Central Administrative Tribunal - Mumbai
Nandkuar Tukaram Joshi vs M/O Defence on 29 August, 2023
CENTRAL ADMINISTRATIVE TRIBUNAL,
MUMBAI BENCH,
MUMBAL
Q.A338/2018
Coram: Justice MG. Sewllkar, Member (J udicial)
DrBhagwan Sahai, Member (Administrative).
Nandkumar Tukaram Joshi,
Age 03 years, Occ. Service as Upper Division Clerk,
COA, Ahmednagar (presently under compulsory retirement),
Rio F- 1. New Mukundnagar, Galanan Housing Soe Nety,
Near Datta Mandir, Gov indpura,
Admednagar, . Apolicant.
( By Advocate Shri SD. Joshi}.
Versus
The Union of India, through
the Secretary,
Ministry of Defence, Department of Defence Production,
Room No.236, South Block,
New Delhi ~ 110.001,
"+ The Director General of Quality Assurance,
Room No,234, South Blook,
New Delhi-- 110 001,
3 The Controller of Quality Assurance (Vehicles),
Aurangabad Road,
Ahmednagar 414 003. . Respondents,
{ By Advocate Shri R.R. Shetty ),
Order reserved on : 01.03.2023
Order pronouaced on : 29.08.2023.
ORDER |
Per: De Bhagwan Sahai, Member (A)
Shri Nandkumar Tukaram Joshi while working as Upper Division Clerk (UDC), with Controller of Quality Assurance (Vehicles), setting aside of order dated 05.02.2014 (with effect from 07.02.2014) retiring him from service in public Interest and order dated 13.02.2014 rejecting, bis appeal/representation. He seeks directions to the respondent no.l and 3 to reinstate him on the post of Upper Division Clerk in the office of respondent no.3 along with all consequential benefits i.e. contimaity In service, senlority, pay and allowances.
2. Summarized facts :
2{a). The applicant has stated that he was appointed as Lower Division Clerk (LDC) by order dated 28.01.1984 with office of Controller of Quality Assurance (Vehicles), Ahmednagar, and seas promoted as UDC from 01.06.2002, While working, he developed visual disability which was assessed by Medical Board as 40% as per sertificate dated 07.11.2006 (Annex-A-2).
2(b). As per certain orders of Ministry of Finance, Government of India, blind or orthopedically handicapped employees (with minimum 40% disability) are entitled for Transport Allowance (TA). Accordingly, he received the TA from November, 2006 to September, 2009 but by
3 OA 3382015 order of 25.08.2009, its payment tO him was stopped and the amourt paid to him earlier was to be recovered from his salary from September, "008 onwards (Annex-A-4), ' hy ? y very Nees Y Sere th a{e}. Then he was compulsorily retired by order dated 03.07, 2012 (Annex-A-9), But appeal against it was allowed by the order dated. US.O4.2013 CAnnex A-20) Then applied on 28.08.2013 for special casual leave applicable to persons with disabilities but was replied by respondent no.3 on 17.09.2014 that he was not a physically handicapped person and, therefore, was not entitled for special casual leave e (Annex-
A-12).
aid}. Thereafter, by order dated 15/16.09.2009 the matter was referred to the headquarters for confirmation of the order in respect of his physical disability, The applicant was informed that aS per the certificate dated O7.11.2006 issued by the Civil Surgeon, Civil Hospital, Ahmednagar, he had 40% visual disability and thus was physieally handicapped from 07. 11.20 106. However, as per the disability mentioned in that certificate, he was partially blind but as per Section 67 (C -hap-6 of Swamy's Compilation on reservations and concessions) t the partially blind employee is not eligible for TA at double of ne normal rate (Annex-A-5), Thereafter, the applicant submitted an appeal oh 6112009 to the headquarters claiming that his TA had been erroncously withdrawn and, therefore, it should bé extended to him. In 4 ' OAS3S/2018 that appeal he also mentioned that as a profest against the action of discontinuation of TA to him and recovery of earlier paid amount, he did hot accept pay and allowances for October, 2009 (Annex-A-6).
2{e}, When ne decision was taken on his appeal, on 08.06.2010 he submitted his grievance to Chief Commissioner of Persons with Disabilities, New Delhi about discontinuation of his TA and recove ry of earlier TA and refusal of special casual leave. The Chief Commissioner of Persons with Disabilities vide his letter dated 20.07.2010 forwarded his request to DGOA to look into his grievance in Bi ght ¢ of sf pravistons under Section 2(t) of the Persons with Disabilities Act, 1985 and as the Department of Expenditure OMs dated 29.08.2008 and 19.1] 2008 (Annex~A-7)}.
