Central Administrative Tribunal - Allahabad
Dr Rakesh Shankar vs D/O Personnel And Training on 17 March, 2023
RESERVED ON 01.03.2023
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH ALLAHABAD
Dated: This the 17th day of March 2023
PRESENT:
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Dr. Sanjiv Kumar, Member (A)
Original Application No. 330/0681/2021
Dr. Rakesh Shankar, DIG (Karmik/Establishment), S/o Late
Lakshmi Shankar, aged about 58 years R/o Makan No.778/2F,
Neh Nikunj, Baghambari Road, Allahabad, Allahabad, District
Prayagraj/Allahabad.
. . . Applicant
By Adv: Shri Gaurav Bishan/Shri Ishir Sripat/Ms. Atipriya Gautam
VERSUS
1. Union of India through the Secretary/Under Secretary,
Home Ministry of Home Affairs, Government of India, North
Block, Central Secretariat, New Delhi.
2. The Secretary, Department of Personnel and Training
Ministry of Personnel, Grievances and Pensions North
Block, New Delhi.
3. The Chief Secretary Government of Uttar Pradesh, Civil
Secretariat Uttar Pradesh Shashan, Lucknow.
4. The State of U.P through Additional Chief
Secretary/Principal Secretary, Department of Home,
Government of Uttar Pradesh, Civil Secretariat, Lucknow.
5. The Director General of Police, Uttar Pradesh, DGP
Headquarters, Police Bhawan, Shaheed Path, Signature
Building Gomti Nagar Extnesion, U.P Lucknow.
6. The Additional Director General of Police,
Karmik/Establishment, DGP Headquarters, Police Bhawan,
Shaheed Path, Signature Building Gomti Nagar Extension
U.P Lucknow.
. . .Respondent
By Adv: Shri M.K. Sharma/Shri K.P Singh
Page 2 of 29
ORDER
By Hon'ble Mr. Justice Om Prakash VII, Member (J) The instant Original Application has been filed by the applicant under section 19 of Administrative Tribunal Act, 1985 seeking following reliefs:-
"i To issue an order or direction, quashing the order of "Premature Retirement" dated 17.03.2021, 21.03.2021 & 22.03.2021, passed by the opposite party Nos. 1, 4 & 6 (enclosed as Annexure A1, A2 & A3) respectively to the Compilation 1 to the application. ii. An order or direction, directing the respondents treating the applicant continuity in services with all consequential benefits and to allow the applicant to continue in his services upto the age of superannuation of 60 years, with all consequential benefits.
iii. An order or direction, restraining the respondents not to taken any action in pursuance of the impugned orders dated 17.3.2021, 21.03.2021 & 21.03.2021, passed by the opposite party No. 1, 4 & 6 and not to interfere in the working of the applicant as a DIG (Karmik/Establishment) in the U.P Police Department.
iv. An order or direction, directing the respondents to calling the records of the recommendation/proposal of the State Government of U.P dated 01.08.2020, and quash the said recommendation/proposal dated
01..08.2020, sent by the State Government before the Central Government. v. Issue any other, order or direction which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case, if any, may also be granted.
vi. Award cost of the applicant".
2. The brief facts of the case are that the applicant was selected in the Provincial Police Service (PPS) Officer in 1985 Batch and he was appointed on the post of Deputy Superintendent of Police, through Direct Recruitment from U.P Public Service Commission (UPPSC) and joined his services on 22.11.1987 and thereafter he was confirmed on the said post and thereafter he was promoted on the post of Additional Superintendent of Police (ASP) and again he was promoted in the IPS Cadre in the year 2002 and the applicant was an IPS Officer of 2002 Batch on the date of compulsory retirement, that thereafter he had joined his Page 3 of 29 duties as a Superintendent of Police (SP). The applicant was promoted on the post of Deputy Inspector General of Police (DIG) in the Grade Pay of Rs. 1,131,100-2,16,600 by the order dated 26.3.2018, passed by the Principal Secretary, Home, Uttar Pradesh Shasan, Lucknow. After the Departmental Promotion Committee which was held on 31.12.2019, the promotion order has been issued on 01.01.2020. On the next date i.e. 02.01.2020, applicant has received the letter issued by Inspector General of Police Lucknow Range, Lucknow along with the article of charges dated 01.01.2020. Aggrieved against the article of charges, applicant submitted a representation dated 28.05.2020 but no heed was taken on the representation of the applicant by the respondents then applicant filed an original application No. 330/796/2020 before this Tribunal, which was disposed of with the direction to the respondent No. 4 to consider and decide the representation of the applicant dated 28.05.2020 by a reasoned and speaking order in accordance with law. After receiving certified copy of the order of the Tribunal, applicant submitted the copy of the representation along with certified copy of the order of the Tribunal. Without considering the representation of the applicant, respondents passed impugned orders dated 17.3.2021, 21.03.2021 and 22.3.2021 whereby applicant has been prematurely retired from on the basis of the pick and choose policy, without application of mind and by way of illegal and arbitrary manner.
3. On notice, learned counsel for the respondent Nos. 1 & 2 has filed counter affidavit in which they have stated that the State Government of U.P vide letter dated 08.01.2020 forwarded a copy of minutes of the Review Committee meeting held on 21.11.2019 in connection with review of service records of IPS officers of Uttar Pradesh under Rule 16 (3) of the All India Services (Death-cum- Retirement Benefits) Rules, 1958 to the Ministry of Home Affairs. According to the minutes of the Review Committee of the State, the Committee after carefully going through the entire service Page 4 of 29 record, it was found that various serious nature of complaints are being received against the applicant. Similarly it was also noted that various adverse entries are found in his annual records and many departmental proceedings are underway against him under Rule (8) of the All India Service (Discipline & Appeal) Rules, 1969. Accordingly, the Review Committee of the State found the applicant seems no more to be eligible and suitable to continue in service. Accordingly the Review Committee recommended for premature retirement of the applicant in public interest under Rule 16 (3) of the AIS (DCRB) Rules, 1958. They have quoted Rule 16(3) of the AIS (DCRB) Rules, 1958 in their counter affidavit. For proper appreciation of facts, we have quoted the above Rules:-
"16(3) The Central Government may, in consultation with the State Government concerned, require a member of the service to retire from service in public interest after giving such Member at least three month's previous notice in writing or three month's pay and allowances in lieu of such notice, -
(i) after the review when such Member completes 15 years of qualifying Service; or
(ii) after the review when such Member completes 25 years of qualifying Service or attains the age of 50 years, as the case may be, or
(iii) If the review referred to in (i) or (ii) above has not been conducted after the review of any other time as the Central Government deems fit in respect of such Member".
4. Per contra, learned counsel for the respondents No. 3 to 6 has also filed their counter affidavit denying the claim of the applicant mentioned in the OA. They have stated the brief history of the case in para 4 of the counter affidavit, which is as under:-
"(1) That the applicant was compulsorily retired vide letter No. 30012/16/2016-IPS-11 dated 17.03.2021 issued by Government of India, Ministry of Home. In continuation, Government of Uttar Pradesh also issued a notification No. N%iq] ls] -2-21-522 (43)/2017 dated 21.3.2021 by which compulsory retirement has been passed. (2) A list of IPS officers, who have completed the age of 50 years, was sent to the Government from the level of Headquarter Director General of Police, U.P, Lucknow under Rule 16 (3) of All India Services (DCRB) Rules, 1958.Page 5 of 29
(3) After identifying the officers, on the basis of list submitted, action of compulsory retirement was taken under Rule 16 (3) of All India Services (DCRB) Rules, 1958 and as per guidelines dated 29.06.2012 of Ministry of Personnel, Public Grievance and Pension, Department of Personnel & Training, New Delhi. (4) Action of compulsory retirement has been taken following the rules framed in different paragraph of the said guidelines dated 28.06.2012".
