HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Reserved Delivery in Chamber Case :- WRIT - A No. - 24428 of 2007 Petitioner :- [ENTITY] Respondent :- State Of U.P. And Others Petitioner Counsel :- [ENTITY] Respondent Counsel :- [ENTITY],[ENTITY] Hon'ble [ENTITY],J.
This petition is made under [SECTION] by a Class IV employee in the judgeship of [ENTITY]. He is aggrieved by the order of the District Judge dated 30.4.2007 whereby he has been compulsorily retired under the [ACT] The present dispute arose in the following circumstances:-
The petitioner was initially appointed on 27th April, 1982 as a sweeper at District Court Judgeship, [ENTITY]. In the Service Record his date of birth is recorded 1956. A Screening Committee comprising of District Judge as its Chairman, [ACT] and Additional District Judge was constituted on 27.6.2006 to scrutinized the service records of those Class III and IV employees who had completed the age of 50 years of service, to find out their suitability and utility in service of the judgeship. The Screening Committee was constituted in terms of Government Order dated 26.10.85 and other relevant order issued from time to time.
The aforesaid Screening Committee had scrutinized the entire service record of the petitioner and other employees. The Committee had submitted its report on 28.2.2007 wherein it had recommended that the petitioner should not be continued in service in the public interest and he should be compulsorily retired. The report of Screening Committee was accepted by by the then District Judge [ENTITY]. Consequent upon, he issued the impugned order under the [SECTION] of the Financial Hand Book Vol.II (Part II to IV).
Learned counsel for the petitioner Sri [ENTITY] has submitted that the order of the compulsory retirement passed by the District Judge is malafide, arbitrary, is based on no evidence and the Screening Committee has relied on the stale Entries of the petitioner therefore the order is vitiated. Sri [ENTITY] has further urged that there was no material against the petitioner and whatever material was it was of remote past and the doctrine of washed-off could be attracted in the present case as there was no adverse entry against the petitioner in the recent past. He has further urged that without any application of mind the impugned order has been passed. Sri [ENTITY] has relied on some of the judgment of the Supreme Court and this Court.
The [SECTION] provides that nothing in the Rule may be interpreted in the way to exclude from consideration any entry relating to any period. The use of the word "nothing herein contained shall be construed to exclude from consideration" as a significant meaning it clearly lays down that the exclusion thus is prohibited in terms of the Rule and it does not confine to a particular period even an employee has cross Efficiency Bar or he has been promoted on a higher post. The aforesaid words also make it amply clear that while determining the suitablity of the employee to keep in the service his entire service reocrd can be scanned.
The Supreme Court in its leading case on the issue in [PRECEDENT] has held that the order of compulsory retirement does not attach any stigma nor it is a punishment. The Supreme Court observed thus :-
"There is no such element of charge or imputation in the case of compulsory retirement. The two requirements for compulsory retirement are that the officer has completed twenty-five years' service and that it is in the public interest to dispense with his further services. It is true that this power of compulsory retirement may be used when the authority exercising this power cannot substantiate the misconduct which may be the real cause for taking the action but what is important to note is that the directions in the last sentence in Note 1 to [SECTION] make it abundantly clear that an imputation or charge is not in terms made a condition for the exercise of the power. In other words, a compulsory retirement has no stigma or implication of misbehaviour or incapacity."
The aforesaid case was followed by the Supreme Court in another leading case [PRECEDENT] wherein the Supreme Court has held that the Rule for the compulsory retirement is not intended for taking any penal action against the government servant and it does not forfeit the right acquired by him before his retirement such as pension and other benefits. The Supreme Court has further held in the said case that the order of compulsory retirement can only be challenged on a very limited ground i.e. the order is arbitrary or is not in a public interest, no other ground is available to a government servant against whom the order of the compulsory retirement has been made.
The Supreme Court in [ENTITY] and another v. Chief District Medical Officer, Baripada and Another 1992 (2) SCC 299 has summarized the law. In paragraph 34 of the judgment five principles has been laid down wherein it is provided that the order of compulsory retirement is not a punishment it its implies no stigma, the order has to be passed by the Government on forming the opinion that it is in the public interest to retire the government servant compulsory, the order is passed on the subjective satisfaction of the government, the principles of natural justice is not applicable in the case of the compulsory retirement subject to the judicial review of the superior courts, the employer/review committee as the case may be shall have to consider the entire record of the service before taking a decision in the matter and the order of compulsory retirement is not liable to be quashed by the court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. The principles laid down in [ENTITY] case was again reaffirmed by the Supreme Court in the [PRECEDENT].