2(f). But even then the recovery has been made from ihe applicant by the respondents and they also initiated disciplinary proceedings against him along with his suspension from BErVICe, A charge-sheet dated 26.01.2012 was served on him and the Inquiry Officer submitted his report on 30.04.2012 holding that all the charges st tood proved.
2(g). He submitted his representation on. 13.08. 2012, : after which | the Disciplinary Authority imposed major penalty of 'Compulsory velirement from service by order dated 03.07.2012 (Annex-A-9), Then he submitted his eppeal on 31.07.2012 and the Appellate Authority by JASSEOTS erder dated 03.04.2013 under Rule 27(2) ef CCS (CCA) Rules, 1965 concluded that the disciplinaty proceedings against the applicant were faulty and rescinded them, including the or der of his cornpulsory:
retirement and remitted the matter te the Disciplinary Aa ithority for initiating de nove proceedings, required (Annex-A- 10), aih). Thereafter the applicant submitted a representation dated.
10.2013 to the respondent no3 for regulerizing his pay and alowances bui on 31.10.2013 he was served the order of compulsory retirement under Fundamental Rule $6 fiyand Rule 48 of CCS fP 4 ae! a & 63 Z. 2 a pees Rules, 1972 (Annex-A-14) on attaining the age of 3S years or on completing 30 years of service with effect from 28.01.3014. The applicant claims that he would have completed 30 years of service o pie 27.01.2014 but based on his date of birth he would have completed 4 55 years of age on (7.022014. The applicant represented on 0 Lil2013 to the respondent authorities thet for compulsory retirem nent his case had not been referred to Review Committee but he was replied on 41] 2013 hat meeting of Review Committee had been held and it had consid ered his service record, annual confidential reporis from 2006 te 201 oO, and punishment awarded to him (Annex-A-15) and had not recommended his retention in service. The applicant again submitted representation on IS.PL2013 to DGQGA in response to which he was informed that his * representation had been examined by the | DOQA and rejected. Then by IA SSB2018 ix correspondence dated 31.10.2013 and 0%. 02.2014, the applicant was ordered to be retired fom service on attaining the age of 33 years on O7.02.2014, 'Thereafter, the applic cant requested for grant of provisional.
pension, commuted pension, gratuity, ete hecause of which there has been delay of about 60 days un filing the O.A,
3. Contentions of the parties :
A. Applicant -
In the OA. rejoinder, written submissions and durin 1 "SS arguments ef his counsel, the anpficant has contended that ~ 3(a)}. the orders of his compulsory retirement issued on SLIG2Z013 and 08.00 2014 are non-est since they were corrected subsequently under currigendum dated 23.07.2014. Thos the respondents could not have retired Airy compulsorily ia public interest on the basis of the orders dated 3} -LQ2013 or 05.02.2014. The order of compulsory retirement has been passed in exercise of Rule S6U)) of the Fundamental Rules and also under Rule 48 of CCS (Pension) Rules. 1972, Since the applicant would have completed $5 years afage only on 07.02.2014 he had hot even completed 30 years of service on 3110.20) 3 or 03.02.2014, the order of compulsory retirement was not as per the law ang even the issuance of corrigendum on 23.07.0014 compulsorily retiring him from 08.02.2014 would not have legalized or validated the earlier orders:
49 OASIRIOIS Ab}. his cass for compulsery retirement was not re ferred ta the Review Conmmittec and when this fact was brought to the notice of the respondents afer receiving the order of 31.10.2013, he received the renly am 14.11.2015 (Annex-A-1$) in which the respondents tried to create an impression that his case had been referred to the Review Commitiec.
The reply did not mention the date of meeting of the Review Committee and, therefore, the inmugned order of the compulsory retirement is bad in law. Mentloning of reasons in the reply dated 14.11.2015 is also ills so and insufficient because in view of the provisions under Ruls FR 36 (, no incumbent can be retired compulsorily if he has earmed promotion during the last S years;
Ate}. -as per the decision of Chandigarh Bench of i sis' Tribunal in case of Rajendra Kumar Sharma Vs. Union of India and others, persons like the applicant with disabilities deserve to be protected and they could not be compuls 50 ly retired fn public interest on the eround of thelr performance. In the ahove judgment of the Tribunal, p , provisions of Section 47 af the Persons With Disabilities Act were considered along S38 with Rule-33 of CCS (Pension) Rules and it was held that the Persons. with TMsabilities Act is a special legislation to provide equal apportunities and equal protection of rights and, therefore, the provisions fF Ride 47 of that Act have overriding effect over provisions of Rule 33 of CCS (Pension) Rules. On the basis of that judgment, there fore, the 8 OAS38/2015 | applicant could not have heen retired compulsorily and the O.A. should be allowed:
3{d}. the applicant's counse! has submitted copies of two Supremes Court decisians and based theréai, he contends that the O,A. be allowed:
(a) Baikuntha Nath Das Vs. Chief District Medical Officer, Baripada dated 19.02.1992, in Para 32 of which the following principles have been Usted In relation to compulsory retirement:
"iy An order of compulsory retirement Is not a punishment. It implies no stigma nor any suggestion of misbehaviour {) The arder has to be passed by the Government on forming the opinion that itis in the public interest to retre 4 Government servant compulsorily. The order is passed on the subjective satisfaction of the Government.
