Ram Sumer vs State Of U.P. Thru Prin.Secy. Home ...
2021 Latest Caselaw 11191 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 5
 

 
Case :- SERVICE SINGLE No. - 28975 of 2019
 
Petitioner :- Ram Sumer
 
Respondent :- State Of U.P. Thru Prin.Secy. Home Lucknow And Ors.
 
Counsel for Petitioner :- Mohd. Shujauddin Waris
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Attau Rahman Masoodi,J.

Heard Sri Amit Bose learned Senior Counsel assisted by Sri Abhishek Bose learned counsel for the petitioner and Sri R.P.S. Chauhan learned Additional Chief Standing Counsel for the State.

This writ petition is directed against the order of compulsory retirement passed by the Superintendent of Police Railways, Lucknow on 9.7.2019 whereby the petitioner having been treated to be deadwood was retired compulsorily from service by invoking the power under Rule 56 of the fundamental rules contained in Financial Hand Book(Volume II, Part II to IV). The material relevant to be considered is prescribed under Rule 56(2) of the U.P. Fundamental Rules and the same for ready reference is extracted here under :-

"(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 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 record reveals that the screening committee has considered the service record pertaining to the years from 2009 to 2018. The annual confidential rolls for the entire period mentioned above record as under :-

Sl No.

Year

Remarks

1.

Satisfactory

2.

Satisfactory

3.

Good

4.

Satisfactory

5.

Satisfactory

6.

Satisfactory

7.

Satisfactory

8.

Satisfactory

9.

Satisfactory

10.

Satisfactory

In the column under punishment, one minor punishment has been recorded which was inflicted upon the petitioner on 13.11.2010. This punishment is in the nature of censure punishment subsequent whereto the annual entries awarded to the petitioner was 'Good' for the year 2011 and consistently satisfactory thereafter.

Before coming to the assessment of factual position, it is necessary to note the position of law in respect of Compulsory Retirement and scope of Judicial Review. Inarguably, every premature termination of service is not dismissal or removal. Contrary to Dismisssal or Removal, Compulsory retirement is not a punishment, as an established legal principle, but a mechanism for the Employer State to maintain the efficiency of its administration, departments and agencies by putting an end to the services of the employees who have become and are proved to be deadwood to it and to put such mechanism in process is the prerogative of the Employer State [Shyam Lal v. State of U.P., (1955) 1 SCR 26 : AIR 1954 SC 369 : (1954) 2 LLJ 139].

The wide principles relating to Compulsory Retirement were settled by a three-judges bench of the Supreme Court in Baikuntha Nath Das case [(1992) 2 SCC 299 : 1993 SCC (L&S) 521 : (1992) 21 ATC 649]:

"34. The following principles emerge from the above discussion:

(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour.

(ii) The order has to be passed by the government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the government.

(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary -- in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be a perverse order.

(iv) The government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter -- of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.

(v) An order of compulsory retirement is not liable to be quashed by a Court merely on showing that, while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference."

The Principles were further reiterated in State of Gujarat v. Umedbhai M. Patel, (2001) 3 SCC 314 : 2001 SCC (L&S) 576 : 2001 SCC OnLine SC 474, as below:

"11. The law relating to compulsory retirement has now crystallised into definite principles, which could be broadly summarised thus:

(i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.

(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.

(iii) For better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer.

(iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.

(v) Even uncommunicated entries in the confidential record can also be taken into consideration.

(vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable.

(vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer.

(viii) Compulsory retirement shall not be imposed as a punitive measure".

The primary consideration for screening the public servant as deadwood is to sub-serve the public interest by maintaining administrative efficiency. Further, it is logically settled that the evaluation of efficiency, employability and performance of the employee is very subjective and can be best made by the employer itself.

Where a decision is taken in adherence to the procedure and having regard to the factors, prescribed by law, the judicial scrutiny of the same gets highly confined but not excluded altogether. The limited judicial review cannot allow courts to sit in appeal to the subjective satisfaction of the employer State, but it may examine: (1) the existence or non-existence of material to base such satisfaction; (2) the satisfaction standing on extraneous grounds i.e. Malafide and (3) the perversity of the order i.e. whether any reasonable person would form the requisite opinion on the basis of the material on record.

