Jharkhand High Court
Shrikant Shitanshu vs State Of Jharkhand on 27 July, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S). No. 6338 of 2019
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Shrikant Shitanshu ......... Petitioner.
Versus
1. State of Jharkhand.
2. Principal Secretary, School Education and Literacy Department, Govt.
of Jharkhand, Ranchi.
3. Director, Primary Education, Primary Education Directorate, School
Education and Literacy Department, Govt. of Jharkhand, Ranchi.
4. Director, Mid Day Meal Authority, Ranchi.
.......... Respondents.
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CORAM: THE HON'BLE MR. JUSTICE DR. S.N.PATHAK
(Through: Video Conferencing)
For the Petitioner : Mr. Rajendra Krishna, Advocate
For the Respondents : Mr. Kaushik Sarkhel, GA-V
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08/ 27.07.2021 At the very outset it has been submitted by learned counsel appearing for the
petitioner that due to some typographical error in the order dated 07.07.2021 the case
number of the writ petition has been wrongly typed as W.P.(S). No. 6388 of 2019
instead of W.P.(S). No. 6338 of 2019 and hence, the same requires correction.
2. Learned counsel for the respondents have no objection, if such correction
is made.
3. In such circumstances, the order dated 07.07.2021 passed in the instant
case, is modified to the extent that in cause-title of the said order, the case number
of the writ petition be read as W.P.(S). No. 6338 of 2019 in place of W.P.(S). No.
6388 of 2019.
4. Heard the parties.
5. In the instant writ application prayer has been made for quashing the order
dated 01.11.2019 (Annexure-4), issued by respondent No. 3, whereby the
petitioner has been made to retire compulsory from the date of issuance of the
order by invoking the provisions contained in Rule 74 (b) (ii) of the Jharkhand
Service Code.
Petitioner has further prayed for a direction upon the respondents to
reinstate him on the post of Block Education Extension Officer, Rajmahal,
Sahebganj i.e. the post on which he was working before issuance of the impugned
order dated 01.11.2019 and after reinstatement, respondent-authorities be directed
to release all the consequential benefits in favour of the petitioner.
6. The facts of the case in short is that petitioner was appointed in the year
1991 as a Lecturer in Teachers Training College at Tarrar, Daud Nagar,
Aurangabad. In the year 1993, the petitioner was thereafter transferred as Block
Education Extension Officer, Baliapur at Dhanbad and then, he was transferred to
several places as per the administrative exigencies and finally in the year 2014 he
was transferred to Rajmahal, Sahebganj. It is the case of the petitioner that in his
entire service career, no complaint has been made against him from any corner
and he was rendering satisfactory service. During his entire service neither any
departmental proceeding nor any criminal case was ever initiated or is pending
against the petitioner. Since the service of the petitioner was found satisfactory, he
has been given the benefits of 1st ACP in the year 2003 and the benefits of 2nd
upgradation of pay-scale under MACP Scheme in the year 2013 by the
respondent-authorities. However, while he was posted as Block Education
Extension Officer, Rajmahal, the petitioner received a show-cause notice dated
11.09.2019 issued by respondent No. 3 on the charge of non-conduction of mid-
day meal against the fixed target at Rajmahal Block and Udhuwa Block. Upon
receipt of the said show-cause, the petitioner submitted his reply vide letter dated
25.09.2019, explaining therein the reasons for non-conduction of the mid-day
meal properly for few days. However, to the utter surprise of the petitioner,
without considering his reply, respondent No. 3 vide letter dated 01.11.2019 made
the petitioner to compulsory retire under the provisions contained in Rule 74 (b)
(ii) of Jharkhand Service Code.
Aggrieved by the said letter dated 01.11.2019, the petitioner has knocked
the door of this Court.
7. Mr. Rajendra Krishna, learned counsel appearing for the petitioner
strenuously urges that the impugned order dated 01.11.2019 is non est in the eyes
of law. Learned counsel submits that from perusal of the show-cause it appears
that whatever charges have been levelled against the petitioner regarding non-
conduction of the mid-day meal under Section 9(3) of the Mid Day Meal Rule,
2015 is vague taking into consideration the fact that in the show-cause, nowhere it
is mentioned as for how many days the mid-day meal was not properly
conducted. Learned counsel further argues that order of compulsory retirement is
not at all attracted in this case. Petitioner has never been subjected to a
departmental proceeding or any enquiry neither the charges levelled against the
petitioner is proved.
In support of his contention, learned counsel for the petitioner submits that
in a similar matter, this Court vide its order dated 22.01.2020, passed in W.P.(S).
