Ajit Kumar Mohapatra vs State Of Odisha & Others
2023 Latest Caselaw 13412 Ori

     IN THE HIGH COURT OF ORISSA AT CUTTACK

                   W.P.(C) No.37932 of 2021

       An application under Articles 226 and 227 of the
Constitution of India.

      Ajit Kumar Mohapatra                   ....          Petitioner

                                      Mr. B. Routray, Sr. Advocate


                                  -versus-

     State of Odisha & others                ....     Opp. Parties
                                              Mr. S. Das, A.G.A.



                            CORAM:

            JUSTICE A.K. MOHAPATRA
_____________________________________________________
Date of hearing : 12.04.2023 | Date of Judgment: 31.10.2023
______________________________________________________

A.K. Mohapatra, J. :

1.      By filing the above noted writ application, the petitioner

has approached this Court to quash the impugned order dated

12.11.2021 under Annexure-5 issued by the Opposite Party No.1

and further for a direction to the Opposite Party No.1 to allow the

Petitioner to continue as Deputy Superintendent of Excise and In-

Charge of Superintendent of Excise till his superannuation. The

Order No.4388/Ex., Bhubaneswar dated 12.11.2021 has been issued

in exercise of power under Rule 71(a) of the Orissa Service Code
                                 // 2 //



thereby taking a decision to retire the Petitioner from service under

the Government, on a review as he has attained the age of 55 years

with effect from 12.11.2021, by allowing him three months pay and

allowance in lieu of three months notice as provided in the

aforesaid rules.

2.      The impugned order dated 12.11.2021 under Annexure-5 is

nothing but an order of compulsory retirement of the Petitioner

from Government service on attaining the age of 55 years.

Compulsory retirement as provided under Rule 71 (a) of the Orissa

Service Code is a tool to weed out employee of doubtful integrity or

inefficient employee from public service to ensure efficiency in

administration. Furthermore, a perusal of the guideline dated

24.09.2019, it appears that before coming to such a conclusion that

an employee is not fit to continue in Government service, the

Opposite Parties are required to review the performance of the

petitioner upon a completion of 30 years of qualifying service or on

attaining 50 years of age or on attaining 55 years of age. The

decision to retire the Government employee, compulsorily has to be

based on the performance of Government servant as is reflected in

his Annual Character Role/ Performance Appraisal Report/ CCR.

Moreover, the law in this regard is quite well settled that if a
                                // 3 //



Government Employee is given promotion despite the employee

having adverse entries made in his ACR/ PAR/ CCR, such fact

would go in favour of such Government Employee. In the present

case, the Petitioner was given promotion on 20.06.2019 to the post

of Deputy Superintendent of Excise under Annexure-6 on the basis

of his performance, merit and suitability. Moreover, he had been

entrusted with an Additional charge of In-Charge of Superintendent

of Excise. Being aggrieved by the aforesaid decision under

Annexure-5 the Petitioner has approached this Court by filing the

present writ application.

3.      The genesis of facts leading to filing of the present writ

petition, in a narrow compass, is that the Petitioner was working as

Deputy Superintendent of Excise and was In-Charge of

Superintendent of Excise of Deogarh District in the State of Odisha.

Initially, the Petitioner was appointed by following regular

recruitment process as Sub-Inspector of Excise on 09.09.1996 in the

scale of pay of Rs. 1350-30-1440-40-1800-EB-50-2200/- + Grade

Pay of Rs.1350/- per month. Accordingly, the Petitioner joined in

the cadre on temporary basis vide notification/ office order dated

23.08.1996. Initially, he was posted as Sub-Inspector of Excise in
                                 // 4 //



the district of Deogarh and accordingly, the Petitioner submitted his

joining report on 02.09.1996 and started discharging his duties.

4.      While the Petitioner was working as Sub-Inspector of

Excise in the district of Deogarh, subsequently upon successful

completion of the number of years required for promotion and on

being satisfied with his performance, the petitioner was promoted to

the post of Inspector of Excise by virtue of Office Order dated

28.11.2013 and was posted in the district of Angul. Thereafter, the

Petitioner was promoted to the post of Deputy Superintendent of

Excise and was posted as Deputy Superintendent of Excise in the

district of Berhampur. It is needless to mention here that, all

throughout his career the Petitioner was performing his duties with

utmost sincerity and to the satisfaction of the authority.

Furthermore, the performance of the Petitioner was being appraised

periodically and accordingly, the same was being recorded in his

ACR/ CCR. Therefore, the performance of the Petitioner is a matter

of record and the same can be found out from the ACR/CCR of the

Petitioner.

5.      While the Petitioner was discharging his duties as Deputy

Superintendent of Excise and he was posted as In-Charge of

Superintendent of Excise and as such was entrusted with the duty of
                                 // 5 //



Superintendent of Excise. He was transferred and posted as Deputy

Superintendent and In-Charge of Superintendent of Excise of

Deogarh district on 08.10.2020. Accordingly, the Petitioner joined

in duty on 19.10.2020 at his new place of posting with a new

responsibility. While he was continuing as such, all of a sudden

Petitioner was arrested on 30.09.2021 and thereafter he was

remanded to the custody in connection with his alleged involvement

Vigilance P.S. Case No.9 dated 28.09.2021 which was initiated

under Section 7 of the Prevention of Corruption Act for demanding

and accepting illegally gratification. The Petitioner was remand to

custody up to 11.10.2021 till he was released on bail. Although the

Petitioner was arrested in connection with Rourkela Vigilance P.S.

Case No.9 of 2021, however, no charge sheet has been filed as of

now and the matter is still subjudice before the Court of Special

Judge (Vigilance), Sambalpur.

6.     Basing on the fact of initiation of a Vigilance Case

implicating the Petitioner and the detention of the Petitioner in

Judicial Custody, the Opposite Party No.1 placed the Petitioner

under suspension with effect from 30.09.2021. During such

suspension period, the Petitioner was directed not to leave the

headquarter without obtaining prior permission of the Excise
                                  // 6 //



Commissioner and he was allowed the payment of subsistence

allowance as per Rule 90 of Orissa Service Code.

7.      While this was so, the Opposite Party No.1 basing on the

fact of pendency of a Vigilance case and in exercise of power

conferred under Rule 71(a) of the Orissa Service Code passed an

order giving compulsory retirement to the Petitioner vide order

dated 12.11.2021. It has been stated by the Petitioner that order

under Annexure-5 has not been couched with the words as

compulsory retirement or any other mode of retirement from

service stating therein that on attaining the age of 55 years the order

of retirement has been passed. Thus, the main ground of attack in

the writ petition is that the Opposite Party No.1 has not acted

inconsonance with the provisions of law while passing the

impugned order.

8.      It is further pleaded in the writ petition that the petitioner

has completed only 25 years and on the basis of appraisal of his

performance he had been given promotion recently i.e. w.e.f.

20.06.2019 to the post of Deputy Superintendent of Excise. Most

importantly he was found suitable and competent enough to handle

additional burden of In-Charge Superintendent of Excise in the

district of Deogarh. It has been emphatically pleaded in the writ
                                  // 7 //



petition that the petitioner does not have any adverse remark/

entries in his CCR/ACR/PAR. As such, the conduct of the Opposite

Parties in retiring the petitioner from Government Service on

review of his performance under Rule 71(a) of the Orissa Service

Code is highly arbitrary, illegal and unreasonable. Moreover, the

same is not supported by any material on record.