The Supreme Court in the case of State of U.P. v. [ENTITY],(2002) 3 SCC 641 had occasioned to consider the U.P. Fundamental [SECTION]. Paragraph 15 of the judgment has relevance for the present controversy. Paragraph 15 is extracted below:-
"15. The aforesaid decisions unmistakably lay down that the entire service record of a government servant could be considered by the Government while exercising the power under [SECTION] of the Rules with emphasis on the later entries. [SECTION] of the Rules read with Explanation (2), empowers the State Government with an absolute right to retire an employee on attaining the age of 50 years. It cannot be disputed that the dead wood need to be removed to maintain efficiency in the service. Integrity of a government employee is foremost consideration in public service. If a conduct of a government employee becomes unbecoming to the public interest or obstructs the efficiency in public services, the Government has an absolute right to compulsorily retire such an employee in public interest. The Government's right to compulsorily retire an employee is a method to ensure efficiency in public service and while doing so the Government is entitled under Fundamental [SECTION] to take into account the entire service record, character roll or confidential report with emphasis on the later entries in the character roll of an employee. In fact, entire service record, character roll or confidential report furnishes the materials to the Screening Committee or the State Government, as the case may be, to find out whether a government servant has outlived his utility in service. It is on consideration of totality of the materials with emphasis on the later entries in the character roll, the Government is expected to form its opinion whether an employee is to be compulsorily retired or not."
Coming back to the submissions made by the learned counsel for the petitioner Sri [ENTITY], his first submission that the Screening Committee has considered the stale entries and in view of the fact that there is no adverse entry/censor/any punishment in the recent past, the doctrine of Washed-off theory would be applicable. In support of his submission he has also relied on a judgment of this Court in a case of [PRECEDENT]. In the said judgment the learned single Judge has relied on a judgment reported in [PRECEDENT]. The learned single Judge has treated the said judgment as the judgment of the Supreme Cort. With great respect the said judgment is of a Division Bench of this Court. Moreover, the washed-off theory has been considered by the Supreme Court in a recent case of [PRECEDENT]. Relevant paragraph 19, 20, 21 and 22 of the said judgment is extracted hereunder below:-
"19. In [PRECEDENT] a two-Judge Bench of this Court held that adverse entries regarding the dishonesty and inefficiency of the government employee in his ACRs have to be ignored if, subsequent to recording of the same, he had been allowed to cross the efficiency bar, as it would mean that while permitting him to cross the efficiency bar such entries had been considered and were not found of serious nature for the purpose of crossing the efficiency bar.
20. Similarly, a two-Judge Bench of this Court in [PRECEDENT] had taken a similar view on the issue observing that adverse entries awarded to the employee in the remote past lost significance in view of the fact that he had subsequently been promoted to the higher post, for the reason that while considering the case for promotion he had been found to possess eligibility and suitability and if such entry did not reflect deficiency in his work and conduct for the purpose of promotion, it would be difficult to comprehend how such an adverse entry could be pressed into service for retiring him compulsorily. When a government servant is promoted to higher post on the basis of merit and selection, adverse entries if any contained in his service record lose their significance and remain on record as part of past history. This view has been adopted by this Court in [ENTITY].
21. However, a three-Judge Bench of this Court in [PRECEDENT] had taken a different view as it had been held therein that such entries still remain part of the record for overall consideration to retire a government servant compulsorily. The object always is public interest. Therefore, such entries do not lose significance, even if the employee has subsequently been promoted. The Court held as under: (SCC pp. 333-34, para 7) "7. ? Merely because a promotion has been given even after adverse entries were made, cannot be a ground to note that compulsory retirement of the government servant could not be ordered. The evidence does not become inadmissible or irrelevant as opined by the Tribunal. What would be relevant is whether upon that state of record as a reasonable prudent man would the Government or competent officer reach that decision. We find that selfsame material after promotion may not be taken into consideration only to deny him further promotion, if any. But that material undoubtedly would be available to the Government to consider the overall expediency or necessity to continue the government servant in service after he attained the required length of service or qualified period of service for pension."
