Ram Pal Singh vs State Of U.P And Others.
2012 Latest Caselaw 3679 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved									A.F.R.
 

 
Case :- WRIT - A No. - 12558 of 2007
 

 
Petitioner :- Ram Pal Singh
 
Respondent :- State Of U.P And Others.
 
Petitioner Counsel :- N.L. Pandey,D.K.Dwivedi
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Sunil Hali,J.

For making the administration efficient, periodical review of all its officers is taken by the State Government to weed out the inefficient and corrupt officers from the services. This is an exercise conducted in public interest. A Government servant, during his service career, is required to conduct himself honestly, do his job in accordance with rules and maintain a level of honesty and integrity to sustain his reputation. There are two modes by which the conduct of a Government servant is appreciated; one is recording of Annual ACR by superior officers, which is the character roll of his service record and the other mode is his general reputation in the public at large under whose gaze he remains.

For purposes of assessing character roll of a government servant, as reflected in his ACRs, the same is documented. Regarding his reputation in the eyes of general public, it is not documented but can be gathered from the circumstances. It is in this area where the role of the government servant is judged by various factors, like; (a) if there are specific complaints against his conduct, which is subject matter of enquiry in a criminal charge or by a departmental enquiry; (b) if the allegations are not specific but general in nature, which are not subject matter of any enquiry or investigation before the competent authority; regarding specific allegations, which are subject matter of investigation or enquiry, the out come of such enquiry or investigation will determine the fate of such a complaint. The officer will have a right to face such an enquiry and rebut the charges before the Criminal court or the Enquiry Officer. The complaints, which are general in nature but are not subject matter of any enquiry or trial and are relate able to the general reputation of the officer, regarding his honesty, efficiency and integrity, is an area where the scope of invoking the provisions for compulsorily retiring him are required to be examined. This, in essence, is an area where the State Government can form its subjective opinion, based on material for ordering the compulsory retirement of an officer. In exercise of its powers under U.P. Fundamental Rules, the State Government can, in public interest, retire a government servant after completion of qualifying service of 22 years or his crossing the upper age limit of 50 years.

In the present case, the petitioner has been retired prematurely on the recommendations made by the Review Committee on 21.9.2006. The decision to retire the petitioner was based upon recommendations made by the Review Committee vide its deliberation held on 25.6.2006. The following grounds have become basis for his premature retirement :-

(i) During his service tenure, 13 adverse entries were recorded against him. In lieu of adverse entries recorded, one month's salary was deducted;

(ii) These punishments were imposed on account of his absence from duty;

(iii) 23 minor punishments were also imposed for his remaining absent from duty;

(iv) For the years 1999 to 2004, adverse entries were recorded in his service record. Out of his last 10 years of service tenure, adverse entries have been recorded from 1999 to 2004 continuously in his service record.

Despite being punished repeatedly, the petitioner did not improve his conduct.

The contention of the learned counsel for the petitioner is that for the purpose of retiring an official compulsorily, his overall service rendered previously are to be considered, more particularly, latter period of his service. The intended purpose of retiring a Government servant is to weed out dishonest, corrupt and dead-wood from service. Specific case of the petitioner is that the order of his premature retirement has been passed on the basis of entries recorded during last ten years of his service career which is clearly borne out from the recommendations made by the review committee.

The case set out is that while invoking U.P. Fundamental Rule 56, the appointing authority may take into consideration any material relating to the Government servant and nothing herein contained shall be construed to exclude from consideration: -

(a) any entries relating to any period before such Government servant was allowed to cross any efficiency bar or before he was promoted to any post in an officiating or substantive capacity or on an ad hoc basis; or

(b) any entry against which a representation is pending, provided that the representation is also taken into consideration along with the entry; or

(c) any report of the Vigilance Establishment constituted under the Uttar Pradesh Vigilance Establishment Act, 1965.

The import of the rules clearly mandate that if any adverse entry is required to be taken into consideration, the same is required to be communicated. In case, the same has been communicated against, which a representation has been filed, the Committee must also take into consideration the representation made against such adverse entry before formulating an opinion to retire a Government servant.