9.      So far the review of service of any Government employee,

for the purpose of weeding out dead wood from Government

service by giving them compulsory retirement, is concerned, in the

case of a Gazetted Officer a review is conducted by a duly

constituted Review Committee which ordinarily sits and takes up

the cases of the such officers twice in a year and in the event the

meeting could not be held due to non-availability of record or for

any other administrative difficulties, the chairman is at liberty to fix

the meeting on such other dates which shall be not later than 31st

August or 28th February of the relevant year. Further, it has been

emphatically pleaded that no such review committee meeting had

taken place before passing the impugned order under Annexure-5

whereunder the case of the petitioner is stated to have been

reviewed and he has been given compulsory retirement. As such, it

has also been pleaded that due to non-compliance of such statutory
                                 // 8 //



provision before issuing the impugned order, the impugned order

under Annexure-5 is illegal, arbitrary and unsustainable in law.

Additionally, it has been stated that the Petitioner is now aged about

56 years. Further, his case had not been reviewed at the age of 50

and 55 years respectively and he was allowed to continue in service

and in the absence of any adverse remark in his service book, the

issuance of order under Annexure-5 giving compulsory retirement

to the Petitioner only on the basis of the fact that the Petitioner is

implicated in a Vigilance Case which is subjudice and where no

charge sheet has been filed, the impugned order under Annexure-5

is unsustainable in law and accordingly the same is liable to be

quashed.

10.     So far, the entire service career of the Petitioner is

concerned, it has been pleaded in the writ application that there was

no material whatsoever to show that there is any adverse remark

communicated to the Petitioner. Conversely, considering his

performance and merit, the Petitioner had been given promotion in

accordance with the provisions of the rules first time in the year

2013 thereafter in the year 2019. Further, on the basis of the

promotion granted in the year 2019 after taking into consideration

the service record as well as the performance of the Petitioner, the
                                 // 9 //



Petitioner has been performing his duties as a Deputy

Superintendent of Excise to the satisfaction of the authorities.

Moreover, from the date of his last promotion in the year 2019 till

the time the petitioner was given compulsory retirement, there exist

no adverse comment/ entries in the CCR of the Petitioner. At least

no such communication has been made to the Petitioner. Moreover,

no review having been taken place as provided under the Rules on

attaining the age of 50 years and 55 years respectively, there was no

occasion for the Opposite Parties to pass the impugned order under

Annexure-5 giving compulsory retirement to the Petitioner.

11.     A counter affidavit has been filed on behalf of the Opposite

Party No.1. In the said counter affidavit the Opposite Parties have

raised the question of maintainability of writ application and further

prayed for dismissal of the writ petition on the ground that the same

is thoroughly misconceived. It has been stated that there is

absolutely no illegality or irregularity in order dated 12.11.2021

under Annexure-5 to the writ petition. Further, the said counter

affidavit reveals that while the Petitioner was working as Sub-

Inspector of Excise, the major penalty proceeding under Rule 15 of

the OCS(CCA) Rules, 1962 was initiated against him vide memo

dated 10.01.2007 for unauthorized absence from headquarter,
                                 // 10 //



indulging in unnecessary argument, presenting false facts and

failure to discharge his duties properly. The said proceeding was

concluded vide order dated 12.03.2010 by imposing a punishment

of censure to be recorded in the service book of the Petitioner and

the Petitioner was warned to be conscious in future.

12.     Counter    affidavit   further     reveals   that   during   the

incumbency of the Petitioner as Inspector of Excise, he was placed

under suspension vide order dated 08.07.2014 in contemplation of

initiation of a Disciplinary Proceeding for demand of bribe from the

licensee of liquor shop and for none detection of any NDPS cases

during his tenure as Inspector of Excise, Angul. Accordingly, a

major penalty proceeding under Rule 15, 1962 Rules was initiated

against the Petitioner vide memo dated 01.09.2014 for disobedience

of orders of Higher Authorities, dereliction in duty, misconduct and

violation of the conduct rule. The said proceeding was concluded

vide order dated 20.11.2018 again with the punishment of censure

and withholding of one annual increment without cumulative effect.

13.     In the year 2021, while the Petitioner was working as In-

charge Superintendent of Excise a vigilance case was registered

against him vide Rourkela Vigilance P.S. Case No.09 dated

28.09.2021 for demand of illegal gratification of Rs.1,50,000. It has
                                // 11 //



also been stated that in the said Vigilance Case a trap was laid by

the Vigilance Officer and accordingly the Petitioner was caught

carrying the tainted bribe money in a carry bag from the

complainant. The aforesaid tainted bribe money was recovered

from the possession of the Petitioner. The Petitioner was arrested on

30.09.2021 and forwarded to the judicial custody. Accordingly, the

Petitioner was placed under suspension for his detention in judicial

custody exceeding 48 hours.

14.     The Opposite Party No.1 in its counter affidavit has pleaded

that in order to streamline the efficiency in administration and to

make the administration corruption free, the State Government has

formulated a set of guidelines which was notified vide GA and PG

Department letter dated 24.09.2019. The said guideline provides

that in order to streamline the administration and to weed out

officers/employees for doubtful integrity or inefficiency a decision

has been taken by the Government to retire such officer/employees

though prematurely. Such premature retirement is to be given on

the basis of a review of the service career of the officers/employees

concerned by a duly constituted review committee under Rule 71(a)

of Odisha Service Code. Keeping in view the above guidelines and

the previous disciplinary action taken against the petitioner, the
                                 // 12 //



Excise Department considered it necessary to review the case of the

Petitioner through a review committee which was constituted vide

notification dated 19.11.2020. The said review committee meeting

was held on 30.10.2021 under the chairmanship of the Principal

Secretary, Excise Department. The said committee considered the

suitability of petitioner's continuance in service keeping in view the

parameters for such consideration. After going through relevant

records and keeping in view the entirety of the background facts as

well as the involvement of the Petitioner in the vigilance case. Such

review committee has recommended the case of the Petitioner for

his premature retirement from service under Rule 71(a) of the

Odisha Service Code read with proviso (b) under Rule 41 (1) of the

Odisha Civil Service (Pension Rules), 1992 by allowing three

months pay and allowances in lieu of three months notice under the

aforesaid provision. It has also been stated that the recommendation

of the review committee has the concurrence of the Govt. of

Odisha.

15.       Heard Mr. B. Routray, learned Senior Counsel appearing

for the Petitioner and Mr. S. Das, learned Additional Government

Advocate for the State-Opposite Parties. Perused the pleadings of
                                 // 13 //



the parties and considered the contentions raised by learned

counsels appearing for the parties.

16.     Mr. B. Routray, learned Senior Counsel appearing for the

Petitioner, at the outset, drawing attention of this Court to Rule 71

(a) of the Orissa Service Code submitted before this Court that

while passing the impugned order dated 12.11.2021 under

Annexure-5 and thereby giving compulsory retirement to the

Petitioner, the Opposite Party No.1 has not followed the rules and

the procedure as has been prescribed in the Orissa Service Code.