22. In [ENTITY] this Court held that the vigour or sting of an entry does not get wiped out, particularly, while considering the case of employee for giving him compulsory retirement, as it requires the examination of the entire service records, including character rolls and confidential reports. "Vigour or sting of an adverse entry is not wiped out", merely it relates to the remote past. There may be a single adverse entry of integrity which may be sufficient to compulsorily retire the government servant."
As regards the submissions of Sri [ENTITY] that the order is malafide. The said submission merit rejection on the ground that there is only one paragraph in the writ petition. The fact regarding malafide has been pleaded. Paragraph 13 has been extracted herein below. From the perusal of the said paragraph it is evident that it is a general and vague and it lacks any specific facts. Such vague allegations cannot be treated to be a foundation for the malafide.
The Supreme Court in the matter of a compulsory retirement wherein the allegations of malafide was also made had occasioned to consider the issue and has laid down the law in following terms :-
"The learned counsel appearing on behalf of the respondent would contend that in this case malice has neither been alleged nor been proved. In support of his contention reliance has been placed on [PRECEDENT] wherein [ENTITY], J. speaking for the Bench stated the law, thus: (SCC p. 466, para 23)
"23. It is well settled that whenever allegations as to mala fides have been levelled, sufficient particulars and cogent materials making out prima facie case must be set out in the pleadings. Vague allegation or bald assertion that the action taken was mala fide and malicious is not enough. In the absence of material particulars, the court is not expected to make 'fishing' inquiry into the matter. It is equally well established and needs no authority that the burden of proving mala fides is on the person making the allegations and such burden is 'very heavy'. Malice cannot be inferred or assumed. It has to be remembered that such a charge can easily be 'made than made out' and hence it is necessary for the courts to examine it with extreme care, caution and circumspection. It has been rightly described as 'the last refuge of a losing litigant'. ([PRECEDENT] and [PRECEDENT])"
Sri [ENTITY], learned counsel for the petitioner has relied on the judgment of the Supreme Court in the case of [PRECEDENT]. In the said case 52 employees were compulsory retired in terms of the [SECTION] of the M.P.State Cooperative Dairy Federation Ltd. [SECTION] provides for compulsory retirement of an employee on attaining the age of 55 years or on completion of 25 years of service. A circular letter was issued by the Government of Madhya Pradesh on 22.8.2000 wherein a detailed procedure was laid down in respect of exercising the power under [SECTION]. The question arose before the Supreme Court whether the Federation is a State within the meaning of [SECTION] of the [ACT] or not. The second question was what would be the effect of non-compliance of the Circular issued by the State Government.
The Court found that the Federation is a State within the meaning of [SECTION] of the [ACT]. The Court further found that was imperative with the criteria laid down in the circulars issued by the State of Madhya Pradesh should have been scrupulously followed. Screening Committee had given complete go by to the guidelines laid down in the said circular. The Supreme Court also found that the Federation instead of chopping of the dead wood had resorted to [SECTION] to dispense with services of the large number of employees only for the purpose of cutting administrative expenses. Thus the Screening Committee of the Federation had totally mis-guided itself as no such power exist in terms of the Regulation even in the counter affidavit filed by the Federation the said ground was not taken by it. In view of the facts and circumstances of the said case, the said judgment is not applicable in the present case.
The next case relied by Sri [ENTITY] is [PRECEDENT]. In the said case also there was non-compliance of a circ ular letter dated 14th August,. 1981 issued by the Punjab State Electricity Board. The Supreme Court in this case has followed the M.P.State Cooperative Dairy Federation Ltd.(supra). As in the said case there was a breach of certain guidelines issued by the State Government by means of circular.
