gé ,a g :gwa K ' HIGH COURT OF CHHATTISGARH AT BILA$PUR Wt'i‘f Pe‘l'i'fim No.5975/1998 CORAM'. Hon'bie Shri SR. Nnyqk, CJ & Hon'b!e Shri Dilip Raasaheb Deshmukin J. Pe'rifioner RA‘Desh Pandey, son of Vlafe‘ Shri A.R.Deshpandey, aged abaur 68 year-s, R/o Shyumnngnr, Ruipur (MP) Versus 1. Sm're of Madhyu Pmdeéh, Through Secremry, Depar'rmem of Tribal Harijan and Backward Clusses, Welfare Department, Bhopal‘ Director of Tribal Welfare Deparfmenf, Govt of MP. BHOPAL (MP) M.P.51’afe Adminis'h'a'five TribunaL Jabipur, Through ifs Regisfrar. Responden‘rs 5min Renu Kochar, Counsel for The pel'ifioner. 5hri Proshon'r Mlshro, Addl. Advocaie $eneral with Shrl Ufkorsh Vermu, Dy. 6A. for ‘l’he S'ro‘re. ORAL ORuER (Passed on 2w June zoos) The following oral order of lhe Courf woé passed by 5.R.Nayok. C.J. This wril- pafifion is direcied against fhz order do'red 19.1998 of The M. Po Adminis-irol'ive Tribunal (for shor‘l’ “'lhe Tribunal") passed in Transferred‘ Applicn'iion No.2966/88. By The said order, The Tribunal has dismissed The applico‘lion of ‘fhe perilioner herein and has affirmed The order l daled 08.10.1984 of +he Smie Governmenl' compulsorily retiring 'rhe pefi'rioner under Rule 42 of fhe Modhyo Pradesh Civil Services (Pension} Rules, 1976 (for shor'l‘ “fhe Rules). 2. The pe‘fifioner was appointed as Circle Organizer in fhe Depar+men+ of Tribal Welfare on 27.04.1953. In fhe year 1968. 'ihe pefirioner was promol'ed fo The posf of Area Organizer. While in service 'ihe pefifioner passed depar'i'menial examina'tions. The \i‘ / “gr @ Gavemmen‘r passed an order on 8.6.1984 perm-Hing fhe pe‘ri‘fioner To cross The Efficiency Bar w.e.f. 4.4.1976. While fhe ma'r'fer sfand ‘Hms, The Governmen'r passed The impugned order dated 8.10.1984 under Rule 42 6f The Rules. 3. The peli'lianer' being aggrieved by 'rhe above order of fhe Governmen'f dafed 8.10.1984, ins'fi‘fu‘i'ed Miscellaneous Pe'fi‘fion No.3544/84. In fhesaid pefi'rion, several grounds were urged, such as, ihe acfion of The Governmem in compulsorily refiring The peTiTioner under Rule 42 of The Rules is ma/a fide and iT was done wiTh an ulTerior moTive: ThaT as per'The Circular of The STaTe EovernmenT daTed 18.1.1983, The GovernmenT oughT To have Taken inTo accounT The A.€.Rs of The 5 years immediaTely prior To The daTe of reTiremenT whereas iT Took i‘nTo consideraTion A.C.Rs of The year 1974-75 To 1978«79: ThaT There was no maTerial on record To show ThaT anyThing adverse againsT The peTiTioner: ThaT The impugned acTion of The GovernmenT was noT in public inTeresT: ThaT The impugned acTion is arbiTrary, unreasonable eTc.; ThaT The impugned order is viTiaTed because while passing The order, The GovernmenT Took inTo consideraTion The uncommunicaTed adverse remarks in violaTion of principles of naTural JusTice eTc. 4. The GovernmenT by filing reTurn supporTed The impugned acTion. The Tribunal wiThouT finding meriT in The conTenTions of The peTiTioner, by iTs order daTed 1.911998, dismissed The peTiTion. 5. 'We have heard 5mT. Renu Kocher, learned counsel for The peTiTioner and 5hri PrashanT Mishra, Addl. AdvocaTe General for The STaTe wiTh 5hri UTkarsh Verma, Dy. GovernmenT AdvocaTe. IT was conTended by The learned counsel for The peTiTioner ThaT The impugned order could noT be susTained for more Than one reason. IT was submiTTed ThaT The GovernmenT iTself on 8.6.1984, having saTisfied iTself ThaT The peTiTioner had conTinued uTiliTy and compeTency To be in public service, allowed The peTiTioner To cross The Efficiency Bar and for some undisclosed reasons wiThin a shorT Time /’F\» of 4 manfhs, he was arbifmrily compulsorily re'rired by resorting 1'0 Ruiz 42 of ‘me Rules, and fherefore, 1he acfion shauld be condemned as arbi'fmr'y, unreasonabie and violafive of Ar'ricle 14 posfula‘res. If was also confended fhm’ as per fhe Circular issued by fhe Governmem of MP. da'red 18.01.1983, fhe Screening Commif'ree should have faken info accoun‘i' 'fhe A.C.Rs of 'rhe pefi'fioner‘ for five years immedia'ieiy preteding The dafe o£1+1e order, whereas, odmiffediy, ‘ihe A.C.Rs of i’he year 1974-75 1‘0 1978-79 were foken in‘ro considemfion and on Tho‘i counT aiso, fhe impugned order could no? be susfained. If was fuM'her' confended fho‘r A.C.Rs of The pe‘mioner for ihe years 1979- 80, '1981-82, 1982-83 and 1983~84 are quite fovourobie +0 'i’he pe‘i'i'rioner, whereas 'i'he Screening Commi‘Hee refused To Toke info occounf fhe A.€.Rs of ihose years I'r was also poin‘i‘ed 1ha1' even The A.C.Rs of fhe year 1982-83, which is quii'e favourable To The peTiTioner, in The sense ThaT The ReporTing Officer, on 5.6.1984, had sTaTed ThaT The peTiTioner is a very good officer and good relaTions wiTh subordinaTes and superior officers and graded him as “very good" and ThaT opinion of fhe ReporTing Officer was agreed To by The Reviewing Officer, fhe some was no‘i' Taken inTo accounf on The ground ThaT no record was made available To The Screening CommiTTee To show ThaT The above opinion of The ReporTing Officer and Reviewing Officer was accepTed by AccepTing AuThoriTy. 6. Shri Prash‘anT Mishra, learned AddiTional AdvocaTe General, per conTra, would conTend ThaT The Screening CommiTTee while considering wheTher an Official should be coinpulsorily reTired or noT under Rule 42 of The Rules is enTiTled To Take inTo accounT The enTire service record of The Official concerned, and Therefore, There was noThing wrong on The parT of The Screening CommiTTee in Taking inTo accounT The A.C.Rs of The peTiTioner for The years 1974-75 and 1978-79 which were adverse To The peTiTioner. Learned Addl. AdvocaTe General would also highlighT ThaT The considera'i'ions which go inTo The decision-making while considering an Officer for promoTion or while IL. w allowing him TO cross Efficiency Bar and The cansidemfions which are germane fa +he decision~making under Rule 42 of The Rules are nol' iden‘lical, and +herefore, 1'l1e Screening Commifree, having faken info accoun'f 'l'he entire service records of The pe'l'i‘l‘ioner, fhough'l’ i'l' apprapria're 'ro re‘rire The pe'l’i‘l‘ioner compulsorily under Rule 42 af 'l'he Rules. Learned Addl. Advacai'e General would also draw our a'Hen'lion 1’0 wha'l is observed by The Tribunal in paragraph 17 of The order. 7. Having heard The learned counsel for The parTies, a shorT quesTion ThaT arises for decision is wheTher The peTiTioner has made ouT any ground To inTerfere wiTh The order of The STaTe GovernmenT daTed 8.10.1984. The peTiTioner was reTired compulsorily under lause-b of sub-rule (1) of Rule 42 of The Rules which reads as follows: “42. ReTiremenT on completion of 20/25 years qualifying sewice.