Patna High Court
The State Of Bihar vs Shyam Sundar Sharma on 20 November, 2024
Author: Partha Sarthy
Bench: Chief Justice, Partha Sarthy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1468 of 2023
In
Civil Writ Jurisdiction Case No.9776 of 2020
======================================================
1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.
2. The Principal Secretary, Building Construction Department, Bihar, Patna.
3. The Additional Secretary, Building Construction Department, Bihar, Patna.
4. The Secretary, Bihar Public Service Commission, Patna.
... ... Appellant/s
Versus
Satish Kumar Singh Son of Late Ram Mohan Singh, Resident of D-305,
Magestic Janky City, East Gola Road, P.S.- Nizamat Danapur, District- Patna.
... ... Respondent/s
======================================================
with
Letters Patent Appeal No. 1450 of 2023
In
Civil Writ Jurisdiction Case No.407 of 2021
======================================================
1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.
2. The Principal Secretary, Building Construction Department, Bihar, Patna.
3. The Additional Secretary, Building Construction Department, Bihar, Patna.
4. The Secretary, Bihar Public Service Commission, Patna.
... ... Appellant/s
Versus
Shyam Sundar Sharma son of Late Janeshwar Sharma, Resident of Village-
Chatar, P.S.-Kako, District-Jehanabad.
... ... Respondent/s
======================================================
with
Letters Patent Appeal No. 1451 of 2023
In
Civil Writ Jurisdiction Case No.3047 of 2021
======================================================
1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.
2. The Principal Secretary, Building Construction Department, Bihar, Patna.
3. The Additional Secretary, Building Construction Department, Bihar, Patna.
4. The Secretary, Bihar Public Service Commission, Patna.
... ... Appellant/s
Versus
Patna High Court L.P.A No.1468 of 2023 dt.20-11-2024
2/17
Kumar Rajesh Son of Late Raghunath Prasad Sinha Resident of village-
Kashipur, P.S.- Bidhupur, District - Vaishali, at present - House No. 67, Road
no. 14, Sri Krishna Nagar, P.S- Budha Colony, District- Patna.
... ... Respondent/s
======================================================
with
Letters Patent Appeal No. 1452 of 2023
In
Civil Writ Jurisdiction Case No.3727 of 2021
======================================================
1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.
2. The Principal Secretary, Building Construction Department, Bihar, Patna.
3. The Additional Secretary, Building Construction Department, Bihar, Patna.
4. The Executive Engineer, Building Construction Division, Darbhanga.
5. The Secretary, Bihar Public Service Commission, Patna.
... ... Appellant/s
Versus
Praveen Pandit Son of Ram Udgar Pandit Resident of Village- Naulagarh,
P.S.- Bhagwanpur, District- Begusarai, presently at Abhiyanta Nagar, East
Ram Krishna Nagar, P.S.- Ram Krishna Nagar, District- Patna- 800027.
... ... Respondent/s
======================================================
with
Letters Patent Appeal No. 1453 of 2023
In
Civil Writ Jurisdiction Case No.9779 of 2020
======================================================
1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.
2. The Principal Secretary, Building Construction Department, Bihar, Patna.
3. The Additional Secretary, Building Construction Department, Bihar, Patna.
4. The Secretary, Bihar Public Service Commission, Patna.
... ... Appellant/s
Versus
Rakesh Kumar Singh Son of Late Bachcha Singh, resident of flat no. - 202,
Kaushalaya Enclave Apartment, Rajendra Path, North S.K. Puri, P.S. - S.K.
Puri, District - Patna.
