Patna High Court
Rajesh Kumar vs The State Of Bihar on 29 April, 2025
Author: Partha Sarthy
Bench: Partha Sarthy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.219 of 2024
In
Civil Writ Jurisdiction Case No.20954 of 2018
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Rajesh Kumar S/o Ishwar Prasad Sinha, R/o at and PO- Gopalbad, P.S.-
Sarmera, District- Nalanda.
... ... Appellant/s
Versus
1. The State of Bihar.
2. Principal Secretary to Hon'ble His Excellency the Governor, Governor's
Secretariat, Bihar, Patna.
3. Joint Secretary, Governor's Secretariat, Bihar, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Mrigank Mauli, Sr. Advocate
Mr. Navin Kumar Singh, Advocate
Mr. Sanket, Advocate
Mr. Sanjay Kumar, Advocate
For Respondent nos. 2 &3 : Mr. Janardan Pd. Singh, Sr. Advocate
Mr. Rajiv Ranjan Kr. Pandey, Advocate
For the State : Mr. G.P. Ojha, GA-7
Mr. Abhinav Ashok, AC to GA-7
======================================================
CORAM: HONOURABLE THE ACTING CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE PARTHA SARTHY
ORAL JUDGMENT
(Per: HONOURABLE THE ACTING CHIEF JUSTICE)
Date : 29-04-2025
Re: I.A No. 01 of 2024.
The learned Advocate for the appellant presses
I.A. No. 01 of 2024 for condoning the delay of 01 day in
preferring this appeal.
2. For the reasons stated in the application, the
delay of 01 day in filing this appeal is condoned.
3. I.A. No. 01 of 2024 stands allowed.
Patna High Court L.P.A No.219 of 2024 dt.29-04-2025
Re: L.P.A No. 219 of 2024.
4. Heard Mr. Mrigank Mauli, the learned Senior
Advocate for the appellant and Mr. Janardan Prasad
Singh, the learned Senior Advocate for the respondent
nos. 2 and 3. The State is represented by Mr. Abhinav
Ashok, AC to GA-7.
5. The appellant was compulsorily retired by
order dated 13.04.2018, which order was challenged
before a learned Single Judge of this Court vide C.W.J.C
No. 20954 of 2018.
6. The learned Single Judge upheld the order on
the ground that the appellant did not comport himself in
accordance with the Bihar Government Servant's Conduct
Rules, 1976, which obligated him to maintain absolute
integrity, devotion to duty and do nothing which is
unbecoming of a Government Servant at any point of
time, as also for the reason that the contents of the order
of compulsory retirement is not stigmatic at all.
7. The appellant assails the judgment of the
Patna High Court L.P.A No.219 of 2024 dt.29-04-2025
learned Single Judge on various counts.
8. It appears that the appellant was subjected to
a departmental proceeding for having leaked a
confidential information. Within a period of ten days,
while the departmental proceeding was still continuing, an
order compulsorily retiring the appellant was passed
under Section 74(a) of the Bihar Service Code.
9. Section 74 of the Bihar Service Code reads as
hereunder :-
"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 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
Patna High Court L.P.A No.219 of 2024 dt.29-04-2025
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 :
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.
(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.
(iii) A Government servant who retires
Patna High Court L.P.A No.219 of 2024 dt.29-04-2025
voluntarily is required to retire in public interest
under this rule on attaining the age of 50 years,
or completing qualifying service of 30 years, shall
be entitled to retiring pension and death cum-
retirement gratuity."
10. The learned counsel for the appellant has
submitted that the order of compulsory retirement does
not pass the muster of any one of the requirements for
justifying such an order.
11. In State of Orissa & Ors. vs. Ram
Chandra Das; (1996) 5 SCC 331, the settled legal
position was reiterated that the Government/authorities is
empowered to compulsorily retire a Government servant
in public interest, with a view to improve efficiency of the
administration; or to weed out people of doubtful integrity
or who are corrupt; but sufficient evidence was not
available to take disciplinary action in accordance with the
rules so as to inculcate a sense of discipline in the service.
However the Government, before taking such decision to
retire a Government employee compulsorily from service,
Patna High Court L.P.A No.219 of 2024 dt.29-04-2025
has to consider the entire record of the Government
servant including the latest reports.
12. Similarly, in State of Gujarat & Anr. vs.
Suryakant Chunilal Shah; (1999) 1 SCC 529, the
order of compulsory retirement on such test was found to
be punitive and to have been passed for collateral
purpose of the immediate removal of the Government
servant rather than a decision in public interest and thus it
was set aside.
