1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR ORDER S.B. CIVIL WRIT PETITION NO.5942/1992 Vijay Singh Versus Rajathan State Road Transport Corporation DATE OF ORDER --- July 30,2009 PRESENT HON’BLE MR.JUSTICE PREM SHANKER ASOPA Mr.N.K.Maloo, for the petitioner Mr.R.D.Rastogi, for the respondent BY THE COURT (1) By this writ petition, the petitioner, who at the relevant time, was working as Senior Foreman, has challenged the order of compulsory retirement dated 27.6.1992 (Anx.2) inter alia on the ground that he was having unblemished service record and otherwise also, the order of compulsory retirement is arbitrary or perverse in the sense that no reasonable person would form the requisite opinion on the given material. (2) The respondents have filed reply to the writ petition wherein the averment of the petitioner regarding un- blemished record and the order of compulsory retirement being arbitrary or perverse has been controverted while replying to para No.6 of the writ petition and the same is as under: “5....Rather, the averments made in this para are false because the applicant has stated that his service record is unblemished despite the fact that he was given recorded warning vide order dated 8.12.87 2 and was again given warning vide order dated 4.3.87 in pursuance to the charge sheet bearing No.6624. Therefore, to say that the petitioner has no adverse service record whatsoever is nothing but a mis- statement of facts and any petitioner who does not approach the Hon'ble Court with clean hands deserves no sympathy but the case of such petitioner should be rejected on such ground itself. It would not be out of place to mention here that apart from the two punishments mentioned above, the petitioner was served with many charge sheets and out of which the disciplinary action on certain charge sheets were even pending and the petitioner was compulsorily retired. The service record of the petitioner would be kept ready for the kind perusal of the Hon'ble Court at the time of hearing, so as to show that the petitioner is not having good service record and the Committee had in fact considered the service record as well as the over all performance of the petitioner and thereafter only it came to the conclusion that the petitioner should not be continued in the service of the Corporation and the Committee, therefore, recommended that the petitioner should be compulsorily retired. Therefore, the decision taken by the Committee and the consequential order passed by the Competent Authority was nothing but in the interest of the Corporation because the Corporation can only keep efficient employees and cannot continue inefficient employees in service, who have attained either certain age or worked for a specified period as has been mentioned in the Regulation 57 of the RSRTC Employees Service Regulations, 1965 wherein the Corporation has been given powers to assess the services of the employees on attaining certain age. “ (emphasis supplied) (3) The respondents have also submitted that the over all performance of the petitioner was adjudged and he was compulsorily retired under Regulation No.57 of the RSRTC Employees' Service Regulations, 1965. (4) I have gone through record of the writ petition and further considered rival submission of counsel for the parties. (5) Before proceeding further, I would like to quote para 32 of the judgment of the Supreme Court in Baikuntha Nath Das and another V.Chief District Medical Officer, Baripada and 3 another (1992(2) SLR 2). The same is as under: “32. The following principles emerge from the above discussion: (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 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. (emphasis supplied) (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 averse. If a government servant is promoted to a higher post notwithstanding the adverse 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. Interference is permissible only on the grounds mentioned in (iii) above. This aspect has been discussed in paras 29 to 31 above.” (6) As regards the over all performance, opportunities were granted to the respondents to place the entire record before 4 the Court but the record has not been shown. (7) In the service jurisprudence, the charge sheet is never treated as adverse material. The other adverse material which has been shown is two warnings. No reasonable person would form the requisite opinion on the given adverse material, therefore, the order of compulsory retirement is arbitrary and perverse. Therefore, the present case is covered by aforesaid principle (iv) of Baikuntha Nath Das as the order of compulsory retirement is arbitrary as well as perverse. (8) In the result, the writ petition is allowed, the impugned order of compulsory retirement 27.6.1992 (Anx.2) is quashed and set aside and the petitioner is also entitled for consequential benefit. If, during the pendency of writ petition, the petitioner has already attained the age of superannuation, then he will be deemed to have been reinstated in service and retired on attaining the age of superannuation and in such a situation, he will be entitled to revised pension accordingly, with all consequential benefits. Three months' time is given to the respondents for compliance of this order. (Prem Shanker Asopa) J.