Allahabad High Court
N.P. Phalgunan vs The Distt. Magistrate Lalitpur And ... on 15 March, 2019
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD A F R Court No. - 34 Case :- WRIT - A No. - 53695 of 2002 Petitioner :- N.P. Phalgunan Respondent :- The Distt. Magistrate Lalitpur And Others Counsel for Petitioner :- Swarn Kumar Srivastava,Anil Kumar Srivastava Counsel for Respondent :- C.S.C. Hon'ble Sudhir Agarwal,J.
1. Heard Sri Anil Kumar Srivastava, learned counsel for petitioner and learned Standing Counsel for State-respondent.
2. Petitioner whose date of birth is 19.12.1946 was recommended for compulsory retirement on account of his illness and continuously seeking leave or absence on account of illness and, therefore, finding that he is driver and has rendered dead wood, pursuant thereto by impugned order dated 30.11.2002, he has been compulsorily retired.
3. Learned counsel for petitioner submitted that perusal of counter affidavit filed on behalf of respondents shows that there is no adverse entry against petitioner and he has been compulsorily retired against law.
4. A brief scrutiny of counter affidavit along with its enclosures shows that petitioner has been consistently seeking leave on the ground of illness and physical disability, from time to time. Scrutiny of 10 years Annual Reports shows that petitioner himself had applied for leave on the ground of his pancreas being removed by operation and he had been suffering with diabetes. It was further found that petitioner is a mischievous and indisciplined employee and was also habitual of making complaint against officers. Petitioner's own admission in his application is that sometimes he becomes unconscious and also needs insulin due to severe diabetes. In the circumstances, he was found dead wood for rendering services as a driver. The above facts are sufficient to show that petitioner's compulsory retirement is in public interest and cannot be said to be arbitrary.
5. The concept of compulsory retirement now is well accepted and established kind of a condition of service in service jurisprudence. Sometimes it is also called pre mature retirement.
6. Compulsory retirement is a form of cessation of an employee. When employer finds that for maintenance of efficiency of department etc., his continuance may not be desirable but simultaneously, employer also did not intend to cause any penal effect on the employee concerned and also to allow him to retain all his benefits, which he has earned after rendering service for a particular length of time, and, thus compulsory retirement used to be resorted. Later on when statutory rules were framed, it was also included as one of the punishment but later form is not applicable in all cases inasmuch as, in State of Uttar Pradesh, particularly in the present case also, Disciplinary and Appeal rules regulating employees like petitioner do not include any punishment of compulsory retirement. Therefore so far as present case is concerned, I may clarify that under the terms and conditions applicable to petitioner, compulsory retirement can be resorted to only under Fundamental Rule 56 which is not by way of punishment. It can be resorted to only when an opinion to this effect is formed by appointing authority in 'public interest', otherwise compulsory retirement, as a punishment, cannot be imposed upon on employees like petitioner as no such punishment is provided under the rules.
7. The historical concept of compulsory retirement, in the context of employees under British Government, I could trace to a resolution No.1085-E-A dated 15.11.1919, whereby a new set of Rules relating to Retirement and Pension of officers, other than military officers or members of Indian Civil Service, was published in the Gazette of India, Finance Department, with the approval of Secretary of State of India. Rule 4 of the said rules state that government will have an absolute right to retire any officer after he has completed 25 years without giving reason and without any claim of compensation in addition to pension.
8. When Government of India Act, 1919 (hereinafter referred to as "GI Act, 1919") was enacted, the aforesaid notification was in operation. It thus continued by virtue of Section 96-B (4) of GI Act, 1919. Vide resolution No. 714-CSR dated 10.5.1920 it was made clear that Government of India intended to publish rules, published in resolution dated 15.11.1919, in the form of amendment to Civil Services Regulation (hereinafter referred to as "CSR"). Accordingly, vide gazette dated 19.6.1920 amendment in CSR was published for general information. The amendment caused insertion of Articles 465 and 465-A in CSR. A minor amendment came in 1922 but it being not of much relevance, I am not referring the same.
