Jharkhand High Court
Harihar Prasad Singh vs State Of Jharkhand And Ors. on 10 August, 2005
Equivalent citations: 2005(3)BLJR2009, [2005(4)JCR98(JHR)], 2005 AIR - JHAR. H. C. R. 2074, (2006) 1 JLJR 26, 2005 BLJR 3 2009, (2005) 4 JCR 98 (JHA)
Author: Altamas Kabir
Bench: Altamas Kabir, R.K. Merathia
JUDGMENT Altamas Kabir, C.J.
1. This writ petition has been referred to the Division Bench for hearing and disposal since it involves a question regarding invocation of Rule 74(b)(ii) of the Jharkhand Service Code by the State Government on the recommendation of the Jharkhand High Court recommending compulsory retirement of the writ petitioner.
2. The petitioner was appointed as Munsif in the Bihar Judicial Service in the year 1975 and was confirmed in the said post with effect from 24th June, 1977. He was promoted to the post of Sub-Judge on 15th May, 1992 when he was posted at Hazaribagh as Sub-divisional Judicial Magistrate. In June, 1992, the petitioner was transferred to Bhagalpur in the same capacity during which tenure he had occasion to entertain a suit, being Title Suit No. 214 of 1995, filed by the Secretary, Passenger's Association for preventing movement of mechanized country boats in the river Ganges. According to the writ petitioner, he allowed an application for injunction filed by the plaintiff in the suit regarding the settlement of Bhagalpur Ferry Station, as a result whereof, one Suresh Narayan Singh was allowed the right to operate the ferry services. It appears that thereafter, one Sri Ratnesh Narain Singh was added as a party in the suit and the same led to various revision application being filed in the Patna High Court and allowing the said revision application, the Patna High Court by its judgment and order dated 11th April, 1996 made certain adverse remarks against the petitioner.
3. The petitioner was transferred to Madhubani in the same capacity as Sub-Judge and according to him, in the month of January 1996, he was vested with the powers of Additional Chief Judicial Magistrate upon an evaluation of his service records and performance. According to the petitioner, he was served with two Articles of Charge vide Memo dated 24th August, 1996 requiring him to explain as to why a departmental proceeding should not be started against him for having allowed Ratnesh Narain Singh to intervene in the suit filed by the Secretary, Passengers, Association and further allowing him to ply vessels at Bhagalpur Station ferry. According to the petitioner, he duly showed cause by his letter dated 23rd September 1996 but being dissatisfied with the explanation given, the High Court at Patna decided to initiate a departmental proceeding against the petitioner: The District Judge, Bhagalpur, was appointed as the Enquiry Officer. The petitioner filed his explanation before the Enquiry Officer and requested him to drop the charges. The petitioner also filed two writ applications for expunging the remarks contained in the judgment of the Patna High Court, but the same were dismissed on 22nd October 1997 by a common order. Aggrieved by the said decision. the petitioner moved the Hon'ble Supreme Court in Civil Appeal Nos. 1461 and 1462 of 1998, which were heard together and dismissed in limine on 4th December, 1998. Thereafter, the departmental proceedings continued from day-to-day and after the petitioner placed his case before the Enquiry Officer, he was transferred to Koderma in June, 1999 as Sub-Judge-I-cum Addl. Chief Judicial Magistrate-cum-Assistant Sessions Judge-cum-Judge In-charge of the independent subdivision and his pay was also upgraded with effect from 15th April, 1997.
4. While the petitioner was posted in Koderma, he was served with an order dated 17th July, 2001 issued by the Department of Personnel and Administrative Reforms, Government of Jharkhand, informing him that in the public interest he had been compulsorily retired from service with effect from 17th July, 2001.
5. Aggrieved by the said order, the petitioner had filed the instant writ application contending that the respondents had no jurisdiction to pass the impugned order, since the ultimate authority as far as the petitioner was concerned still vested with the State of Bihar in terms of the provisions of Sections 72 and 73 of the Bihar Reorganization Act, 2000.
6. Appearing in support of the writ petition, Mr. Rajiv Ranjan, learned Advocate, firstly urged that when a departmental proceeding had been initiated and proceeded with against the writ petitioner, it was not open to the State Government to take recourse to the provisions of Rule 74(b)(ii) of the Jharkhand Service Code as a short-cut course of action to avoid the departmental proceeding and that the same should have been allowed to be taken to its logical conclusion. Mr. Rajiv Ranjan urged that since the departmental proceeding against the writ petitioner was pending, the decision to invoke the provision of Rule 74(b)(ii) of the aforesaid Code gave rise to an apprehension that the concerned authority had decided to adopt the shortcut method to punish the petitioner.