Nos. 6438 of 2018 with 2232 of 2019 (Binit Kumar Vs. Jharkhand State Food
and Civil Supplies Corporation Ltd.) has considered every aspect of the matter
regarding compulsory retirement and quashed the order of compulsory retirement
passed against the petitioner of that case. Learned counsel further argues that the
ratio laid down by this Court has attained finality in view of judgment passed by
Hon'ble Apex Court in case of Arun Kumar Gupta Vs. State of Jharkhand &
Anr., reported in (2020) 13 SCC 355.
8. Per contra, counter-affidavit has been filed. Learned counsel appearing for
the respondent-State justifying the impugned order submits that petitioner was not
taking any interest in his duties whatsoever and the same would be evident from
the fact that the conduction of mid-day meals was regularly being interrupted.
Learned counsel submits that petitioner has lost interest towards his duties and the
same is evident from the fact that even after bringing into his notice about these
interruptions in mid-day, he failed to take appropriate steps and measure to
improve upon the situation. The petitioner was not inspecting/ visiting the schools
regularly and he was completely unaware of the reasons for such interruptions.
However, learned counsel very fairly submits that since the impugned
order is non-speaking, cryptic and capricious, the same is not tenable in the eyes
of law but at the same time, the petitioner cannot be left scot-free since on similar
charges, other persons have been inflicted with punishment.
9. Be that as it may, having heard the rival submissions of the parties and
upon perusal of the documents brought on record, this Court is of the considered
view that the case of the petitioner needs consideration. Admittedly, compulsory
retirement is neither punitive nor entail civil consequences but at the same time
the entire service records of the concerned employee must be considered though
latter and more contemporaneous records must be given due weightage.
10. The Hon'ble Apex Court in case of Baikunth Nath Das Vs. Chief
District Medical Officer, reported in (1992) 2 SCC 299 in para 34 has held as
under:
"34. The following principles emerges from the above
discussion :-
(i) An order of compulsory retirement is not a punishment. It
implies no stigma nor any suggestion of misbehavior.
(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 to be 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) malafide 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 important to record of and performance during the later
years. The record to be so considered would naturally include
the entries in the confidential records/character rolls, both
favourable and adverse. If a government servant is promoted
to a higher post notwithstanding the adverse remarks, such
remarks lose their sting, more so, if the promotion is based
upon merit (selection) and not upon seniority.
(v) An order of compulsory retirement is not liable to be
quashed by a Court merely on the showing that while passing
it un-communicated adverse remarks were also taken into
consideration. That circumstance by itself cannot be a basis
for interference.
The judicial scrutiny has not been excluded in the light
of law laid down by the Hon'ble Supreme Court referred
here-in-above. The record needs to be considered is the
entries in the confidential records/character rolls both
available and subsequent promotion needs to be seen and
accordingly a decision can be taken.
The aforesaid principle has been completely ignored
rather it was not looked into otherwise the order of
compulsory retirement would not have been passed."
Further in the case of R.L. Butail Vrs. Union of India & Ors., reported in
(1970) 2 SCC 876, the Hon'ble Apex Court has held that "An order of compulsory
retirement is not an order of punishment. It is actually a prerogative of the
government, but it should be based on material and has to be passed on the
subjective satisfaction of the government."
There is nothing on record to suggest that the respondents had formed any
opinion to the effect that petitioner has become a dead wood, rather the order has
been passed whimsically by the respondents. The law relating to compulsory
retirement has now been crystallised into definite principles, which could be
broadly summarised thus:
(a) 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.
b) The order of compulsory retirement shall not be passed as a short
cut to avoid departmental enquiry when such course is more desirable.
11. The same view was taken by the Hon'ble Apex Court in case of Arun
Kumar Gupta Vs. State of Jharkhand & Anr., reported in (2020) 13 SCC 355,
though it was a case of Judicial Officer.
12. In the present case, the respondents have not led any evidence for coming
to a finding that conduction of Mid-day Meal which is said to be within the
jurisdiction of the present petitioner, were interrupted regularly. From the records
it appears that merely on one instance the petitioner was not present due to
compelling circumstances the same cannot be said to be a regular practice. No
reason has been assigned in the impugned order and in absence of any reasoning,
it can comfortably be said that the order of compulsory retirement is not tenable
in the eyes of law and fit to be quashed and set aside.
13. As a sequel to the aforesaid observations, rules, guidelines, legal
propositions and judicial pronouncements, order dated 01.11.2019 (Annexure-4),
issued by respondent No. 3, by which the petitioner has been made to retire
compulsory is hereby quashed and set aside.
14. Since in similar circumstances, other persons have been inflicted with
punishment, the matter is remitted back to the respondents to pass appropriate
orders in accordance with law, as has been done in case of other similarly situated
persons, within a period of twelve weeks from the date of receipt/ production of a
copy of this order.
15. Resultantly, the writ petition stands allowed.
(Dr. S.N. Pathak, J.)
Kunal/-