9. Article 465-A was considered in Shyam Lal Vs. State of U.P., AIR 1954 SC 369. Court after tracing history of Article 465-A and power of government to retire its employees, after certain length of service, held, that compulsory retirement is not a punishment offending Article 311 of Constitution of India.
10. In England, a public officer held office at the pleasure of the Crown. The service of a civil servant could be terminated without assigning any reason and no action can be maintained in King's Court for damages for wrongful dismissal. The said principle was applied even to East India Company and also to civil servants after British Crown took over territories and administration from East India Company in 1857. The said state of affairs reflected when Section 96-B of GI Act, 1919 was enacted maintaining that tenure was during his Majesty's pleasure. This position as such continued in the subsequent Government of India Act, 1935 and also in the Constitution adopted in independent India where "doctrine of pleasure" was reiterated in Article 310.
11. However, the said reiteration was, a bit, narrowed down with addition of Article 311 which contains certain procedural safeguards to a civil servant before a punishment is imposed upon him. Apex Court considered difference between dismissal, removal and compulsory retirement. It held that dismissal or removal causes loss of certain benefits already earned by an employee. A dismissed or removed employee would not get pension, which he had earned. But an officer compulsory retired does not loose any part of benefit that he has earned. He is entitled for pension etc. provided in the rules. There is no deprivation of accrued benefits.
12. It is true that the employee may consider himself punished, but there is a clear distinction between loss of benefits already earned and loss of prospect to earn something more. Court in Shyam Lal (supra) therefore held that compulsory retirement is not a punishment. Article 311 of Constitution as well as Rule 55 of the Civil Servant Classification (Control and Appeal) Rules, 1930 are not attracted in case of compulsory retirement made in public interest.
13. Upto 1963, only Articles 465 and 465-A of CSR contained provision in regard to compulsory retirement. Article 465 was applicable to a government servant in general providing that one who is permitted to retire after qualifying service of 25 years or on attaining the age of 60 years would be entitled for retiring pension. Article 465-A was applicable only to officers mentioned in Article 349-A although the substantive provision was pari materia to Article 465. Note 1 of both the Articles i.e. 465 and 465-A of CSR conferred power upon government to retire an employee after he had completed 25 years qualifying service without assigning any reason in public interest. In brief, I may summarize the peculiar features of aforesaid provisions, as under:
(A) The power of compulsory retirement vested only in the State Government and the appointing authorities subordinate to Government did not possess such power.
(B) It was not necessary to issue any notice to the Government servant prior to order of compulsory retirement nor any pay in lieu of notice was payable.
(C) The power was to be exercised in the "public interest".
14. The validity of Article 465 CSR on the anvil of Article 16 of Constitution, came to be considered before a Full Bench of this Court in Abdul Ahad Vs. I.G. of Police AIR 1965 Allahabad 142. Hon'ble M.C. Desai, Chief Justice, speaking for the Bench, repelling the contention, in para 15 of the judgment, said:
"The rule regarding compulsory retirement does not deny equality of opportunity for employment. Compulsory retirement is to be ordered only in public interest and every servant of the State is equally liable to be compulsorily retired in public interest under the rule. The rule certainly does not distinguish between the servant who deserves to be compulsorily retired in public interest and another servant who also deserves it. In Sheo Charan Singh V. State of Mysore, Writ Petition No. 184 of 1963 decided by the Supreme Court on 13.3.1964 (AIR 1965 SC 280) Gajendragadkar, C.J. held that R. 285, note I, of the Mysore Civil Services Rules 1958, which is exactly similar to note I of Art. 465 is not hit by Art. 14 or 16 of the Constitution. Sri Kacker Challenged the observation in the judgment that "it is concluded by a long series of decisions of this Court" and contended that this question had not been decided previously. The judgment of the Supreme Court is a declaration of law binding upon this Court. In AIR 1958 SC 250 the Supreme Court had held that when Satish Chandra was discharged on completion of the term for which he had been appointed he was not denied the right guaranteed by Art. 16 because "he had been treated just like any other person to whom an officer of temporary employment under these conditions was made."