-[(1)(a) A GovernmenT servanT may reTire aT any Time afTer compleTing 20 years qualifying service, by giving a noTice in Form 28, To The appoin‘ring auThoriTy aT leasT Three monThs before The daTe on which he wishes To reTire or on paymenT by him of pay and allowances for The period of Three monThs or for The period by which The noTice acTually given by him falls shorT of Three monThs: Provided ThaT where The GovernmenT servanT giving such noTice is under suspension, he shall not be allowed To reTire from service wiThouT The prior permission in wriTing of The appoinTing auThoriTy. (b)The appoinTing auThoriTy may in The public inTeresT require a GovernmenT servanT To reTire from service aT any Time afTer he has compleTed 25 years qualifying service, wiTh The approval of The STaTe GovernmenT by giving him Three monThs noTice in Form 29: Provided ThaT such GovernmenT servanT may be reTired forThwiTh and on such reTiremenT The GovernmenT servanT shall be enTiTled To claim a sum equivalenT To The amounT of his pay pius allowances for The period of The noTice aT The same raTes aT which he was drawing Then immediaTely before his reTiremenT or, as The case may be, for The period by which such noTioe falls shorT of Three monThs. c (2) A Governmem' servan'f who has elected To refir'e under 'rhis rule and has given fhe necessary infimm‘ion 1'0 1'hn1' effecf To fhe appoin‘l'ing au‘l'horify, shall be precluded from wifhdmwing his elecfion subsequen'rly excep‘r with the swcific approve) of such amhor'i'fy on consideration of the circumstances of the case to withdraw the notice given by him: Provided that the request for withdrawal shall be prior to the intended date of his retirement. {3) Where the notice of retirement has been served by appointing authority on the Government servant, it may be withdrawn, if so desired for adequate reasons, provided that the Government servant concerned is a9 reeable." There are two substantial conditions, which should be satisfied before the State Government could require a government servant to retire from service in terms of clause-b of sub-rule (1) of Rule 42 of the Rules and they are; (i) that the Government servant concerned has completed 25 years of qualifying service, and (ii) that the Appointing Authority must record a satisfaction that retirement of such Government servant is necessary in the ‘public interest‘. It is true that white forming an opinion whether a Government servant should be retired from service under clause-b of Rule 42 or not the Government could take into account entire facts and circumstances of the case the whole service record of the officer. At the same time, the Appointing Authority has to consider the expediency and feasibility to retire a Government servant from service prematurely only in the public interest and not on any otherconsiderations. It is trite that whiie Appointing Authority considering the case in the public interest, it would necessarily take into account the continued utility and efficiency of the Government servant apart from his integrity. If we may say so, that will be the substantive consideration for the Appointing Authority to consider while deciding whether the retirement of a Government servant is in the public interest or not. ..... . . ... If The confirmed u‘i'ilh‘y and efficiency is c1 subsfanfive considemfibn while deciding fhe public inieres'l', i'f needs +0 be noficed Thu-i just 4 mun‘rhs before fhe pefifioner was reii‘red compuisorily under clause—b of Rule 42, he was found fa possess continued U‘i’ili‘fy and efficiency To confinue in pubiic service and ‘i'haf is why by order da‘red 8.6.1984 (Annexune P-3), he was uiiowed +0 cross Efficiency Bar. In fhe course of arguments, ieurned Addi‘i'ionai Advocafe General did no? bring f0 our no‘tice any adverse maferiols \on the basis of which we could safisfy ourselves fhaf during The inferregnum befween 8.6.1984 fo 8.10.1984, The pe'l'ifioner had los'r 'i‘he confinued u‘l'ili'l’y and efficiency ’i‘o be in fhe public service. Every public power is limifed and is required fo be exercised fairly, reasonably