In the matter in hand, the petitioner has pressed on the latter two grounds, namely: (i) That the impugned order is passed malafide (ii) That the order is perverse insofar as it is based only on single censure entry.

Firstly, it is desirable to have a look on the aspect of mala fide which is stated to have influenced the action impugned herein this writ petition. The petitioner has traced the genesis of the impugned action to a point of time in the year 2009 when some members of Group-D proposed to form an Association of Group-D employees. It is evident from the pleadings on record that some of the Group-D employees who had played a front role for formation of the employees Association were dismissed from service and the orders so passed were set aside by this Court. Even the criminal proceedings were resorted to by the departmental authorities when a peaceful march was carried out by 40-50 employees on 12.7.2009 on the ground of threat to law and order situation. Although the petitioner was not a member of the Association but his role and participation was suspected. The impugned order has been passed after an elapse of 10 years from the said incident. Neither the letter dated 12-8-2009 by Director General of Police, Uttar Pradesh to Inspector General of Police (Telecommunication), Uttar Pradesh nor the FIR dated 12-7-2009 expressly named the petitioner. Connecting this incident of distant past to the impugned order of compulsory retirement passed on 9-7-2019 would be an extrapolation. This stretches the string of the imputation of malafide to an extent that it breaks down itself. Therefore the ground of mala fide distance vitiated.

Now the claim of the Petitioner lies on the question whether an order of compulsory retirement can be justified on the basis of material present against the Petitioner i.e. single censure entry.

Learned Additional Chief Standing Counsel has argued that even a single punishment howsoever minor it may be, is a sufficient reason for classifying a public servant as deadwood, therefore, the impugned order does not suffer from any illegality. The exercise of power has been defended on the strength of the judgments passed by the Hon'ble Apex Court in the case of State of Punjab versus Gurdas Singh, State of U.P. and others versus Raj Kishore Goyal and Nawal Singh versus State of U.P. and others reported in 1998(4) SCC 92, 2001(10) SCC 183 and 2003(8) SCC 117 respectively.

In State of Punjab v. Gurdas Singh (SUPRA), the apex Court, relying on the principles enunciated in Baikuntha Nath Das case (SUPRA), observed:

"....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 whole of his tenure of service whether it is in public interest to retain him in the service. The whole record of service of the employee will include any uncommunicated adverse entries as well."

In State of U.P. v. Raj Kishore Goel, (SUPRA), the order of Compulsory Retirement under Rule 56 of the Uttar Pradesh Fundamental Rules against the respondent employee was passed apparently on the basis of three warnings and one censure entry. The Supreme Court observed as below:

"2. From the proceedings of the Review Committee report, which examined the cases of several engineers including the case of the respondent to decide the question as to whether it would be in the public interest to compulsorily retire the employee concerned, it appears apart from the warnings and censure referred to earlier, there were some adverse entries also for the year 1995-96. That apart, the High Court committed a mistake by coming to the conclusion that an uncommunicated entry could not have been taken into consideration by the appropriate authority, the same being contrary to a three-Judge Bench decision in Baikuntha Nath Das v. Chief District Medical Officer, Baripada [(1992) 2 SCC 299 : 1993 SCC (L&S) 521 : (1992) 21 ATC 649] . The very Rule under which the respondent has been compulsorily retired came up for consideration recently in the case of State of U.P. v. Lalsa Ram [(2001) 3 SCC 389 : 2001 SCC (L&S) 593 : (2001) 2 Scale 221] . The entire case-law and parameters for exercise of power by the High Court under Article 226 against an order of compulsory retirement have been considered therein and applying the test laid therein to the facts and circumstances of the present case and on examining the impugned judgment, we are of the considered opinion that the High Court erred in law in interfering with the order of the compulsory retirement passed against the respondent. In our view, the conclusion arrived at by the appropriate authority on the materials concerned cannot be held to be a conclusion of an unreasonable man or arbitrary conclusion which could confer jurisdiction on a court to interfere with the same."