15. Fundamental Rule 56 (1), Financial Hand Book Volume II (Parts 2 to 4) contains age of retirement of Government servant. The State Government of Uttar Pradesh vide notification No. G-1-1794/X-534 (19/57) dated 19.10.1963 added a proviso to Fundamental Rule 56 that appointing authority may require a Government servant to retire after attaining age of 55 years by giving three month's notice without assigning any reason. A corresponding right was conferred upon the Government servant also to seek voluntary retirement after attaining 55 years of age by serving three months notice to the appointing authority. The formal amendment, however, was brought vide notification dated 17.1.1968 w.e.f. 1.1.1964.
16. The validity of Fundamental Rule 56, as amended vide notification dated 19.10.1963, was considered in S.P. Nigam Vs. State of U.P. 1966 ALJ 153 on the anvil of Article 14 of the Constitution. A Division Bench of this Court said, the determining factor is whether or not the government servant concerned is fit to be kept in service after he had attained the age of 55 years and that being so it can not be said that the provision is discriminatory and arbitrary. Court, therefore, upheld proviso to Fundamental Rule 56, holding that it is not hit by Article 14 of the Constitution. It said :
"We are of the opinion that there is no force in the first submission of the learned counsel for the petitioners and hold that Rule 56 is not hit by Art. 14 of the Constitution."
17. This Court also observed, whenever a person is compulsorily retired, there has to be some reason, since a good officer would not be retired premature and that fact by itself will not make an order of compulsory retirement bad since guiding principle is "public interest".
18. Subsequently, vide notification dated 17.1.1968, State Government made formal amendment in Fundamental Rule 56 incorporating provision for three months' notice or pay in lieu thereof after the government servant has attained the age of 55 years or such lesser age as described. It appears that this amendment caused some confusion whether power of compulsory retirement could be exercised by appointing authority in public interest or not. Accordingly, an ordinance was issued i.e. "U.P. Fundamental Rule 56 (Amendment and Validation) Ordinance, 1969" which was replaced by U.P. Fundamental (Amendment and Validation) Act, 1970 (hereinafter referred to as "1970 Act") making it clear that decision to retire an employee compulsorily shall be taken by appointing authority in public interest.
19. I have confined myself to consider evolution of concept of compulsory retirement as also the statutory provisions made in this regard applicable to Government servants under State of Uttar Pradesh since it is only in the State of Uttar Pradesh where power to retire compulsorily under Fundamental Rule 56 for the last more than 30 years, is governed by a rule, which has been made by the Provincial legislature. In other States, as also in Government of India, Fundamental Rule 56 or any pari materia provision is mainly referable to proviso to Article 309 of Constitution of India.
20. Validity of this provision, as made in 1970 in State of U.P., again was considered in Iqbal Narain Srivastava Vs. State of U.P. AIR 1971 Alld. 178. Court had to consider whether such a provision could be made by a Provincial legislature or not. Affirming and conceding such power to the legislature, this Court upheld Fundamental Rule 56 as inserted vide 1970 Act. It held:
"One of the conditions of the 1st respondent's service is that the Government can choose to retire him any time after he completes fifty years if it thinks that it is in public interest to do so. Because of his compulsory retirement he does not lose any of the rights acquired by him before retirement. Compulsory retirement involves no evil consequences. The aforementioned Rule 56(i) is not intended for taking any penal action against the Government servants. That rule merely embodies one of the facets of the pleasure doctrine embodied in Article 310 of the Constitution. Various consideration may weigh with the appropriate authority while exercising the power conferred under the rule. In some cases, the Government may feel that a particular post may be more usefully held in public interest by an officer more competent than the one who is holding. It may be that the officer who is holding the post is not inefficient but the appropriate authority may prefer to have a more efficient officer. It may further be that in certain key posts public interest may require that a person of undoubted ability and integrity should be there. There is no denying the fact that in all organizations and more so in Government organizations, there is good deal of dead wood. It is in public interest to chop off the same. Fundamental Rule 56 (i) holds the balance between the rights of the individual Government servant and the interests of the public. While a minimum service is guaranteed to the Government servant, the Government is given power to energise its machinery and make it more efficient by compulsorily retiring those who in its opinion should not be there in public interest.