... ... Respondent/s
======================================================
Appearance :
(In Letters Patent Appeal No. 1468 of 2023)
For the Appellant/s : Mr. P.K.Shahi, AG
Mrs. Binita Singh, SC 28
Mr. Kumaresh Singh, AC to SC 28
Mr. Nishant Kumar Jha, AC to SC 28
Patna High Court L.P.A No.1468 of 2023 dt.20-11-2024
3/17
For the Respondent/s : Mr. Prabhu Nath Pathak, Advocate
(In Letters Patent Appeal No. 1450 of 2023)
For the Appellant/s : Mr. P.K.Shahi, AG
Mrs. Binita Singh, SC 28
Mr. Kumaresh Singh, AC to SC 28
Mr. Nishant Kumar Jha, AC to SC 28
For the Respondent/s : Mr. Prabhu Nath Pathak, Advocate
(In Letters Patent Appeal No. 1451 of 2023)
For the Appellant/s : Mr. P.K.Shahi, AG
Mrs. Binita Singh, SC 28
Mr. Kumaresh Singh, AC to SC 28
Mr. Nishant Kumar Jha, AC to SC 28
For the Respondent/s : Mr. Prabhu Nath Pathak, Advocate
(In Letters Patent Appeal No. 1452 of 2023)
For the Appellant/s : Mr. P.K.Shahi, AG
Mrs. Binita Singh, SC 28
Mr. Kumaresh Singh, AC to SC 28
Mr. Vivek Anand Amritesh, AC to SC28
For the Respondent/s : Mr. Prabhu Nath Pathak, Advocate
(In Letters Patent Appeal No. 1453 of 2023)
For the Appellant/s : Mr. P.K.Shahi, AG
Mrs. Binita Singh, SC 28
Mr. Kumaresh Singh, AC to SC 28
Mr. Vivek Anand Amritesh, AC to SC28
For the Respondent/s : Mr. Prabhu Nath Pathak, Advocate
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE PARTHA SARTHY
C.A.V. JUDGMENT
(Per: HONOURABLE MR. JUSTICE PARTHA SARTHY)
Date :20-11-2024
Heard learned Advocate General assisted by Smt.
Binita Singh, learned Standing Counsel for the appellant-State
of Bihar and Mr. Prabhu Nath Pathak, learned counsel for the
writ petitioners-respondents.
2. All the five writ petitioners-respondents herein
having been compulsorily retired by a common order contained
in notification dated 18.6.2020 under the signature of the
Additional Secretary, Building Construction Department,
Government of Bihar preferred separate writ applications, all
Patna High Court L.P.A No.1468 of 2023 dt.20-11-2024
4/17
having been allowed, the orders have been challenged in appeal
by the State of Bihar.
3. CWJC no.407 of 2021 preferred by Shyam
Sundar Sharma was allowed vide judgment dated 29.8.2023.
The other writ applications i.e. CWJC no.9776 of 2020 filed by
Satish Kumar Singh, CWJC no.9779 of 2020 filed by Rakesh
Kumar Singh, CWJC no.3047 of 2021 filed by Kumar Rajesh
and CWJC no.3727 of 2021 filed by Praveen Pandit were all
allowed on the ground of similarity/parity with CWJC no.407 of
2021, by judgment dated 12.10.2023 against which separate four
appeals have been preferred by the State of Bihar. All the five
appeals filed against the orders passed in the writ petitions have
been taken up together and are decided by this common order.
4. The case of the writ petitioners-respondents was
that all of them have had an unblemished career with no adverse
entries in the ACRs. No show cause notice had been served on
them prior to passing of the order of compulsory retirement. The
only option for the State of Bihar was to proceed against the
writ petitioners under the provisions of the Bihar Government
Servant (Classification, Control and Appeal) Rules, 2005
('C.C.A. Rules' in short) by framing memo of charges against
the writ petitioners and proceeding as per the procedure laid
Patna High Court L.P.A No.1468 of 2023 dt.20-11-2024
5/17
down under the CCA Rules. It was the case of the writ
petitioners that though the power exercised is purportedly under
Rule 74 of the Bihar Service Code, however, the order
impugned being stigmatic in nature, the order is unsustainable
and fit to be quashed.
5. It was the case of the State of Bihar that the
services of the writ petitioners have not been satisfactory and
their continuance in service was not in public interest. A
meeting was convened under the Chairmanship of the Principal
Secretary of the department which discussed all the names and
based on the records submitted, the past performance of the
persons concerned were thoroughly examined and thereafter the
six persons including the writ petitioners-respondents herein
were identified whose continuance in service was considered
not in public interest. As such, in exercise of powers conferred
under Rule 74 of the Bihar Service Code, the order was passed
compulsorily retiring them from service. It was submitted that
the order is in accordance with law and there is no merit in the
case of the writ petitioners-respondents.
6. As stated above, CWJC no.407 of 2021 was
allowed by a judgment dated 29.8.2023 and the impugned
notification dated 18.6.2020 was quashed. The other four writ
Patna High Court L.P.A No.1468 of 2023 dt.20-11-2024
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applications preferred by the other writ petitioners, on the
ground of their cases being similar to the writ petitioner of
CWJC no.407 of 2021 and the order impugned being same in all
the five writ applications, the same was allowed on the ground
of parity, by a judgment dated 12.10.2023. The State of Bihar
has preferred separate appeals in all the writ applications.