The issue of single censure entry was specifically considered in the case of H.G. Venkatachaliah Setty v. Union of India, (1997) 11 SCC 366. The Bench constituting S.C. Agarwal and G.T. Nanavati JJ. observed:

"4. It has been further urged by Shri Sundaravardan that the order of compulsory retirement could not be passed on the basis of a solitary adverse entry contained in the annual confidential report because the earlier record of the appellant was clean. Merely because till his promotion to the post of Deputy Chief Mechanical Engineer on 20-11-1974, there was nothing adverse in the service record of the appellant, does not mean that the action for compulsory retirement of the appellant could not be taken after such promotion if it is found that after such promotion there has been deterioration in his performance and an adverse remark about his integrity has been made. The contention of Shri Sundaravardan that an order for compulsory retirement cannot be passed on the basis of a solitary adverse entry in the service record cannot be accepted. The question whether action for compulsory retirement should be taken on the basis of a solitary adverse entry has to be considered in the facts of each case. Having regard to the facts of the present case, it cannot be said that action for compulsory retirement could not be taken against the appellant."

The case of Nawal Singh v. State of U.P., (2003) 8 SCC 117 : 2003 SCC (L&S) 1212 : 2003 SCC OnLine SC 1064 particularly relates to Judicial Officers. The Apex Court has also taken note of the same:

"2. At the outset, it is to be reiterated that the judicial service is not a service in the sense of an employment. Judges are discharging their functions while exercising the sovereign judicial power of the State. Their honesty and integrity is expected to be beyond doubt. It should be reflected in their overall reputation. Further, the nature of judicial service is such that it cannot afford to suffer continuance in service of persons of doubtful integrity or who have lost their utility. If such evaluation is done by the Committee of the High Court Judges and is affirmed in the writ petition, except in very exceptional circumstances, this Court would not interfere with the same, particularly because the order of compulsory retirement is based on the subjective satisfaction of the authority."

With the above observation, the Supreme Court has shown degree of reluctance to sit in appeal to the subjective satisfaction of the High Court. The Supreme Court held:

"12. From the facts narrated above, even if we were to sit in appeal against the subjective satisfaction of the High Court, it cannot be said that the orders of compulsory retirement of the appellants are, in any way, erroneous or unjustified. Further, it is impossible to prove by positive evidence the basis for doubting the integrity of the judicial officer. In the present-day system, reliance is required to be placed on the opinion of the higher officer who had the opportunity to watch the performance of the officer concerned from close quarters and formation of his opinion with regard to the overall reputation enjoyed by the officer concerned would be the basis."

Similar to Nawal Singh (Supra), the case of Pyare Mohan Lal v. State of Jharkhand, (2010) 10 SCC 693 : (2011) 1 SCC (L&S) 550 : 2010 SCC OnLine SC 1010 relates to Judicial Officer. The impugned order, in the case, had relied on adverse entry relating to integrity of the officer. The Supreme Court upheld the impugned order in following terms:

"29. The law requires the authority to consider the "entire service record" of the employee while assessing whether he can be given compulsory retirement irrespective of the fact that the adverse entries had not been communicated to him and the officer had been promoted earlier in spite of those adverse entries. More so, a single adverse entry regarding the integrity of an officer even in remote past is sufficient to award compulsory retirement. The case of a judicial officer is required to be examined, treating him to be different from other wings of the society, as he is serving the State in a different capacity. The case of a judicial officer is considered by a committee of Judges of the High Court duly constituted by the Hon'ble the Chief Justice and then the report of the Committee is placed before the Full Court. A decision is taken by the Full Court after due deliberation on the matter. Therefore, there is hardly any chance to make the allegations of non-application of mind or mala fides.

30. Be that as it may, the service record of the petitioner revealed that he had not been promoted in the regular cadre of the District Judge as he was not found fit for the same because of the adverse entries. The petitioner was promoted as Additional District Judge on ad hoc basis and posted in the Fast Track Court. It was definitely not a promotion on merit (selection). The High Court had objectively decided to recommend his compulsory retirement and the State authorities acted accordingly. No fault can be found with the decision-making process or with the decision."

