Patna High Court
Rajesh Kumar vs The State Of Bihar And Ors on 29 January, 2024
Author: Anshuman
Bench: Anshuman
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.20954 of 2018
======================================================
Rajesh Kumar, S/o Ishwar Prasad Sinha, R/o at and PO- Gopalbad, P.S.-
Sarmera, Distt- Nalanda.
... ... Petitioner/s
Versus
1. The State Of Bihar
2. Principal Secretary to Hon'ble His Excellency the Governor, Gobernor's
Secretariat, Bihar, Patna.
3. Joint Secretary, Governer's Secretariat, Bihar, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. D. K. Sinha, Sr. Advocate
Mr.Abhinay Raj, Advocate
Mr. Alexander Ashok, Advocate
Ms. Akansha Malviya, Advocate
For the State : Md.Raisul Haque -SC10
For Resp Nos. 2 and 3 : Mr. Rana Vikram Singh, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN
ORAL JUDGMENT
Date : 29-01-2024
Heard learned Sr. Counsel for the petitioner, learned
counsel for the State and learned counsel for the Governor's
Secretariat, Bihar, Patna.
2. Learned Sr. counsel for the petitioner submits that
the present writ petition has been filed for quashing of the order
contained in Memo No. 574 dated 13.04.2018, communicated
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by respondent No.3 by which the petitioner has been made
compulsorily retired.
3. Learned Sr. Counsel for the petitioner further
submits that the petitioner was initially appointed on a daily
wage basis followed by a procedure of regular appointment vide
order No. Estb.88/90-3193/GS(3) dated 27.11.1991.
Subsequently, vide order dated 05.06.1995 issued under the
signature of respondent No.2, namely, the Principal Secretary,
Governor's Secretariat, Bihar, Patna, the petitioner was
appointed on the regular vacant post of Personal Assistant. The
services of the petitioner were confirmed w.e.f. 05.06.1998 vide
Memo No. Estb.15/95-1244/GS(3) dated 16.05.2000. He further
submits that in the year 2004, he was promoted to the post of Sr.
Personal Assistant, vide Governor's Secretariat Office Order
No. Estb.88/90-3322/GS(3), dated 09.12.2004 and, thereafter,
vide Memo No. 2437 dated 07.05.2007, the petitioner was
designated as Private Secretary. The petitioner was suspended
vide Memo No. 515 dated 03.04.2018 on the basis of an
allegation that he leaked certain confidential documents from
the office of the Governor's Secretariat. Subsequently, vide
Memo No. 574 dated 13.04.2018, he was terminated from the
service under Rule 74 of the Bihar Service Code, 1952 granting
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three months' salary and benefits as well as making him entitled
for pension, gratuity, and other retiral benefits in accordance
with law. Learned Sr. Counsel for the petitioner further submits
that the impugned order contained in Annexure-7 has been
passed in complete violation of law due to the reason that the
said letter by which the petitioner has been compulsorily retired
is basically a stigma on him without initiation of any
departmental proceeding which is in gross violation of the
constitution.
4. Learned Sr. Counsel for the petitioner has relied
upon the decision of this Court rendered on 28.08.2023 in the
case of Shyam Sundar Sharma Vs. the State of Bihar and Ors.
in CWJC No. 407/2021; Mahfooz Alam Vs. the State of Bihar
& Ors. decided on 18.05.2022 in CWJC No. 23655/2018 as well
as the decision of the Division Bench rendered on 18.11.2008 in
the case of the Bihar State Road Transport Corporation Vs.
Vidya Nand Sharma and Ors. reported in 2009(2) PLJR
559 (L.P.A. No. 180/2006). Learned Sr. Counsel for the
petitioner has also relied on a judgment rendered by this Court
on 12.10.2023 in the case of Satish Kumar Singh vs. the State
of Bihar and Ors. along with other analogous cases.
5. Learned Sr. Counsel for the petitioner further
Patna High Court CWJC No.20954 of 2018 dt.29-01-2024
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submits that it is the consistent finding in all the cases cited
above that abrupt invoking Rule 74 of the Bihar Service Code,
1952 in retiring the petitioner compulsorily is basically bad and,
therefore, in all the decisions, this Hon'ble Court has set aside
the order of compulsory retirement and, therefore, in this
background, Annexure-7 which is an order contained in Memo
No. 574, dated 13.04.2018 may be set aside and a direction may
be issued to reinstate the petitioner in service.