Learned counsel for the petitioner Sri [ENTITY] has also relied on the judgment of the Supreme Court in [ENTITY] v. State of Punjab reported in 1987 AIR(SC) 948. The said case is not applicable in the present case as in [SECTION] of the Fundamental Rules entire service record has to be seen. In the said case [ENTITY] was Joint Director, Industries. When the order of compulsory retirement was passed against him on 19.3.1080 invoking the power under [SECTION] of [ACT]. The said Officer challenged the order of his compulsory retirement on the ground of arbitrary and unreasonable as there was no material before the appropriate authority on the basis of which the requisite opinion regarding his premature retirement was taken. In the said case the petitioner therein had earned consistent good entries for the last five years. However, the competent authority ignoring the consistent good entries had relied on some adverse entries of remote past to retire him. The Court perused his entire service record and found that from 1974-75 and 1975-76 onwards he was awarded very good average entries and after 1972-73 he did not earn a single adverse entry reflecting upon his work and conduct. This case has been considered by the Supreme Court in its latter decision. Moreover, State Government of Punjab had issued a Government Order dated 22nd June, 1981 directing that under the [ACT] it would not be desirable to scrutinize the entire service record of an employee and premature retirement should not be ordered if during the last five years the work and conduct of the employee has been good. The Supreme Court set aside the compulsory retirement of the petitioner therein on the basis of said Government Order as the direction of the Government Order was completely overlooked by the competent authorities. For the said reasons the judgment relied by Sri [ENTITY] learned counsel for the petitioner is of no aid to him.
The last judgment relied by Sri [ENTITY] is of this Court in [PRECEDENT]. In the said case the petitioner was initially appointed on the post of Assistant Engineer and he earned his promotion on the post of Executive Engineer. His case was that his entire service record was not considered by the Screening Committee and the recommendation of the Screening Committee was based on only censor entry against which his representation was still pending before the State Government. The Court found that there was no material on the basis of which a opinion could have been formed that the petitioner has outlived his utility as Government Servant. The Court has further held that his representation against censor entry and the adverse entry were pending before the State Government and all these representations were not placed by the authorities before the Screening Committee. In view of the said peculiar facts and circumstances the Court had interfered in the matter.
Sri [ENTITY] learned counsel for the respondent no. 2,3 and 4 has submitted that the order of the compulsorily retirement has not been passed by way of punishment but it is only to remove the dead woods. He further submitted that the impugned order has been passed in the public interest as the petitioner was found by the Scrutinizing Committee, no longer useful to the general administration to the judgeship. He has denied the submissions of the learned counsel for the petitioner that the impugned order has been passed by way of punishment or for malafide reasons. He has further submitted that in the writ petition the general, vague and sweeping allegations have been made against the learned District Judge without any foundation of the fact, therefore, he urged that the allegations made by the petitioner against the learned District Judge are liable to be ignored as they are completely baseless and lack specific facts.
I have considered the rival submissions of the respective parties. The petitioner in the writ petition has claimed that he has not completed 50 years and as such the District Judge has illegally invoked the [SECTION] of the [ACT] . It is stated in the writ petition that the petitioner was appointed in the year 1982 as a Safai Karamchari. He is an illiterate person and he does not remember the exact date of his appointment but some other colleague employees who were appointed with the petitioner stated that they were appointed on 22.4.1982. He has further stated in paragraph 8 of the writ petition that he has no documents with regard to his date of birth and given the year of his age at the time of appointment to be 1982 at 20 years. Therefore, he has not completed 50 years as per age given by him. In paragraph 13 of the writ petition he has made wild allegation against learned District Judge,The said reads as under:-
"13. That, the respondent no.2, is a habitual user of specific provisions of law by which he has power to dispense any employee from services, in this regard, it is relevant to bring in the knowledge of this Hon'ble Court that the Respondent no. 2, has passed number of compulsory retirement orders and termination order from services on 30.4.07."
The respondent no. 2,3 and 4 have filed a common counter affidavit wherein it has been stated that the Screening Committee, after the scrutinizing of the service record of the petitioner found that in the past he was punished for disobedience of the order of his superior officers. Further two days pay was stopped in the year 1997 and a censor entry was also given to him. On the basis of the service record the Committee had made the recommendation that continuance of the petitioner in service would not be in public interest.
In the present case the Screening Committee comprising of the District Judge as its Chairman, Special Judge, [ACT] and the Additional District Judge, [ENTITY] found that the petitioner was punished for disobedience of the order of his superior officers, his two days pay was stopped in the year 1997 and a censor entry was given to him. There is nothing on the record that he had made any representation against his punishment. If an employee of a judgeship is found guilty of disobedience of his superior officer is itself a serious matter.
In the background of the aforesaid facts, no ground is made by the petitioner for interference by this Court in the matter. The writ petition lacks merit and is accordingly dismissed.
However, no order is passed as to costs.
Order Date :- 03.07.2012 ssm