Madhya Pradesh High Court
Panchayat And Rural Development ... vs Anuranjan Vijayvargiya on 28 March, 2023
Author: Sushrut Arvind Dharmadhikari
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA
ON THE 28 th OF MARCH, 2023
WRIT APPEAL No. 1236 of 2017
BETWEEN:-
1. STATE OF M.P. THROUGH PRINCIPAL SECRETARY
TO GOVT. OF M.P. PANCHAYAT AND RURAL
DEVELOPMENT DEPARTMENT VALLABH
BHAWAN BHOPAL (MADHYA PRADESH)
2. THE COLLECTOR DISTT. INDORE (MADHYA
PRADESH)
.....APPELLANT
( SHRI AAKASH SHARMA, LEARNED GOVT. ADVOCATE FOR THE
APPELLANT/STATE)
AND
1. ANURANJAN VIJAYVARGIYA S/O SHRI
BRIJMOHAN VIJAYVARGIYA, AGED 48 YEARS,
127, JAORA COMPOUND, IST FLOOR 203, INDORE
(MADHYA PRADESH)
2. CHIEF EXECUTIVE OFFICER ZILA PANCHAYAT
NEAR COLLECTORATE,INDORE (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI ASHOK KUMAR SETHI ,SENIOR ADVOCATE WITH SHRI RAHUL
SETHI, LEARNED COUNSEL FOR THE RESPONDENTS.
Th is appeal coming on for orders this day, JUSTICE SUSHRUT
ARVIND DHARMADHIKARI passed the following:
ORDER
Heard finally with the consent of both the parties.
T his writ appeal under Section 2(1) of the Madhya Pradesh Uccha
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Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 has been filed by
the appellants being aggrieved by the order dated 14.09.2017 passed by learned
Single Judge by which the petition preferred by the respondent no. 1 has been
allowed quashing the order dated 29.02.2017,whereby the respondent was
compulsorily retired under the provisions of Rule 42(1)(b) of the M.P. Civil
Services (Pension) Rules, 1976 [For short, "Rules of 1976" hereinafter] with a
direction to reinstate the respondent no.1 in service with all consequential
benefits.
2. The brief facts of the case are that respondent no.1 was the original
petitioner before this Court who was appointed on the post of Assistant
Engineer(Civil) vide order dated 22.12.1980. He joined the service on
17.01.1981. Thereafter the respondent no.1 was promoted to the post of
Executive Engineer vide order dated 14.10.1991 and was given the benefit of
FR-22-D vide order dated 06.12.1991.The respondent no.1 was sent on
deputation to the M.P. Rural Development Authority on 17.01.2002 on the post
of General Manager. The appellants by invoking the provisions of Rule 42(1)(b)
of Rules of 1976 had retired the respondent no.1 compulsorily. Being aggrieved
by the aforesaid action, the respondent no.1 filed a writ petition in which it was
contended that respondent no.1 was having unblemished service record. He did
not face any departmental inquiry or punishment. He was also not
communicated any adverse confidential report. The entire service record was
n o t considered before passing the order of compulsory retirement. The
respondent cannot be treated as a dead wood, since he was appointed by
proper selection through Public Service Commission.
3. Learned counsel for the appellant contended that the learned Single
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Judge without considering the service record/proceedings of the screening
committee dated 06.11.2006 has passed the impugned order therefore, the same
deserves to be interfered with. Reasonable opportunity ought to have been
granted to the State Government for producing the relevant record of the
screening committee. The learned Single Judge also erred in not appreciating
Rule 41(1)(b) of the Rules of 1976 which empowers the State Government to
retire compulsorily an employee after reaching to the subjective satisfaction.
The records and the proceedings of the screening committee clearly goes to
show that there are various irregularities committed by the respondent no.1 and
he had faced several departmental inquiries. Inspite of that writ Court allowed
the petition holding that the service record of the respondent no.1 was
unblemished. Moreover, the writ Court ought to have considered the fact that
the compulsory retirement as per Rule 42(1)(b) of Rules of 1976 is in no way
stigmatic or it can be termed as a punishment, therefore interference of this
Court is necessary.