6. Learned counsel appearing on behalf of the
Governor's Secretariat submits that the petitioner was in service
of the Governor's Secretariat for the last about 27 years as he
started his service in 1991 and the order of compulsory
retirement has been passed in the year 2018. Counsel further
submits that there is absolutely no stigma has been accepted
against the petitioner and his compulsory retirement from the
service has been made completely in public and administrative
interest. He has been retired compulsorily, granting salary for
three months' and in addition to that direction for payment of
pension, gratuity, and other service benefits were also directed
to be made to the petitioner in accordance with the law.
7. Learned counsel for the Governor's Secretariat
submits that the judgments which the petitioner relying are not
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applicable in the case of the present petitioner, due to the reason
that in all those cases, a decision to initiate the departmental
proceeding was taken and after taking decision of the
departmental proceeding, subsequently, without assigning any
reason the government has decided to take action under Rule 74
of the Bihar Service Code, 1952 to make them compulsory
retired. He further submits that the case of Mahfooz Alam
(supra) is related to an employee of the Governor's Secretariat
itself against whom it was decided by the officials initially took
decision to initiate departmental proceedings as has been
observed in paragraph 5 of the said judgment and, thereafter
abruptly invoked Rule 74 of the Bihar Service Code, 1952 in
retiring the petitioner compulsorily. It is due to this reason, this
Hon'ble Court entertained and set aside the decision of
compulsory retirement of the Mahfooz Alam (supra) whereas in
the present case, it is not the situation. At no level, it has been
decided by the officials of the Governor's Secretariat to initiate
the departmental proceeding against him. As such, learned
counsel for the Governor's Secretariat submits that the present
writ is not maintainable and fit to be dismissed.
8. In response thereof, learned Sr. Counsel for the
petitioner relied on the fourth paragraph of the order impugned
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dated 13.04.2018 (Annexure ), which is extracted as under:-
"vr% ljdkjh dk;Z dh xksiuh;rk Hkax djus rFkk
jkT;iky lfpoky; dh xfjek dks Bsl igqWapkus rFkk fcgkj
ljdkjh lsod vkpkj fu;ekoyh ds izko/kkuksa dk mYya/ku djus
vkfn ds vkjksi ds en~nsutj Jh jkts"k dqekj] iz/kku lfpo ds
vkIr lfpo dks bl lfpoky; ds dk;kZy; vkns"k la[;k&
LFkk0&04@2018&515@jk0l0 (III)] fnukad& 03-04-2018 ls
fuyafcr fd;k x;k FkkA"
9. Learned Sr. Counsel for the petitioner further
submits that there is specific allegation present in the ordersheet
in the form of stigma and since it is in the form of stigma, then it
is necessary to conclude it by virtue of the departmental
proceeding and then to take action.
10. In response of the said allegation, counsel for the
respondent Governor's Secretariat submits that by reading the
said quoted paragraph made above, it appears that it is the fact
of the case which has been inserted in the ordersheet and the
decision has been taken from next paragraph, which is quoted as
under :-
"mDr ?kVuk dh xaHkhjrk ds n`f'Vxr Jh jkts"k
dqekj] iz/kku lfpo ds vkIr lfpo (fuyafcr) dk vkpkj
yksdfgr ,oa iz"kklfud fgr esa ,slk ugha gS fd bUgsa lsok esa
cuk, j[kuk U;k; gksA mDr i`'BHkwfe esa Jh jkts"k dqekj
(fuyafcr) dks fcgkj lsok lafgrk ds fu;e 74 ds rgr rhu ekg
ds osru rFkk HkRrs ds lerqY; jkf"k dk Hkqxrku dk vkns"k
Patna High Court CWJC No.20954 of 2018 dt.29-01-2024
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iznku djrs gq, ljdkjh lsok ls rRdky izHkko ls vfuok;Z lsok
fuo`r fd;k tkrk gSA
vfuok;Z lsok fuo`fr ds mijkar bUgsa isa"ku] miknku
,oa vU; lsok fuo`fr ykHk dh jkf"k dk Hkqxrku fu;ekuqlkj
fd;k tk,xkA"
11. Quoting the last two paragraphs, learned counsel
for the Governor's Secretariat submits that the operative part of
this ordersheet is absolutely without stigma and it is a case of
removal simplicitor by way of compulsory retirement on the
ground of public and administrative interest and therefore, the
plea taken by the petitioner is not acceptable.