For better appreciation of the provisions of Rule 71(a) of the Orissa

Service Code is quoted hereinbelow:-

      "Except as otherwise provided in the other clause of this
      rule the date of compulsory retirement of a Government
      servant, except a ministerial servant who was in
      Government service on the 31st March, 1939 and Class
      IV Government service on the 31st March 1939 and Class
      IV Government servant, is the date on which he or she
      attains the age of 58 years subject to the condition that a
      review shall be conducted in respect of the Government
      servant in the 55th year of age in order to determine
      whether he / she should be allowed to remain in service
      upto the date of the completion of the age of 58 years or
      retired on completing the age of 55 years in public
      interest.
              Provided that a Government servant may retire
      from service any time after completing thirty years'
      qualifying service or on attaining the age of fifty years,
      by giving a notice in writing to the appropriate authority
                                 // 14 //



      at least three months before the date on which he wishes
      to retire or by giving the said notice to the said authority
      before such shorter period as Government may allow in
      any case. It shall be open to the appropriate authority to
      withhold permission to a Government servant who seeks
      to retire under this rule, if he is under suspension or if
      enquiries against him are in progress. The appropriate
      authority may also require any officer to retire in public
      interest any time after he has completed thirty years'
      qualifying service or attained the age of fifty years, by
      giving a notice in writing to the Government servant at
      least three months before the date on which he is
      required to retire or by giving three months pay and
      allowances in lieu of such notice".
17.     Learned Senior Counsel appearing on behalf of the

petitioner also referred to the circular guidelines dated 24th

September, 2019 under Annexure-7 to the writ application which

has been issued by the G.A. and P.G. Dept., Govt. of Odisha in the

context of premature retirement of the Government servants to

weed out the Officers and employees of doubtful integrity or

inefficiency   from    public   service    to   ensure   efficiency   in

administration. Mr. Routray, learned Senior Counsel in course of

his argument specifically referred to para-6, 9, 11 & 12 for better

appreciation of those provisions in the guideline the same are

quoted hereinbelow:-

      6.     The criteria to be followed by the Committee in
      making their recommendation would be as follows:-
                          // 15 //



(a) Government employees whose integrity is doubtful,
will be retired.
(b) Government employees who are found to be
ineffective will also be retired. The basic consideration in
identifying such employees should be the fitness/
competence of the employees to continue in the post
which he/she is folding.
(c) While the entire service record of an Officer should be
considered at the time of review, no employee should
ordinarily be retired on grounds of ineffectiveness if his
service during the preceding 5 years or where he has been
promoted to a higher post during that 5 year period, his
service in the higher post, has been found satisfactory.
  Consideration is ordinarily to be confined to the
preceding 5 years or to the period in the higher post, in
case of promotion within the period of 5 years, only when
retirement is sought to be made on grounds of
ineffectiveness.
(d) Ordinarily no employee should be retired on grounds
of ineffectiveness if he is retiring on superannuation
within a period of one year from the date of consideration
of the case. It is clarified that in a case where there is a
sudden and steep fall in the competence, efficiency or
effectiveness of an officer, it would be open to review his
case for premature retirement in the year preceding
retirement.
         The above instruction is relevant only when an
employee is proposed to be retired on the ground of
ineffectiveness, but not on the ground of doubtful
integrity. The damage to public interest could be marginal
if an old employee, in the last year of service, is found
ineffective; but the damage may be incalculable if he is
found corrupt and demands or obtains illegal gratification
during the said period for the tasks he is duty bound to
perform.
                          // 16 //



9.       Premature retirement can be ordered in public
interest only and not as a penalty to the employee
concerned. Compulsory retirement is one of the major
penalties listed under Rule 13 of the Orissa Civil Services
(Classification, Control & Appeal) Rules, 1962 and before
it is imposed on any employee, the procedure outlined in
the said Rules for imposition of major penalties must be
complied with. Premature retirement under Clause (a) of
Rule 1 of the Orissa Service Cadre is not and must not be
used as a substitute that can be resorted to more
conveniently. In other words, where it appears that any
employee is guilty of misconduct or negligence induty and
that he would probably hve been compulsority retired had
disciplinary proceedings been initated against him, the
proper course would be to initiate such proceeding instead
of trying to circumvent the prescribed procedure and
thereby extinguishing the employees's right of defending
himself against the charge of misconduct or negligence.
Premautre retirement can only be ordered where it is
obvious that retention of the employee in service will not
be in public interest.
11.     The objective of the review is to weed out persons
of doubtful integrity or inefficiency from public service. In
order however that no such decision is taken arbitrarily or
without very careful appraisal of facts, the review
committee shall, wherever it recommends retirement of an
employee, record the reasons of its findings in adequate
detail.
12.     The Hon'ble Supreme Court have observed the
following basic parameters to deal with the premature
retirement of Government Servants in State of Gujarat vs.
Umedbhai M.Patel, 2001(3) SCC 314:-
(a) Whenever the services of a public servant are no longer
useful to the general administration, the officer can be
prematurely retired for the sake of public interest.
                                 // 17 //



      (b) Ordinarily, the order of premature retirement is not to
      be treated as a punishment coming under Article 311 of
      the Constitution.
      (c) For better administration, it is necessary to chop off
      dead wood, but the order of premature retirement can be
      passed after having due regard to the entire service record
      of the Officer.
      (d) Any adverse entries made in the confidential record
      shall be taken note of and be given due weightage in
      passing such order.
      (e) Even un-communicated entries in the confidential
      record can also be taken into consideration.
      (f) The order of premature retirement shall not be passed
      as a short-cut to avoid Departmental enquiry when such
      course is more desirable.
      (g) If the officer was given a promotion despite adverse
      entries made in the confidential record, that is a fact in
      favor of the officer.
      (h) Premature retirement shall not be imposed as a
      punitive measure.
18.     Referring to the above quoted provisions of the guideline

dated 24.09.2019, Mr. Routray, learned Senior Counsel appearing

for the petitioner submitted before this Court that it is crystal clear

that before coming to a conclusion to give compulsory retirement to

a Government employee on the ground that such employee like the

Petitioner upon completion of 30 years of qualifying service or

attaining 50 years of age on their attaining the 55 years of age, the

service career of such employee needs to be reviewed on the basis

of the performance of the Petitioner as has been reflected in his
                                // 18 //



ACRs/CCRs. He further emphatically submitted that the law is well

settled that if a Government employee is given promotion despite

such adverse entries made in the ACR/ CCR, then such fact shall be

in favor of the government employee concerned. In the context of

the present case, it was contended by Mr. Routray that the petitioner

was given promotion to the post of Deputy Superintendent of

Excise on 20.06.2019 under Annexure-6 and it is presumed that the

authorities must have considered the performance as well as

ACR/CCR of the Petitioner to assess the merit before giving such

promotion to the Petitioner. Not only that, the Petitioner was given

the promotion and was entrusted with the additional responsibility

of In-Charge Superintendent of Excise which must be kept in view

and the exceptional performance of the petitioner should have been

taken note of by the committee. As such, it was argued by Mr.

Routray, that the Opposite Parties cannot take a stand that the

Petitioner was not efficient or he was not having merit while he was

given promotion in the year 2019.