It is true that a compulsory retirement is bound to have some adverse effect on the Government servant who is compulsorily retired but then as the rule provides that such retirements can be made only after the officer attains the prescribed age. Further, a compulsorily retired Government servant does not lose any of the benefits earned by him till the date of his retirement. Three months notice is provided so as to enable him to find out other suitable employment." (Para-22) "Mr. Venkataranga Iyenger contends that this Rule is invalid, because it contravenes Article 14 as well as Article 16(i) of the Constitution. In our opinion, this contention cannot longer be entertained because it is concluded by a long series of decisions of this Court. Recently, a Special Bench of this Court had occasion to consider the validity of Rules 148 (3) and 149 (3) contained in the Indian Railway Establishment Code in Moti Ram Deka Vs. General Manager, North East Frontier Railway, Civil Appeals Nos. 711 to 713 of 1962; 714 of 1962 and 837 to 889 of 1963 D/- 5-12-1963 (AIR 1964 SC 600). In dealing with the problem raised in that case, this Court has made it perfect compulsory retirement is concerned, it must be taken to be concluded by several decisions of this Court. This Court then examined the relevant decisions on this point beginning with the case of Shyam Lal Vs. State of U.P. 1955-1 SCR 26-(AIR 1954 SC 369), and it has observed that the law in relation to the validity of the Rules permitting compulsory premature retirement of Government servants must be held to be well settled by those decisions and need not be reopened." (Para-24) (emphasis added)
21. State of Uttar Pradesh thereafter amended Articles 465 and 465-A of CSR vide U.P. Civil Service (Ist Amendment) Regulation 1973 published vide notification dated 1.11.1973. The two Articles were recast and provided that government may retire a government servant on attaining the age of 50 years without assigning any reason by three months notice and pay in lieu thereof. A corresponding right was given to the government servant to seek retirement after completing qualifying service of 25 years or attaining the age of 50 years. Note-I also re-enacted with minor modification under Articles 465 and 465-A.
22. This resulted in making parallel powers of compulsory retirement and voluntary retirement under CSR and Fundamental Rule 56. The legislature again intervened and enacted U.P. Fundamental Rule 56 (Amendment and Validation) Act, 1975 providing for compulsory retirement of a government servant by the appointing authority after attaining the age of 50 years by giving three months' notice or pay in lieu thereof. It also provided that no reasons may be assigned for such retirement but such decision shall be presumed to have been taken in public interest. It also says that order of compulsory retirement shall have effect from the afternoon from the date of its issuance. This amendment also resulted in a lot of litigation. Ultimately, U.P. legislature enacted U.P. Fundamental Rule 56 (Amendment and Validation) Act, 1976 (U.P. No. 33 of 1976) and substituted and inserted Fundamental Rule 56 in a much detailed form, as it stands today. Simultaneously, Articles 465 and 465-A were also repealed. This resulted in retaining the provision of compulsory retirement at one place in a comprehensive and scientific manner.
23. The evolution of provision pertaining to compulsory retirement in State of Uttar Pradesh have been discussed above in respect to the employees governed by Fundamental Rule 56 in State of Uttar Pradesh, Certain general observations made by various other Courts as well as the Apex Court in respect to the employees of other States or Government of India, governed by provisions, which are not identical or pari materia to Fundamental Rule 56 as available in State of U.P., may not provide a correct exposition of law to consider whether an order of compulsory retirement, passed by an authority in State of U.P., is valid or not.