Gi) Principles of natural justice have no place in the context of an order af 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, ar (b) that it is based on no evidence, or (c) that if is arbitrary - in the sense that no reasonable person would form the requisite opinion on the given material: in short, fit is found to be perverse order.
iiv) 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 recordscharacter rolls, both favourable and adverse. I a Government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks [oss.7
their sting, more so, if the promotion is based upon merit b 9 OA 338/2015 (selection) and nat upon seniority.
fv) An order of compulsory retirement is not liable to be quashed by a Court merely on. the showing that while passing it uncammunicated adverse remarks were also taken ito consideration, That circumstance by itself cannot be a basis for interference, which is permissible only on the grounds mentioned In GH) above, State of Gujarat Vs. Untedbhal M. Patel dated 2.2001 in which after referring to the Batkuntha Nath Das and other ases, the following 8 principles related to compulsory retirement have sen summarized Gn para 11):
sey
(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.
(i) Ordinarily, the order of "compulsory retirement is not to be treated as a punishment coming under Article 31) of the Constitution.
(iii) For better administration, it is necessary to chop off dsad-wood, but the order of cor npulsory retirement can be passed after having due regard to the entire service record of, the officer.
(ivy) Any adverse entries made in the cu niidential record shall be taken note of and be given due wei iohtage j in passing such order.
(vy) Even uncommunicated entries in the. confidential record can alsa 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 desirs able.
(vil) Ifthe officer was given a promotion despite adverse entries made in the confidential record, that is a fact in 10 OA SISQO1S favour of the officer.
(vill) Compulsory retirement shall not be Imposed as a punitive measure.
g, Respondents :
in their reply dated 05.02.2016 and during the bearing, the respondents have contended that :
Ae). based on disability certificate no.4S02 dated 07.11.2006 issued by the District Hospital, Ahmednagar, the applicant was granted conveyance allowances at double the normal rate from 07.11.2006 to September, 2009. In the order passed by office of Chief Conmnissioner of Persons with Disabilities, Ministry of Social Justice and Empowerment, Goverment of India, New Delhi dated 13.10.201 t categories of visual disabilities have been mentioned. The vision of 06/18-06/36 in better eye and 06/16-Nil in the worse eye correspond ta 40% disability for Category-t. This was communicated to the applicant vide letter dated 15.11.2011. However, in view of the DoPT letter dated 10.06.2009, the grant of Transport Allowance to the applicant at double of the normal rate was cancelled on 16.09.2009. This was confirmed by the headquarters of DOQA by letter dated 06.11.2000;
aH. the claim of the applicant that ne decision was taken on his representation is misleading and irrelevant. As per letter of Ministry of Sacial Justice and Empowerment, Government of India dated 28.06.2010 ii DASIRROTS :
(Annex-R-3}, the applicant was provided ample opportunities to review his disability certificate. However, as per the order of the Chief Commissioner of Persons with Disabilities dated 26.10.2010 based on the applicant's representation, he was entitled for Transport Allowance at double of the normal rate only afler the review of fis visual disability certificate as per the stipulations laid down in the orders of Ministry of Finance and with approval of DGQA, New Delhi:
Sigh. the respondents have relied on DoPT letter dated 10.06.2009, and as per letter of Ministry of Sostal Justice & Empowerment, Government of India dated 28.06.2010 informing the Joint Controller, Controllerate of Quality Assurance (Vehicles), Aurangabad Road. Ahmednagar that Directorate General of Health Services vide letter dated 16.04.2010 had directed to get the applicant evaluated by at appropriat te notified medical authority under the Persons with Disability Act, 1995 in the State of Maharashtra or alternatively at the Eve Department. of Safdarjune Hospital, New Delhi / DrR.M.LL. Hospital, New Delhi with the previous case records to review his disability and there de to f urnish a revised disability certificate for taking farther action;