19.     With regard to the report of the review committee, learned

Senior Counsel for the Petitioner further contended that it appears

from the proceeding of the review committee that the said review

committee has taken the decision on the basis of the vigilance case
                                 // 19 //



initiated against the Petitioner, wherein no charge sheet has been

filed as of now. On the basis of such erroneous that the Petitioner is

of doubtful integrity, the Review Committee recommended for

compulsory retirement of the Petitioner. Therefore, it was

contended before this Court that the impugned order under

Annexure-5 is not only contrary to the settled position of law, but

the same is also not based on the materials on record. Moreover, the

finding, if any, with regard to the integrity of the Petitioner by the

Review Committee has been arrived at by completely ignoring the

CCR/ ACR of the Petitioner which according to the learned Senior

Counsel for the Petitioner does not contain any adverse remark so

also the service book of the Petitioner.

20.     Mr. Routray, learned Senior Counsel also contended that

the Petitioner is a Group-B Officer and for such category of

Officers the circular dated 24.09.2019 under Annexure-7 clearly

provides that the review can only be made on 31st March, 30th

August, 30th September and 31st December. However, in the present

case, as revealed from the record, the Review Committee

considered the case of the Petitioner on 31st October of 2021 in

violation of its own guideline as such the impugned under

Annexure-5 is liable to be quashed.
                                  // 20 //



21.     He    also   contended      that    the   Review   Committee

recommended the case of the Petitioner for compulsory retirement

basing on the fact that the Petitioner has been entangled in a

Vigilance G.R. Case No.21 of 2021 which was initiated against the

Petitioner, coupled with the fact that penalties were imposed on the

petitioner in two disciplinary proceedings. However, he laid

emphasis on the fact that in the above noted vigilance case, it

appears, the investigation has not yet been concluded and no final

charge sheet has been filed as of now. He further contended that

even after the penalties were imposed in the Disciplinary

Proceedings, the Petitioner was given promotion on 20.06.2019.

Therefore, the conduct of the Opposite Party No.1 issuing order

under Annexure-5 is bad in law and not based on the rules and law

applicable to such cases.

22.     Mr. Routray, while countering the vigilance case initiated

against the petitioner, submitted that in the vigilance case the

investigation has not yet been concluded and no final charge sheet

has been filed and as such no inference could be drawn that the

Petitioner is guilty of the alleged offences. Moreover, he also

submitted that assuming that charge sheet has been filed and in the

event the Petitioner is found prima facie involved in the alleged
                                   // 21 //



occurrence by the vigilance court, however, such prima facie

finding is subject to trial and evidence to lead in trial. Further, in the

event the Petitioner is acquitted by the trial Court, the order under

Annexure-5 would cause an irreparable loss to the Petitioner which

cannot be remedied even after the Petitioner succeeds in the

vigilance case. Therefore, he emphasized that putting an officer

under suspension is altogether different from throwing him out of

service.

23.        Further, Mr. Routray has vehemently argued that despite

the fact that penalties were imposed on the petitioner in a

Disciplinary Proceeding, which was initiated earlier, the petitioner

was considered for promotion and accordingly he was promoted in

the year 2019 to the post of Deputy Superintendent of Police,

Excise. Therefore, in view of the aforesaid facts, which were

elaborated before this Court, it was argued that the order of

compulsory retirement under Annexure-5 is in the nature of

punishment imposed on the petitioner by using the power under

Rule 71(a) of the Orissa Service Code as a subterfuge to the

Disciplinary Proceeding as contemplated under Rule 15 of the OCS

CCA Rules, 1962. As such, considering the punitive nature of the

order under Annexure-5, it was submitted by learned Senior
                                // 22 //



Counsel that the procedure as contemplated under the OCS CCA

Rules, 1962 having not been followed in the case of the Petitioner,

therefore, the impugned order under Annexure-5 is unsustainable in

law.

24.     Finally, it was argued by Mr. Routray, learned Senior

Counsel, that the Petitioner was discharging his duties efficiently

and sincerely without any doubtful integrity and at no point of time

he has been issued with any adverse remark, at least no such entry

of adverse remark having been made in his service book from the

date of his joining in service, the conclusion drawn by the Opposite

Parties while issuing the impugned order under Annexure-5 is

unsustainable in law. He further contended that it was only in the

month of September, 2021 the petitioner was falsely implicated in

the above noted vigilance case wherein the investigation is still

open and no charge sheet has been filed as of now. Therefore, it

cannot be said that the petitioner is prima facie guilty of offences

alleged against him in the above noted vigilance case. In such view

of the matter, learned Senior Counsel appearing for the petitioner

contended before this Court that the authorities have acted in an

arbitrarily, illegally and mala fide manner while passing the order

under Annexure-5 giving compulsory retirement to the Petitioner
                                // 23 //



by reviewing his service although the same is not in consonance

with the rules and the guidelines provided for the said purpose.

25.     In course of his argument Mr. B. Routray, learned Senior

Counsel appearing for the petitioner relied upon a judgment of the

Hon'ble Supreme Court in the case of State of Gujarat vs.

Umedbhai M. Patel reported in AIR 2001 SC 1109. Paragraph-11

& 12 of the said judgment which has been referred to by the learned

Senior Counsel appearing for the petitioner have been quoted

hereinbelow:-

      11. The law relating to compulsory retirement has now
      crystallized 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.
                          // 24 //



(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.
12 . In the instant case, there were absolutely no adverse
entries in 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 55. He was placed under suspension on 22.5.1986 pending disciplinary proceedings. The State Govt. 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 // 25 //

18% for the delayed payment of the pecuniary benefits due to him.

26. Learned Senior Counsel for the Petitioner also relied upon

the judgment of the Hon'ble Supreme Court in the case of The

State of Gujarat and Ors. vs. Suryakant Chunilal Shah reported in

(1999) 1 SCC 529 paragraph-26 and 27 of which has been referred

to have been quoted hereinbelow:-

26. The performance of a Govt. servant is reflected in the annual character roll entries and, therefore, one of the methods of discerning the efficiency, honesty of integrity of a Govt. servant is to look to his character roll entries for the whole tenure from the inception to the date on which decision for his compulsory retirement is taken. It is obvious that if the character roll is studded with adverse entries or the overall categorization of the employee is poor and there is material also to cast doubts upon his integrity, such a Govt. servant cannot be said to be efficient. Efficiency is a bundle of sticks of personal assets, thickest of which is the stick of "Integrity". If this is missing the whole bundle would disperse. A Govt. servant has, therefore, to keep his belt tight.

27. Purpose of adverse entries is primarily to forewarn the Govt. servant to mend his ways and to improve his performance. That is why, it is required to communicate the adverse entries so that the Govt. servant, to whom the adverse entry is given, may have either opportunity to explain his conduct so as to show that the adverse entry was wholly uncalled for, or to silently brood over the matter and on being convinced that his previous conduct justified such an entry, to improve his performance.