24. It is needless to say that validity of an order of compulsory retirement under Fundamental Rule 56, as applicable in U.P., has to be considered strictly in accordance with the aforesaid provision and to the extent the general exposition of law is not inconsistent with the said statutory provision.
25. The general concept with regard to object and purpose of compulsory retirement applicable to all has been considered by Supreme Court time and again. I may not refer to all such cases but it would be useful to refer some of such authorities, which may throw light on this aspect.
26. Rule 285 of Mysore Civil Service of State of Mysore, came to be considered in T.G. Shiv Charan Singh Vs. State of Mysore AIR 1965 SC 280. Court said :
"The law in relation to the validity of the Rules permitting compulsory premature retirement of Government servant must be held to be well-settled by those decisions and need not be reopened. The only exception the majority judgment made in that behalf was that it may be necessary to consider whether such a rule of compulsory retirement would be valid if having fixed a proper age of superannuation, it permits a permanent servant to be retired at a very early stage of his career. This consideration does not arise in the present case, because, as we have already seen, note 1 to R. 285 requires that the government servant against whom an order of compulsory retirement is proposed to be passed must have completed either 25 yeas of active service or attained 50 years of age. We are, therefore, satisfied that the point which Mr. Venkataranga Iyengar wants to raise before us in the present petition is clearly concluded by decision of this Court and cannot be allowed to be reopened."
27. The applicability of principles of natural justice i.e. requirement of a show cause notice before issuing an order of compulsory retirement came to be considered in Union of India Vs. Col. J.N. Sinha and Anr. 1970 (2) SCC 458. Court said:
"Fundamental Rule 56(j) in terms does not require that any opportunity should be given to the concerned government servant to show cause against his compulsory retirement. A government servant serving under the Union of India holds his office at the pleasure of the President as provided in Article 310 of the Constitution. But this "pleasure" doctrine is subject to the rules or law made under Article 309 as well as to the conditions prescribed under Article 311. Rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights. As observed by this Court in Kraipak and Ors. v. Union of India (1970)1 SCR 457 "the aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law but supplement it." It is true that if a statutory provision can be read consistently with the principles of natural justice, the courts should do so because it must be presumed that the legislatures and the statutory authorities intend to act in accordance with the principles of natural justice. But if on the other hand a statutory provision either specifically or by necessary implication excludes the application of any or all the principles of natural justice then the court cannot ignore the mandate of the legislature or the statutory authority and read into the concerned provision the principles of natural justice. Whether the exercise of a power conferred should be made in accordance with any of the principles of natural justice or not depends upon the express words of the provision conferring the power, the nature of the power conferred, the purpose for which it is conferred and the effect of the exercise of that power."
(emphasis added)
28. In Baikunth Nath Das & Anr. Vs. Chief District Medical Officer AIR 1992 SC 1020, Court laid down certain criteria in respect to compulsory retirement, to clarify as to when it is assailable, and when not; and said:
"(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 29 to 31 above."
(emphasis added)
29. The said principles have been re-observed and reiterated with some further conditions in State of Gujrat Vs. Umed Bhai M.Patel 2001 (3) SCC 314, holding:
"(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."
(emphasis added)
30. It is evident from the above that an order of compulsory retirement is actually and necessarily a prerogative of Employer, in particular, the Government.
31. Though an order of compulsory retirement ought to be based on some material but need not be mentioned in the order itself. Whenever challenged on the ground of lack of material, Employer may disclose material to Court. The principles of natural justice have been completely excluded in the matter of compulsory retirement under Fundamental Rule 56. It is not a punishment.