ath}. in view of above mentioned communication, the respondents asked the applicant to appear before the Medical Board of Sassoon General Hospital, Pune for expert opinion. They have submitted that even on repeated request made by the respondent Nod, OAS 82018 Ke the applicant did not appear before the Medical Board of Sassoon General Hospital, Pune. Therefore, authenticity of his disability certificate dated 07.11.2006 could not be re-evaluated. The applicant has neither accepted the order of Ministry of Social Justice & Empowerment, 2 Government of India, Chief Commissioner for Persons with [Nsabilite nor arder of the appointing authority Le. Controllerate of Quality. Assurance (Vehicles), Ahmednagar. Therefore, his visual disability in ane eye could not be re-evaluated, Hence the claim of the applicant that nis disability has been accepted by the Headquarters [Nrectorate General of Quality Assurance is not correct and the contention of the respondents in this regard is correct;
3(i). in this regard the respondents have also submitted a copy of show cause notice issued to the applicant for dis-obedience of lawfal orders of the Controlle. As per the order dated 21.06.2010 and movement order, the applicant was asked to report to Sassoon General Hospital, Pune on 22.06.2010 at 1200 Hrs for carrying out his fresh medical examination for the purpose of reviewing his visual disability, A special vehicle w as detailed for this purpose and he was advised to report report to Secunty Incharge at main gate of COA (V) at G800 Hrs oi 22.06.2010. The intimation for this was conveyed to him over telepheo one by Shri BJ. Sawant, O.$. on 21.06.2010 since he was absent on that day without inthmation / prior sanction of leave and a copy of that movement hae Ld fae ee too Lak nd 3 pais a RS order was also pasted on the deer of his house, The specially detailed vehicle and officers watts ted for him for more than half an hour but the applicant did not report. Prom these facts if is clearly established that for re-evaluation of his visual disability, the applicant deliberately did not report before the Medical Board of Sassoon General Hospital, Pune 2 ond disobeyed the order of Jt Controller of Quality Assurance (Administration);
SG). since irispite of repes eated ¢ TOQUESIS made by the respon dent no.3, the applicant did not appear before Medical Board of Sas asco General Hospital, Pune for rt opinion, authenticity of his disability vertificate na4s892 dated 07.11.2006 is doubtful and it needs te be re-evaluated, But the applicant has neither accepted the onder of the Ministry of Soolal Justice and Empowerment, Government of India no af the Chief Commissioner of Persons with Disabilities nor of the Appointing Authority Le, COA:
Sik). from January, 2011 to February, 2014, the applicant has been paid Rs.4,65,8154 for regularizing his pay and allowances, by cheque slip dated 27.12.2014 (Annes-R-4), Therefore, the issue raised by the applicant in para 4.12 of the OA does not arise:
HD. by following the prescribed procedure under Fundamente / Rule 56 (), the respondent no3 issued the notice of conypulsory ed retirement of the applicant dated 31.10.2013, which was 3 manths in ta QA BSE SONS advanee before the date of his such retirement Le. 08.02.0014. While the order dated 03.07.2012 (Annex-R- 8) of Compulsory Retirement wa bexg under Rule 14 of CCS (CCA) Rules, 1965, the nettics issuied to _ applicant on 31.10.2013 of a compulsory retirement was issued ander FR 26 ()/Rule 48 of CCS (Pension) Rules, Lo7e;
Sim). as per the prescribed procedure, the Review Conmitiee as a Board considered the service record of the applicant Le, ACRs of Jar wary | to December, 2006, of 2008-09, 2609-10 and 2010-11 i, punish ments awarded to the applicant in the year 2001, 2002, 2011 and 2012, and recommended his compulsory retirement under FR 56 G). Therefore, the claim of the applicant in para 4.16 is not correct that no show _-- notice had been issued to him nor any adverse remark was there jn his ACR of 2008-09, 2009-10 and 2010-11 and 2011-12. He submitted his representation dated 18.11.2013 te DGQAV (Vigilance Cell) bur DOO? A re jecte ed his representation put up by the Vigilance Cell and its outcor me was commiuricaied to the applicant on 13.02. 2014;
3(n). in the corrigendum issued on 23.07.2014, , only the date of his retirement was mentioned as 07.02.2014 when the applicant completed SS years of age. Therefore, there is ne merit in the OA and ie should be dismissed.