Respondent Nos. 3 to 6 have further submitted that vide order dated 17.03.2021, the applicant was found unsuitable to keep in service in public interest. Accordingly, in compliance of order dated 17.3.2021 under Rule 16 (3) of All India Services (DCRB) Rules, 1958, the applicant was compulsorily retired in public interest before the age of superannuation vide notification dated 21.03.2021. It has also been submitted that at the time of taking decision of compulsory retirement, remarks of Annual Confidential Reports (ACRs) of the applicant was duly considered. Hence, applicant has not been compulsorily retired by way of punishment but the applicant has been retired after due consideration of his entire service record following the rules and guidelines. It has been submitted that in compliance of direction of the Tribunal dated 22.12.2020, representation of the applicant was duly considered and request of the applicant was not found justified hence disposed of vide order dated 5.8.2021.
5. Rejoinder affidavit has also been filed in which the applicant has reiterated the facts as stated in the OA and denied the contents of the counter affidavit.
6. We have heard Shri Vijay Gautam, learned Senior Counsel assisted by Shri Devesh Mishra and Ms. Atipriya Gautam, learned counsel for the applicant and Shri M.K Sharma, learned counsel for the respondents Nos. 1 and 2 and Shri K.P Singh, learned counsel for the respondents No. 3 to 6 and perused the record. We have also perused the original record produced by the respondents' counsel.
Page 6 of 297. Learned counsel for the applicant argued that no such proposal or the recommendation of the State Government has been shared with the applicant whereby the impugned orders have been passed. Hence, these orders at the outset are against the principles of natural justice. Learned counsel for the applicant further argued that the order of retirement is also a non-speaking order as no reasons have been adduced for arriving at the decision that he has not been considered fit to be retained further in service. Hence, these impugned orders are stigmatic order and adversely affects the reputation of the applicant. While drawing attention to Rule 16 (3) of AIS[DCRB] Rules, the learned counsel states that the rules are unambiguous that the entire service record of the applicant is to be taken into consideration and a committee is to review and evaluate the performance of the applicant on the basis of this entire record. He contends that neither the proposal of the State Government nor the proceedings of the committee and the recommendations of the committee to the competent authority are available with the applicant. Hence, again on the second occasion the principles of natural justice have been flouted. Learned counsel for the applicant contended that last more than 10 years, no adverse entry/censure entry or any punishment has been awarded to the applicant and the applicant's services has been fully unblemished. Learned counsel for the applicant also contended that he has not been deprived from promotion as on the date when the DPC was held, neither the applicant was placed under suspension nor any criminal case was pending against him nor any article of charges has been served upon him. He further contended that junior persons to the applicant have been promoted on the post of Inspector General of Police while the applicant has been treated otherwise and as such the entire action of the respondents are arbitrary, illegal, discriminatory and hit by the Article 16 and 39 of the Constitution of India. He further contended that Inspector General of Police has issued a letter to the applicant informing that an enquiry has to be conducted against him under Rule 8 (2) 8(6) (c) of All India Page 7 of 29 Service (Conduct and Appeal) Rules 1969 for which an Inquiry Officer has been appointed. Thus before consideration of retirement of the applicant, applicant was also directed to submit his reply on the articles of charges within 2 days. He further contended that enquiry has not been completed till date. Hence, respondents have no authority to retire the applicant if any enquiry is going on.
8. Learned counsel for the applicant argued that in catena of judgments, the Hon'ble Supreme Court has observed that the opinion must be based on the material on record, otherwise it would amount to arbitrary and colourable exercise of power. Hence, the impugned order has been passed without any material on record and as such the impugned orders are not sustainable in the eyes of law. He further argued that respondents have not provided any opportunity of hearing to the applicant before passing the impugned premature retirement order. He also argued that respondents passed arbitrary and illegal impugned orders surpassing all the Service Rules Regulation and in violation of clause 10 and 11 of the office memorandum dated 28.08.2020 issued by DOPT.
9. Learned counsel for the applicant relied upon the several judgments of CAT/Hon'ble High Court and Hon'ble Supreme Court, which are as under:-
(i) Kailash Nath Pathak Vs. State of U.P and others reported in 2009 (4) ADJ 531 (DB) (LB).
(ii) Bikunath Das and another Vs. Chief District Medical Officer, Baripada and another reported in (1992) 2 SCC 299.
(iii) State of Gujarat Vs. Umed Bhai M. Patel, reported in (2001) 3 SCC 314.
(iv) M/s Bindra Vs. Union of India and others reported in (1998) 7 SCC 310.Page 8 of 29
(v) Pritam Singh Vs. Union of India and others reported in (2005) 9 SCC 748.
(vi) Brajash Kumar Vs. State of U.P and others reported in 2018 (9) ADJ 390 (DB);
(vii) Mukesh Bhatnagar Vs. State of U.P and others reported in 2019 (4) ADJ 542 (LB).
(viii) Hari Ram Chaurasia Vs. State of U.P in Service Bench No. 2735 of 2018 decided on 24.05.2018 by Hon'ble Allahabad High Court;
(ix) Umesh Chandra Gupta (Inre 5099 S/S 1991) Vs. Food Corporation of India reported in 2018(10) ADJ 217 (DB) (LB);
(x) Ram Sumer Vs. State of U.P and others reported in 2021 (10) ADJ 592 (LB);
(xi) Sunil Kumar Sonkar Vs. State of UP and others in Service Single No. 24078 of 2017 decided on 02.05.2018 by Hon'ble Allahabad High Court;
(xii) Ghanshyam Misra Vs. State of UP and others
reported in 2019 (9) ADJ 866.
10. Learned counsel for the respondents No. 1 and 2 has contended that after careful consideration of the proposal of State Government and the performance of applicant, the Union of India has come to the conclusion that the applicant is not fit to be retained in service in public interest. Therefore, Central Government has decided to retire the applicant from prematurely from service, in public interest, under Sub Rule 3 of Rule 16 of the AIS (DCRB) Rules, 1958 with immediate effect. He contended that various adverse entries are found in his annual confidential reports and many departmental proceedings are underway against him under Rule 8 of the All India Service (Discipline and Appeal) Rules, 1969. Learned counsel for the respondent No. 1 and 2 has further contended that it is settled principle of law that there was a very limited scope of judicial review in case of compulsory retirement and it was permissible only on the ground of non- application of mind, malafide or want of material particular. Power Page 9 of 29 to retire compulsorily a government servant in terms of service rules is absolute and the court cannot look into the merit of the order. To buttress his argument, he relied upon following case laws:-
(a) State of Gujarat Vs. Umed Bhai M. Patel reported in (2001) 3 SCC para 11.
(b) Bikunath Das and another Vs. Chief District Medical Officer, Baripada and another reported in (1992) 2 SCC 299.
(c) Pyare Mohal Lal Vs. State of Jharkhand and others reported in (2010) 10 SCC 693.
(d) K. Ramaswamy Vs. Union of India and another reported in (1995) 6 SCC 168.