7. In support of his said submissions, Mr. Rajiv Ranjan firstly referred to the decision of the Hon'ble Supreme Court in the case of State of Gujarat v. Umedbhai M. Patel, , wherein also, a departmental inquiry into certain charges had been initiated, but was later dispensed with and the employee concerned was compulsorily retired when he was to superannuate within a short period. Observing that although. an order of compulsory retirement is not a punishment and could be passed after having due regard to the entire service record of the officer, such order of compulsory retirement is not to be passed as a shortcut to avoid a departmental proceeding when such a course is more desirable. The Hon'ble Supreme Court observed that if the officer was given a promotion despite adverse remarks made in the confidential record that is a fact in favour of the officer and compulsory retirement is not to be imposed as a punitive measure.
8. Reference was also made to two other decisions of the Hon'ble Supreme Court in (i) State of Gujarat and Anr. v. Suryakant Chunilal Shah, 1999 (1) SCC 529 and (ii) Madan Mohan Choudhary v. State of Bihar and Ors., , wherein similar views were reiterated. Mr. Rajiv Ranjan submitted that in all these three cases, it had been held by the Hon'ble Supreme Court that in matters involving compulsory retirement, public interest is the primary consideration. Only honest and efficient persons are to be retained in service, while dishonest, corrupt and deadwood is to be dispensed with.
9. Mr. Rajiv Ranjan then urged that the reasons which are alleged to have swayed or weighed with the High Court of Jharkhand in recommending compulsory retirement of the petitioner had been set out in paragraph 10 of the counter affidavit filed on behalf of the Jharkhand High Court. From the said averments it would be evident that the only ground available to the authority was the entries in the petitioner's Annual Confidential Report for different years, which indicated that the writ petitioner was an officer of average merit. Furthermore, although a decision had been taken to recommend that the writ petitioner be compulsorily retired after formation of the State of Jharkhand in November, 2000, the last entries referred to in the Annual Confidential Report of the writ petitioner was with regard to the year 1995-96. Mr. Rajiv Ranjan submitted that presumably there was nothing on record to indicate anything adverse against the writ petitioner after the year 1995-96 which could have weighed with the Jharkhand High Court in recommending that the writ petitioner be compulsorily retired.
10. The next decision referred to by Mr. Rajiv Ranjan was that of the Hon'ble Supreme Court in the case of Baldev Raj Chadha v. Union of India and Ors., , wherein it was held that any order which materially suffers from blemish of overlooking or ignoring, wilfully or otherwise, vital facts bearing on the decision is bad in law. Likewise, and action which irrationally digs up obsolete circumstances and which is a decision based thereupon cannot be sustained. Legality depends on regard of the totality of the material facts viewed in a holistic perspective. The Hon'ble Supreme Court also observed that it is in public interest to retire a person who has no desire to improve himself, but to juggle with confidential reports when a man's career is at a stake is contrary to public interest.
11. Mr. Rajiv Ranjan submitted that a similar view was expressed by the Hon'ble Supreme Court in the case of R.P. Mal-hotra v. Chief Commissioner of Income Tax, Patiala, , in which disagreeing with the views expressed by the Screening Committee, the Hon'ble Court was not convinced that the appellant had become deadwood and was required to be compulsorily retired in the public interest.
12. Mr. Rajiv Ranjan submitted that although it is well established that an order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it, un-communicated adverse remarks had also been taken into consideration that circumstance by itself cannot be a basis for interference because the principle of natural justice have no application in matters involving compulsory retirement Mr. Rajiv Ranjan contended that it had, however, been held that since an order of compulsory retirement is not a punishment nor does it involve a stigma, it does not mean that judicial scrutiny is excluded altogether. It was urged that the order of compulsory retirement has to be passed by the Government upon formation of an opinion that it is in the public interest to retire a Government servant compulsorily, and in order to do so the Government or the Review Committee will have to consider the entire record of service before taking a decision in the matter, attaching more importance to record of or performance during the later years. In support of such submission, Mr. Rajiv Ranjan relied on the decision of the Supreme Court in the case of Baikuntha Nath Das v. Chief District Medical Officer, Baripada, . Reliance was also placed on the decision of the Supreme Court in the case of Brij Mohan Singh Chopra v. State of Punjab, , wherein it was reiterated that the object of compulsory retirement is to weed out inefficient, corrupt dishonest or dead wood from Government Service. But the relevant consideration is for formation of an opinion on the basis of the record of last five years and any adverse un-communicated remarks to the employee ought not to be considered. Mr. Rajiv Ranjan urged that this was a fit case for interference with the decision taken to retire the writ petitioner from service compulsorily.