13. The Supreme Court after taking into account
the judgment in Union of India vs. Col. J.N Sinha;
(1970) 2 SCC 458 culled out the necessary safeguards
before compulsorily retiring a Government servant in
Baikuntha Nath Das vs. Chief District Medical
Officer; (1992) 2 SCC 299. The same is being
extracted hereunder for ready reference :-
"(i) An order of compulsory retirement is not
a punishment. It implies no stigma nor any
suggestion of misbehaviour.
(ii) The order has to be passed by the
Patna High Court L.P.A No.219 of 2024 dt.29-04-2025
government on forming the opinion that it is
in the public interest to retire a government
servant compulsorily. The order is passed on
the subjective satisfaction of the government.
(iii) Principles of natural justice have no place
in the context of an order of compulsory
retirement. This does not mean that judicial
scrutiny is excluded altogether. While the
High Court or this Court would not examine
the matter as an appellate court, they may
interfere if they are satisfied that the order is
passed (a) mala fide or (b) that it is based on
no evidence or (c) that it is arbitrary -- in the
sense that no reasonable person would form
the requisite opinion on the given material; in
short, if it is found to be a perverse order.
(iv) The government (or the Review
Committee, as the case may be) shall have to
consider the entire record of service before
taking a decision in the matter -- of course
attaching more importance to record of and
performance during the later years. The
record to be so considered would naturally
include the entries in the confidential
records/character rolls, both favourable and
adverse. If a government servant is promoted
to a higher post notwithstanding the adverse
Patna High Court L.P.A No.219 of 2024 dt.29-04-2025
remarks, such remarks lose their sting, more
so, if the promotion is based upon merit
(selection) and not upon seniority.
(v) An order of compulsory retirement is not
liable to be quashed by a Court merely on the
showing that while passing it
uncommunicated adverse remarks were also
taken into consideration. That circumstance
by itself cannot be a basis for interference."
14. Similar views were expressed by the
Supreme Court in Allahabad Bank Officers'
Association vs. Allahabad Bank & Ors.; (1996) 4
SCC 504, Union of India vs. Dulal Dutt; (1993) 2
SCC 179 and R.L. Butail vs. Union of India & Ors.;
(1970) 2 SCC 876 .
15. Thus the law relating to compulsory
retirement is very clear that it has not to be treated as a
punishment but only for better administration and in
public interest. It cannot be imposed as a punitive
measure. The most important safeguard in order to
ensure the aforenoted requirements is that such order can
Patna High Court L.P.A No.219 of 2024 dt.29-04-2025
be passed only after having due regard to the entire
service record of the Officer concerned [also refer to
State of Gujarat vs. Umedbhai M. Patel; (2001) 3
SCC 314].
16. The order of compulsory retirement of the
appellant clearly indicates that it was punitive and that
the order was passed on a solitary incident of suspicion
against the appellant of having disseminated an
information which was to be kept under
cover/confidential.
17. The appellant has submitted that the charge
against him was only of having received a whatsApp
message regarding a secret/confidential information in
connection with the decision making of the Government.
18. However for the aforenoted misdemeanor, a
departmental proceeding had already been initiated.
19. Taking a decision within 10 days of the
initiation of the departmental proceeding of compulsorily
retiring the appellant, clearly reflects that it was meant
Patna High Court L.P.A No.219 of 2024 dt.29-04-2025
for the purposes of removing the appellant from service,
as a punishment and that also for a solitary incident.
20. The order does not indicate that the records
of the appellant were ever looked into.
21. The very purpose of invoking Section 74 of
the Bihar Service Code is to, in public interest and better
administration, remove a dead wood.
22. The order therefore is thus not only
stigmatic but punitive as well, which order could not have
been passed under Section 74 of the Bihar Service Code.
23. The learned Single Judge, it appears to us,
did not look into the entire aspect of the matter and
erroneously held the impugned order to be non-stigmatic.
The aspects of verifying the entire service record of the
appellant and invocation of Section 74 of the Bihar
Service Code only for the purposes of removal of the
appellant was totally ignored.
24. For the aforenoted reasons, we set aside the
judgment of the learned Single Judge, impugned in the
Patna High Court L.P.A No.219 of 2024 dt.29-04-2025
present appeal, as also the order of compulsory
retirement dated 13.04.2018.
25. The respondent shall be at liberty to
continue with the departmental proceeding against the
appellant.
26. The appropriate authority shall take a
decision regarding suspension of the appellant during the
course of departmental proceeding, which shall be
concluded after affording all opportunities to the appellant
to defend himself and the proceeding shall be concluded
expeditiously.
27. Accordingly, the appeal stands allowed.
28. Interlocutory applications, if any, also stand
disposed off.
(Ashutosh Kumar, ACJ)
(Partha Sarthy, J)
Shiv/Sunil-
AFR/NAFR
CAV DATE N/A
Uploading Date 30.04.2025
Transmission Date
