Ashutosh Dwivedi vs State Of U.P. And 2 Others
2018 Latest Caselaw 2551 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										       AFR
 
RESERVED
 
Court No. - 39
 

 
Case :- WRIT - A No. - 49170 of 2017
 

 
Petitioner :- Ashutosh Dwivedi
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Hanuman Prasad Dube,Ashok Khare
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble B. Amit Sthalekar,J.

Hon'ble Jayant Banerji,J.

(Delivered by Hon'ble B. Amit Sthalekar)

1. Heard Shri Ravi Kant, learned senior counsel assisted by Shri H.P. Dube for the petitioner and Shri Mata Prasad, learned Addl. Chief Standing Counsel for the respondents.

2. The petitioner in the writ petition is seeking quashing of the order dated 22.9.2017 whereby he has been compulsory retired from service under Rule-56 (c) of Financial Handbook, Volume-2, Part-2 to 4.

3. Briefly stated the case of the petitioner is that he was appointed as Executive Officer, Class-II, on Ad hoc basis on 13.12.1988 and joined his service on 27.12.1988 at Pauri. He was regularized on 4.7.2003. It is stated that by order dated 10.9.2016 he was posted as Executive Officer, Class-II in the Nagar Palika Parishad, Bhadohi and he joined there on 16.9.2016 and while he was at Bhadohi the impugned order was passed on 22.9.2017, compulsorily retiring him from service. The petitioner moved an RTI application in order to find out as to whether, prior to taking the decision to compulsorily retire him, the duly constituted Screening Committee had considered his case but it is stated that no reply was given to the petitioner.

4. A counter affidavit has been filled on behalf of the respondents and report of the Screening Committee which met on 4.9.2017 has been filed as Annexure-3 to the counter affidavit .

5. Sri Ravi Kant has, therefore, sought to assail the impugned order of compulsory retirement on the basis of the consideration of the material on the basis of which the Screening Committee has made the recommendation for compulsory retirement of the petitioner. The Screening Committee has based its recommendations on four grounds.

1. That while posted as Executive Officer, Nagar Palika Parishad, Bhadohi, several irregularities were found in the matter of purchase of generator by the petitioner and by an order dated 16.1.1997 departmental proceedings were initiated against him on 16.1.1997 and on the charges being found proved a penalty order was passed on 26.3.1998 withholding three annual increments permanently and the petitioner's integrity was also declared to be doubtful.

2. That while posted as Executive Officer, Nagar Palika Parishad, Fatehpur, he was found prima facie guilty of making unauthorized and irregular appointments and, therefore, vide order dated 25.8.1998 he was placed under suspension and departmental proceedings were initiated against him and thereafter by order dated 21.12.1998 he was reinstated in service and vide penalty order dated 21.5.2002 two annual increments were with held permanently and he was also awarded penalty of censure.

3. That while posted as Executive Officer, Nagar Palika Parishad, Pratapgarh, during the allotment of shops in a shopping complex he committed irregularities for which departmental proceedings were initiated against him on 6.4.2010 and on the charges being found proved an order of penalty was passed on 7.2.2014 withholding one annual increment temporarily and the petitioner was also awarded censure entry.

4. That while working as Executive Officer, Nagar Palika Parishad, Pratapgarh a notice dated 27.10.2013 was issued with regard to the grant of commercial licence to Hotel Aryan and though the owner had not obtained the requisite licence no follow up action was taken by the petitioner and these facts were concealed from the competent authorities for which departmental proceeding have been initiated against him vide order dated 20.12.2015 which is still pending.

6. Sri Ravi Kant, learned Senior Counsel submits that for purposes of compulsory retirement the Screening Committee has to look into all the entries which may have been awarded to the employee in his entire service career and order of compulsory retirement cannot be based merely on four allegations even if those charges are proved and ultimately result in penalties being awarded in departmental proceedings.

7. Reliance has been placed on the judgements of the Supreme Court in the following cases:

1. (2012) 3 SCC 580, Nand Kumar Verma Vs. State of Jharkhand and Ors. (Paragraphs 34, 35 and 36).