12. In the present facts and circumstances and in the
light of the submissions made as well as perusal of the
documents available on record, it transpire to this Court that
with a view to decide the issue involved in the present writ
petition, it is necessary to quote Rule 74 of the Bihar Service
Code, 1952, as under :-
"74.(a) The State Government may
require any Government servant who has
completed twenty one years of duty and
twenty-five years of total service calculated
from the date of his first appointment to retire
from Government service, if it considers that
his efficiency or conduct is not such as to
justify his retention in service. Where any
Government servant is so required to retire no
Patna High Court CWJC No.20954 of 2018 dt.29-01-2024
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claim to any special compensation shall be
entertained.
[(b)(i) Notwithstanding anything
contained in the preceding sub-rule a
Government servant may, after giving at least
three months previous notice, in writing, to the
appointing authority concerned retire from
service on the date on which such a
Government servant completes thirty years of
qualifying service or attains fifty years of age
or on any date thereafter to be specified in the
notice:
Provided that no Government
servant under suspension shall retire from
service except with the specific approval of the
State Government :]
2[Provided further that in case of
the officers and servants of the Patna High
Court (including those of Circuit Bench at
Ranchi) under the rule making authority of the
Chief Justice, no such officer and servant
under suspension shall retire from service
except with the specific approval of the Chief
Justice.]
3[ii The appointing authority
concerned may after giving a Government
servant at least three month's previous notice
in writing, or an amount equal to three
month's pay and allowance in lieu of such
notice, require him in public interest, to retire
from service on the date on which such a
Government servant completes thirty years of
qualifying service or attains fifty years of age
or on any date thereafter to be specified in the
notice.]
¹(iii) A Government servant who
retires voluntarily is required to retire in
public interest under this rule on attaining the
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age of 50 years, or completing qualifying
service of 30 years, shall be entitled to retiring
pension and death cum-retirement gratuity.]"
13. This Court feels it necessary to quote the relevant
paragraph nos. 8 and 9 of the judgment rendered in the case of
Shyam Sundar Sharma (supra), as under :
"8. The notification, therefore,
leaves the petitioner with stigma, and is
apparently, as a consequence of the various
alleged acts of omission and commission, as
per the impugned order, extracted above. The
impugned notification, therefore, is apparently
punitive in nature, and beyond the scope of
Rule 74 of the Bihar Service Code. The
decision of the Division Bench in the case of
Vidya Nand Sharma (supra) supports such
conclusion of this Court in the instant writ
proceedings. The impugned notification, in the
above noted facts and circumstances, and the
settled legal position based on decision of the
Division Bench, noted above, is clearly
unsustainable in the eyes of law.
9. The impugned notification dated
18-06-2020
(Annexure- 1) is, therefore,
quashed."
14. Similarly, paragraph no. 5 of the judgment
rendered in the case of Mahfooz Alam (supra) is quoted as
Patna High Court CWJC No.20954 of 2018 dt.29-01-2024
under :-
"5. In the light of these facts and
circumstances, it is material evident that
official respondents have initially taken a
decision to initiate disciplinary proceedings as
is evident from the record. Thereafter, abruptly
invoked Rule 74 of the Bihar Service Code in
retiring the petitioner compulsorily. Thus,
petitioner has made out a prima facie case so
as to interfere with the proceedings read with
the compulsory retirement order dated
02.07.2018 (Annexure-10). Accordingly, order
dated 02.07.2018 (Annexure-10) is set aside."
15. Again it is relevant to quote relevant paragraph 6
and 7 rendered in the case of Satish Kumar Singh (supra), as
under :-
"6. In the light of the observations made
by the Co- ordinate Bench of this Hon'ble Court,
that the observation quoted above is basically
stigma casted upon consequence of various alleged
acts of omission and commission and therefore this
Court is of this view that the impugned notification
is punitive in nature because the scope of Rule 74 of
the Bihar Service Code, 1952, is absolutely different
as mentioned in the notification.