3{o). The respondents have relied upon following three caselaws:
{i} RB. Jeevratnam Vs. State of Madras dated 13.10.1968 in Civil 13 OA ASEEOILS Appeal Ne232/1965 in which it was held that the order of dismissal can be effective only from t the date of passing it and not retrospectively;
(2) Shrinivas Ganesh Vs. Unien of India, Bom hay High Court decision is First Appeal No,389/1986 dated 16.02.1986; and (0) Punjab and Haryana igh Court decision dared 68.68.3997 in Civil Petition No4324/91 titled Punjab State Electricity Board, Patiala Va. Presiding Officer, Labour Court, Bhatinds and Ann +. IN Which ff was held that the dismissal becomes effective fom the date of the order and not retrnspectively and intervening period ie. between the date of retrospective dismissal and actual date of passing of dismissal order was asked to he treated as of suspension:
Gv} Delhi High Court decision dated 22.09.2021 in Writ Petition © ERE y/2020 and CM Application 3487/2020, in which the provisions of Fs and a number of Supreme Court decisions on the subject of compulsory retirement under FR 56Q) have been elaborately dealt with. In-view of those Supreme Court decisions, the GA should he dismissed, 4, Analysis and conclusions :
${a}. We have carefully perused the O.A. meme along with its Annexes, reply filed by the respondents, rejoinder of applicant, various case laws cited by the parties and considered the arguments advanced by the applicant and counsel of respondents.
afb). Under challenge in this OLA. are the order dated O8.72.2014 of sempulsory retirement of the applicant from service under 16 OASASSUIS.
Fundamental Rules S6(]) with effect from 07.02.2014 and order dated 13.02.2014 pejectin @ representation of the applicant against his eS compulsory retirement. This O.A. was filed by the applicant on {3.04.2015 and he has also filed M.A.488/2015 for condonation of delay.
Thus there is delay af 2 manths and 8 days beyond the specified period of one year as per the provisions relating to imitation under Section 21 af the AP Act, 1988. The applicant has submitted that against his order of compulsory retirement he had submitted appeal in the form of representation which was rejected on 13.02.2014 and because of non- receipt af pension and pensionary benefits, he was in state of dilemma and under advice has taken other steps, Therefore, the delay fas + occurred and it may be condoned. Since under ¢ hallenge a are the orders mentioned above, the delay of 2 months and § days in fling this O.A. can be condoned.
Ate), Provisions of FR 564) on the subject of compulsory retirement are as follows :
"G} Notwithstanding anything contained in this rule, the Appropriate Authority shall, if it is of the opinion that it is In the public interest. so to do, have the absolute right to retire any Government servant by giving him notice of net less than three months in writing or three months' pay and allowances in lieu of such notice:
(i) [fhe is, in Group 'A or Group 'BY service or post in a substantive, quasi<permanent or temporary capacity and had entered Government service before attaining the age of 35 years, after he has attained the age af 80 years:
i? QAS382015 -
Gi} in any other case after he has attained the age of fifi. five years:"
Since the applicant was working on the post of UDC with Controller of Quality Assurance (Vehicles), Aurangabad Road, Ahmedna agar, as per th Sense Ree ears PRIMA Sass fa weenie ST anove provisions of FR S6GxH) for compulsory reteement the ree yuired age attainment is of 55 years, As the date of birth of the ¢ applicant was.2
08.02.1959, he attained the age of 5S years on 07.02.2014. Since he was compulsorily retired from 07.62.2014 by order dated 05.02.2014, effect to the order of compulsory retirement wa S given on completion of the required age fe. attainment of 55 years of ave.
did). Betore passing the order on 05.02.2014, ae he applicant had been served prior notice dated 31.10. 2013 under PR 560) giving him 4 notice that on attaining age of S5 years or completing 30 years of qualilying service for pension on 07.02.2014 he shall retire from service on the forenoon of 28.01.2014 or on the forenoon of the in following the date ofexpiry af 3 months computed from the date following the date of service of that notice on him whichever was lates 4{2). HY it is assumed that the notles of compulsory retirement dated 71.10.2013 was served on the applics nton the same day, then also the period of 3 months would have expired by 31.01.2013. But based on the exact calculation of completion of 55 years of age with reference to.
his date of birth, the final order of compulsary retirement was issued on jos De) rn, tent %:
a Las sd os Sed oon prow?
Pt O5.02.2014 to take effect from O7.02.2014 Le. the date on which the applicant attained the age of §5 years. In view of these facts, the contention of the applicant that the respondents could not have retired him compulsorily from 07.02.2014 does not have force.