2. (2012) 5 SCC 552, Om Prakash Asati Vs. State of U.P. and Ors. (Paragraphs 14 to 19)

3. (2013) 10 SCC 551, Rajasthan State Roads Corporation Vs. Babulal Jangir, (paragraphs 13 to 20)

We shall deal with the above judgments at a later stage.

8. So far as allegations and punishment orders considered by the Screening Committee are concerned, learned Senior Counsel submitted that by the order dated 26.3.1998, copy of which has been filed as Annexure-4 to the writ petition, it was held that the charge was never proved against the petitioner but in fact the finding recorded in the order is that the petitioner was responsible for the purchase of sub-standard generator. However, having said that the disciplinary authority held that in the totality of the circumstances it appears that in the matter of purchase of generator Sri Dwivedi, i.e. the petitioner was not careful and he was negligent in the discharge of his duties. It is further stated that against this order the petitioner preferred a representation on 14.5.1998, Annexure-5 to the writ petition, for reconsideration of the order dated 26.3.1998 and for setting aside the adverse entries. In para 22 of the writ petition it is stated that the said representation was followed by several reminders submitted by the petitioner but no action was taken by the respondents and the said representation remained pending. The respondents in paragraph 11 of their counter affidavit categorically denied receiving the alleged representations dated 14.5.1998 or 5.7.2002 or 25.2.2014.

9. So far as the penalty order of 21.5.2002 of withholding of three annual increments with cumulative effect are concerned it is stated that the respondent no. 1-Principal Secretary, Nagar Vikas Vibhag while passing the order of punishment did not appreciate the explanation submitted by the petitioner in the proper perspective and therefore, the petitioner submitted another representation dated 5.7.2002 for setting aside the punishment order dated 21.5.2002. But again no order was passed and his representation has been kept pending. Departmental proceedings were initiated on 6.4.2010 and a penalty order was passed on 7.2.2014 withholding of one annual increment temporarily and awarding censure entry.

10. It is stated that the petitioner submitted a representation before the Principal Secretary, Nagar Vikas Vibhag, respondent no. 1 on 25.2.2014 with the prayer to set aside the penalty order dated 7.2.2014 and for expunging the adverse entry. It is stated that no order has been passed upon the petitioner's representation till date. It is stated that thereafter the petitioner filed writ petition no. 42197 of 2011, Ashutosh Dwivedi Vs. State of U.P. and another alleging that his representations given in the year 1998 and thereafter have not been decided till date. The said writ petition was disposed of by the High Court vide its order dated 28.8.2017, Annexure-12 to the writ petition, with a liberty to the petitioner to move fresh representation within 15 days before the respondent no 1 with a further direction to the respondent no. 1 to decide the same within a period of two months.

11. The petitioner submitted the certified copy of the order dated 28.8.2017 along with an application dated 7.10.2017 to the respondent no. 2-Director Local Bodies, Lucknow on 9.10.2017 but in the meantime the impugned order dated 28.8.2017 compulsorily retiring the petitioner from service has been passed.

12. The learned standing counsel has passed on to the court the original records.

13. We have gone through the entries upto the year 1998. The entries are either good or very good. The petitioner has been found to be hard working and an honest officer and disciplined, polite in his behaviour towards public and his integrity has been certified throughout except for an adverse entry by an office order dated 9.1.1997 deprecating his conduct.

14. In 1997-98 his conduct has been good. His integrity has been certified. He has been found to be honest and in the discharge of his duties his work has been found to be excellent. However, for the year 1998 we find that there was an order passed on 26.3.1998 in which his three increments were withheld permanently in the matter of purchase of Generator and it was held that though he was not found responsible for the purchase of sub standard Generator but in the totality of facts and circumstances he has not taken required precaution and has been negligent in the discharge of his official duties and in the same year his integrity has also been held as doubtful.

15. Thereafter in the year 1998-99 w.e.f. 1.4.1998 to 31.3.1999 we find that his integrity was certified; his devotion towards duty was found to be outstanding, his work was found to be appreciable, his relations towards public was found to be outstanding. His contribution towards official duty was found good. In 2003 his work was appreciated. His technical knowledge was found to be good. His devotion towards duty was found to be good. His integrity was certified.