and respecfing 'rhe mandafes of fhe Ar'ricle 14 of The Consfi‘iui'ion. If is frue fhaf The scope of judicial review in The maTTer of The STaTe‘s power To reTire a governmenT servanT premaTurely under any enabling provisions is very much limiTed and circumscribed, buT, ThaT power has To be exercised reasonably and fairly and noT on exTraneous consideraTion nor on fanciful and whimsical assumpTions abouT a Governmen'i servani' wiTh regard To his conTinued uTiliTy and efficiency. The Supreme CourT, having considered The parameTers of The power of The STaTe Governmenf To compulsoriiy reTire a GovernmenT servanT under an enabling provision, has summed up The law in paragraph 32 of The judgmenT in The case of BaikunTha NaTh Das and anoTher v. Chief DisTricf Medical Officer, Baripadn and anoTher." The Apex CourT has laid down principles which are as under: “32. The following principles emerge from The above discussion: (i) An order of compulsory refiremenT is noT a punishment IT implies no sTigma nor any suggesTion of misbehaviour. (ii) The order has To be passed by The GovernmenT on forming The opinion ThaT iT is in The public inTeresT To reTire a govemmenT servanT compulsorily. The order is passed on The subjecTive saTisfacTion of The Government (iii), Principles of naTural jusTice have no place in The confexi' of an arder of compulsory retirement This oes no? mean Thaf judiciai scrutiny is exchJded alfoge'rher. While fhe High Cour? wouH no‘r examine fhe mm‘fer as an qupeHafe Court ihey may inferfere if fhey are sn'risfied fhaf fhe order is passed (a) mala fide, or (b) The? i1' is based on no evidence, or (c) Thu? i‘i' is arbitrary in “the sense The? no reosonabie person would form fhe requisi'l'e opinion on fhe given maferiai in short; if if is foun to be o perverse order. (iv) The 6overnmen+ (or fhe Review Commi‘r'fee, as fhe case may be) sha" have '0 consider The en‘rire record of service before faking a decision in fhe mafi'er -~ of course aifaching more impor‘i'ance 1'0 record of and performance during 1'he la'rer years. The record To be so considered would na‘i'uraiiy inciude fine en1'ries in 1he confiden'iiai records/characfer roiis, bo‘i favourable and adverse. ‘ ' ‘' posf norwifhsfanding fhe adverse remarks, such remaks lose Their siing, more so, if The promoHon is based upon ' ' - - ‘ (emphasis is meriT (selection) and n01 unon senioriry. supplied) (v) An oder or compulsory refiemeni’ is o? liable +0 be quashed by a Court merel on the showing 'rhaf while passing if uncommunicm‘e averse remarks were also faken info coniderafion. Thai“ circumsi'ance by ifself cannoi’ be a basis for interference Inferference is permissible only on fhe grounds men‘fioned in i) above. This objecf has been discussed paras 29 To 31." 8. The underlined bservaTion of The Supreme Cour in sub-para (iv) of paragraph 32 is apT To be kepT in mind in The conTexT of This Case. 9. The judgmenT of Supreme CourT in The case of D.Ramaswami v. $TaTe of Tamil Naduz is also apT To be noTed. In ThaT case, whaT fell for decision-making was an order of The GovernmenT premaTurely reTiring an officer immediaTely afTer his promoTion and appoinTmenT 'l'o coveTed selecTion posT. The appellan'l' Therein enTered The public service asa Lower Division Clerk in 1953‘ He was promoTed as an 1.A.ITR. 1992 $.C. 1020. 