4g). Sines the respondents have submitted that his case for compulsory retirement was placed before a review committee Le. a Board and after the Board considered the service record of the applicant Le, his ACRs of the years January to December, 2006 and of the years 2008, 2009, 2010 and 2011 and punishments awarded to him during the car 2001, 2002, 2011 and 2012, it recommended his compulsory retirement under FR 56Q). Therefore, the contention of the applicant that no review committee was formed cannot be accepted. Aig). Relying upon the decision of Chandigarh Bench of this Tribunal in case of Rajendra Kumar Sharma Vs. Union of India and others, the contention of the applicant is that since he jis av Jsually handicapped person, he should not have been compulsori rly 6 retired by the respondents. The issue of visual handicap of the applicant has been explained by the respondents in detail. About his visual dis: Dilby, the certificate submitted by the applicant was one issued by the General ay z Hospital, Ahmednagar on 07.11.2006 certifying 40% as his disability in right eye and vision of 6/36. Based on this certificate, the applicant was also 'sanctioned transport allowance at double the normal rate fom eae | inh OAB3I82015 Navember, 2606 ull September, 2009, but by order of 25.10.2009 that"
payment was stopped and recovery was ordered contending that a partially blind employes is not eligible for transport allowance at double of the normal rate. Similarly, the applicant's request for grant of Special Casual Leave was also reiected by the respondents on 17.09.2013, his physical disability. Since as per certificate issued by the Civil Hospital, Ahmednagar on 07.11.2006, he had only 40% visual disability in ane eye, he was partially blind and as per stipulations under Section 7 item. 6 on conveyance allowances to blind / orthopaedically handicapped Government employees in Swamy's Compilation on Reservations and Concessions, this allowance at double the rate can be given only to blind mployees. But the conveyance assistance is not admissible to one eved Le. partially blind employees. Since the applicant is only partially blind, ahove decision of the respondents was correct. Thereafter the applicant submitted his grievance in appeal on 08.06.2010 to Chief Commissic 'oner of Persons with Disabilities, New Delhi who forwarded the request :
DGOA to consider if in light ef provisions of Section 2(t) of the Persons with Disabilities Act, [98S and Depariment of Expenditure OM dated ah). The responderis have also submitted that the Review on, A on oe th pees aoe ce aa e pt poke.
pees ms ree er CE on ed the Service Book, APARs of the applicant from 20 OAS 8/3018 2001-2011 noting that in the APAR 2009-10, the remarks recorded by the Reporting Officer were that he was not loyal to the organization and it - :
was noticed by the Reporting Officer and it was accepted by him also Ne was awarded grading of only ' fr 'work Output and 'functional:
competency' and the Reporting Officer had reported that work needs improvement and his conduct is questionable and not recommended for further promotion. The Reviewing Officer also recorded the remarks that the ¢ pplicant was not fit for promotion and continuation in Service, 4(i). As per letter dated 23,08.2010, the Reviewing Officer endorsed the remarks on lack of inte egrity, lack of devotion to duty, refusal to perform the duties assigned to him, misbehaviour with senior Meers including dis-obedience of bonafide orders of his seniors A(j). In the APAR of 2008-09, the Reviewing Officer had recorded that the applicant was not yet fit for promotion. In the APAR from 01.01.2006 to 31.12.2006, the Reporting Officer had reported that the applicant was slow and tends to delay disposal of work to which the Reviewing Officer agreed. Roth the Reporting and Review ing Officers had recorded that inquiry had heen ordered a against the applicant which was in progress, 4(k). Qn 26.05.2001, the applicant was punished for mis sconduct, On 27.02.2002, an inquiry was ordered under Ru ule 14 of CCS (C Sonduet) 2 OA 3382015 | Rules and as per order of 27.02.2002 taking a lenient view the enquiry:
was withdrawn on mercy plea of the applicant. However, he was warned not io indulge in any act of indiscigline, insubordination and to attend the duties assigned to him with due diligence and care. On 19.01.2011, punishment was awarded for grass misconduct fe. misbehaviour and insull to senior Class-I Officer, On 10.07.2012, a charge-sheet was issued to him on 9 articles of charges under Rule 16 CCS (Conduct) Rules, out of this 6 charges were proved beyond doubt. However, Keeping in view of maj or penalty awarded to the applicant, the disciplinary authority decided not to svard the additional punishment to him,
4). As per order dated 03.07.2012 base ed on inquiry under Rule id of CCS (CCA) Rules, 1965 and after considering Inquiry report and representation of the applicant, punishment of compulsory retirement was imposed on the applicant. As recorded in the APAR 2009-10, the applicant had been warned orally by all Supervisors and also in writing he was issued warning 10 times.