16. During 2000-01 also his technical knowledge was found to be excellent. His integrity was certified for the year 2000-01.

17. During 2001-02 it was noted that his awareness and technical knowledge is excellent. His behaviour is submissive and polite. Integrity was certified. The entries thereafter were also found to be good.

18. On 21.5.2002 we find that again there is a penalty order of withholding two increments permanently with adverse entry and censure punishment. Thereafter again either his work was found good or excellent or outstanding and his integrity has been certified for the successive years. Thereafter till the year 2014 his work has been found to be good, very good or outstanding and his integrity has been certified throughout. However, in 2014 we find that on 7.2.2014 again a penalty has been awarded to the petitioner of with holding of one increment with non cummulative effect for one year with adverse entry to be recorded in his service record.

19. In the case of Nand Kumar Verma (supra), the Supreme Court in paragraphs 34, 35 and 36 has held as under:

34. It is also well settled that the formation of opinion for compulsory retirement is based on the subjective satisfaction of the concerned authority but such satisfaction must be based on a valid material. It is permissible for the Courts to ascertain whether a valid material exists or otherwise, on which the subjective satisfaction of the administrative authority is based. In the present matter, what we see is that the High Court, while holding that the track record and service record of the appellant was unsatisfactory, has selectively taken into consideration the service record for certain years only while making extracts of those contents of the ACR's. There appears to be some discrepancy. We say so for the reason that the appellant has produced the copies of the ACR's which were obtained by him from the High Court under the Right to Information Act, 2005 and a comparison of these two would positively indicate that the High Court has not faithfully extracted the contents of the ACRs.

35. The High Court has taken the decision on the basis of selective service record which includes the summarized ACR's, as quoted in the impugned judgment, for the selected years. The ACR for the initial years: 1975-76 and 1976-77 remarks him as capable of improvement against quality of work, the ACR's for the years 1982-83, 1983-84 points that his work is unsatisfactory, the ACR's for the year: 1984-85, 1987-88 remark his work performance as unsatisfactory with bad reputation and quarrelsome attitude, and the ACR for the later years: 1993-94 & 1994-95 refers to some private complaints and remark that his powers were divested by the High Court and the ACR's for the recent years: 1997-98 & 1998-99 points that no defect in judicial work but disposal of cases is poor. Whereas, the appellant furnished certain Service records which includes: the ACR recorded by inspecting Judge in the year 1985 which evaluate the appellant as `B'-Satisfactory against the entry "Net result", further the ACR prepared by the District and Sessions Judge, Samastipur for the year 1997-98 assessed him as an officer of average merit, maintaining good relationship with bar, staffs and colleagues but poor disposal, and the ACR prepared by the District and Sessions Judge, Muzaffarpur for the year 1998-99 assessed him as a good officer but poor disposal. However, his poor disposal during this period is justified up to certain extent in the background of his involvement in the continuous and unnecessary disciplinary proceedings which was based on the charges of granting of bail indiscriminately, even after, the fact that he had been exonerated of these charges long back in the year 1995 by the High Court at Patna.

36.The material on which the decision of the Compulsory retirement was based, as extracted by the High Court in the impugned judgment, and material furnished by the appellant would reflect that totality of relevant materials were not considered or completely ignored by the High Court. This leads to only one conclusion that the subjective satisfaction of the High Court was not based on the sufficient or relevant material. In this view of the matter, we cannot say that the service record of the appellant was unsatisfactory which would warrant premature retirement from service. Therefore, there was no justification to retire the appellant compulsorily from service.

20. The Supreme Court in the said case has observed that the High Court has based its decision for compulsory retirement of the Chief Judical Magistrate on the basis of selective service record and it was held that his work performance was unsatisfactory with bad and quarrelsome attitude and there were private complaints and his powers have been divested by the High Court In the latest year 1997-98 1998-99 there was no defect in judicial work but his disposal was found poor. He was assessed as a good officer but with poor disposal but his poor disposal was found on the ground of his involvement in continuous disciplinary proceedings in which he was ultimately exonerated by the High Court. The Supreme Court held that the High Court had not considered the totality of the relevant material and the decision to compulsory retire the officer was based only on selective material and, therefore, there was no justification to retire the appellant compulsorily from service.