11. Learned counsel for the respondent Nos. 3 to 6 has argued that before issuing an order of premature retirement of the applicant, all grading in past ACRs and Office Memorandum dated 28.08.2020 have been considered and there is no provision of hearing before passing an order under Rule 16 (3) of All India Services (DCRB) Rules, 1958. Learned counsel also argued that State Government has decided to retire the officer in public interest, whose integrity is doubtful and outlived his utility in the department. Learned counsel submitted a set of judgment compilation whereby he has relied upon following judgments of Hon'ble Supreme Court:-
"(i) Union of India and others Vs. M. E Reddy and another reported in 1980 AIR (SC) 563
(ii) Baikuntha Nath Das Vs. Chief District Medical Officer, Baripada reported in 1992 (2) SCT 92
(iii) K. Kandaswamy Vs. Union of India and others reported in 1995 (2) CLR 996".
12. We have considered the rival submissions advanced by the learned counsel for the parties and gone through the entire records including the case law relied upon by the parties.
Page 10 of 2913. Before discussing the submission raised across the bar and comparing the same with the facts of the present case, we find it essential to quote the settled legal preposition, which are as under:-
(i) In the case of M.E. Reddy (supra), the Hon'ble Supreme Court has held as under:-
"23. In a recent decision of this Court in the case of Mayenghoan Rahamohan Singh Vs. Chief Commr. (Admn.) Manipur (1977) 1 SCR 1022 , the Court observed as follows:-
"Compulsory retirement is not a punishment. There is no stigma in compulsory retirement".
"The affidavit evidence is that the order of compulsory retirement was made in public interest. The absence of recital in the order of compulsory retirement that it is made in public interest is not fatal as long as power to make compulsory retirement in public interest is there and the power in fact is shown in the facts and circumstances of the case to have been exercised in public interest".
In this case, the Court was considering the scope of rule 56(j) which, as already indicated, is couched in the same terms as rule 16(3)".
(ii) In the case of K. Kandaswamy (supra), the Hon'ble Supreme Court has held as under:-
"8. As seen in the light of documents and in the light of the specific permission sought by the appellant himself on the basis of the special report submitted by the State Government, the Government of India through its appropriate Committee reached the conclusion that in view of the doubtful integrity it would not be desirable in the public interest to retain the appellant in service. Accordingly, they have compulsorily retired the appellant from service. Compulsory retirement does not amount to dismissal or removal from service within the meaning of Article 311 of the Constitution. It is neither punishment nor visits with loss of retiral benefits; nor does it cast stigma. The officer would be entitled to the pension that he has actually earned and there is no diminution of the accrued benefits. The object of compulsory retirement of the Government employee is public interest. If the appropriate authority bona fide forms that opinion, the correctness thereof on merits cannot be challenged before courts, though it may be open to the aggrieved employee to impugn it. But the same may be challenged on the ground that requisite opinion is based on no evidence or has not been formed or the decision is based for collateral grounds or that it is an arbitrary decision.Page 11 of 29
9. While exercising the power under Rule 56 (j) of the Fundamental Rules, the appropriate authority has to weigh several circumstances in arriving at the conclusion that the employee requires to be compulsorily retired in public interest. The Government is given power to energise its machinery by weeding out dead wood, inefficient, corrupt and people of doubtful integrity by compulsorily retiring them from service, when the appropriate authority forms bona fide opinion that compulsory retirement of the Government employee is in the public interest, court would not interfere with the order. In S. Ramachandra Raju vs. State of Orissa, 1994 (4) SCT 30 (SC): [(1994) 3 SCC 424, a Bench of this Court to which one of us (K. Ramaswamy, J.) was a member, considered the entire case law and held that "the Government must exercise its power only in the public interest to effectuate the efficiency of the service. The dead wood needs to be removed to augment efficiency. Integrity in public service needs to be maintained.
The exercise of power of compulsory retirement must not be a haunt on public servant but must act as a check and reasonable measure to ensure efficiency of service and free from corruption and incompetence. The officer would live by reputation built around him. In an appropriate case, there may not be sufficient evidence to take punitive disciplinary action of removal from service. But his conduct and reputation is such that his continuance in service would be a menace to public service and injurious to public interest. The entire service record or character rolls or confidential reports maintained would furnish the backdrop material for consideration by the Government or the Review Committee or the appropriate authority. On consideration of the totality of the facts and circumstances alone; the Government should form the opinion that the Government officer needs to be compulsorily retired from service. Therefore, the entire record more particularly, the latest, would form the foundation for the opinion and furnish the base to exercise the power under the relevant rule to compulsorily retire a Government officer."
(iii) In the case of Branjesh Kumar (supra), Division Bench of Hon'ble Allahabad High Court has held that "while screening the records of the petitioner, competent authority has to examine records in its entirety and more importance shall be given to recent past which are more relevant. Hon'ble Court has allowed the special appeal observing that more waitage has been given to performance in remote past rather than paying more weitage to records of recent past.
Page 12 of 29(iv) In the case of Mukesh Bhatnagar (supra), the Hon'ble Lucknow Bench of Allahabad High Court has held that waitage not given to recent past years and in the entries which ought not to have been given waitage have been taken into account while passing order of compulsory retirement, thus, order passed by the competent authority or screening committee was found illegal.
(v) In Hari Ram Chaurasia (supra) case, order for compulsory retirement was set aside observing that "the sole grounds on the basis of which the order of compulsory retirement was passed was on the basis of these 2 censure entries "once these censure entries have been quashed, the order of compulsory retirement cannot be sustained in law". While passing the aforesaid order, Hon'ble Court has also taken into account the law laid down by Hon'ble Supreme Court in the case of State of UP and others Vs. Chater Sen, (2005) 9 SCC 592.
(vi) In the case of Umesh Chandra Gupta (supra) case, order of compulsory retirement was set aside on the ground that no reasons have been recorded to arrive on a conclusion to award aforesaid major punishment.
(vii) In Ram Sumer (supra) case, the order of compulsory retirement was declared illegal and arbitrary observing that solitary minor punishment awarded to petitioner was not decisive of treating petitioner as deadwood by any degree of procedure.
(viii) In Kailash Nath Pathak (supra), the Hon'ble Allahabad High Court (Lucknow Bench) set aside the order of compulsory retirement on the ground that entry regarding subsequent years which were 'Good' and 'Very Good' have not been taken into consideration while recommending for compulsory retirement.
Page 13 of 29(ix) Hon'ble Supreme Court in the case of Umedbhai M. Patel (supra) has laid down the following principle relating to compulsory retirement:-
"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".
(x) In the case of Sunil Kumar Sonkar (supra), Hon'ble Allahabad High Court (Lucknow Bench) relying upon the case of Umedbhai M. Patel (supra) allowed the petition setting aside the order of compulsory retirement on the ground that entire service record of the petitioner have not been taken into consideration and screening committee have not followed the principle laid down in Umedbhai M. Patel (supra) case.
(xi) In Ghanshyam Misra (supra), Hon'ble Allahabad High Court allowed the petition setting aside the order of compulsory retirement observing that the screening committee proceeded on assumption that the disciplinary proceedings were pending when in fact reports of enquiry officer had been duly placed before PCCF. It has also been held that screening committee has not exercised due application of mind.