7. Mr. P.K.Shahi, learned Advocate General
appearing for the appellants-State of Bihar submitted that the
order impugned in all the writ applications as contained in
notification dated 18.6.2020 has been passed by the Additional
Secretary, Building Construction Department, Bihar, Patna
invoking powers under Rule 74 of the Bihar Service Code. Rule
74 provides that if the State Government considers that the
efficiency or conduct of a Government servant is not such as to
justify his retention in service, the State Government may
require such Government servant who has completed 21 years
of duty and 25 years of total service to retire after giving three
months at least previous notice or an amount equal to three
months pay and allowance in lieu of such notice. It is submitted
that a meeting was convened under the Chairmanship of the
Principal Secretary of the Department on 3.6.2020 and 4.6.2020.
After receipt of the report with respect to the performance from
Patna High Court L.P.A No.1468 of 2023 dt.20-11-2024
7/17
various divisions and circles of the Department, the report so
received and the performance of the concerned persons was
examined and finally six persons of engineering service were
identified whose continuance was not considered proper in
public interest. As such, under the powers conferred under Rule
74 of the Bihar Service Code, they were directed to be
superannuated compulsorily. It was submitted that there is no
illegality in the order impugned, the order cannot be said to be
stigmatic in nature and the learned Single Judge had committed
an error in allowing CWJC no.407 of 2021 by a judgment dated
29.8.2023
and the other writ applications on ground of parity
with the said judgment. Learned Advocate General in support of
his submissions relied on the judgment of the Hon'ble Supreme
Court in the case of Central Industrial Security Force vs. HC
(GD) Om Prakash [(2022) 5 SCC 100].
8. In response, Mr. Prabhu Nath Pathak, learned
counsel appearing for the writ petitioners-respondents submitted
that the writ petitioners had never been served with any charge
memo or show cause nor had they been paid the three months
salary in lieu of the notice as contemplated under Rule 74 of the
Bihar Service Code. The order impugned was in violation of the
principles of natural justice. The entire service performance of
Patna High Court L.P.A No.1468 of 2023 dt.20-11-2024
the writ petitioners was to be considered. The order impugned in
the writ applications cast aspersions, was punitive in nature and
beyond the scope of Rule 74 of the Bihar Service Code. The
learned Single Judge had rightly allowed the writ applications.
There is no merit in the appeals and as such, the appeals be
dismissed.
9. Having heard learned counsel for the parties and
having perused the material on record, from the contents of the
counter affidavit filed on behalf of the State of Bihar in the writ
application, it transpires that a committee was constituted under
the Chairmanship of the Principal Secretary of the Building
Construction Department, Bihar, Patna to consider the case of
persons who were aged over 50 years with respect to their
continuance in service and they being compulsorily retired
under Rule 74 of the Bihar Service Code. The committee
besides the Principal Secretary consisted of the Special
Secretary, Engineer-in-Chief-cum-Chief Engineer, Additional
Secretary, Joint Secretary, Chief Electrical Engineer, Chief
Engineer (North), Chief Engineer (Patna), Chief Engineer
(South), Deputy Secretary (Incharge Non-Gazetted,
Establishment) and Deputy Secretary (Incharge Gazetted,
Establishment). From the minutes of the meeting held on
Patna High Court L.P.A No.1468 of 2023 dt.20-11-2024
3.6.2020 and 4.6.2020, copy of which has been brought on
record by way of annexures in the counter affidavit filed in
CWJC no.3047 of 2021, it transpires that the committee
touching upon the entire service record of the writ petitioners
and in each of the cases having come to the conclusion was of
the opinion that it was not in public interest for the writ
petitioners to continue in Government service. As such, in terms
of Rule 74 of the Bihar Service Code, the committee
recommended for compulsorily retiring them from service.
10. It was consequent to the decision of the
committee that the order impugned contained in notification
dated 18.6.2020 was passed under the signature of the
Additional Secretary, Building Construction Department,
Government of Bihar compulsorily retiring the writ petitioners
from service in terms of Rule 74 of the Bihar Service Code. The
order further provided that the writ petitioners would be entitled
for pension, death-cum-retiral gratuity and other post retiral
benefits. It also provided that they would be entitled for three
months salary.
11. It was contended on behalf of the writ
petitioners that they were never served with any charge, memo
or show cause and thus did not have any opportunity to give a
Patna High Court L.P.A No.1468 of 2023 dt.20-11-2024
reply to the same. It was thus submitted that the order impugned
was in violation of principles of natural justice.