21. In the case of Om Prakash Asati (supra), the Supreme Court has held in paragraph 14 to 19 as under:

14. Insofar as the instant contention is concerned, learned counsel for the rival parties invited out attention to Annexure R/4 (appended to the counteraffidavit filed on behalf of the Jal Nigam), i.e. a compilation of the service profile of the petitioner. A perusal thereof reveals, that the entries recorded in the Confidential Reports of the petitioner for the preceding 10 years were outlined therein. The entries taken into consideration were for the years 1994-1995 to 2003-2004. Shorn of further details it would be relevant to mention, that out of the aforesaid entries the work and conduct of the petitioner for the years 1997-1998, 1998-1999, 1999-2000 and 2002-2003 were recorded as "satisfactory". Entries for the year 1996- 1997, 2000-2001, 2001-2002 and 2003-2004 were recorded as "good". For the remaining two entries, the one for the year 1994-1995 was recorded as "very good" and for a part of the year of 1995-1996 the work of the petitioner was assessed as "excellent".

15.It is therefore apparent from the Annual Confidential Report of the petitioner, that over the last decade, preceding the impugned order dated 1.9.2005, there has been a regular and consistent deterioration from "excellent" and "very good" to "satisfactory". In fact in as many as 4 of the preceding 7 years, the work and conduct of the petitioner was evaluated as "satisfactory".

16.The compilation Annexure R/4 also outlines the various orders of punishment inflected on the petitioner. The orders of punishment taken into consideration were dated 18.4.2002, 23.11.2004 and 4.1.2005. The petitioner was punished 3 times in the preceding 4 years. Details in respect of the orders of punishment were mentioned in the counter affidavit filed on behalf of the respondents. Its summary was also made available for our consideration.

17. The said summary, pertaining to the orders of punishment, is being extracted hereunder:

"That the case of the petitioner was also screened and the petitioner has earned only 5.59 marks out of 30 marks which shows that his performance during last 10 years was not satisfactory. Besides this, vide Office Order dated 18.4.2002 in respect of irregularities inviting in tenders it has been found that the petitioner has not compared the rate offered by the contractor with Schedule G and H which is a gross negligence, hence he should be given a warning to be more cautious in future (Annexure R/1).

That again vide office order dated 23.11.2004 it has been found that respondent while posted as Executive Engineer at Lalitpur did not reside at Lalitpur and used to come from Jhansi which is against the Rules. Further it has been found that there has been delay in work, excess payment, financial irregularity and mis-utilization of funds because the petitioner could not had administrative control while discharging his responsibilities which is proved, hence a warning to this effect has been issued to the petitioner and it is directed that the order be kept in his personal file and character roll (Annexure R/2).

That again vide Officer Order dated 04.01.2005 after completion of an enquiry against the respondent and relevant documents it has been found that all the charges against him is proved regarding the incident at Kanpur while he was working as Project Manager in Ganga Pollution Control Unit in which 6 labourers have died and the Corporation had to pay compensation in respect of their death. Hence he has been awarded censor entry and his two increments were withheld. It was further directed that the said order be kept in his character roll and personal file (Annexure R/3)".

From the above it is apparent, that the claim of the petitioner was considered by the Screening Committee on the basis of the annual entries in his service record and the punishments suffered by him during the recent past.

18. We have given our thoughtful consideration to the material taken into consideration by the Screening Committee before passing the impugned order dated 1.9.2005. Besides the gradual deterioration in his career-graph noticeable from the last 7 years of his service (before the impugned order was passed), wherein 4 annual reports assessed the work and conduct of the petitioner as "average". It is also apparent that punishment orders were passed against the petitioner on 3 occasions within the last 4 years. These punishments were ordered because of negligence and irregularity in granting tenders; delay in work, excess payment, financial irregularity and mis-utilization of funds, lack of administrative control; and death of 6 labourers because of lack of supervision by the petitioner which resulted in huge financial loss by way of compensation which had to be paid to the families of the deceased labourers. Based on the aforesaid, it would not be incorrect to conclude, that there was a gradual deterioration in the overall performance of the petitioner.