Needless to reiterate that the case of Judicial Officers stands on different footing from the other services as Administration of Justice is not an ordinary service. Justice should not only be done, but should manifestly and undoubtedly be seen to be done. The special case of Judicial Officers has been explained at length in the case of Ram Murti Yadav v. State of U.P., (2020) 1 SCC 801 : (2020) 1 SCC (L&S) 245 : 2019 SCC OnLine SC 1589:

"14. A person entering the judicial service no doubt has career aspirations including promotions. An order of compulsory retirement undoubtedly affects the career aspirations. Having said so, we must also sound a caution that judicial service is not like any other service. A person discharging judicial duties acts on behalf of the State in discharge of its sovereign functions. Dispensation of justice is not only an onerous duty but has been considered as akin to discharge of a pious duty, and therefore, is a very serious matter. The standards of probity, conduct, integrity that may be relevant for discharge of duties by a careerist in another job cannot be the same for a judicial officer. A Judge holds the office of a public trust. Impeccable integrity, unimpeachable independence with moral values embodied to the core are absolute imperatives which brooks no compromise. A Judge is the pillar of the entire justice system and the public has a right to demand virtually irreproachable conduct from anyone performing a judicial function. Judges must strive for the highest standards of integrity in both their professional and personal lives.

15. It has to be kept in mind that a person seeking justice, has the first exposure to the justice delivery system at the level of subordinate judiciary, and thus a sense of injustice can have serious repercussions not only on that individual but can have its fall out in the society as well. It is, therefore, absolutely necessary that the ordinary litigant must have complete faith at this level and no impression can be afforded to be given to a litigant which may even create a perception to the contrary as the consequences can be very damaging. The standard or yardstick for judging the conduct of the judicial officer, therefore, has necessarily to be strict. Having said so, we must also observe that it is not every inadvertent flaw or error that will make a judicial officer culpable. The State Judicial Academies undoubtedly has a stellar role to perform in this regard. A bona fide error may need correction and counselling. But a conduct which creates a perception beyond the ordinary cannot be countenanced. For a trained legal mind, a judicial order speaks for itself."

It is worthy to note that the services of a Grade D employee in State Police Department, in the capacity of Cook, can certainly not be scaled with the same yardstick as that of the services of a Judicial Officer. The Service of Petitioner did not involve any public interaction, which could directly or indirectly bring any good or bad name to the concerned Department.

In State of U.P. v. Vijay Kumar Jain, (2002) 3 SCC 641 : 2002 SCC (L&S) 455 : 2002 SCC OnLine SC 341, the impugned order relied on four grounds. The Supreme Court, while upholding the impugned order has emphasized on the ground of integrity:

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 the order of compulsory retirement does not mean that 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 the 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.

The issue was also contested in the case of Rajeev Kumar Khare v. State of U.P. through the Principal Secretary Youth Department, Government of U.P., Civil Secretariat and Others reported in 2019 SCC OnLine All 5670 : (2019) 6 All LJ 369, where the Single Bench of this Court had refused to interfere with the impugned order. Again, that matter can also be similarly distinguished from the present case on the ground that the integrity of the Petitioner in the said case had been withheld:

"9. Impeaching the aforesaid order dated 10.8.2017, learned counsel for the petitioner has submitted that single order of punishment in more than 29 years of service cannot, under any circumstances, be made the basis of order for compulsory retirement and if such action is taken, such order of compulsory retirement would be patently illegal and arbitrary. Sri. Amit Bose has also submitted that other than said punishment, no other punishment has been imposed upon the petitioner, therefore, on the basis of single punishment, the petitioner may not be retired compulsorily......