2.A.I.R. 1982 STC. 792. d d 1 h If a governmenr servanr is promoled To a higher r r n y d d s (ii o T Assisfan'f Commercia! Tax Officer in 1954, nexf as a Depufy Commercial Tux Officer in 1957, fhen as a Joim‘ Commercial Tax Officer in 1962, fhereaf'fer us a Commercial Tax Officer in 1966, la‘l'er as an Assisfan'l' Commissioner of Commercial Taxes in 1972 and finally as Depufy Commissioner of Commercial Taxes on 7.5.1975. On promo‘fion as Depufy Commissioner of Commercial Taxes he was posfed as Member of. ihe Sales TaxAppellaie Tribunai in flue same cadre. On Sepiember 20, 1975, he was reiired under Fundamenfal Rule 56 (d). His Service Book showed 'rhai’ he had an excelleni record of service. He had earned several encomiums, commenda'iions and apprecia‘fions‘ Neveriheless his service record for 'fhe year 1969 showed a black mark in his service. In his confidenfi’al file mainfained by Depufy Commissioner of Commercial Taxes, i'l was no'l'ed fhus: “This Commercial Tax Officer is a very in'l'elligenf and capable officer who kep'r The entire disfricf under his control in perfect discipline. Unfortunately, his reputation is not at all good. There Were complaints that he used to threaten dealers and take more money. The entire matter is under investigation by the Vigilance and Anti-Corruption Department." There was an enquiry by the Directorate of Vigilance and Anti Corruption. Charges were framed against the appellant by the Board of Revenue. The explanation of the appellant was obtained. The Full Board of Revenue, having perused the explanation of the appellant, opined that the charges should be dropped. The Government accepted the report of the Full Board and dropped the charges vide its order dated 29.11.1974. Further, within a few months, that is to say, on May 7, 1975, he was promoted to Deputy Commissioner of Commercial Taxes and posted as Member, Sales Tax Appellate Tribunal. It appears thatrhe was immediately compulsorily retired under Fundamental Rules 56(d). When that action was assailed on behalf of the State, it was contended that the Government was entitled to take into U\ cansidem'rinn The emire hisfory of fhe appellanf induding +ha+ par‘r of H’ which was prior To his promo¥ion as Depufy Commissioner of Commercial Taxes. The’Supreme Courf whiiz deciling wifh ’fhe above submission mode on behaif of fhe 51mg Governmen‘f of Tamil Nadu in paragraph 4 of fine judgmen'r observed fhus: “In fhe face of fhe promoiion of fhe appeiian'r jusf a few monfhs eariier and nofhing even miidiy suggesi'ive of inepfifude or inefficiency fhereaffer, if is impossible 'ro susfain fhe order of The Governmen‘r retiring the appeiiam' from service. The iearned Counsei for fhe Sia'ie of Tamii Nadu argued ‘iha‘i 1he Governmen'i was enfiiled 1’0 fake in'ro ‘considera'iion fhe enfire hisTory of The appeiian'r including Tha‘r par'i' of if which was prior to his promofion. We do nof soy that “the previous hisi’ory of a 5overnmen+ should be completely ignored, once he is promoted. Sometimes, past events may help to assess present-conduct. But when there is nothing in the present conduct casting any doubt on the wisdom of the promotion, we see no justification for needless digging into the past." The ratio of the above Judgment squarely applies to the facts of this casa also. Notwithstanding the adverse remarks, whatever might be against the petitioner before 8.