] ftlds fo:) vkjksi yxk;k x;k gks] nh tk;A blds ckn leqfpr le;] 15 fnu ;k ,d ekg O;rhr gksus ij mls 3 eghus dk uksfVl ;k uksfVl ds cnys 3 eghus dk osru nsdj lsok&fuo`Rr fd;k tk ldrk gSA ¼3½ d`i;k bu vuqns'kksa dk bl izdkj ds ekeyksa es dk;Zokgh djrs le; /;ku j[kk tk; vkSj vki budh lwpuk vius fu;U=.kk/khu fu;qfDr izkf/kdkfj;ksa dk Hkh muds iFk&izn'kZu gsrq ns nsaA"
Counsel for the petitioner further submitted that no public interest is involved in the retirement of the petitoner as there was no adverse entry/material against the petitioner in the recent past years and in the later years, no punishment was awarded to the petitioner and entries of remote past ought not to have been given preference to the recent past entries, which has been done. Thus, order of compulsory retirement of the petitioner has been passed without application of mind and in arbitrary manner and is also against the settled principle on the issue of retiring of Government Servant compulsorily in exercise of power vested in Rule 56-C of the Fundamental Rules.
Per contra, counsel for the State submitted that the order of compulsory retirement has been passed on the recommendation of the Screening Committee as well as after considering the service record of the petitioner.
On the issue of compulsory retirement the Hon'ble Apex Court in the case of Baikuntha Nath Das v. Chief District Medical Officer [(1992) 2 SCC 299 : 1993 SCC (L&S) 521 : (1992) 21 ATC 649] has laid down the law inter alia as under: (SCC pp. 315-16, para 34) "33. At this stage, we think it appropriate to append a note of clarification. What is normally required to be communicated is adverse remarks -- not every remark, comment or observation made in the confidential rolls. There may be any number of remarks, observations and comments, which do not constitute adverse remarks, but are yet relevant for the purpose of F.R. 56(j) or a rule corresponding to it. The object and purposes for which this power is to be exercised are well stated in J.N. Sinha [(1970) 2 SCC 458 : (1971) 1 SCR 791] and other decisions referred supra.
34. The following principles emerge from the above discussion:
(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour.
(ii) The order has to be passed by the government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the government.
(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded 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.
36. So far as the appeals before us are concerned, the High Court which has looked into the relevant record and confidential records has opined that the order of compulsory retirement was based not merely upon the said adverse remarks but other material as well. Secondly, it has also found that the material placed before them does not justify the conclusion that the said remarks were not recorded duly or properly. In the circumstances, it cannot be said that the order of compulsory retirement suffers from mala fides or that it is based on no evidence or that it is arbitrary."
In the case of State of Gujrat v. Umedbhai M. Patel, (2001) 3 SCC 314, following priciples as culled out by the Hon'ble Apex Court in the matter with respect to the cases of compulsory retirement are as under:-
"11. The law relating to compulsory retirement has now crystallized into definite principles, which could be broadly summarised thus:
(i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.
(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.
(iii) For better administration, it is necessary to chop off dead-wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer.
(iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.
(v) Even uncommunicated entries in the confidential record can also be taken into consideration.
(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."
In the recent judgment, the Division Bench of this Court in the case of Brajesh Kumar v. State of U.P. reported in (2018) 9 ADJ 390 after considering the aforementioned judgment has observed that recent service entries should be given more weightage.
The relevant para of the judgment is quoted below for ready reference:-
"After examining the order dated 07.12.2017 as reproduced above paragraph, the inevitable conclusion is that while screening the records of the petitioner, the respondent/competent authority has not examined the records in its entirety correctly and in its proper perspective. No effect has been made to give more importance to the recent past while is more relevant. More weightage has been given to performance in the remote past rather than paying more attention to the records of recent past."
In the settled legal preposition, this Court is considering the present case.
Admittedly, the petitioner was confirmed vide order dated 03.12.2012 on the post of Forest Ranger and the Competent Authority, for the year 2012-13, gave satisfactory entry and integrity was certified, in the year 2013-14 the very good entry was provided and integrity was also certified, in the year 2014-15, the good entry was given and integrity was again certified and for the year 2015-16, no entry was written by the authority concerned of District Hamirpur and in the year, 2016-17, grade-7 was given and integrity was certified, meaning thereby that out of recent past five years, in four years, integrity was certified and no bad/adverse entry was given to the petitioner and with respect of the year 2015-16, entry was not recorded by the Competent Authority.
It appears that the weightage was not given to the entries of the recent past years and the entries which ought not to have been given weightage or ought not to have been taken into account i.e. entries prior to order of confirmation dated 03.12.2012, have been taken into account while passing the order impugned dated 05.09.2017 and being so, the Competent Authority or Screening Committee acted in violation of principle settled in para 34 (iv) of the judgment passed by the Hon'ble Apex Court in the case of Baikuntha Nath Das (supra) and the judgment passed by the Division Bench of this Court in the case of Brajesh Kumar (supra).
Another aspect of the case is that two disciplinary proceedings were pending prior to order of compulsory retirement. The Hon'ble Apex Court in the judgment passed in the case of State of Gujrat (supra) in para-11 has held that the order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable and compulsory retirement shall not be imposed as a punitive measure. Further, the Government Order dated 25.01.1969 also says that during the pendency of the departmental proceedings, an employee should not be compulsorily retired.
Keeping in view the fact that disciplinary proceedings against the petitioner were pending prior to order of compulsory retirement dated 05.09.2017, this Courts feels that the impugned order dated 05.09.2017 is in violation of Government Order dated 25.01.1969 and the Law settled by the Hon'ble Apex Court in the case of State of Gujrat (supra).
Thus, the order of compulsory retirement dated 05.09.2017, under challenge, is nothing but an order passed without application of mind and is an outcome of arbitrary exercise of power vested in the authority.
Needless to say that High Court cannot act as an appellate authority, the High Court can exercise its power of judicial review in purely administrative decisions or order if the same suffers from malafide, malice of Law or fact or Law and fact both, unreasonableness, arbitrariness and if the same is in violation of Law/Rule/Government Order, on the subject. Thus, even in the cases of compulsory retirement, the judicial review by High Court is permissible, of course subject to principle settled for judicial review, as narrated hereinabove.
For the reaons and findings recorded hereinabove and applying the principle on which judicial review is permissible, this Court is of the firm opinion that the decision/order dated 05.09.2017, under challenge, is in violation of settled Law and Government Order dated 25.01.1969 and has been passed in an arbitrary manner and without application of mind and being so, is unsustainable. Accordingly, the order dated 05.09.2017 is hereby, quashed.
Writ petition is allowed. Consequences shall follow.
Order Date :- 03.04.2019 Arun/-