// 26 //

27. He also referred to the judgment of this Court in

Brundaban Sahu vs. The Orissa State of Road Transport

Corporation Company Limited and Ors. decided in S.A. No.208 of

1989 on 16.08.2022. Paragraph-10 and 11 of the said judgment

which are relevant for the purpose have been quoted hereinbelow:-

10. In the case of State of Gujarat v. Umedbhai M. Patel reported in AIR 2001 SC 1109, the Apex Court again laid down 8 guidelines to be observed before an order of premature retirement is passed. The said guidelines are as follows:

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

// 27 //

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

11. From the analysis of the guidelines given by the Apex Court in both the cases referred to above it is clear that when 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 and such compulsory retirement shall not be done as a punitive measure. The purpose of passing an order of premature retirement is for better administration and it is necessary to chop off dead-wood. Now coming to the past C.C.Rs, of the Plaintiff as quoted above. I do not find single adverse entry and on the other hand services rendered by the Plaintiff has been appreciated at some places. The only ground on which the order of premature retirement is based appears to be pendency of a vigilance enquiry which culminated in a final report in favour of the Plaintiff after the impugned order was passed. In connection with the above reference may be made to a decision of this Court in the case of Bhaskar Padhi v. The Orissa Road Transport Co. Ltd. and Anr. reported in 7387 (1) OLR 219. In the said case the delinquent officer was put under compulsory retirement while he was working as a Traffic Supervisor in the year 1982. One of the considerations for passing the order of compulsory retirement was pendency of a vigilance enquiry on certain allegations. This Court while dealing with the said question observed that if some allegation had been made and a case started by vigilance department was pending that could not be a ground to hold that the Petitioner lacked integrity. After all the matter had remained at the stage of adjudication and it had not been established that the Petitioner was dishonest. The Apex Court in the case of M.S. Bindra v. Union of India and Ors. reported in AIR 1998 SC 3058 also dealt with the question in reference to "doubtful integrity". The Apex Court held as follows:

// 28 //

The Appellant Director of Anti Evasion Wing had established in unblemished reputation and earned encomiums from ail concerned for having conducted series of raids on business houses to unearth huge amount of concealed excise duty. He was dubbed as an officer of doubtful integrity and ordered to compulsory retire. Out of the three instances on which the Screening Committee relied to dub the officer as a case of "doubtful integrity" the first was his action against a business house. The fact is that it was the Appellant who headed the operation. A task which unearthed huge sum of concealed excise duty would normally evoke appreciation for his work. But what was noted against him in that affair was that he wilfully created lacuna in the confiscation proceedings for providing an escape route to the defaulter. One lacuna was that the confiscation order contained nearly 100 pages and the period was too short for preparing such an order. Another lacuna was that he imposed a huge penalty and fine without issuing a show cause notice. Normally it is an achievement that an order of 100 pages was made during such a short period. It cannot be frowned at by inferring that he would have caused it to be written by somebody else. Similarly to say that be imposed penalty without notice, in order to held the defaulter is too fetched. The second instance was that investigation against some business houses was kept in abeyance by the Deputy Director allegedly at behest of Appellant. The minimum things expected of the screening committee was to ascertain from the Deputy Director, the circumstances under which instructions were issued by him to keep the investigation in abeyance. Attributing a sinister motive to the Appellant for what his deputy had done was seemingly unfair, without adopting the minimum precautions. The third instance was a statement by a owner of a business house that a third person has told them that Appellant was to be paid // 29 //

Rs. 10 lakhs to save them from the proceedings. Neither its truthfulness was checked with the Appellant or with the third person who had made it.

Held, there was utter dearth of evidence for the Screening Committee to conclude that Appellant had doubtful integrity. Order by which premature compulsory retirement was imposed on the Appellant was liable to be set aside.

28. He also referred to the judgment of a Division Bench of this

Court in the case of Epari Vasudeva Rao vs. State of Odisha

reported in 2014(II) OLR 381 to demonstrate the scope of judicial

review in the matter of premature retirement from service of a

Govt. employee and submitted that when such an order has been

challenged in a Court of law, the Court of law has to examine

whether any ground or material germane to issue exists or not. The

relevant paragraphs which have been relied upon by the learned

Senior Counsel appearing for the petitioner that is Paragraphs

Nos.44, 48, 49, 50, 51, 55 & 58 have been quoted hereinbelow:-

44. The first question is if the petitioner was allowed to continue in service at the age of 50 and 55 years despite the incidents of the above two adverse remarks whether at the age of 58 years the selfsame adverse reports can form basis for giving compulsory retirement to the petitioner.

Rule 44 of 2007 Rules extracted above envisages that case of a judicial officer shall be considered at least three times i.e. when he is about to attain the age of 50 years, 55 years and 58 years for the purpose of giving compulsory retirement. In the present case, the petitioner was allowed to continue in the judicial service at the age of 50 years // 30 //

and 55 years despite existence of the above two adverse remarks against him.

Records reveal that at the age of 55 years, there is a review in the year 2009. At that time it was under consideration as to whether the petitioner shall be allowed to continue in service. The Full Court after considering the entire period of service which obviously includes two incidents of the years 1985 and 1998 allowed the petitioner to pass in the test of review. Needless to say that the standard of consideration for review at the age of 55 and 58 years is same. Therefore, we are unable to reconcile how three years thereafter in the year 2012 i.e. in review at the age of 58 years, the same two incidents weighed the Hon'ble Full Court to retire the petitioner compulsorily.

48. At this juncture, it will be appropriate to refer to the judgment of the Hon'ble Supreme Court in the case of Swami Saran Saksena v. State of U.P., (1980) 1 SCC 12. In that case, the Hon'ble Supreme Court quashed the order of compulsory retirement which was found to be in sharp contradiction with his recent service performance and record. In that case, the Hon'ble Supreme Court observed as follows:

"3. Ordinarily, the Court does not interfere with the judgment of the relevant authority on the point whether it is in the public interest to compulsorily retire a government servant. And we have been even more reluctant to reach the conclusion we have, when the impugned order of compulsory retirement was made on the recommendation of the High court itself. But on the materials before us we are unable to reconcile the apparent contradiction that although for the purpose of crossing the second efficiency bar the appellant was considered to have worked with distinct ability and with integrity beyond question yet within a few months thereafter he was found to unfit as to deserve compulsory retirement. The entries in between in the // 31 //

records pertaining to the appellant need to be examined and appraised in that context. There is no evidence to show that suddenly there was such deterioration in the quality of the appellant's work or integrity that he deserved to be compulsorily retired. For all these reasons, we are of the opinion that the order of compulsory retirement should be quashed. The appellant will be deemed to have continued in service on the date of the impugned order."

(Underlined for emphasis)

49. In the case of High Court of Judicature at Patna, through R.G. v. Shyam Deo Singh and others, [Civil Appeal No. 2529 of 2002, disposed of on March 28, 2004], a three Judge Bench of the Hon'ble Supreme Court, held as under:

"9.....The subsequent ACRs of the respondent for the years 1997-1998 and 2000-2001 are sufficiently positive and depicts the respondent as an efficient judicial officer with a good reputation for honesty and impartiality. The respondent was promoted to the post of District and Sessions Judge on 5.9.1998. By Notification dated 17.2.2000 he was promoted to the selection grade of the Bihar Superior Judicial Service with effect from 1.1.1997. Therefore, not only the adverse remark dated 15.12.1995 was not acted upon but subsequent thereto promotion to the highest level in the district judiciary as well as selection grade in the said cadre was granted to the respondent. Promotion to the highest post of District Judge and placement in the selection grade is on an assessment of positive merit and ability. The said promotion (s), therefore, would have the effect of wiping out the adverse remark dated 15.12.1995. Such a view has in fact been expressed in Brij Mohan Singh Chopra v. State of Punjab (para 10). In the light of the above facts, we do not see how the High Court, on the administrative side, can be found to // 32 //

be justified in refusing to continue with the service of the respondent beyond the age of 58 years. The order dated 20.2.2001 passed by the High Court setting aside the said decision, therefore, will have to be affirmed and the present appeal dismissed. We order accordingly."