Page 14 of 29(xii) In paragraph No. 34 of Ashok Kumar Aggarwal Vs. Union of India decided in WP (C) 11177/2020 and CM Appl. 34872/2020 on 22/09/2021, the Division Bench of Hon'ble Delhi High Court has held as under:-
"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".
It is settled preposition of law that compulsory retirement involves no civil consequences. The Government servant does not loose any of the rights acquired by him before retirement while a minimum service is granted to the Government Servant, the Government is given power to energize its machinery and make more efficient by compulsory retiring those who in its opinion should not continue in the service of the Government in the interest of public.
It is also settled preposition of law on the subject that Fundamental Rule 56(i) in terms does not require that any opportunity should be given to the concerned government servant to show cause against his compulsory retirement. Appropriate authority has the absolute right to retire a government servant if it is of the opinion that it is in the public interest to do so. The right conferred on the appropriate authority is an absolute one. The power can be exercised subject to the conditions mentioned in the rule, one of which is that the concerned authority must be of the opinion that it is in public interest to do so. If that authority bona fide farms that opinion, the correctness of that opinion cannot be challenged before Courts. It is open to an aggrieved parties to contend that the requisite opinion has not been farmed or the decision is based on collateral grounds or that it is an arbitrary decision.
Page 15 of 29Paras 36, 43 and 45 of the said judgment are also quoted as under:-
"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.‖ (emphasis supplied)
17. Compulsory retirement involves no civil consequences. The Government servant does not loose any of the rights acquired by him before retirement while a minimum service is granted to the Government Servant, the Government is given power to energize its machinery and make more efficient by compulsory retiring those who in its opinion should not continue in the service of the Government in the interest of public.
18. It has been held by Hon'ble the Supreme Court in Union of India v. Col. J.N. Sinha 1970(2) SCC 458 in para-8, 9 and 10 as under:-
"8. Fundamental Rule 56(i) 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 A.K. Kraipak v. Union of India [(1969) 2 SCC 262 : AIR 1970 SC 150] ―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.
9. Now coming to the express words of Fundamental Rule 56(j) it says that the appropriate authority has the absolute right to retire a government servant if it is of the opinion that it is in the public interest to do so. The right conferred on the appropriate authority is an absolute one. That power can be exercised subject to the conditions mentioned in the rule, one of which is that the concerned authority must be of the opinion that it is in public interest to do so. If that authority bona fide forms that opinion, the correctness of that opinion cannot be challenged before courts. It is open to an aggrieved party to contend that the requisite opinion has not been Page 16 of 29 farmed or the decision is based on collateral grounds or that it is an arbitrary decision. The 1st respondent challenged the opinion formed by the Government on the ground of mala fide. But that ground has failed. The High Court did not accept that plea. The same was not pressed before us. The impugned order was not attacked on the ground that the required opinion was not formed or that the opinion formed was an arbitrary one. 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 civil consequences. The aforementioned Rule 56(j) 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 considerations 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(j) 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.
10. 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.‖ (emphasis supplied)
19. Validity of Rule 56(j) of Fundamental Rules has already been upheld by the Hon'ble the Supreme Court in T.G. Shivacharana Singh v. State of Mysore AIR 1965 SC 280. It has been held that a Government servant serving under the Union of India holds office at the pleasure of the President of India as provided under Article 310 of the Constitution of India.
20. It has been held in the aforesaid decision by Hon'ble the Supreme Court that compulsory retirement is bound to have some adverse effect on the Government servant who is compulsorily retired but the rule provides that such retirements can be made only after the officer attains a prescribed age. Compulsorily retired Government Servant does not loose any benefits earned by him till the date of retirement.
21. The fundamental source of compulsorily retiring an employee of the Government is derived from "Doctrine of Pleasure‖ which springs from Article 310 of the Constitution of India. It has been held by Hon'ble the Supreme Court in Nisha Priya Bhatia vs. UOI & Anr. (Supra) in paragraphs, 33,40,42,43 as under:-Page 17 of 29
"33. Further, it is pertinent to note that the grounds referred to in Rule 135 nowhere contemplate it as a consequence of any fault penal actions, do not stigmatise the outgoing officer or involve loss of benefits already earned by him and there is no element of punishment. Sub-rules (2), (3) and (4) of Rule 135 reinforce this view as the same provide for appropriate benefits such as pension, gratuity, lump sum amount, etc. for the public servant who has been subjected to compulsory retirement. Thus, the employee is not faced with any loss of benefits already earned. We say so because the examination of the characteristics of such a rule is not focussed around the motive or underlying intent behind its enactment, rather, it lies in the consequence and effect of the operation of such a rule on the outgoing employee. The rule does not result into a deprivation of the retired employee of any benefit whatsoever in lieu of such order of compulsory retirement and thus, attracts no stigma or any civil consequence to the retired employee for his/her future. The invocation of this Rule, therefore, falls in sync with the second proposition in Shyam Lal [State of U.P. v. Shyam Lal Sharma, (1971) 2 SCC 514] which looks down upon any loss of profits in a non-stigmatic order of compulsory retirement. Succinctly put, a compulsory retirement without anything more does not attract Article 311(2). We may usefully refer to Dalip Singh v. State of Punjab [Dalip Singh v. State of Punjab, AIR 1960 SC 1305] and Union of India v. Dulal Dutt [Union of India v. Dulal Dutt, (1993) 2 SCC 179 : 1993 SCC (L&S) 406] to bring home the stated position of law.
43. We further note that generally it is correct to say that the rules governing conditions of service, framed under Article 309, are subject to other provisions of the Constitution, including Article 311. The opening words of Article 309 -- ―Subject to the provisions of this Constitution‖ -- point towards the same analogy. However, this subjection clause shall not operate upon the rules governing compulsory retirement. For, the legal concept of compulsory retirement, as discussed above, is a non-penal measure of the Government and steers clear from the operation of Article 311, unless it is a case of removal or dismissal clothed as compulsory retirement. Had there been a rule providing for removal, dismissal or reduction in rank, it would have been controlled by the safeguards under Article 311. It has also been observed in State of U.P. v. Babu Ram Upadhya [State of U.P. v. Babu Ram Upadhya, AIR 1961 SC 751 : (1961) 1 Cri LJ 773] that the validity of a rule shall be hit by Article 311 only if it seeks to affect the protection offered by Article 311, and not otherwise as in the present case.‖ (emphasis supplied)
22. The Petitioner has been compulsorily retired vide order dated 10.06.2019. Complete service record of the Petitioner was placed before the Review Committee. While taking the decision of compulsorily retiring the Petitioner, the Review Committee was of the opinion that continuation of the Petitioner in services of the Respondent is no longer in public interest. The Committee noted that CBI had registered two cases against the Petitioner:-
it was alleged that Shri Ashok Kumar Aggarwal one Mr. Abhishek Verma were involved in criminal conspiracy by way of forging a document (a fax message) and using it as a genuine document with the intention to create false evidences to implicate one Shri S. C. Barjatya. RC S-19/1999/E-001: The case was registered against Shri Ashok Kumar Aggarwal for alleged possession of disproportionate assets against his known sources of income. The CBI in its report has estimated the total disproportionate assets of Shri Ashok Kumar Aggarwal at Rs.12,04,46,946/-.