4. Per contra, learned Sr. Advocate appearing for the respondent no.1
submitted that the respondent no.1 is having unblemished service record. He
was not faced any departmental inquiry or punishment. He was also not
communicated any adverse confidential report. The authorities without
considering the entire service record has passed the impugned order. The
respondent no.1 cannot be treated as dead wood since he was appointed
through Public Service Commission. There was no material available with the
appellants to retire the respondent no.1 compulsorily. The original records were
not produced before the learned Single Judge inspite of repeated opportunities
granted for more than 04 years. Therefore, as per Rule 42(1) of Rules of 1976,
the order of compulsory retirement could not have been passed.
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5 . Learned Sr. counsel further contended that new grounds have been
raised for the first time in the writ appeal which could not have been done in the
light of the judgment of Division Bench of this Court in the case of Suresh
Chaturvedi Vs. Indian Oil Corporation Ltd. [2011(1) MPLJ 203] in which
it is held that documents obtained by the appellants after dismissal of the writ
petition cannot be permitted to be placed on record. The appeal filed by the
appellants/State is frivolous without any merit and substance and, therefore, the
same is liable to be dismissed.
6. Heard, learned counsel for the parties and perused the record
including report of the screening committee.
7. On perusal of the report of the screening committee (Annexure A-8)
which reveals that the entire service record of the respondent no.1 was not at all
considered by the committee before coming to the conclusion that the
respondent no.1 is a dead wood and needs to be compulsorily retired. Learned
counsel for the appellants did not produced the original records pertaining to
the proceedings of the screening committee, but only produced the ACRs of
the respondent no.1. The original record was also not produced before the
learned Single Judge at any point of time. Even the impugned order passed on
29.03.2007 only mentions the provisions under which the respondent was
compulsorily retired, which is a non-speaking order.
8. On perusal of the record, whatsoever was produced before the Court,
it was seen that the new grounds raised in the writ appeal in para 4 to 8 were not
the subject-matter of consideration by the screening committee. Without
following the due procedure of law, the order of compulsory retirement could
not have been passed by the appellants. It appears that the screening committee
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has made the recommendations on the basis of certain extraneous
consideration.
9. The learned Single Judge in para 6, 7,8 and 9 of its decision has taken
into consideration the fact that no material was available with the appellants to
retire the respondent no.1 compulsorily. Even in the return filed by the
appellants, it is mentioned that neither there is any adverse entry in the annual
confidential report nor the respondent no.1 has been communicated any
adverse confidential report. The appellants have not replied to the aforesaid
contentions of the respondent no.1. Moreso, the date on which the screening
committee met and gave its recommendation is also not mentioned. While
placing reliance on the principle laid down in the case of State of M.P. and
Another Vs. Noor Jama Khan & Another [ 2002(5) MPHT 37(DB)] and
other decisions of the Apex Court, the order of compulsory retirement can only
be passed on the subjective satisfaction of the State Government, but the
subjective satisfaction cannot be done in a manner which a prudent man can
never conceive. This Court is very well aware of the fact that the scope of
judicial review of an order of compulsory retirement based on subjective
satisfaction of the employer is extremely narrow and restrictive. Unless the
order of compulsory retirement is found to be arbitrary or capricious, vitiated
by malafide, or overlooks the relevant material, no interference is warranted. It is
not in dispute that Courts cannot sit in the judgment over the decision taken by
the employer. Even principles of natural justice have no application in the case
o f compulsory retirement. Even if some tangible material is available against
him , the employee can be compulsorily retired in public interest. Of course, if it
is a case of no material or no evidence, the same can certainly be held to be
arbitrary or without application of mind. But, in the present case, no records
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have been produced by the appellants to show that the screening committee as
well as the competent authority have come to the conclusion only after having
scrutinized the records after following the principles of natural justice.
Admittedly, no relevant record was produced before the learned Single Judge as
well as before this Court.
10. Taking into consideration the case of Suresh Chaturvedi(supra)
and the fact that neither grounds raised in the writ appeal were raised before the
learned Single Judge nor the record was produced, the learned Single Judge has
not committed any error by coming to the conclusion that the order of
compulsory retirement deserves to be set aside and accordingly allowed the
petition and set aside the order dated 29.03.2007. No fault can be found with
the order passed by the learned Single Judge.
11. Looking to the overall facts and circumstances of the case, we do
not find any reason to interfere in the order passed by the learned Single Judge
and hence the writ appeal is accordingly dismissed.
No order as to cost.
(S. A. DHARMADHIKARI) (PRAKASH CHANDRA GUPTA)
JUDGE JUDGE
sh
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Signed by: SEHAR HASEEN
Signing time: 3/29/2023
5:30:21 PM