dim). in the APAR of 2010-11, the Reviewing Officer had agreed with the assessment of the Re sporting Officer and + pein recorded that the applicant was adamant and quarrelsome and he dows not get along with his superiors, equals and subordinates. He! hag be 2h misbehaving with senior officers for which he has been. chargesheeted and punished, the applicant was mentally unstable and, therefore, be was 29 CLA SILAS het considered ft For continuance fy Government service, % From the bove listed recordings in the ACRs/APARs of the applicant and various arders issued by the respondents from time to time, itis clearly establishe at he was unfit for retention in service and had become a dead-wood for the respondent organization. For his visual handicap also he defied the orders of the respondents to get his visual disability evaluated again by the Medical Board at Sassoon General Hospital, Pune, 4(n}. The contention of the applicant that he could nat have heen compulsorily retired because an emplovee cannot be compulsorily retired if he has received a promotion during previous § years, However, hs contention is irrelevant. The applicant had joined service as L.D.C. as per order dated 28.01 1084 and was promoted as U LDC. From 01.06.2002. Thus there was no Promotion of the applicant during $ vents preceding F ebruary, 2014, 4{o). Reliance of the applicant on decision of C handigarh Bench of this Tribunal in case of Rajendra Kumar Sharma Vs. Union of ¢ India and others holding that the persons with disabilities deserve to be protected and cannot be retired compulsorily in public j interest on ground of their performance ¢ annot hele him. The applicant has not been compulsorily retired because of being @ handicapp: ed person, the handicap also has not been finally re-evaluated a and is of only low vision ed ae ce ty ty tJ SS J 27 inane eye. He has not been retired because of any poor performance due to. such low vision in one eye. He has been compulsorily retired because he had become dead wood for the respondents' organization as proved by the repeated adverse assossment in his ACRs/APARSs, warnings issued to himt several times and also repeated punishment awarded to him.
dip}. The applicant's reliance on Supreme Court decision in case of Bathuntha Nath Das Vs. Chief District Medical Officer, Baripada dated 19.92,1992 is of ne help to him because the gist af principles mentioned In that decision is that an arder of compulsory re frament is not a punishment, if implics no stigma nor any suggestion of misbehaviour, the order has to be passed by the Government on for ming the opinion that it is in public interest to retire a Gow ernment servant compulsarily, the order is becaase of subjective satisfaction of the (overnment, principles of natural justice have no place in the cortert of an order of compulsory retirement, the High Court or Supreme Court would not examine the matter as an appellate court, they may interfere :
= they are satisfied that the order passed is mala fide or it is based on no evidence oy that it is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material, in short, Lf if is found te be perverse order, the Government or the Review Committee shall have to consider the entire record before inking a decision in the matter, with more importance to record of later years. The record to be 34 (O: & S38 2018 so considered would naturally include the entries in the confidential reoords'character rolls, both favourable and adverse, if a Clovernment servant 3S promoted fo a higher post notwithstanding the adverse remarks, such remarks lose their sting if the promotion is based upon merit {selection} and not on seniority. An order of compulsory relirernent is not Hable to be quashed by a Court merely on showing that while passing it uncommunicated adverse remarks were also considered.
Thal circumstance by itself cannot be a basis for interference. .
In view of these principle es § since the Review Committee and the competent respondent authority have formed subjective opinion for compulsory retirement of the applicant after considering his service record, the order of compulsory retirement of the applicant cannot be interfered with by this Tribunal.
4(q). Similarly reliance of the applicant on Supreme Court decision in case of State of Gujarat Vs. Umedbhal M. | Patel dated TOZ2001, also is of no help because that decision had 3 relled on the Baikuntha Nath decision. Tt was held in that decision that in view of Allahabad B Bank Officers Association & Anr. Vs. Allahabad Bank & Ors. [VP P998(S) SC 275), in Para 5 that the power of compulsorily retiring a Government servant is one of the faceis of the doctrine of pleasure incorporgied In Article 310 of the Constitution. The abiect orf compulsory retirement is to weed out the dead wood in order to maintain Zo | OABSR2015 efliciency and initiative in the service and also to dispense with the services of those whose integrity is daubtfal so as to preserve purity in the administration. The crystalized principles summarized in that decision were as follows :
") Whenever the services af a public servant are no longer usefal to the general administration, the officer can be compuls sorily retired for the sake of public interest.
(i) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Ar rticls SLL of the Constitution, (iD For better administration, it is necessary to chop off dead-waod, bot the order of compulsory retirement can be passed afer having due regard to the entire service record of the officer.
CV} 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 inte consideration.
iv the order of compulsory retirement shall not be passed. as a Sor ent to aveld departmental « enquiry when such course is more desirable.
(VID If the officer was given a promotion despite adverse entries made in the confidential record, that is a imct in favour of the offices, (VUD Compulsory retirement shall nat be imposed as a punitive measure."