é.1984 from the inception of his service, the Appointing Authority formed an opinion that the Officer l V possessed continued utility and efficiency and he could be allowed to cross the Efficiency Bart There is absolutely no reason for us to think that the (dovernment passed the order on 8.6.1984 allowing the petitioner to cross the Efficiency Bar without’taking into account the adverse materials against him. In fact, that was not the case of the Government. If that is the factual position, even assuming that there i were adverse materials before 8.6.1984 against the petitioner, with the passing of the order permitting the petitioner to cross the Efficiency Bar, ail those adverse materials “iose their sting", if we may borrow the expression of the Apex Court in subpara (iv) of paragraph 32 of the judgment in the case of Boikurrtha Noth Dos oasz (supm1). Furfhermore, were is no mterid whatsoever ,fo show ‘Hm'r during fha inferragnum be‘rween 8.6.1984 and 8.10.1984 any adverse maferial ugainsf The pe+i+ioner came infa exiS‘fence warranfing his compulsory re-Hremem‘ under Rule 42 of 'fhe Ruks. 10. We 5:50 find subsfance in +he conferafion of “the 'eamed counsel €or fhe pe‘?i‘rioner ‘Hqu'f The Governmen'f ough'f 1'0 have #aken in'fo accoum' fhe A.C.Rs' o£only 5 years immediafely preceding 'H'Ie dufe of fhe impugned order, and if fhe A.C.Rs of fhase years were fuken imo account h‘ couid have seen 141a“? 'fhe pe‘fifioner earned 903d grades wh‘h regard +0 a” vH‘al aspecfs 0f public service. In our considered opinion, The Tribunal is no'l jus+ified in ignoring/eschewing +he favourable A‘CRS of fhe pe‘fi’rioner on rhe ground fhai There i$ milling on record +0 show ‘rha‘i’ any record was placed before The Screening Commiffee 1'0 show ‘l'haf +he good remarks mode by the Repor‘ring Aufhorify and Reviewing Au‘l'horify are accepfed by The Accepi’ing Au'lhori-ly. Even assuming mares on 8.10.1984, rhe Accep'ring Auihorify did noi’ accepf ‘i'he remarks recorded by ihe Repor‘ring Officer and Reviewing Au'ihoriiy, ihof facf H'self wifhouf any‘ihing furfher, would no? diminish The considered assessmeni' made by ihe Reporfing Au’rhori'i'y and Reviewing Aufhori‘i‘y of ’rhe pe‘ii‘l‘ioner- officer nor couid if be said fhaf Their opinion is nof a relevani’ considera‘iion in deoision-making by of fhe Screening Commiii’ee whe‘iher ihe pe‘iifioner4officer should be reiired compuisorily under Rule 42 of ihe Rules. 11. Nodoub'i, in paragraph 17 of ihe order of The Tribunal, The Tribunai has referred To whaT is reflecTed in The A.C.Rs record of The peTiTioner during cerTaln years. We do noT know wheTher Those remarks are jusTified or noT: wheTher They were commUnicaTed To The peTiTioner eTc., buT, The facT remains ThaT despiTe all Those adverse remarks in The previous years, The GovernmenT iTself, in iTs wisdom and considered opinion, ThoughT iT fiT To per’miT The peTiTioner To cross The Efficiency Bar on 5.6.1984 and wiThin a shorT Time of four monThs, l 10 53‘ 11 Were was absolu‘fely no good reason for The Governmenf 'i'o fhink fha‘f 'rhe pefif§oner had Ios‘f con-firmed milify and éfficiency To be in public service and his canfinui'fy in service would noi' be in 'fhe public in‘i'ereS‘i. Therefore, we are consiruinzd 1'0 observe fha‘i fhe ac‘i'ion of 'ihe Governmen'i' in reiiring ‘H‘Ie pe‘fii'ioner compulsoriiy resorf info Ruiz 42 of ‘i’he Rules, in the faci‘s and circumsfunces of ihe case and evidence on record, is‘orbi'rmr'y, unreasonable and viola‘i'ive of Ar‘iicie ‘ 14 pos‘fuio'ies. 12. ,In fhe resuh‘ and for fhe foregoing reasons, weolio fhe wrif pefifion and quash ‘H'ie impugned order dafed 810.1984 and order dofed 1.9.1998 passed by fhe Tribunai. The pefifioner is enfi'Hed To ail benefi'i's, pecuniary and ofherwise, flowing from fhe quashing of fhe impunged order of The 6overnmen1’ do‘l’ed 8.101984. 13. In fhe facfs and circumsfances of fhe case, +he par-fies shall bear fheir respec‘l’ive cos‘is. 3d]. ‘ ¥\ t sm- Judge l a, .a. Ch1ef ‘ Justice - D1 'l' 1p Raosaheb Deshmukh