19.In the aforesaid view of the matter, it is not possible for us to find fault with the impugned order of premature retirement dated 1.9.2005. We are therefore satisfied, that the service record of the petitioner was objectively evaluated. Thus viewed, the passing of the impugned order cannot be described as arbitrary or unfair in any manner. The deliberations adopted by the Jal Nigam while passing the impugned order dated 1.9.2005 are, therefore, not liable to be interfered with."

22. The Supreme Court in the said case has held that on the basis of the service record of the employee what was found was that there was gradual deterioration in his career graph noticeable from the last 7 years of his service where the assessment of his work was found to be average. It also noticed that there were punishments awarded to the employee because of negligence and irregularity in granting tender, delay in work, excess payments, financial irregularities and mis-utilization of fund, lack of administrative control and death of six labourers because of lack of supervision by the employee which resulted in huge financial loss to the Corporation by way of compensation.

23. In the case of Babu Lal Jangir (supra) paragraphs 13 to 20 have been relied upon by the learned counsel for the petitioner. It is not necessary to reproduce those paragraphs for the sake of gravity. Suffice it to say that those paragraphs are on the facts of that case only and referred to the judgments reported in (1992) 2 SCC 299 (Baikuntha Nath v. Chief District Medical Officer Baripada and another) and (1987) 2 SCC 188 (Brij Mohan Singh Chopra v. State of Punjab). However, the observations made by the Supreme Court in paragraph 19 of the judgment in the case of Babu Lal Jangir (supra) are defining so far as the present case is concerned, which shows that what was ultimately held by the Supreme Court was that if there are adverse remarks in the service career of an employee they will lose their effect when that employee is given promotion to the higher post and would not be taken into account when the case of that employee for compulsory retirement is taken up for consideration except only those adverse entries in the confidential report of that employee which touch upon his integrity.

24. The relevant paragraph 24 of the judgment of the Supreme Court in the case of Babu Lal Jangir reads as under:

"24.Having taken note of the correct principles which need to be applied, we can safely conclude that the order of the High Court based solely on the judgment in the case of Brij Mohan Singh Chopra was not correct. The High Court could not have set aside the order merely on the ground that service record pertaining to the period 1978-90 being old and stale could not be taken into consideration at all. As per the law laid down in the aforesaid judgments, it is clear that entire service record is relevant for deciding as to whether the government servant needs to be eased out prematurely. Of course, at the same time, subsequent record is also relevant, and immediate past record, preceding the date on which decision is to be taken would be of more value, qualitatively. What is to be examined is the "overall performance" on the basis of "entire service record" to come to the conclusion as to whether the concerned employee has become a deadwood and it is public interest to retire him compulsorily. The Authority must consider and examine the overall effect of the entries of the officer concerned and not an isolated entry, as it may well be in some cases that in spite of satisfactory performance, the Authority may desire to compulsorily retire an employee in public interest, as in the opinion of the said authority, the post has to be manned by a more efficient and dynamic person and if there is sufficient material on record to show that the employee "rendered himself a liability to the institution", there is no occasion for the Court to interfere in the exercise of its limited power of judicial review."

25. Learned standing counsel, on the other hand, submitted that the screening committee no doubt had the entire service record before it but since the decision to compulsory retire the petitioner was based essentially upon the four punishments which were awarded to him particularly one in which his integrity was not certified, therefore, it was not necessary for the screening committee to have referred in its report to the entire service record of the petitioner. The learned standing counsel further submits that even in the case of Babu Lal Jangir (supra) relied upon by the petitioner in paragraph 19 itself the Supreme Court has clarified that the adverse remarks in the service career of an employee would lose its effect when that employee is given promotion to a higher post except in a case where there is an entry which touches upon his integrity.