32. Further, the order of compulsory retirement need not be a speaking order as said in Union of India & Anr. Vs. Daulat Dutt 1993 (2) SCC 179 where Court said:
"Very often, on enquiry by the Court the Government may disclose the material but it is very much different from the saying that the order should be a speaking order. No order of compulsory retirement is required to be a speaking order."
(emphasis added)
33. I may also consider some of the authorities throwing light on the object and purpose of the order of compulsory retirement. The administration to be efficient has to be manned by active, competent and prone workers. It should not be manned by drones do nothing, incompetent and unworthies. Lacking of efficiency by itself may not be a misconduct. Such incumbent thus need not be punished but may prove to be a burden on the administration, if by insensitive, insouciant, unintelligent or dubious conduct impede the floor or promote stagnation. In a developing country where speed, probity, sensitive, enthusiastic, creativity and non-brevity process are immediately required, callous cadres and paper logged are the bees setting sin on the administration. Sometimes, reputation or otherwise the information available to the superior officers reflect on the integrity of the employee but there may not be sufficient evidence available to initiate punitive action. But simultaneously conduct and reputation of such person is a menace for his continuance in a public service and is injurious to public interest. In all such cases, order of compulsory retirement may be passed by competent authority.
34. In Allahabad Bank Officers' Association & another Vs. Allahabad Bank and others (1996) 4 SCC 504, Court held:
"The object of compulsory retirement is to weed out the dead wood in order to maintain efficiency and initiative in service and also to dispense with the services of those whose integrity is doubtful so as to preserve purity in the administration." (para-5) (emphasis added)
35. Reiterating the same, in S. Ram Chandra Raju Vs. State of Orissa AIR 1995 SC 111, Court held that "the dead wood need to be removed to augment efficiency. Integrity in public service need to be maintained."
36. In State of Orissa and others Vs. Ram Chandra Das (1996) 5 SCC 331, Court said:
" ....It is needless to reiterate that the settled position is that the government is empowered and would be entitled to compulsorily retire a government servant in public interest with a view to improve efficiency of administration or to weed out the people of doubtful integrity or are corrupt but sufficient evidence was not available to take disciplinary action in accordance with the rules so as to inculcate a sense of discipline in the service." ( para 3) (emphasis added)
37. When the competent authority after considering service record of a Government Servant, forms an opinion that his continuance in service is not in public interest, he has rendered dead wood or otherwise should not be allowed to continue, such decision and formation of opinion of the competent authority shall not be interfered by Court in exercise of power of judicial review, if arrived at bona fide and on the basis of material on record. Whether conduct of the employee is such as to justify such a conclusion is primarily for the departmental authorities to decide.
38. In Posts and Telegraphs Board Vs. C.S.N. Murthy, (1992) 2 SCC 317, Court considered the scope of judicial review and observed that "the nature of delinquency and whether it is of such a degree as to require the compulsory retirement of the employee are primarily for the government to decide upon."
39. In State of Gujarat & Anr. Vs. Suryakant Chunilal Shah 1997 (1) SCC 299, Court said that "public interest" is a parameter while considering an employee for compulsory retirement. The dishonest, corrupt and dead wood deserve to be dispensed with. Efficiency and honesty is to be assessed on the basis of material on record which may also be ascertained from confidential report. The only thing required is that there is something tangible material against the employee wanting his compulsory retirement.
40. In State of U.P. & Anr. Vs. Bihari Lal AIR 1995 SC 1161 Court said, if the general reputation of an employee is not good though there may not be tangible material against him, he may be retired compulsorily in public interest.
41. In State of U.P. & Ors. Vs. Vijay Kumar Jain JT 2002 (3) SC 76, Court said:
"Vigour or sting of an adverse entry is not wiped out merely if is relatable to 11th or 12th years of passing of the order of compulsory retirement. The aforesaid adverse entry which could have been taken into account while considering the case of the respondent for his compulsory retirement from service, was duly considered by the State Government and said single adverse entry in itself was sufficient to compulsorily retire the respondent from service." (emphasis added)
42. In Jugal Chandra Saikia Vs. State of Assam and Anr. AIR 2003 SC 1362, Court said, where Screening Committee is consisting of responsible officers of State and they have examined/assessed the entire service record and formed the opinion objectively as to whether any employee is fit to be retained in service or not, in the absence of any allegation of mala fides, there is no scope of a judicial review against such an order.