12. In paragraph no.9 of the judgment in the case
of Om Prakash (supra), the Hon'ble Supreme Court relying on
the earlier judgment of the Hon'ble Supreme Court has held that
rule of audi alteram partem has no application since the order of
compulsory retirement in such a situation is not penal in nature.
"9. In Union of India v. V.P. Seth,
relying upon Baikuntha Nath Das and other
judgments, it was held as under: (V.P. seth case,
SCC p. 1054, para 3)
"3. These principles were
reiterated with approval in the
subsequent decision. It would, therefore,
seem that an order of compulsory
retirement can be made subject to
judicial review only on grounds of mala
fides, arbitrariness or perversity and
that the rule of audi alteram partem has
no application since the order of
compulsory retirement in such a
situation is not penal in nature. The
position of law having thus been settled
by two decisions of this Court, we are
afraid that the order of the Tribunal
cannot be sustained as the same runs
counter to the principles laid down in
the said two decisions."
13. The next contention on behalf of the writ
petitioners was that the career of the writ petitioners was
unblemished and for inflicting punishment of compulsory
Patna High Court L.P.A No.1468 of 2023 dt.20-11-2024
retirement, the State of Bihar was required to proceed against
them under the C.C.A. Rules. With respect to this contention, it
may be noted that the Hon'ble Supreme Court has held in the
case of Om Prakash (supra) that the tribunal erred in assuming
that there ought to have been a speaking order for compulsory
retirement. Such an order is a prerogative of the Government
based on its subjective satisfaction. The order is not required to
be a speaking order.
"7. A three Judge Bench of this
Court reported as Union of India and Others v.
Dulal Dutt examined the order of compulsory
retirement of a Controller of Stores in Indian
Railway. It was held that an order of compulsory
retirement is not an order of punishment. It is a
prerogative of the Government but it should be
based on material and has to be passed on the
subjective satisfaction of the Government and that
it is not required to be a speaking order. This
Court held as under: (SCC pp.184-85, para 18)
"18. It will be noticed that
the Tribunal completely erred in
assuming, in the circumstances of the
case, that there ought to have been a
speaking order for compulsory
retirement. This Court, has been
repeatedly emphasising right from the
case of R.L. Butail v. Union of India and
Patna High Court L.P.A No.1468 of 2023 dt.20-11-2024
Union of India v. J.N. Sinha that an
order of a compulsory retirement is not
an order of punishment. It is actually a
prerogative of the Government but it
should be based on material and has to
be passed on the subjective satisfaction
of the Government. Very often, on
enquiry by the Court the Government
may disclose the material but it is very
much different from the saying that the
order should be a speaking order. No
order of compulsory retirement is
required to be a speaking order. From
the very order of the Tribunal it is clear
that the Government had, before it, the
report of the Review Committee yet it
thought it fit of compulsorily retiring the
respondent. The order cannot be called
either mala fide or arbitrary in law ."
14. Further, in paragraph no.12, in the case of Om
Prakash (supra), the Hon'ble Supreme Court held that even
adverse entries prior to promotion of a Government servant are
not wiped out and can be taken into account while considering
the overall performance of the employee when it comes to
consideration of the case of that employee for premature
retirement.
"12. In the judgment reported as
Rajasthan State Road Transport Corporation and
Others v. Babu Lal Jangir, the High Court had
taken into consideration adverse entries for the
period 12 years prior to premature retirement.
This Court held that Brij Mohan Singh Chopra v.
Patna High Court L.P.A No.1468 of 2023 dt.20-11-2024
State of Punjab was overruled only on the second
proposition that an order of compulsory retirement
is required to be passed after complying with the
principles of natural justice. This Court also
considered the "washed-off theory" i.e., the
remarks would be wiped off on account of such
record being of remote past. Reliance was placed
upon a three Judge Bench judgment of this Court
reported as Pyare Mohan Lal v. State of
Jharkhand and it was observed that:(Babu Lal
Jangir case, SCC pp. 563-64, paras 22-23)
"22. It clearly follows from
the above that the clarification given by a
two-Judge Bench judgment in Badrinath
is not correct and the observations of this
Court in Gurdas Singh to the effect that
the adverse entries prior to the promotion
or crossing of efficiency bar or picking up
higher rank are not wiped off and can be
taken into account while considering the
overall performance of the employee
when it comes to the consideration of
case of that employee for premature
retirement.