In the present case, recommendations of the Committee clearly reveals that last 10 years of service of the petitioner was not satisfactory and adverse entries were recorded against him for the period 1999 to 2004. Positive case set up by the petitioner is that these adverse entries were not communicated to him. The petitioner has specifically stated in paragraphs 10 and 12 of the writ petition that the he has been given 23 minor punishments and there were 13 censure entries made in his service record, which are not correct and not only this, it has been mentioned that for the last 10 years service record of the petitioner, 7 years service was not satisfactory is incorrect. The entries made in service record of the petitioner for the last 10 years have never been communicated to him, as such, it can not have any bearing to retire the petitioner in the public interest.

In the counter affidavit, this plea has not been replied by the respondents. There is vague denial that the order of compulsorily retirement of the petitioner is in accordance with the rules.

The stand of the respondents is that the petitioner has been chronic absentee from duty, as a result of which, he has been awarded 13 punishment of censure and 23 minor punishments during his overall service tenure out of last 10 years service adverse entries have been recorded for period of 7 years. The overall service profile of the petitioner reflects that he had become inefficient and dead-wood and his utility to continue in service was not in the public interest.

I have heard learned counsel for the parties.

The controversy involved in the writ petition is in a very narrow compass. As to whether while exercising power under Fundamental Rule 56, the respondents could have retired the petitioner on account of adverse entries recorded in his service record during last ten years of service in view of the specific provisions in U.P. Fundamental Rule 56 (Amendment) Act, 1976 ? It is not necessary that the adverse entries should be communicated to the Government servant. It is settled law that the entire service record should be considered before taking a decision to compulsorily retire a government servant while exercising the power under Rule 56(g) of the Fundamental Rules. It is not necessary that adverse remarks should be communicated or every remark, which may sometimes be categorized as adverse, be communicated. It is on an overall assessment of the record, the authority would reach a decision whether the government servant should be compulsory retired in public interest. In an appropriate case, there may not be tangible material but the reputation of officer built around him could be such that his further continuance would imperil the efficiency of the public service and would breed indiscipline among other public servants. Therefore, the government could legitimately exercise their power to compulsory retire a government servant. The court has to see whether before the exercise of the power, the authority has taken into consideration the overall record even including some of the adverse remarks, though for technical reasons might be expunged on appeal or revision. What is needed to be looked into is the bona fide decision taken in the public interest to augment efficiency in the public service. In the absence of any mala fide exercise of power or arbitrary exercise of power, a possible different conclusion would not be a ground for interference by the Court/tribunal in exercise of its judicial review.

Applying this principle in the present case, it is to be seen that the petitioner has been awarded censure and minor punishment for remaining absent from duty. The report of the review committee reveals that he refused to perform his duty relating to elections, as a bank-guard and Tehsil-guard. His last ten years service character roll was also not satisfactory since adverse entries were recorded against him. This could be a sufficient material to weed out the petitioner from service for the reason that overall service profile of the petitioner clearly reflected that he had become a liability and was not performing his duty in accordance with the rules. I say so as intended purpose of compulsorily retiring an employee is to weed out the inefficient, dead wood and of doubtful integrity from service in the public interest. Retiring a person compulsorily from service is not punishment as the employee is given all the benefits except that his duration in service is curtailed. For running a system efficiently, it is necessary to weed out those who are inefficient and carry bad reputation. The intended purpose of compulsory retirement is not to punish such persons. Even an uncommunicated adverse entry can be taken into consideration before formulating an opinion against a Government servant. It is for the State to see whether the person has right to continue in service who lacks integrity, efficiency the Courts can not substitute its view with the one taken by the State. However, in the present case, a specific plea has been taken by the learned counsel for the petitioner that in order to retire a Government servant compulsorily under Rule-56-B, once adverse entries are taken into consideration, they are required to be communicated. Even though, Supreme Court in Baikunth Nath Das versus Chief Medical Officer, AIR 1992 SC 1020, has held that that even an uncommunicated adverse entry can be taken into consideration while passing an order of compulsory retirement.

In view of the rule position in Uttar Pradesh, judgments of the Supreme Court reported in the years 1992, 1995 and subsequent judgments are distinguishable for the purpose of retiring a Government servant compulsorily. The overall service profile of the Government servant is required to be considered which may include adverse entry also. This is the rule position in the State of U.P. Rule-56 is quoted below :

"56 (a) Except as otherwise provided in that Rule, every Government Servant other than a Government servant in inferior service shall retire from service on the afternoon of the last day of the month in which he attains the age of fifty eight years. He may be retained in service after the date of compulsory retirement with the sanctioned of the Government on public grounds., which must be recorded in writing but he must not be retrained after the age of 60 years except in very special circumstances.

