IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10308 of 2009 Narbadeshwar Prasad . Versus The State Of Bihar & Ors . ----------- 3. 11.08.2011 Heard learned counsel for the petitioner and the State. The petitioner is aggrieved by the order dated 6.7.2009 by which he has been compulsorily retired from service in exercise of powers under Rule 74(a) of the Bihar Service Code (hereinafter referred to as the ‘Code’). Learned counsel submits that the petitioner has had an unblemished service since 1989. He has received his due promotions in time also. He encountered certain personal difficulties in context of his orders for transfer. That provided the opportunity to the respondents for passing the impugned order. He cannot be classified as deadwood. The requirement for a three months notice or pay in lieu thereof under Rule 74(b)(ii) has not been followed. The order does not mention public interest. The order in the garb of compulsory retirement was in fact a punishment. A regular procedure for a departmental proceeding was required to be followed which has not been done. The petitioner has recovered his health and has no 2 objection for being posted anywhere in the State of Bihar in accordance with the service conditions. Counsel for the State submits from the recitals contained in the impugned order that it was the petitioner who was always taking grounds of poor health to not comply the orders of transfer. He was not willing to be posted at a regional office. Therefore both in interest of his health and his utility to the Government because of his poor health, the order has been passed. The acts of the petitioner in not joining the transferred place of posting were acts of disobedience as a government servant. If an order is passed under a Rule, regulation or provision, it has to be done in the manner prescribed under the Rules/Regulations and not in any other manner except upon pain of its invalidation. Rule 74(a) permits deadwood to be removed to ensure efficiency in Government service. Rule 74(a) has to be read in conjunction with Rule 74(b)(ii). The petitioner was required to be given three months notice or pay in lieu of such notice mentioning that it was proposed to retire him in public interest. The petitioner was given notice on 29.10.2008 to show cause why he should not be compulsorily retired. There is no provision under 3 Rule 74 for giving of a show cause notice. The impugned order dated 6.7.2009 does not fulfill the requirement of three months notice and neither does the order mention that he is being paid three months salary in lieu of the same. Additionally there is no recital in the order that it was passed in public interest. Though the order may not recite public interest, it is always open to the respondents to place materials before the Court and satisfy it that it was in fact in public interest. Even if the order mentions the illness of the petitioner as a ground, it was for the respondents to place materials that the illness was of a kind severe enough and interfering with discharge of duties by the petitioner leading to delay in Government works and Government work suffering. The show cause notice or the findings much less the counter affidavit does not make out any such case. On the contrary the clear case of the respondents is that the petitioner was surfacing to be a problem by disobeying Government directive for transfer and joining at the transferred place of posting. Compulsory retirement was considered necessary as a measure of discipline. No further discussion is required that the impugned order of 4 compulsory retirement is but a camouflage for a punishment. If that be so the respondents were required to follow a procedure in departmental proceeding, full opportunity to defend and then pass appropriate orders. An employee recalcitrant on issues of transfer is always amenable to disciplinary action under the service Rules. The counter affidavit does not even make any reference to a semblance of public interest. Considering an order of compulsory retirement in (1980)4 SCC 321 ( Baldev Raj Chadha v. Union of India) it has been observed at Paragraph- 16 as follows:- 16 ……….A short cut may often be a wrong cut. The order of compulsory retirement fails because vital material, relevant to the decision, has been ignored and obsolete material, less relevant to the decision, has influenced the decision. Any order which materially suffers from the blemish of overlooking or ignoring, wilfully or otherwise, vital facts bearing on the decision is bad in law. Likewise, any action which irrationally digs up obsolete circumstances and obsessively reaches a decision based thereon, cannot be sustained. Legality depends on regard of the totality of material facts viewed in a holistic perspective…..” An order of compulsory retirement mandates the requirements as observed in (2001)3 5 SCC 314 (State of Gujrat Vs. Umedbhai M. Patal) at Paragaph-11 as follows:- “11.The law relating to compulsory retirement has now crystallised 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. (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.” Considering the absence of recital that the order was in public interest, in (1985)1 SCC 134 (Hans Raj Vs. State of Punjab & Ors.), it has been 6 held at paragraph 11 as follows :- 11….The impugned order merely recites that as the appellant has completed more than 25 years of service, he is retired from the service from the date of the order. Silence about recital of public-interest is both conspicuous and glaring probably as the power was exercised by an officer of the rank of Deputy Commissioner who was blissfully unaware of it………The attempt seems to be to merely reproduce the language of the rule without any attempt at bringing the case within the parameters of the relevant rule. If the power was exercised in public interest, one would have expected some whisper about it in the impugned order. However, when a specific contention was taken that the power was not exercised in public interest, a routine averment was made that it was exercised in public interest……..It therefore, appears that reference to public interest in the return was an attempt at paying lip sympathy to the provision of the relevant rule rather than a serious application of mind while dealing with the career and the consequent starvation heaped upon the appellant by the impugned order. We are therefore, satisfied that the order also suffers from the vice of non- application of mind.” The impugned order dated 6.7.2009 is accordingly set aside co-terminus with the offer made by the petitioner for posting anywhere in the State of Bihar in accordance with the service conditions. The petitioner is held entitled to continuity of service. The Court does not accede to 7 the claim of the petitioner for full back wages from the date of retirement till joining but directs only 50% of the back wages shall be paid to him. In view of the changing judicial trend that back wages do not follow as a matter of course but depends on the status of the employee in the interregnum as he cannot have a double bonanza, liberty is given to the petitioner to represent for the remaining 50% of the wages and if he satisfies the authorities, the Court expects it to be considered in accordance with law. The writ application stands allowed. P. Kumar ( Navin Sinha, J.)