23. Charge sheets were filed in both the aforesaid criminal cases against the Petitioner. Sanction for prosecution was also granted vide orders dated Page 18 of 29 26.06.2002 and 26.11.2002 by the Competent Authority. Delhi High Court quashed the order of granting sanction for prosecution in Criminal Writ Petition and in Criminal Revision Petition against which the Department has preferred the Special Leave Petitions before Hon'ble the Supreme Court being:-
a) SLP(Crl.) No.10083/2016,
b) SLP(Crl.) No.10112/2016,
c) SLP (Crl.) No.418/2017 and
d) SLP (Crl.) No.419/2017.
24. These SLPs are preferred against the common judgment and order dated 13.01.2016 delivered by Delhi High Court. All these SLPs are pending before the Supreme Court.
25. Much has been argued out by learned Senior Counsel appearing on behalf of the Petitioner that there are several litigations initiated by the Petitioner for suspension, quashing of the charge sheets in departmental proceedings, for quashing of the sanction for prosecution, for getting promotions etc. and the Petitioner has succeeded in all these litigations. This constitutes malafide in law on the part of the Respondents.
26. Learned Senior Counsel has also taken this Court to various orders passed by different Courts in varieties of matters filed by him and has pointed out that in few matters, there are observations in the judgment about legal malice on the part of the Respondents.
27. Much emphasis was given by the learned Senior Counsel, Mr. Vikas Singh appearing on behalf of the Petitioner that looking to the observations in the aforesaid matters, there is malice on the part of the Respondents while passing the order of compulsory retirement dated 10.06.2019.
28. We are not in agreement with this contention canvassed by the learned Senior Counsel for the reason that compulsory retirement is absolutely an independent decision arrived at by the Review Committee keeping in mind the entire service record of the Petitioner and usefulness of the Petitioner into the services of the Respondents. In the 34 years span of his career, for 20 years, Petitioner has been busy in litigation with the Respondents. The conduct of the Petitioner has shaken the confidence of the Respondents to post him on public posts which involves public dealing.
29. It has also been pointed out by the learned Counsel for the Respondents that the Petitioner did not file his immovable property returns (IPR) at the time of joining which was required under the law. Correspondences dated 27.03.2000, 02.03.2000, 06.03.2000 and 14.03.2000 have also been annexed as Annexure R-6 to the memo of the counter affidavit filed by the Respondents before the Tribunal. Similar is the position for APARs dossier of the Petitioner.
30. These APARs were also not submitted by the Petitioner which are self appraisal reports for the year 1998-99, 2015-16, 2017-18, 2018-19. As per DoPT, OM No.21011/02/2009 - Esstt.(A) dated 16.02.2009, writing of ACR/APAR is a public trust and responsibility and the Petitioner has failed to perform the public duty of writing the ACR/APARs within the due date. Thus, the Petitioner had developed a tendency of not following Government instructions of writing APARs. Thus, after considering all these materials available on record including relating to the departmental inquiries against the Petitioner and taking a holistic view of the record, the Review Committee concluded that conduct of the Petitioner is such that his continuance in service would be a menace to public service and injurious to public interest. Hence, the services of the Petitioner are no longer useful to the general administration. The conduct of the Petitioner is unbecoming of a public Page 19 of 29 servant and obstructs efficiency in public services. Therefore, the Review Committee had recommended that Petitioner be compulsorily retired in public interest under Rule 56(j) of Fundamental Rules.
31. This decision of the Review Committee is an absolutely independent proceedings and looking to the overall service record of the Petitioner, this subjective satisfaction has been arrived at by the Review Committee. There is no allegation of personal malafide upon the members of the Review Committee. What is contended by learned Senior Counsel for the Petitioner is legal malice by the Respondents because of certain observations made by the competent Courts in the litigation by the Petitioner against the Respondents.
32. Even if there are decisions in the matter of suspension, departmental inquiries and any challenge of grant of sanction for prosecution in favour of the Petitioner, that does not mean that the Petitioner cannot be compulsorily retired by the Respondents. The observations made in the orders while deciding the matter initiated by the Petitioner is one thing whereas, the order of compulsory retirement which is passed on the basis of entire service record of the Petitioner and the decision taken by Review Committee, is altogether another thing. If any employee of the Union of India has succeeded in litigation(s) that does not mean that looking to the overall service record of the Petitioner, after certain age as per rules, he cannot be retired by the Union of India. It ought to be kept in mind that compulsory retirement is a subjective satisfaction which has been formed on the basis of the entire service record. It is not a punishment. Compulsory retirement may have some adverse effect upon the employee but if the Review Committee is of the opinion that in the interest of public his services should be brought to an end by compulsory retirement after prescribed age on the basis of the entire record of service, such an employee has no right to continue into the services after a prescribed age, as per rules.
33. Rule 56(j) of Fundamental Rules is an extension of "Doctrine of Pleasure"¸ If the employer - Union of India is of the opinion that no useful purpose will be served by continuing an employee into the services of the Union of India, in the public interest such an employee can be made compulsorily retired.
34. While taking the decision of the compulsory retirement all the service record of the Petitioner has been considered by the Review Committee.
35. It has been held by Hon'ble Supreme Court in State of Punjab v. Gurdas Singh (1998) 4 SCC 92 in paragraph - 11 as under:-
"11. The facts in the present case are quite similar to that in Union of India v. V.P. Seth [1994 SCC (L&S) 1052 : (1994) 27 ATC 851 :
AIR 1994 SC 1261] . Here also the only ground on which the order prematurely retiring Gurdas Singh was set aside was that two adverse entries after his promotion from the rank of Assistant Sub- Inspector to Sub-Inspector were not communicated to him and earlier adverse entries could not be taken into account because even when those existed Gurdas Singh had earned his promotion. It is not necessary for us to again reiterate the principles where the Court will interfere in the order of premature retirement of an employee as these have been accurately set down by various pronouncements of this Court and particularly in Baikuntha Nath Das case [(1992) 2 SCC 299 : 1993 SCC (L&S) 521 : (1992) 21 ATC 649] . Before the decision to retire a government servant prematurely is taken the authorities are required to consider the whole record of service. Any adverse entry prior to earning of promotion or crossing of efficiency bar or picking up higher rank is not wiped out and can be taken into consideration while considering the overall performance of the Page 20 of 29 employee during whole of his tenure of service whether it is in public interest to retain him in the service. The whole record of service of the employee will include any uncommunicated adverse entries as well.‖ (emphasis supplied)
36. It has been held by Hon'ble Supreme Court in Ram chandra Das v. State of Orissa & Others (1996) 5 SCC 331 in paragraph-7 as under:-
"7. It is contended for the respondent that adverse entries for the two years referred to earlier and pending departmental proceedings would not be sufficient to compulsorily retire the government servant on the premises that after promotion they would become irrelevant and minor penalty was imposed. It is true that the government servant was allowed to cross the efficiency bar to enable him to avail of the benefits to draw higher scale of pay after crossing the efficiency bar. The adverse remarks made are after promotion. Even otherwise, the remarks form part of service record and character roll. The record of enquiry on conduct also would be material. Though minor penalty may be imposed on given facts and circumstances to act of misconduct, nevertheless it remains part of the record for overall consideration to retire a government servant compulsorily. The object always is public interest. The material question is whether the entire record of service was considered or not? It is not for the court/tribunal to see whether the decision of the Government to compulsorily retire the government servant is justified or not. It is for the Government to consider the same and take a proper decision in that behalf. As stated earlier, it is settled law that the Government is required to consider the entire record of service. Merely because a promotion has been given even after adverse entries were made, cannot be a ground to note that compulsory retirement of the government servant could not be ordered. The evidence does not become inadmissible or irrelevant as opined by the Tribunal. What would be relevant is whether upon that state of record as a reasonable prudent man would the Government or competent officer reach that decision. We find that selfsame material after promotion may not be taken into consideration only to deny him further promotion, if any. But that material undoubtedly would be available to the Government to consider the overall expediency or necessity to continue the government servant in service after he attained the required length of service or qualified period of service for pension. It is also made clear that in this case adverse entries were made only after promotion and not earlier to promotion. Compulsory retirement is not a punishment. He is entitled to all the pensionary benefits.‖ (emphasis supplied)
37. In view of the aforesaid decision even if promotion has been granted to him, still compulsory retirement can be granted by Union of India under Rule 56(j) of Fundamental Rules as under the said rule the entire service record of the employee is to be seen and if the Review Committee is of the opinion that in the interest of public looking to overall service record, the employee requires to be retired, there is no right vested in the employee to continue in the employment after a prescribed age under the Rules.