26. What we notice in the present case is that in the year 1998 when the petitioner was awarded penalty of withholding three increments with cumulative effect vide order dated 26.8.1998 as well as entry in his service record, his integrity was stated to be 'doubtful'. This observation was a part of the penalty order dated 26.3.1998. If the petitioner had any grievance against this penalty order he ought to have filed an appeal under the U.P. Government Servant (Discipline And Appeal) Rules, 1999. Instead the petitioner preferred a representation before the authority on 19.5.1998 and when that was not decided he kept mum and chose to file a writ petition only in 2011 with the grievance that his representation has not been decided and that writ petition was disposed of with liberty to the petitioner to move fresh representation within 15 days. In compliance of the order of the High Court dated 28.8.2017, the petitioner's representation dated 7.10.2017 and the claim set up therein has been rejected by the respondents.

27. The order dated 26.3.1998 was an order by way of punishment in departmental proceedings. Against the order dated 26.3.1998 the remedy before the petitioner was not by way of representation but by way of departmental appeal under the relevant Discipline and Appeal Rules applicable to the department and not by way of representation. When the statute provides a particular remedy to the employee it is the duty of the employee to avail that remedy. Therefore, the petitioner cannot set up a plea that he had preferred a representation which was not decided when infact the petitioner had never preferred any departmental appeal which could have been considered by the appellate authority as per Rules.

28. In (2002) 3 SCC 641, State of U.P. and others Vs. Vijay Kumar Jain, the Supreme Court in paragraph 16 has held that withholding of integrity of a government servant is a serious matter and that shifting of the entry to a different period or the entry beyond the period of 10 years of passing of the order of compulsory retirement does not mean that the rigour and sting of the adverse entry is lost and a single adverse entry relating to integrity was in itself sufficient to compulsorily retire the government servant. Paragraph 16 of the said judgement reads as under:

"16. Withholding of integrity of a government employee is a serious matter. In the present case, what we find is that the integrity of the respondent was withheld by an order dated 13.6.1997 and the said entry in the character roll of the respondent was well within ten years of passing of the order of compulsory retirement. During pendency of the writ petition in the High Court, the U.P. Services Tribunal on a claim petition filed by the respondent, shifted the entry from 1997-98 to 1983-84. Shifting of the said entry to a different period or entry going beyond ten years of passing of order of compulsory retirement does not mean that its vigour and sting of the adverse entry is lost. Vigour or sting of an adverse entry is not wiped out merely it is relatable to 11th or 12th year of passing of the order of compulsory retirement. The aforesaid adverse entry which could have been taken into account while considering the case of the respondent for his compulsory retirement from service, was duly considered by the State Government and said single adverse entry in itself was sufficient to compulsorily retire the respondent from service. We are, therefore, of the view that entire service record or confidential report with emphasis on the later entries in the character roll can be taken into account by the government while considering a case for compulsory retirement of a government servant."

29. Thus in our opinion the judgments of the Supreme Court in the case of Nand Kumar Varma (supra) and Om Prakash Asati (supra) have no application to the facts of the present case as they are on their own facts. On the contrary the observations made by the Supreme Court in the case of Vijay Kumar Jain (supra) that even a single adverse entry relating to integrity will not lose its rigour and sting and the observation in Babu Lal Jangir that if there are adverse remarks in the service career of an employee they will lose their effect when that employee is given promotion to the higher post and would not be taken into account when the case of that employee for compulsory retirement is taken up for consideration except only those adverse entries in the confidential report of that employee which touch upon his integrity, leave no doubt that even a single adverse entry touching on the integrity of the employee would be sufficient ground to compulsorily retire that employee. The judgment of Babu Lal Jangir (supra) is of no assistance to the petitioner rather it is contrary to his own case particularly in view of the observations made by the Supreme Court in paragraph 19 thereof.

30. We therefore, hold that in view of the observations of the Supreme Court in the case of Babu Lal Jangir (supra) in paragraph 19 thereof and observation in the case of Vijay Kumar Jain (supra), the adverse entry of doubtful integrity awarded to the petitioner by way of penalty alongwith penalty of with holding of increments with cumulative effects was sufficient to compulsorily retire him from service.

31. We therefore find no illegality or infirmity in the impugned order. The writ petition lacks merit and is accordingly dismissed.

32. The original record provided by the learned standing counsel is returned to him.

Order dated: 13th September, 2018

Vandana.