(b) A Government servant in inferior service shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years. He must not be retained in service after the date, except in very special circumstances and with sanction of the Government.

(c) Notwithstanding anything contained in clause (a) or clause (b) the appointing authority may at any time by notice to any Government servant (whether permanent or temporary) without assigning any reason, require him to retire after he attains the age of fifty years or such Government servant may by notice to the appointing authority, voluntarily retire at any time after attaining the age of [forty five years] or after he has completed qualifying service for twenty years.

(d) The period of such notice shall be three months:

Provided that-

(i)any such Government servant may by order of the appointing authority without such notice or by a shorter notice be retired forthwith at any time after attaining the age of fifty years and on such retirement the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances if any for the period of the notice or as the case may be for the ;period by which such notice fall short of three months at the same rates at which he was drawing immediately before his retirement;

(ii) It shall be open to the appointing authority to allow a Government servant to retire without any notice or by a shorter notice without requiring the Government servant to pay any penalty in lieu of notice:

Provided further that such notice given by the Government servant against whom a disciplinary proceeding is pending or contemplated, shall be effective only if it is accepted by the appointing authority, provided that in case of a contemplated disciplinary proceeding the Government servant shall be informed before the expiry of his notice that it has not been accepted.

Provided also that the notice once given by a Government servant under clause (c) seeking voluntary retirement shall not be withdrawn by him except with the permission of the appointing authority.

(e) A retiring pension shall be payable and other retirement benefits if any shall be available in accordance with the subject to the provisions of the relevant rules to every government Servant who retires or is required or allowed to retire under this rule.

Provided that where a Government servant who voluntarily retires or is allowed voluntarily to retire under this rules the appointing authority may allow him for the purposes of pension and gratuity, if any the benefit of additional service of five years or of such period as he would have served if he had continued till the ordinary date of his superannuation whichever be less.

Explanation- (i) The decision of the appointing authority under clause (c) to require the Government servant to retire as specified therein shall be taken if it appears to the said authority to be in the public interest, but nothing herein contained shall be construed to require any recital in the order of such decision having been taken in the public interest.

(2)In order to be satisfied whether it will be in the public interest to require a Government servant to retire under clause (c ) the appointing authority may take into consideration any material relating to the government servant and nothing herein contained shall be construed to exclude from consideration-

(a) any entires relating to any period before such Government servant was allowed to cross any efficiency may or before he was promoted to any post in an officiating or substantive capacity or on ad hoc basis; or

(b) any entry against which a representation is pending, provided that the representation is also taken into consideration along with the entry; or

(c) any report of Vigilance Establishment constituted under Uttar Pradesh Vigilance Establishment Act 1965.

(2-A) Every such decision shall be deemed to have been taken in the public interest.

(3) The expression "appointing authority" means the authority which for the time being has the power to make substantive appointments to the post or service from which the Government servant is required or wants to retire and the expression "qualifying service" shall have the same meaning as in the relevant rules relating to retiring pension.

(4) Every order of the appointing authority requiring a Government servant to retire forthwith under the first proviso to clause (d) at this rule shall have effect from the forenoon of the date of its issue, provided that if after the date of its issue, the Government servant concerned, bona fide and in ignorance of that order, performs the duties of his office his acts shall be deemed to be valid notwithstanding the fact of his having earlier retired."

A bare perusal of the Rule quoted above would go to show that Rule 56 of U.P. Fundamental Rule provides for compulsory retirement of Government Servant. Rule 56 (c) of the aforesaid Rule further provides that notwithstanding anything contained in Clause (a) or Clause (b) the appointing authority may at any time by notice to any Government servant (whether permanent or temporary) without assigning any reason, require him to retire after he attains the age of fifty years or the Government servant may by notice to the appointing authority voluntarily retire at any time after attaining the age of forty five years or after he has completed qualifying service of twenty years. Sub rule (2) of Rule 56 of the Fundamental Rules provides that in order to be satisfied whether it will be in the public interest to require a Government servant to retire under Clause (c) the appointing authority may take into consideration any material relating to the Government servant and nothing herein contained shall be construed to exclude from consideration, the material referred to in clause (a), (b) and (c). Thus, aforesaid Rule empowers the State Government to retire any Government Servant on completion of 50 years of age or on completion of qualifying service."