38. Much has been argued out by learned Senior Counsel appearing for the Petitioner that as the charges levelled against the Petitioner in departmental inquiry have been quashed, the decision of compulsory retirement dated 10.06.2019 is because of legal malice on the part of the Respondents. This contention of the Petitioner is devoid of any merits. It has been held by Hon'ble Supreme Court in State of U.P. vs. Vijay Kumar Jain, (2002) 3 SCC 641 which relied upon the judgment in Shyamlal vs. State of U.P. AIR 1954 SC 369 in paragraph 10 as under:-
Page 21 of 29"10. Before we advert to the question which we are required to decide, it is necessary to notice the nature of an order compulsorily retiring a government servant under FR 56(c). In Shyamlal v. State of U.P. [AIR 1954 SC 369 : (1955) 1 SCR 26] it was held that an order of compulsory retirement is neither a punishment nor is any stigma attached to it and it was held therein as thus: (SCR pp. 41-
42) ―There is no such element of charge or imputation in the case of compulsory retirement. The two requirements for compulsory retirement are that the officer has completed twenty-five years' service and that it is in the public interest to dispense with his further services. It is true that this power of compulsory retirement may be used when the authority exercising this power cannot substantiate the misconduct which may be the real cause for taking the action but what is important to note is that the directions in the last sentence in Note 1 to Article 465-A make it abundantly clear that an imputation or charge is not in terms made a condition for the exercise of the power. In other words, a compulsory retirement has no stigma or implication of misbehaviour or incapacity.‖‖ (emphasis supplied)
39. In view of the aforesaid even if there is quashing of charges in a departmental proceedings, still the respondents have all power, jurisdiction and authority under Rule 56(j) of Fundamental Rules for passing an order of compulsory retirement of the Petitioner.
40. Compulsory retirement has various facets. Compulsory retirement can be passed looking to the overall service record of the Government employee.
Compulsory retirement order can also be passed in public interest with a view to improve efficiency of the administration or to weed out people of doubtful integrity or corrupt employee 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 services. Thus, even if for this petitioner, the departmental charges have been quashed and set aside and the sanction granted for prosecution in two criminal cases have been quashed and set aside, still the Respondents can pass an order for compulsory retirement of the Petitioner.
41. It has been held by Hon'ble Supreme Court in State of Orissa and Ors. vs. Ram Chand Das (Supra) in paragraph 3 as under:-
"3. This appeal by special leave arises from the judgment and order passed by the Orissa Administrative Tribunal in OA No. 340 on 1987 on 18-7-1992. The respondent while working as Assistant Conservator of Forests was compulsorily retired from service by proceedings dated 1-8-1983 which came to be challenged by the respondent in the above proceedings. The Tribunal allowed the application on three grounds: (i) the respondent was allowed to cross the efficiency bar; (ii) since he was promoted, after the adverse remarks were made, the records were wiped out; and (iii) the entire record and overall consideration thereof was not done and, therefore, the exercise of the power of compulsory retirement under Rule 71(a) was not valid in law. The question is whether the view taken by the Tribunal is correct in law? It is needless to reiterate that settled legal 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 the 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. But the Government, before taking such decision to retire a government employee compulsorily from service, Page 22 of 29 has to consider the entire record of the government servant including the latest reports.‖ (emphasis supplied)
42. Learned Solicitor General of India on behalf of the Respondents submitted that the Petitioner has been given benefit of technical ground for quashing the orders of sanction for criminal prosecution in 2 CBI cases registered against him, against which SLPs (Crl.) are pending before Hon'ble Supreme Court and, they are as under:-
a) SLP(Crl.) No.10083/2016,
b) SLP(Crl.) No.10112/2016,
c) SLP (Crl.) No.418/2017 and
d) SLP (Crl.) No.419/2017.
43. Learned Solicitor General of India submitted that there are serious charges against the Petitioner in the aforesaid criminal cases which have been investigated by CBI, one of which is regarding disproportionate assets case. The details of these criminal cases have been narrated in the counter affidavit filed by Union of India in O.A. No.1835/2020 before the Tribunal. As these matters are already pending before Hon'ble Supreme Court, this Court is refraining from going into the details of the charges levelled against the Petitioner. Suffice it would be to say that it is the subjective satisfaction arrived at by the Review Committee that looking to the entire service record of the Petitioner including the aforesaid two criminal cases, Union of India do not want to continue this Petitioner into the services and as stated hereinabove Rule 56(j) of Fundamental Rules is an extension of ―Doctrine of Pleasure". After certain minimum prescribed services and after the prescribed age as per rules, there is no right vested in the employee to continue into the services. It depends upon the pleasure of the Union of India to continue him into the services or not looking to his entire service record and his usefulness into the services and his overall performance during the later years. In overall assessment of a Central Government employee, even if there is acquittal from charges, Union of India can always arrive at a conclusion that looking to the entire service record and looking to the usefulness of the Petitioner into the services, he can be made compulsorily retired from the services. This decision is a complex decision and varieties of factors are to be kept in mind by the Review Committee and as stated hereinabove, the Union of India has to weed out the dead woods. Thus, those who are not useful into the services, those who are interested only in litigation in the Court, those who are not obeying the orders of the Government during their service tenure can be retired from the service. This power is given to the Government to energize its machinery and to make it more efficient by compulsorily retiring those, who in its opinion should not be into the services in public interest.
44. Thus, even if this Petitioner has succeeded in few litigations, a subjective satisfaction can always be arrived at by the Respondents looking to the entire service record and performance of the Petitioner to make him compulsory retire.
45. Much has been argued out about the ―honourable acquittal‖ and acquittal on technical ground‖ but we are not going into much detail about this aspect of the matter because the difference between the two is remarkable and noticeable and has been clarified in several decisions referred by the Hon'ble Supreme Court, but, as the Special Leave Petitions are pending, we are not going into the detail analysis of ―honourable acquittal‖ and ―acquittal on technical ground‖ in this case. Suffice it would be to say that even if there is acquittal from the charges levelled against the employee for one or the other reasons, an overall decision can always be taken by the Review Committee looking to the entire service record and the performance of the Central Government employee for taking a decision of compulsory retirement. There is no ban or bar for the respondents that no Page 23 of 29 compulsory retirement order can be passed whenever there is quashing of the charges in any litigation between an employee and the Central Government. What is to be seen is overall assessment of the performance of an employee and his usefulness into the services and not one or two matters and decisions in those matters. This opinion is a subjective satisfaction of the Review Committee. In the present case, there is no procedural error committed by the Review Committee while taking the decision under Rule 56(j) of Fundamental Rules. Even if there are observations about malice in law while deciding few matters between the Petitioner and Union of India, that does not mean that there is presence of malice when Review Committee has taken a decision under Rule 56(j) of Fundamental Rules retiring compulsorily this Petitioner dated 10.06.2019. There is no personal malice alleged by the Petitioner upon the members of the Review Committee.