Agr}. Apart from the gist of principles mentioned in the above two Supreme Court decisions, the subject of compulsory retirement has been 26 "OA BSS2015 dealt with in detail in Delhi High Court decision in Writ Petition jw) LIT T/2020 & CM APPL.34872/2020 dated 22.09.2021 in Ashok Kumar Aggarwal Vs. Union of India & Another, relying upon a number of Supreme Court decisions. The conclusions in those Supremic Court decisions are these :
4(s) (D. 'The principles mentioned above in Supreme Court decision in case of Batkuntha Nath Das Vs. Chief District Medical Officer, Baripada dated 19.02.1993, ab. In the Delhi High Court decision :
"Paral? Compulsory retirement invelves no civil consequences. The Government serv ant doss not Inose any of the rights ac quired by him before retirement while a minimum service is granted to the Gov ermmment servant, the Government is given power to energize its machinery and make more efficient by compulsory retiring those who in its epinion should act conturue in the service of the Government inthe interest of public,"
(i). AS pe i Supreme Court decision in Unien of India Vs. Col.J.N. Sinha 1970(2) SCC 458, Fundamental Rule 56) in terms does not require that any opportunity should be given to the concemed 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 rules 8 or law made under Article 369 as well gs i nitions pe QA INS 'wt Foal eeen {iy}. AS per FR 26(), the appropriate authority has the absolute right to retire a Government servant if i 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. If that aithority bona fide forms that opinion, the SOPFECRIESS OF Maat Opinion cannet be challenged before Courts. Because acquired by him before retirement, Compulsory retirement involves no civil consequences, Rule Séfj) is not intended for taking any penal action against the Government servants. That rele mere ely embodies one of the facets of the pleasure dovtrine embodied in Arti cle 310 of the ion, 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 he! ding in Tt may be that the officer who is holding the post is net inefficient but the aprropriate authority 5 may toffeer. In certain hey Posts public "undoubted ability and in degrity Pay & POTS PRO * should be thers. There is no denying that in all organizations and mor «good deal of dead wood, iis in ot uf orgariizations, the wo chop off the same. A compulsorily retired Government of lose any of the bene! iy), As per Supreme Court decision in Nisha Priya Bhatia Vs. 28 OA B382015 Union of India & Anr, Fundamental Rule 36¢)) does not result into a deprivation of the retired employee of any benefit whatsoever in Heu of such order of compulsory retirement and thus attracts no stigma or any civil consequence in a retired employes for hisher future, The invocation of this Rule, therefore, falls im syne with the second proposition in State of UP. Vs. Shyam Lal Sha rma, (1971) 2 SCC S14, ivi). As held in Supreme Court in Ramehandra Das Vs. State of Orissa & Others (1996) : §§cc 331, the abfest in compulsorily r retiring a Government servant is 8 always public interest. The material question is whether the entire record of service js considered or not. It is not fr the Court or Tribunal to see whether the decision of compulsory retin is justified or not. Tt is for the Gove ermmiment to take a Proper decision in that behalf. Tt is @ settled law that the Government is required to consider the entire record of service. Merely because 9 promotion has been given even after adverse entries were made, cannot be a ground to 1ote that compulsdry rere far eis Dea y 8 Hote that compulsary retirement afthe Government serve ant could not be ordered. There is no vested right in the employee io continue in the employment after a preseribed age under the rules, The Cane ¢ The Court ear in wt 5 od . vee ser Qe ae gon: + Me gah ¢ Re : | appeal avainsr the subjective ss {iste tron af the Review Commi tes % ~ SARE ERE Ne aut ' ke ™ AN u) As he in Supe eme Court a mE Thon af India Vs. Ni asivmiy 4 a ° Ahmadmiya Chauhan (1994) Sy pphi) SCC say 4 S37, op Fundan ore 28 CIAL SSSZ0TS any ine mn public interest after the Government servant has attained the relevant age. 'There is no other bar for the exercise of the power. If the tecar fo apwerca .
record is adverse then he cannot take shelter behind the executive iistructions and niust be chopped off as and when he vatches the eve of the preseribed authority, Ob. As per Supreme Court decision in Ram Murthy Yadav Vs. nian Fae ROT ER SERS ae aay ae ' = : eee * State of ULB. (2620) 1 scc SUT, the scope for judicial review of an der of cormpulsory retirement based on the subjective satisfaction of the employer is extremely narrow and restricted. The Court in judicial review cannot sit in judgment for the same as an appellais authority.
ug Bp oy ot we ot | rinciples of natural justice have no application in a cas e of compulsory retirement, AD. When the case of the applicant is analysed in terms of ff above Supreme Court decisions, t is clearly established that the been campulsorily retired based on the subjec tive opinian af the respondent authorities and we do not find any justification in the oantentions of the applicant.
Fhe e his compulsory retirement from 07 02.2014 he has not ve Sta Aek 4am).
sos Ra a ere yee CL Lery ee H veut geen in service of the respondents. He has also recel ived all retiral GPP Gratuity, commuted pension, pis:
pskos te, Thus tke period of 9 years and half ~ seirement. Therefore, we do not 30 OA 3380018 find any merit in this OLA. and it deserves to be dismissed, =
5. Decision :
The OLA, is dismissed, No casts, (On Bhagwai Satay (Justice MG. Sewlikar Member (A) Member (1).
HH.