43. Dealing with the case of Judicial Officers in Nawal Singh Vs. State of U.P. and Anr. AIR 2003 SC 4303, Court said, if such evaluation is done by the Committee of High Court Judges and is affirmed in the writ petition, except in very exceptional circumstances, this Court would not interfere with the same particularly because order of compulsory retirement is based on the subjective satisfaction of the Authority.
44. In M.P. State Coop. Dairy Federation Ltd. Vs. Rajnesh Kumar Jamindar 2009 (15) SCC 221, Court said:
"The provisions had been made principally for weeding out dead wood. An order of compulsory retirement being not penal in nature can be subject to judicial review inter alia:
(i) When it is based on no material;
(ii) When it is arbitrary;
(iii) When it is without application of mind; and
(iv) When there is no evidence in support of the case."
(emphasis added)
45. Court also said in paras 42 and 43 as under:
"42. The broad criteria, which are not only applicable generally for the aforementioned purpose, were required to be followed but there cannot be any doubt or dispute that the criteria laid down by the State was imperative in character. Thus, the Federation adopted the rules and circulars made or issued by the State Government. The Federation itself having formulated the criteria required to be applied for passing orders of compulsory retirement was, thus, bound thereby.
43. It is now a well-settled principle of law that the employer would be bound by the rule of game. It must follow the standard laid down by itself. If procedures have been laid down for arriving at some kinds of decisions, the same should substantially be complied with even if the same are directory in nature."
(emphasis added)
46. Most of the above authorities have been referred to with approval in Pyare Mohan Lal v. State of Jharkhand and Ors. JT 2010 (10) SC 456. Court also considered the theory of "washing off" of earlier entries and in para 26 of judgment, said:
"In view of the above, the law can be summarised to state that in case there is a conflict between two or more judgments of this Court, the judgment of the larger Bench is to be followed. More so, the washed off theory does not have universal application. It may have relevance while considering the case of government servant for further promotion but not in a case where the employee is being assessed by the Reviewing Authority to determine whether he is fit to be retained in service or requires to be given compulsory retirement, as the Committee is to assess his suitability taking into consideration his "entire service record"." (emphasis added)
47. In Swaran Singh Chand Vs. Punjab State Electricity Board and others (2009) 13 SCC 758 following Rajnesh Kumar Jamindar, 2009 (15) SCC 221, Court held that:
"Principles of natural justice are not required to be complied with and even adverse entries made in the confidential record including uncommunicated entries may be taken into consideration but the same should not be passed in place of or in lieu of a disciplinary proceedings. If an order of compulsory retirement is stigmatic in nature, the same would be bad in law."