13. For adjudication of the case, impugned orders dated 17.03.2021, 21.03.2021 and 22.03.2021 are quoted herein under:-
"No. 30012/16/2016-IPS, II Government of India Ministry of Home Affairs (Police -I Division) North Block, New Delhi 110001 Dated the 17 March, 2021.
ORDER In exercise of the powers conferred under sub- rule 3 of Rule 16 of the All India Services (Death-cum-Retirement Benefits) Rules, 1958, the President in consultation with the State Government of Uttar Pradesh hereby requires Dr. Rakesh Shankar, IPS (UP 2002-SPS), a member of the Indian Police Service, borne on the cadre of Uttar Pradesh to retire in public interest with immediate effect by giving three months' pay and allowances in lieu of notice.
2. A cheque for a sum equivalent to the aggregate amount of his pay and allowances for a period of three months, calculated at the same rate at which he was drawing immediately before the date of this order is enclosed.
By order in the name of President Sd/-
(Sanjeev Kumar) Under Secretary to the Government of India Tel. No. 011-23094517 To, Dr. Rakesh Shankar, IPS (UP: 2002-SPS) C/o Chief Secretary, Government of Uttar Pradesh Lucknow.
No. 30012/16/2016-IPS.II Dated 17 March 2021
Copy forwarded to
1. The Addl. Chief Secretary (Home), Government of Uttar Pradesh, Lucknow (w.r.t. State Government's letter 18/N0iq0ls0-2/2020/522 (43)/17 dated 08.01.2020.Page 24 of 29
2. Accountant General, Government of Uttar Pradesh, Lucknow.
Sd/-
(Sanjeev Kumar) Under Secretary to the Government of India"
Lka[;k G.I-10C/N0iq0ls0-2/2020 To, The Chief Secretary Government of Uttar Pradesh, Lucknow.
(Kind ATtn; Shri Awanish K. Awasthi, Additional Chief Secretary (Home), Subject: Service Review of UP Cadre IPS Officers under Rule 16 (3) of AIS (DCRB) Rules, 1958.
Sir, I am directed to refer to Government of Uttar Pradesh letter No. 18/N0iq0ls0-2/2020/522 (43)/17 dated 08.01.2020 inter alia recommending the cases of (i) Sh, Amitabh Thakur, IPS (UP 1992 -RR), (ii) Dr. Rakesh Shankar, IPS (UP 2002-SPS) and (iii) Sh. Rajesh Krishna, IPS (UP 2005- SPS) to retire in public interest under sub- rule 3 of Rule 16 of the All India Services (Death-cum-Retirement Benefits) Rules, 1958.
2. The Central Government, after careful consideration of the proposal of the State Government and the performance of (i) Sh. Amitabh Thakur, IPS (UP: 1992-RR), (ii) Dr. Rakesh Shankar, IPS (UP 2002-SPS) and (iii) Sh. Rajesh Krishna, IPS (UP: 2005-SPS), has come to the conclusion that the officers are not fit to be retained in service in public interest. The Central Government has, therefore, decided to retire of (i) Sh. Amitabh Thakur, IPS (UP: 1992-RR), (ii) Dr. Rakesh Shankar, IPS (UP 2002-SPS) and (iii) Sh. Rajesh Krishna, IPS (UP: 2005-SPS) prematurely from service, in public interest under sub-rule 3 of Rule 16 of the AIS (DCRB) Rules, 1958 with immediate effect.
3. I am, therefore, endorsing three copies of the each orders in respect of of (i) Sh. Amitabh Thakur, IPS (UP: 1992-RR), (ii) Dr. Rakesh Shankar, IPS (UP 2002-SPS) and (iii) Sh. Rajesh Krishna, IPS (UP: 2005-SPS) which may please be immediately served on the concerned officer. As per rules, the officers are to be paid a sum equivalent to the amount of his pay plus allowances for a period of three months, calculated at the same rate at which he were drawing immediately before his retirement. Hence, cheques of requisite amounts may be prepared by the State Government and handed over to the officers along with the orders to be served on them.
4. The date on which the orders are served on of (i) Sh. Amitabh Thakur, IPS (UP: 1992-RR), (ii) Dr. Rakesh Shankar, IPS (UP 2002-SPS) and (iii) Sh. Rajesh Krishna, IPS (UP: 2005-SPS) along with the three months' pay and allowances may please be intimated to this Ministry promptly. A copy of the notification issued by the State Government retiring of (i) Sh. Amitabh Thakur, IPS (UP: 1992-RR), (ii) Dr. Rakesh Shankar, IPS (UP 2002-SPS) and (iii) Sh. Rajesh Krishna, IPS (UP: 2005-SPS) from service may also be forwarded to the Ministry.