50. Now, let us see what are the performances of the petitioner during later years. The above discussed two adverse remarks relate to the years 1985 and 1998.

51. On 8.8.2008, the petitioner was substantially appointed to the cadre of OSJS (Sr. Branch). On 19.8.2009 the petitioner was permitted to hold Selection Grade at the age of 55 years. It is relevant to note here that after 2009 the petitioner earned "very good" CCR for two years i.e. during the year 2009 and 2010 and "good" CCR for the part of the 2009. On 3.8.2010 the petitioner was granted Super Time Scale. Here it is pertinent to mention that although Rule 5 of Rules, 2007 requires the District Judges to put three years service in Selection Grade in order to be granted Super Time Scale, in the case of the petitioner considering his merit though he did not complete three years such promotion was given relaxing Rule 5 of Rules, 2007. As per Rules 4 and 5 the promotions are based on seniority-cum-merit. If the petitioner was found meritorious in 2009 and 2010, it is difficult on our part to accept the contention of Mr. Sahoo that the petitioner became non-meritorious in 2012 more particularly on the face of the CCR, wherein he was rated "very good" during interregnum period, as per the observation of His Excellency the Governor of Odisha in Note Sheets (Annexure--9)

55. Undisputedly, the two remarks are of remote past, one relates back to 27 years and other 15 years back from the date of compulsory retirement. Despite the same, the petitioner was promoted to the higher post thereafter. Therefore, such adverse remarks lose their stings.

// 33 //

Promotions in the petitioner's case is based on merit and selection. The Full Court has to consider the entire record of service before taking decision in the matter of compulsory retirement and while doing so more importance should be attached to record all performance of later years.

If we compare the two adverse remarks with the subsequent performances of the petitioner certainly the later performance outweighed the former adverse remarks.

58. For the reasons stated above, the notification dated 13.03.2013 (Annexure-6) issued by opposite party No. 1 giving compulsory retirement to the petitioner is quashed. The petitioner be treated to be continuing in service uninterruptedly from the date he was given compulsory retirement. Consequentially, he shall be paid salary from the date he was given compulsory retirement till reinstatement in service in accordance with law and accordingly, on completion of 60 years of age, he shall be entitled to all retiral benefits including pension.

29. In Course of his argument, learned Senior Counsel also

relied upon the judgment of this Court in Subhendra Mohanty

vs. High Court of Orissa and Ors. reported in 2017(II) ILR-

CUT 1273. Paragraph-25 and 26 of the said judgment which are

banked upon by the leaned Senior Counsel appearing for the

petitioner are also quoted hereinbelow:-

25. Even though adverse remarks/records of a Government employee prior to his promotion is not washed-off for the purpose of taking them into consideration while reviewing service of an employee to decide whether he should be continued in service or be given premature retirement, it does not appeal to conscience that the adverse remarks // 34 //

which have already been considered in a previous review of service and they were not found sufficient to retire the employee on review, the same adverse remarks/records, without any further or additional adverse remarks in the service records would be sufficient to prematurely retire the employee while reviewing his services at a subsequent stage, i.e., at the age of 55 years.

26. In this respect the decision of this Court in the case of Epari Vasudeva Rao v. State of Orissa and another; 2014 (2) OLR 381 is worth noting. The services of the petitioner in that case had been reviewed at the age of 55 years and he was allowed to continue in service/despite he had some adverse remarks/records. On the basis of self- same adverse remarks he was given compulsory retirement while reviewing his service at the age of 58 years, without there being any subsequent or additional adverse remarks/service records, apart from promotions being given to petitioner therein in between. Therefore, this Court quashed the order of compulsory retirement and directed reinstatement of the said employee in service with back wages. In the instant case the three instances of remote past for which the petitioner was cautioned, censured and warned were of very minor nature and the same were considered while reviewing the service of the petitioner at the age of 50 years and the Review Committee as well as the Full Court did not give him compulsory retirement at that stage and allowed him to continue in service, evidently considering the said incidents as not justifying giving of compulsory, retirement. Thereafter the petitioner was promoted to the cadre of District Judge and even those incidents did not furnish ground for withholding promotion. As to conduct and performance, except for the years 2001, 2006 and the first half of 2008 when his overall rating was 'average', there was no allegation about his integrity. On the other hand, the rating of the petitioner as 'average' for the years 2001, 2006 and the first half of 2008 was also available to // 35 //

the Review Committee as well as to the Full Court of the High Court during the review of his service at the age of 50 years in November, 2008. These ratings and the three adverse remarks described earlier could not persuade the High Court to give compulsory retirement to the petitioner then. His ACR for other years was 'good' and 'very good'. Therefore, without there being any additional or further adverse remark/service record and having regard to the decision of this Court in the case of Epari Vasudev Rao (Supra) we are of the opinion that the Court's decision to retire the petitioner compulsorily is arbitrary and unreasonable and, therefore, the impugned order of compulsory retirement under Annexure-9 cannot be sustained. Accordingly we quash the said order. The petitioner has crossed the age of superannuation, i.e., 60 years in May, 2017, and, therefore, there is no scope to direct his reinstatement in service. However, we direct that he must be deemed to have continued in service from the date of his compulsory retirement till the date of his superannuation at the age of 60 years and he shall be given his salary at the time scale of pay for the post he was holding at the time of compulsory retirement for the said period and retiral benefits accordingly.

30. In reply to the argument advanced by learned Senior

Counsel for the Petitioner, Shri S. Das, learned Additional

Government Advocate appearing on behalf of the State-

Opposite Parties referred to the counter affidavit and submitted

that in exercise of powers conferred under Rule 71(a) of

Odisha Service Code read with proviso (b) of Rule 41(1) of the

Odisha Civil Service (Pension Rules), 1992 the Opposite

Parties have taken a decision which is in larger public interest // 36 //

and to bring efficiency in the administration. Accordingly, a

decision has been taken to give premature retirement to the

Petitioner. Therefore, he further contended that the Opposite

Parties have not committed any illegality or error while

passing the impugned order under Annexure-5 to the writ

application. Learned Addl. Government Advocate further

contended that in order to streamline efficiency in

administration and to make the administration corruption free

the Government of Odisha in its GA & PG Dept. has

formulated a set of guidelines/ principles vide letter

No.27037/Gen. dated 24.09.2019 in order to consider

premature retirement of Government Servant to weed out

officers/employees on the ground of doubtful integrity or

inefficiency from public service. Accordingly, the case of the

petitioner was sent to the review committee, which was duly

constituted, for consideration of the Petitioner's case to give

him premature retirement as per law.