7. This Court is also of the view that
parity should be maintained and therefore, in the
light of the reasons above, all the writ petitions are
hereby allowed and the impugned notification
containing Memo No. 3604(Bh) dated 18.06.2020
Patna High Court CWJC No.20954 of 2018 dt.29-01-2024
issued by the Additional Secretary, Building
Construction Department, Bihar, Patna (annexed as
Annexure-1) is hereby quashed for all the four
petitioners of the present writ petitioners mentioned
above."
16. At last, it is further necessary to quote paragraph
14, 15 of the judgment rendered by a Division Bench of this
Court in the case of Bihar State Road Transport Corporation
(supra), as under :-
"14. Rule 74(b)(ii) of the Bihar Service
Code having been made applicable to the
Corporation employees, empowers the
Corporation to retire its employee compulsorily in
public interest on fulfillment of conditions
mentioned therein. In the entire order of
compulsory retirement, no statement is recorded
that the petitioner is being compulsorily retired in
public interest. We assume in favour of the
Corporation that it was not necessary so to do but
then there must be material which may establish
public interest. Save and except a bald statement
in the counter affidavit that several opportunities
have been given to the petitioner to improve his
efficiency and obey the order of the higher
authorities, no material whatsoever has been
produced in support thereof. Even the statement
that several opportunities have been given to the
petitioner to improve the efficiency and obey the
order of the higher authorities, is founded on a
letter written by the Divisional Manager to the
Chief of Administration and there is nothing on
record to show that any communication or office
memo to that effect was issued to the petitioner.
Patna High Court CWJC No.20954 of 2018 dt.29-01-2024
The copy of the letter dated 30th April, 2004 has
also not been placed on record. In this view of the
matter, the statement recorded in the impugned
order dated 25th May, 2004 has to be given plain
meaning and plainly read, it leads to only one
conclusion and that conclusion is that the
statement is stigmatic and it casts aspersion on the
conduct of the petitioner.
15. We, thus, find that the single judge
has considered the matter in right perspective
justifying no interference in the appeal."
17. It is also relevant to quote Clause 3 of the Bihar
Government Servant's Conduct Rules, 1976, as under :-
"3. General. -
(1) Every Government servant shall at all
times-
(i) maintain absolute integrity;
(ii) maintain devotion to duty; and
(iii) do nothing which is unbecoming of a
Government servant.
(2) Every Government servant holding a
supervisory post shall take all possible steps to
ensure the integrity and devotion to duty of all
Government servants for the time being under his
control and authority.
(3) No Government servant shall, in the
performance of his official duties or in the exercise
of power conferred on him, act otherwise than in his
best Judgement except when he is acting under the
direction of his official superior and shall; where he
Patna High Court CWJC No.20954 of 2018 dt.29-01-2024
is acting under such direction, obtain the direction
in writing wherever practicable, and where it is not
practicable to obtain the direction in writing he
shall obtain written confirmation of the direction as
soon thereafter as possible.
Explanation.-Nothing in sub-rule (3) of
Rule 3 shall be construed as empowering a
Government servant to evade his responsibilities by
seeking instructions from, or approval of, a superior
officer or authority when such instructions are not
necessary under the scheme of distribution of
powers and responsibilities.
............................."
18. Upon going through the bare provisions and
particularly, the impugned order's last three paragraphs, this
Court is of the firm view that in the last two paragraphs of the
order impugned which are the operative part of the order, there
is absolutely no stigma has been accepted and the decision has
been taken by the respondent authorities completely in the light
of the public and administrative interest. So far as the earlier
part of the order impugned is concerned, it is nothing but a
replica of the facts and hence, this Court reached the conclusion
that those rules mentioned above shall not help the petitioner in
any manner and the decision of the authority contained in Memo
No. 574 dated 13.04.2018 (as contained in Annexure -P/7) has
Patna High Court CWJC No.20954 of 2018 dt.29-01-2024
been passed completely in accordance with the law. As such,
this Court is not inclined to interfere with the said order.
19. Accordingly, the present writ petition stands
dismissed.
(Dr. Anshuman, J)
Ashwini/-
AFR/NAFR
CAV DATE NA
Uploading Date 02/02/2024
Transmission Date NA