Yours faithfully Page 25 of 29 Encl: As above (A K Saran) Director (Police) mRrj izns"k "kklu x`g ¼iqfyl lsok;sa½ vuqHkkx&2 la[;k 455@N%iq0ls0&2&21&522¼43½@2017 y[kuÅ fnukad 21 ekpZ 2021 vf/klwpuk x`g ea=ky;] Hkkjr ljdkj] ubZ fnYyh ds vkns"k la[;k 30012@16@2016&IPS.II fnukad 17-03-2021 }kjk MkW jkds"k "kadj] vkbZih,l &,lih,l&2002 dks yksdfgr esa lsok esa cuk;s j[ksa tkus ds mi;qDr u ikrs gq,] vf[ky Hkkjrh; lsok;as ¼Mhlhvkjch½ fu;ekoyh 1958 ds fu;e 16 ds mi fu;e 3 ds vUrxZr yksdfgr esa rkRdkfyd izHkko ls lsok iw.kZ gksus ls iwoZ lsokfuo`Rr fd;s tkus dk fu.kZ; fy;k x;k gSA vr,o] vc x`g ea=ky;] Hkkjr ljdkj] ubZ fnYyh ds vkns"k la[;k 30012@16@2016&IPS.II fnukad 17-03-2021 ds dze esa Jh jkT;iky fu;ekuqlkj MkW0 jkds"k "kadj] vkbZih,l &,lih,l&2002 dks yksdfgr esa rkRdkfyd izHkko ls lsok iw.kZ gksus ls iwoZ lsokfuo`Rr fd;s tkus ,oa mudks 03 eghus ds muds osru vkSj HkRrksa ds cjkcj dh /kujkf"k] tks mudh lsokfuo`fRr ds Bhd iwoZ muds }kjk vgfjr dh tk jgh /kujkf"k ds leku nj ij vkxf.kr dj fn;s tkus ds funsZ"k nsrs gSA vkKk lsa] ¼vouh"k dqekj vkoLFkh½ vij eq[; lfpo xksiuh;@egRoiw.kZ@rRdky eq[;ky; iqfyl egkfuns"kd] mRrj izns"k Vk;j 2] iqfyl Hkou] "kghn IkFk xkserh uxj foLrkj y[kuÅ &226002 Ik= la[;k Mhth&1&72&87 fnukad ekpZ 22] 2021 Jh lat; fla?ky vij iqfyl egkfuns"kd] LFkkiuk] m0 iz0 y[kuÅ fo'k; Mk0 jkds"k "kadj] vkbZih,l &,lih,l&2002 dks vf[ky Hkkjrh; lsok;sa ¼Mhlhvkjch½ fu;ekoyh 1958 ds fu;e 16 ds vUrxZr yksdfgr esa lsokfuo`Rr fd;s tkus ds lEcU/k esaA Page 26 of 29 mi;qZDr fo'k;d Jh vouh"k dqekj voLFkh] vij eq[;
lfpo] m0 iz0 "kklu ds i= la[;k thvkbZ&108@N%iq0ls0&2&21@522¼43½@2017 fnukad 21-03-2021 ,oa mlds lkFk layXu Jh ,0 ds0 "kju] funs"kd ¼iqfyl½ x`g ea+=ky; Hkkjr lajdkj] ubZ fnYyh ds i= la[;k 30012@16@2016&IPS.II fnukad 17-03-2021 ,oa lekad vkns"k fnukad 17-03-2021 dh Nk;k izfr ,oa "kklu dh vf/klwpuk la[;k 455@N%iq0ls0&2&21&522¼43½@2017 fnukad 21-03-2021 ¼nks izfr;ksa esa½ layXu dj izsf'kr gSA 2- vuqjks/k gS fd vis{kkuqlkj vij eq[; lfpo] m0 iz0 "kklu ds mDr i= ,oa mlds lkFk layXu Hkkjr ljdkj ds i= fnukad 17-03-2021] vkns"k fnukad 17-03-2021 ,oa m0 iz0 "kklu dh vf/klwpuk fnukad 21-02-2021 dh ,d & ,d izfr Mk0 jkds"k "kadj dks rRdky rkehy djkdj lHkh izi=ksa dh nwljh izfr ij muds izkfIr ds gLrk{kj fnukad lfgr vafdr djkdj bl eq[;ky; dks miyC/k djkus dk d'V djsa rkfd ikorh "kklu dks miyC/k djk;h tk ldsA 3- "kklu ds funsZ"kkuqlkj mDr vkns"k lEcfU/kr vf/kdkjh dks rkehy djkrs le; gh mudks 03 eghus ds muds osru vkSj HkRrksa ds cjkcj dh /kujkf"k ds] tks mudh lsokfuo`fRr ds Bhd iwoZ muds }kjk vkgfjr dh tk jgh /kujkf"k ds leku nj ij vkxf.kr djrs gq,] psd nsus dk d'V djsA 4- d`i;k mijksDrkuqlkj vuqikyu lqfuf"pr djrs gq;s vk[;k v/kksgLrk{kjh dks rRdky miyC/k djkus dk d'V djsa ftlls rnuqlkj "kklu dks voxr djk;k tk ldsA layXud ;Fkksifj ¼,p0 lh0 voLFkh½ iqfyl egkfuns"kd mRrj izns"k
14. In this matter as is evident from the record that applicant joined services as direct recruitee on the post of Dy. Superintendent of Police in the State Government of Uttar Pradesh. He was promoted in the cadre of 2002 batch. Perusal of record also reveals that applicant was within the consideration zone of scrutiny for compulsory retirement.
15. Perusal of documents submitted by the respondents also reveals that review committee/screening committee have been Page 27 of 29 constituted in the matter as per guideline. A list of 127 IPS officers were placed before the review committee, who were under consideration zone. Committee, after screening of the service record, submitted recommendation for compulsory retirement to the applicant as well as two other IPS officers. Recommendation was processed as per Rule 16 (3) of the All India Services (Death- cum-Retirement Benefits) Rules, 1958 and thereafter on the basis of approval of ACC, process for compulsory retirement started. It is also evident from the impugned orders that applicant was compulsorily retired from service in the public interest after scrutiny of service record after paying 3 months' salary plus DA.
16. It is also settled principle of law that for forming opinion for compulsory retirement of an officers who were under consideration zone there is no requirement to give opportunity of hearing to such officer before compulsory retiring him/her. It is the subjective satisfaction of the Government formed on the basis of entire service record because Article 310 of the Constitution of India specifically provide that such officer shall continue in the service on the basis of doctrine of pleasure of the Government. Compulsory retirement as has been held in the aforesaid judgments is not stigma nor any suggestion of misbehaviour. Courts shall not examine the matter as an Appellate Court. The order of compulsory retirement can only be interfered on the ground (a) malafide or (b) that it is based on no evidence or (c) it is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material (perverse order).
17. It is also evident from the record that applicant has been promoted and was posted at the time of compulsory retirement of Dy. Inspector General of Police. Thus first of all, it is to be seen as to whether non providing of opportunity of hearing to the applicant before passing order of compulsory retirement would entail the impugned order in nullity.
Page 28 of 2918. If the submission raised across the bar on this point are compared with the settled principle of law and as has been mentioned herein above, principle of natural justice have no place in the context of an order of compulsory retirement. Thus submission raised across the bar is not acceptable. Impugned orders on this score do not become illegal and perverse.
19. As far as submission raised on behalf of the applicant that recent past entry of the applicant were 'Very Good' but these entries have not been considered. If the submission raised across the bar is compared with the facts and evidence of the present matter, it is clear that before making recommendation, Review Committee has considered the entire service record of the applicant and on the basis of service record recommendation for compulsory retirement was made. Recommendation made by the Review Committee/Screening Committee cannot be said to be based on no evidence. Merely on this basis that entries regarding recent past were 'Good', impugned orders passed in the public interest after scrutiny the entire service record cannot be said to be bad in the eyes of law. Hon'ble Supreme Court in the case of Ram Chandra Das (supra) case has held that even if promotion has been granted to the officer concerned still compulsory retirement can be granted by Union of India under Rule 56 (j) of Fundamental Rule as under the said rule, the entire service record of the employee is to be seen. In this matter review committee after scrutiny of the service record was of the view that services of the officer concerned in the public interest are not required to the State. Opinion formed by the review committee and recommendation made by the State Government are based on subjective satisfaction. Thus, submission raised on this count also has no force.
20. Order for compulsory retirement has also not been passed to punish the applicant. Since applicant was within the consideration zone, Review Committee scrutinizing the service Page 29 of 29 record on the basis of performance of the applicant recommended for compulsory retirement. It cannot be said that recommendation is not supported with evidence.
21. It is worth-mentioning that if recommendation was made of only for few officer then also it cannot be presumed that it was malafide action of the Government. Action of the Government is also not discriminatory. Recommendation of Review Committee is based on scrutiny of the service record of the officer/applicant. It is not arbitrary in the nature. Detail reasons have been given by the Review Committee in the recommendation. What fact required to be disclosed in the impugned orders have also been disclosed in it. Respondents' action can also not be taken as short cut method for the reason discussed herein above.
22. Since there is little scope to interfere in the subjective satisfaction of the Government, applicant was within consideration zone, recommendation is based on sufficient material, therefore, we are of the view that prayer made by the applicant is not liable to be allowed. Hence, OA is dismissed. No order as to costs.
(Dr. Sanjiv Kumar) (Justice Om Prakash-VII)
Member (A) Member (J)
Manish/-