48. Analysing the case of employees of State of U.P., governed by Fundamental Rule 56, as applicable in the State of U.P., Court in State of U.P. & Anr. Vs. Lalsa Ram, 2001 (3) SCC 389 said that matter should be considered in the light of Fundamental Rule 56, as available in U.P., without being guided by any authority dealing with a different provision. The observation was made in the context when reliance was placed in Baikunth Nath Das (supra) to the extent that one of the principles laid down therein were not applicable in view of the specific provision contained in Fundamental Rule 56 as applicable in U.P. Lalsa Ram was a Deputy Collector. At the time when he was compulsorily retired in the year 1998, screening committee considered adverse entries of 1967-68, 1981-82, 1982-83 and 1991-92 as well as censure dated 18.1.86. Although there was no adverse entry in the preceding five years yet considering the constant deterioration in the performance of Shri Lalsa Ram, he was recommended for compulsory retirement. The writ petition filed by Lalsa Ram challenging the aforesaid order of compulsory retirement was allowed on the ground that there being no adverse entry in preceding five years and adverse entries from 1967 to 1982 being old and stale, only on the basis of one adverse entry of the year 1991-92 it was not justified to retire him compulsorily. Apex Court allowing appeal of State Government, considering Fundamental Rule 56, held:
"The Uttar Pradesh Fundamental Rules governing the service conditions of the respondent herein, in particular, Rule 56(c) & Explanation 2(a), (b) specifically provide that nothing in the Rules should be construed to exclude from consideration any entry relating to any efficiency bar or he was promoted to any post in an officiating or a substantive capacity or on an ad hoc basis. The important words used are : nothing herein contained shall be construed to exclude from consideration: the exclusion thus is prohibited in terms of the rule. The authority concerned, by reason wherefor has thus a liberty to consider even entries relating to the period before the government servant was allowed to cross any efficiency bar or before he was promoted. It is true that one of the guiding principles as enunciated above in Baikuntha Nath case with regard to performance during the later years ought to be attached more importance but that does not exclude the consideration of the entire record of service."(para 11) (emphasis added)
49. Again in para 13 of the judgment, Court held that Fundamental Rule 56 confers right absolute to retire an employee on happening of certain event namely, the employee attaining 50 years of age. The only guiding factor is public interest to retire an employee. It also held that the right being absolute, in the event it is not contrary to the condition, as embodied in Fundamental Rule 56, the question of violation of any legal right of an employee would not arise. It further held, where the material is sufficient and conclusion of the authority would have been justified, it cannot be a matter of judicial review, since primarily it is for the departmental authority to decide. The delinquency of the entry and whether it is of such a degree as to reflect on the efficiency of the employees has to be decided by the authorities. Courts have no authority or jurisdiction to interfere with such exercise of power, if arrived at bona fide on the basis of the material on record. Usurpation of authority is not only unwarranted but contrary to all norms of service jurisprudence.
50. Showing its agreement with the law laid down in State of Punjab Vs. Gurdas Singh, (1998) 4 SCC 92, Court in Lalsa Ram (supra) further held as follows :
"....The appointing authority upon consideration of the entire service record as required under the Rules and having formed its opinion that the compulsory retirement of the respondent being in public interest issued the order and in the wake of the aforesaid, question of any interference of this Court does not and cannot arise. Interference in these matter by the courts in exercise of their jurisdiction under the constitutional mandate is very restricted and the courts shall have to tread on the issue with utmost care and caution by reason of very limited scope of interference. The High Court has, in fact, ignored this aspect of the matter and proceeded solely on the basis of the factum of there being no adverse entry in the recent past. Needless to state that adverse entries did not stand extinguished by mere lapse of time but they continued to be on record and it is for the employer to act and rely thereon in the event of there being a rule permitting an order of compulsory retirement. " (para 16) (emphasis added)
51. Applying the aforesaid exposition of law and in particular the authorities wherein Fundamental Rule 56 as applicable in U.P. has been considered, I find that order of compulsory retirement of petitioner cannot be said to be arbitrary, illegal and founded on no material. Although, there was no adverse entry in his record, but due to his illness, suffering from severe diabetes and also as per his own admission that he became unconscious at times, he was found dead wood for rendering services as a driver by his Employer, hence, he was compulsorily retired. A driver needs a good health to keep fit himself to drive the vehicle otherwise safety and security of not only driver himself but those sitting in the vehicle or even those on road would be in jeopardy. The admitted deteriorating health condition of petitioner shows his retirement in public interest.
52. In view of above discussions and also in view of above authorities, I do not find any reason warranting interference in the impugned order. This writ petition lacks merit.
53. Dismissed accordingly. Interim order, if any, stands vacated.
Order Date : 15.03.2019 Manish Himwan