.....11. Per contra, Dr. Udai Veer Singh, learned Addl. Chief Standing Counsel has submitted that even if the entries for the aforesaid period were not available with the Screening Committee, even then the recommendation for compulsory retirement of the petitioner could have been issued only on the basis of punishment awarded to the petitioner on 29.6.2010 whereby not only the petitioner has been awarded the punishment of withholding of two increments of salary permanently and censure entry but also the integrity of the petitioner was found doubtful and the same was withheld. As per Dr. Udai Veer Singh, if the entries of the petitioner for that years i.e. for the years 2013-14 to 2016-17 are found satisfactory, for the argument's sake, even then the order of compulsory retirement could have been issued against the petitioner."

In the case of State of Gujarat v. Umedbhai M. Patel, (2001) 3 SCC 314 : 2001 SCC (L&S) 576 : 2001 SCC OnLine SC 474, the impugned order was not based on any material other than a pending enquiry. The apex court, having regard to particular facts of the case, dismissed the appeal of State against the order of the High Court setting aside the order of compulsory retirement:

"12. In the instant case, there were absolutely no adverse entries in the respondent's confidential record. In the rejoinder filed in this Court also, nothing has been averred that the respondent's service record revealed any adverse entries. The respondent had successfully crossed the efficiency bar at the age of 50 as well as at 55. He was placed under suspension on 22-5-1986 pending disciplinary proceedings. The State Government had sufficient time to complete the enquiry against him but the enquiry was not completed within a reasonable time. Even the Review Committee did not recommend the compulsory retirement of the respondent. The respondent had only less than two years to retire from service. If the impugned order is viewed in the light of these facts, it could be said that the order of compulsory retirement was passed for extraneous reasons. As the authorities did not wait for the conclusion of the enquiry and decided to dispense with the services of the respondent merely on the basis of the allegations which had not been proved and in the absence of any adverse entries in his service record to support the order of compulsory retirement, we are of the view that the Division Bench was right in holding that the impugned order was liable to be set aside. We find no merit in the appeal, which is dismissed accordingly. However, three months' time is given to the appellant State to comply with the directions of the Division Bench, failing which the respondent would be entitled to get interest at the rate of 18% for the delayed payment of the pecuniary benefits due to him."

The logical appreciation of the judgments discussed above shows that the Courts are required to observe judicial restraint in sitting in appeal with the subjective satisfaction of the authority. The Courts, however, have examined the existence and adequacy of the material forming the basis of such satisfaction. In none of the cases above, the Order of Compulsory Retirement is solely based on Single Censure Entry, it is supplemented by uncommunicated adverse entries or the special nature of service which cannot sustain any dent in its reputation.

Learned counsel for the petitioner in the backdrop of the aforementioned character roll has argued that the service record under consideration by the screening committee is not such which may be classified as adverse. According to him, it is the service record in the nature of adverse that may authorize the screening committee to recommend the public servant for having become deadwood and consequently he may be recommended for compulsory retirement within the scope of the Rule 56 extracted above.

It is further argued that the solitary minor punishment inflicted upon the petitioner became irrelevant once the annual confidential rolls for the subsequent period have remained constantly satisfactory and integrity intact. The petitioner who was a class-IV employee has an unblemished service record throughout; therefore, merely on the strength of a minor punishment inflicted in the distant past, the decision so arrived at is clearly illegal and arbitrary.

The petitioner was holding a Group-D post and was not vested with any administrative authority that may have led to any managerial consequences to the department. The duty discharged by the petitioner by and large was manual. It has also come on record that out of 53 Group-D employees who were subjected to screening alongwith the petitioner, only two persons including the petitioner were classified as deadwood and consequently retired compulsorily from service.

It is also not in dispute that the integrity of the petitioner for the period under consideration as well as for rest of his service tenure has remained beyond doubt, as such, the argument in nutshell is to the effect that the solitary minor punishment awarded to the petitioner was not decisive of treating the petitioner as deadwood by any degree of prudence.

The Court finds strength in Petitioner's case. The impugned order, being perverse, is liable to be set aside. Thus, in my considered opinion, the impugned order passed by the competent authority being illegal and arbitrary is hereby set aside, the petitioner shall be reinstated in service with all consequential benefits inclusive of past salary. The writ petition is allowed with no order as to cost.

Order Date :- 6.10.2021

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