13. Appearing for the High Court of Jharkhand, Mr. R.S.Majumdar pointed out that the scenario, as far as the petitioner's service records are concerned, was not very good and he was identified as an officer of average merit in terms of the Annual Confidential Report for the years 1979-1980 to 1995-1996 Apart from the above, his actual performance was also not conducive to his continuing his service, and in the public interest it was decided that instead of continuing with the disciplinary proceedings against the petitioner, he be compulsory retired on a total assessment of his continued usefulness. Mr. Majumdar urged that as would be evident from the said decision cited by Mr. Rajiv Ranjan, the law has been well settled that an order of compulsory retirement was not stigmatic so as to attract the provisions of Article 311(2) of the Constitution of India, and that the same had been observed by the Hon'ble Supreme Court in the case of Allahabad Bank Officer's Association v. Allahabad Bank, . Mr. Majumdar then referred to the decision of the Supreme Court in the case of Union of India v. Col. J.N. Sinha and Anr., , which is one of the earliest decision in respect of compulsory retirement under Fundamental Rule 56(j). Mr. Majumdar urged that the principles as enunciated in the said case took note of the submissions that compulsory retirement involves civil consequences and decided the said issue in the negative. The Hon'ble Supreme Court also observed that the High Court was not justified in relying on the decision of the Hon'ble Supreme Court in the case of State of Orissa v. Binapani Dei, , or in the case of A.K. Kriapak and Ors. v. Union of India and Ors., .
14. Mr. Majumdar contended that in almost all subsequent decisions rendered by the Hon'ble Supreme Court on orders of compulsory retirement, the principles explained in Col. J.N. Sinha's had been referred to and followed. In order to bolster his submissions, Mr. Majumdar also referred to the decision of the Hon'ble Supreme Court in the case of Union of India v. M.E. Reddy, and Nawal Singh v. State of U.P. and Anr., .
15. Mr. Majumdar submitted that there was little or no scope for interference with the orders relating to compulsory retirement, which are based mainly on the subjective satisfaction of the authorities in considering the service career of an employee in its totality. It is only after a complete evaluation of a person's usefulness to continue in service that a decision is taken either to continue with the services to direct that he be compulsorily retired without attaching any stigma to the petitioner's service. Mr. Majumdar urged that in the instant case, it is only after such an evaluation had been made that the decision was taken by the High Court to recommend that the petitioner be compulsorily retired from service.
16. Having carefully considered the submissions made on behalf of the respective parties and the law enunciated by the Hon'ble Supreme Court we feel that it is well established that an order of compulsory retirement is not considered to be punitive in nature, not does it attach any stigma to a person's performance, except to the extent that this continuance in service is not considered to be conducive to public interest. What is also well established is the fact that a decision to invoke the provision of Rule 74 (b) (ii) of the Jharkhand Service Code is dependent on the subjective satisfaction of the concerned authority upon an evaluation and assessment of a person's performance throughout his service career, with emphasis being given to the later stages of service. Unless such a decision is found to be completely without any basis or perverse, the Courts have held that such decision should not be lightly interfered with. However, in appropriate cases, the Court may intervene, if it is found that despite a person's performance, which is constantly satisfactory a decision has been taken to invoke the provisions of compulsory retirement. However, that is not the case as far as the present writ application is concerned. On an evaluation of the petitioner's performance throughout his service career, it was found that the petitioner was an officer of average merit and there were also certain instances where his knowledge of law fell short of what was expected. The principles explained by the Hon'ble Supreme Court in various decisions cited on behalf of the respective parties are well known, since they have been consistently referred to in matters relating to orders of compulsory retirement. However, the facts of the instant case are such that it does not call for interference with the decision taken by the State Government on the recommendation of the High Court of Jharkhand to compulsorily retire the writ petitioner from service.
17. For the reasons aforesaid, this writ application is dismissed. However, there will be no order as to costs.
R.K. Merathia, J.
18. I agree.