This issue came up before this Court in Dilawar Singh Paul versus State of U.P.(1996) 4 UPLBEC 2452 and also in Krishan Pal Sonkar versus State of U.P. 1993 (2) UPLBEC 1049, the following observations were made by the Division Bench of this Court :-

"It has no doubt been held by the Supreme Court in Baikuntha Nath Das versus Chief Medical Officer (Supra) that even an uncommunicated adverse entry can be taken into consideration while passing an order of compulsory retirement. However, in my opinion, the decision is distinguishable and it will have no application to U.P. Government employees to the extent that it says that an uncommunicated entry can be relied upon. It may be noticed that Baikuknth Nath Das case related to an employee of the Orissa Government. The law in Orissa regarding compulsory retirement is different from the law of U.P. In U.P. the law regarding compulsory retirement was amended by the U.P. Fundamental Rule 56 (Amendment) Act, 1976 which introduced a new clause (2) to the U.P. Fundamental Rule-56."

The import of the judgment clearly reveals that if reliance has been placed on the adverse entries of the employee, they are required to be communicated. This may not be the position in the other States. There are uncommunicated adverse entries recorded in the service book. While formulating an opinion on retiring a Government servant, what is required to be seen is his overall service profile, which may include adverse entries also. The necessity in not communicating the adverse entries is based upon the principle that inefficient, dishonest and corrupt officials are required to be weeded out without blocking their post retirement benefits. As stated herein Supra, the order of premature retirement is not punishment but it curtails the service career of the employee. The dominant purpose behind it is to weed out inefficient, dishonest and corrupt officials from service in the public interest. While formulating this opinion, overall profile of the official is required to be examined. However, in Uttar Pradesh while exercising option to retire a Government servant, the appointing authority may as well take into consideration any entry against which a representation is pending provided that the representation is also taken into consideration along with the entry. The rule enjoins upon the Government that once formulating an opinion to retire a Government servant, the adverse entries recorded in the service profile of the official if taken into consideration, its communication to the official becomes mandatory. Even though it is not specifically stated in the rules that adverse entry is required to be communicated but reference has been made that if any, representation is filed against such an entry that is to be considered. This aspect can only be taken into consideration once the representation is filed and adverse entry has been communicated to the employee. If the order of retirement is not based upon any adverse entry, in that eventuality, the overall service profile is required to be taken into consideration. The communication of the adverse entries in the latter part of service for the purpose of compulsory retirement is necessary in terms of the aforesaid rules. 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 employee during his tenure of service while ordering his retirement. The whole record of service of the employee will include any uncommunicated adverse entries as well. 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 the record 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.

In the present case, the Review Committee had retired the petitioner compulsorily while considering his overall service profile which includes adverse entries recorded for the last 10 years of his career. The service profile of the petitioner reflected that he had incurred punishment for remaining absent from duty. In the latter part of his service, adverse entries were recorded in his service book. On the basis of overall profile of the petitioner, he was retired. It clearly reflects that not only the service profile of the petitioner but the adverse entries recorded in the latter part of his service were also taken into consideration by the Review Committee. Once reliance has been placed on the entries recorded in the last 10 years of service period of the petitioner whereby adverse entries were recorded, it was mandate of the rule to have communicated these adverse entries to the petitioner. Since the adverse entries have not been communicated to the petitioner, as a result of which, he could not file representation against the same. The order impugned can not be sustained as the respondents have failed to communicate the adverse entries recorded in service profile of petitioner in latter part of his service.

I, therefore,allow the writ petition and quash the orders impugned dated 25.6.2006 passed by the Screening Committee in the Chairmanship of Deputy Inspector General of Police and dated 21.9.2006 passed by the Senior Superintendent of Police, Bulandshahr. The respondents are directed to communicate the adverse entries to the petitioner which are in the service record and give him an opportunity to file a representation against the same and thereafter, respondents shall pass an appropriate order in this behalf. Let this process be completed within a period of 4 months from the date a certified copy of this order is produced before them.

Record of the case produced by the learned Standing counsel is returned back to him.

Order Date :- 24.8.2012

SU.