23. The principle of law
which is clarified and stands crystallised
after the judgment in Pyare Mohan Lal v.
State of Jharkhand is that after the
promotion of an employee the adverse
entries prior thereto would have no
relevance and can be treated as wiped off
when the case of the government
employee is to be considered for further
promotion. However, this "washed-off
Patna High Court L.P.A No.1468 of 2023 dt.20-11-2024
theory" will have no application when the
case of an employee is being assessed to
determine whether he is fit to be retained
in service or requires to be given
compulsory retirement. The rationale
given is that since such an assessment is
based on "entire service record", there is
no question of not taking into
consideration the earlier old adverse
entries or record of the old period. We
may hasten to add that while such a
record can be taken into consideration, at
the same time, the service record of the
immediate past period will have to be
given due credence and weightage. For
example, as against some very old
adverse entries where the immediate past
record shows exemplary performance,
ignoring such a record of recent past and
acting only on the basis of old adverse
entries, to retire a person will be a clear
example of arbitrary exercise of power.
However, if old record pertains to
integrity of a person then that may be
sufficient to justify the order of premature
retirement of the government servant."
15. On the point of the scope of judicial review of
an order of compulsory retirement, relying on the judgment in
the case of Ram Murti Yadav vs. State of Uttar Pradesh [2020
(1) SCC 801], the Hon'ble Supreme Court in paragraph no.13 of
the judgment in the case of Om Prakash (supra) held that the
scope is extremely narrow and restricted and there would be
limited scope of interference only if the order is found to be
based on arbitrary or capricious grounds, vitiated by mala fides
or overlooks relevant materials.
Patna High Court L.P.A No.1468 of 2023 dt.20-11-2024
"13.There are numerous other
judgments upholding the orders of premature
retirement of judicial officers inter alia on the
ground that the judicial service is not akin to other
services. A person discharging judicial duties acts
on behalf of the State in discharge of its sovereign
functions. Dispensation of justice is not only an
onerous duty but has been considered as discharge
of a pious duty, therefore, it is a very serious
matter. This Court in Ram Murti Yadav v. State of
Uttar Pradesh held as under: (SCC p. 805, para
6)
"6. ....The scope for
judicial review of an order of compulsory
retirement based on the subjective
satisfaction of the employer is extremely
narrow and restricted. Only if it is found
to be based on arbitrary or capricious
grounds, vitiated by mala fides, overlooks
relevant materials, could there be limited
scope for interference. The court, in
judicial review, cannot sit in judgment
over the same as an appellate authority.
Principles of natural justice have no
application in a case of compulsory
retirement."
16. So far as the facts of the instant case are
concerned, this Court finds that the reports of each of the writ
petitioners along with their entire service records was
considered by the eleven member Committee presided by the
Patna High Court L.P.A No.1468 of 2023 dt.20-11-2024
Principal Secretary of the Department who as borne out from
the minutes of the meeting briefly touching each of them
recommended for their compulsory retirement under Rule 74 of
the Bihar Service Code leading to passing of the impugned
notification.
17. A perusal of the order impugned would show
that it clearly states that it was unanimously decided in the
meeting that continuance of the six persons including the five
respondents herein was not in public interest and as such, they
were compulsorily retired under Rule 74 of the Bihar Service
Code giving them three months salary as contemplated therein
along with all other post retiral benefits.
18. In the opinion of this Court, the learned Single
Judge committed an error in coming to the conclusion in
judgment dated 29.8.2023 in CWJC no.407 of 2021 that the
order impugned was stigmatic in nature, was punitive and
beyond the scope of Rule 74. For the aforesaid reasons, the
Court finds merit in the instant appeal and no merit in the writ
applications filed by the writ petitioners.
19. The writ petitions are dismissed. The orders of
the Hon'ble Single Judge dated 29.8.2023 passed in CWJC
no.407 of 2021 and the common order dated 12.10.2023 passed
Patna High Court L.P.A No.1468 of 2023 dt.20-11-2024
in CWJC no.9776 of 2020, CWJC no.9779 of 2020, CWJC
no.3047 of 2021 and CWJC no.3727 of 2021 are all set aside
and all the appeals are allowed.
( Partha Sarthy, J)
(K. Vinod Chandran, CJ): I agree.
(K. Vinod Chandran, CJ)
Saurabh/-
AFR/NAFR
CAV DATE 18.09.2024
Uploading Date 20.11.2024
Transmission Date