31. Learned Addl. Government Advocate further referring

to the proceedings of the meeting of the review committee

held on 30.10.2021 under Annexure-F/1 to the counter

affidavit submitted that the minutes of such proceedings // 37 //

speaks for itself. The case of the petitioner was duly

considered by the review committee while he was working as

In-Charge Superintendent of Excise, Deogarh as he had

completed 55 years of age and since no previous review have

been done under Rule 71(a) of the Odisha Service Code. The

review committee minutes reveals that the Excise

Commissioner, Odisha, Cuttack vide letter dated 29.10.2021

reported the performance of the Petitioner which is not up to

the satisfaction on the ground of doubtful integrity and corrupt

practice and as such the Commissioner has opined that further

continuance in service of the Petitioner are detrimental to the

public interest.

32. Further referring to the minutes of the proceeding

under Annexure-F/1, learned Addl. Government Advocate

submitted that review committee while considering the case of

the petitioner has taken note of the vigilance case pending

against the Petitioner as well as two Disciplinary Proceedings

which were drawn up against the Petitioner under Rule 15 of

the 1962 Rules. He further contended that the review

committee has taken note of the charge memo dated

01.09.2015 whereunder the charge No.4 clearly speaks about // 38 //

the demand of illegal gratification forcefully from the sales

man of liquor shops and Mohua flower godowns everyday.

The review committee has also taken note of the charge of

misconduct the doubtful integrity and collection of illegal

money. Such review committee has also taken note of the

charge memo dated 10.01.2007 while considering the case of

the Petitioner. From the above noted one criminal proceeding

and two disciplinary proceedings, the review committee after

due deliberation has arrived at a conclusion that the integrity

of the Petitioner is doubtful and as such it was held that

Petitioner's further continuance in service is undesirable in

public interest and accordingly the recommendation was made

for premature retirement.

33. Having heard the learned counsels appearing for the

respective parties and on a careful consideration of their

submission coupled with careful scrutiny of the pleadings of

the respective parties as well as materials on record, this Court

would now proceed to decide the issue as to whether the

conduct of the Opposite Parties in giving premature retirement

to the Petitioner pursuant to the recommendation of the review

committee is valid in law or not? While deciding the issue // 39 //

involved in the present writ application this Court is required

to look into the background of the order under Annexure-5,

that is, the proceedings of the review committee meeting dated

29.10.2021 which was set up for the above noted purpose.

Therefore, to test the validity of the order under Annexure-5 to

the writ petition, this Court is also required to examine the

procedure adopted as well as the conclusion arrived at by the

review committee in its meeting held on dated 29.10.2021.

34. On perusal of the Government of Odisha GA and PG

Dept. guideline dated 24.09.2019 under Annexure-7 to the writ

petition, the same reveals that such guidelines have been

prepared for premature retirement of Government servants

with the objective to weed out officers and employees of

doubtful integrity or inefficiency from public service. Clause-6

of the aforesaid guideline lays down the criteria to be followed

by the Committee while making their recommendation.

Clause-6 (a) of the guideline provides that Government

employee whose integrity is doubtful will be retired. Similarly,

Clause6 (b) provides for premature retirement on the ground of

ineffectiveness and the basic consideration provided therein is

the fitness/ competence of the employee to continue in the // 40 //

post. The same also provides that no employee shall ordinarily

be retired on the ground of ineffectiveness if his service during

the preceding 5 years has been found to be satisfactory and he

has been given promotion.

35. Since the Petitioner has been given premature

retirement on the ground of doubtful integrity, this Court

would confine its analysis to such ground only. Further, the

guideline provides that once the case of a particular

officer/employee is reviewed, the same is no more open to be

reviewed for the second time. Most importantly, Clause-9 of

the guideline provides that premature retirement can be

ordered in public interest only and not as a penalty to the

employee concerned. Since Clause-9 of the guideline dated

24.09.2019 is relevant for the purpose of the present case the

same is extracted hereinbelow:-

9. Premature retirement can be ordered in public interest only and not as a penalty to the employee concerned. Compulsory retirement is one of the major penalties listed under Rule 13 of the Orissa Civil Services (Classification, Control & Appeal). Rules, 1962 and before it is imposed on any employee, the procedure outlined in the said Rules for imposition of major penalties must be complied with. Premature retirement under Clause (a) of Rule 71 of the Orissa // 41 //

Service Code is not and must not be used as a substitute that can be resorted to more conveniently. In other words, where it appears that any employee is guilty of misconduct or negligence in duty and that he would probably have been compulsorily retired had disciplinary proceedings been initiated against him, the proper course would be to initiate such proceeding instead of trying to circumvent the prescribed procedure and thereby extinguishing the employee's right of defending himself against the charge of misconduct or negligence. Premature retirement can only be ordered where it is obvious that retention of the employee in service will not be in public interest.

36. A careful reading of Clause-9 of the aforesaid

guidelines clearly reveals that premature retirement under

Rule-71(a) shall not be used as a measure of punishment. The

punishment of compulsory retirement has been provided under

Rule-13 of the 1962 Rules which is to be inflicted on the

delinquent employee by following the procedure outlined in

the 1962 Rules. Therefore, a word of caution has been used in

Clause-9 not to use premature retirement as a substitute to

compulsory retirement that is where it appears that if any

employee is guilty of misconduct or negligence in duty and

there is a possibility of imposing the punishment of

compulsory retirement in a pending Disciplinary proceeding,

the proper course would be to initiate such proceeding instead // 42 //

of trying to circumvent the prescribed procedure by

completely extinguishing the employee's right of defending

himself against the charges brought against him. In such view

of the matter and keeping in view the substance of the

guideline dated 24.09.2019 this Court is of the considered

view that premature retirement can only be ordered where the

review committee is satisfied that the retention of such

employee/officer in service would be detrimental to the public

interest.

37. A further scrutiny of the guideline dated 29.10.2021

reveals that Clause-11 provides for the objective of such

review. Similarly, Clause-12 of the guideline has highlighted

the parameters laid down by the Hon'ble Supreme Court for

premature retirement of Government servant in the case of

State of Gujurat vs. Umedbhai M. Patel 2001(3) SCC 314.

Thus, while referring to the judgment of the Hon'ble Supreme

Court in Umedbhai M. Patel's case (supra) the authorities have

clearly highlighted the fact that the order of premature retirement

shall not be passed as a shortcut to avoid departmental enquiry

and that the premature retirement shall not be imposed as a

punitive measure. Clause-13 (I) provides that the review // 43 //

committee shall consider the entire service records of the

Petitioner.

38. Similarly, Clause-15 of the GA and PG Dept. guideline

dated 29.10.2021 prescribes a procedure to be followed in a case

of doubtful integrity. It further provides that if the enquiry

ultimately leads to a reasonable inference of lack of integrity, the

employee concerned can be proceeded against either

departmentally or under the criminal law, but it would not be

correct to conclude that an employee is lacking in integrity

merely because some allegations against him are under inquiry.

In other words, allegations which have not been inquired into or

in respect of which the inquiry is not completed should be

ignored. Even in regard to allegations which have been inquired

into by the Vigilance organization, a conclusion of lack of

integrity may not be drawn straight away. The facts of the case

should be carefully considered and it should be examined if the

ends of justice will be better served by a Departmental

Proceeding. The Rule, normally should be that before any such

conclusion is drawn, the explanation of employee concerned

should have been considered.

// 44 //

39. Clause-20 of the guideline by referring to the Supreme

Court judgment, further prescribes that the review committee

shall have to record its reason in writing while recommending a

case for premature retirement. The opinion formed by the review

committee has to be bona fide and the same has to be in public

interest. The objective behind adopting a procedure of giving

reasons in writing is to avoid any arbitrary and mala fide exercise

of the power conferred under Rule 17 (a) of the Orissa Service

Code while recommending premature retirement of a

Government employee.

40. Reverting back to the facts of the present case, this Court

on a perusal of the decision of the Review Committee under

Annexure-F/1 to the counter affidavit observed that the said

committee has taken a decision to recommend the case of the

Petitioner for premature retirement referring to two Disciplinary

Proceedings initiated against the Petitioner and one Vigilance

Case which was registered on 28.09.2021. So far the two

Disciplinary Proceedings are concerned, on perusal of the record

it appears that the first Disciplinary Proceeding initiated against

the Petitioner on 10.01.2007 and concluded by imposing a

punishment of censure only and in the second Disciplinary // 45 //

Proceeding initiated on 01.09.2014 against the Petitioner has

ended up in imposing a punishment of censure with stoppage of

one increment without cumulative effect. After the above noted

two Disciplinary proceedings were concluded the Petitioner has

been given promotion to the post of Deputy Superintendent of

Excise on 20.06.2019 under Annexure-6 to the writ application.

Subsequently, he has also been entrusted with the additional

charge of In-Charge of Superintendent of Excise. So far the

Vigilance Case against the Petitioner is concerned, it appears that

the same was initiated on the basis of an F.I.R. dated 28.09.2021.

Further, according to the learned Senior Counsel appearing for

the Petitioner no charge-sheet in the said case has been filed as of

now. Therefore, it is presumed that the investigation is still open.

41. In the ultimate analysis of factual background of the case

and further keeping in view the fact that despite two adverse

remarks in earlier Disciplinary Proceeding, the Petitioner was given

promotion. Moreover, a perusal of the record also reveals that the

service rendered by the Petitioner has been duly recognised and

appreciated by the Opposite Parties by granting citations/ accolades

in favour of the Petitioner. In addition to the above, it appears that

in recognition of the service rendered by the Petitioner, the // 46 //

Petitioner was given the additional charge of In-charge

Superintendent of Excise. So far the Vigilance Case is concerned,

the same is of the year 2021 where no charge-sheet has been filed,

therefore it cannot be conclusively said at this juncture that the

Petitioner is guilty of the offences alleged until and unless the

investigation is concluded and the charge-sheet is filed. Keeping in

view the aforesaid factual position this Court would examine the

conduct of the review committee in considering the case of the

Petitioner and retiring him from service compulsorily.

42. Before drawing the final conclusion in the present case on

the basis of the factual background, this Court would once again

like to refer to the landmark judgment of the Hon'ble Supreme

Court in State of Gujarat vs. Umedbhai M.Patel reported in AIR

2001 SC 1109. In para-11 of the said judgment the Hon'ble

Supreme Court has laid down the principle for the guidance of the

review committee. On a careful scrutiny of the principles laid down

in para-11, this Court observed that the Hon'ble Supreme Court has

categorically observed that wherever the service of the public

servant is no longer useful to the General Administration of the

Office, he/she can be compulsorily retired from service for the sake

of public interest. However, the same does not appear to be the case // 47 //

so far the petitioner is concerned. Recognising the service of the

Petitioner he has been given many letters of appreciation/ allocades

and he has also been given the additional charge of Superintendent

of Excise. Therefore, by no stretch of imagination it could be

construed that he is a dead wood and needs to be chopped off.

43. In the aforesaid judgment of the Hon'ble Supreme Court in

Umedbhai M Patel's case (supra), the Hon'ble Supreme Court has

also cautioned that the termination of service on compulsory

retirement shall not be used as a punitive measure coming under

Article 311 of the Constitution. On a conspectus of the entire

background facts as well as record, this Court is of the view that the

authorities have deliberately resorted to a short-cut to avoid

departmental enquiry and accordingly the review committee

without any justifiable ground has recommended for compulsory

retirement of the Petitioner. This Court is in complete agreement

with the view expressed by the Hon'ble Supreme Court that in the

interest of better administration dead woods in the public services

are required to be chopped off by resorting to compulsory

retirement while reviewing their cases periodically. Such appraisal

by the review committee is subject to a rider that there must be

enough ground to terminate the service of a Government Servant by // 48 //

giving him compulsory retirement. In the present case, the review

committee has cited two disciplinary proceedings and a vigilance

case which have been discussed in detail hereinabove, moreover

after conclusion of the Disciplinary Proceedings the Petitioner was

given promotion. Therefore, applying clause-7 of para-11 of

Umedbhai M Patel's case (supra), once the Petitioner has been

given promotion despite adverse entries made in the confidential

record, an inference to be drawn in favour of the Petitioner not in

favour of the department. On a overall analysis of the service career

as is evident from the materials on record, this Court is convinced

that the Departmental Authorities have taken resort to a short-cut to

remove the Petitioner from service by suggesting compulsorily

retirement instead of initiating a Departmental Proceeding against

the Petitioner. Therefore, the conduct of the Review Committee in

recommending compulsory retirement fails to pass the test of law as

laid down by the Hon'ble Supreme Court in Umedbhai M Patel's

case (supra). Therefore, the decision taken by the review committee

in the present case calls for interference by this Court.

44. The law laid down by the Hon'ble Supreme Court in

Umedbhai M Patel's case (supra) still holds the field. In recent

judgment in Captain Pramod Kumar Bajaj vs. Union of India // 49 //

reported in 2023 SCC Online (SC) 234 the Hon'ble Supreme Court

refering to the judgment in Umedbhai M Patel's case (supra) was

pleased to set aside the order of compulsory retirement, therefore,

there is no doubt that the law laid down by the Hon'ble Supreme

Court in Umedbhai M Patel's case is valid law and still holds the

field.

45. In view of the aforesaid analysis of the facts as well as the

legal position and on a careful examination of the materials on

record and upon a perusal of the order passed by the review

committee, order dated 12.11.2021 under Annexure-5 passed by the

Opposite Party No.1 is unsustainable in law and therefore the same

is hereby quashed. The Opposite Party No.1 is further directed to

reconsider the case of the Petitioner and allow him to continue in

service as Deputy Superintendent of Excise and In-Charge

Superintendent of Excise within a period of two months from the

date of communication of a copy of this judgment to the Opposite

Party No.1. It is needless to mention here that in the event the

Petitioner is restored back in service he shall be entitled to all

consequential service as well as financial benefits.

// 50 //

46. With the aforesaid observations/ directions, the writ

application stands allowed. However, there shall be no order as to

cost.

(A.K. Mohapatra) Judge Orissa High Court, Cuttack The 31st of October, 2023/ Anil.

Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 31-Oct-2023 13:41:29