AMffDEP PETtTVO.M. ^RST ^l-l-'il^ ^TwT y^ll'Upl't' 3lto^IIT W.P.S. No 2862/2005 STTO^Ocb^l'ch 304/1999 aiic|<cb : ^frf^ ^TT ^nf srrg 50 ^ R»1uT VtO ^\ W^W ^Flf I'icllPl'-lal 'Hgl'ycn ^g (fr'T <ll'('l!ftl'4 ^Tq *J,fiulld-4 '<lu1T1l'c,-ll'q qOTTO TTRfrg? cTT^ ^TO 6 4)^41^1 ^lul'IK'licl ai-1iqc;cti<|u| 1 d. ^-.,^'1^ ,j>^At •:v -^' ^ y ^K' \A' fcl^TFT TfTTRTO ?TK^T ^NT ^wPT 'qcTrT 2. Pl^Tl^ ^ll^ct^^ T[?UT 1^ 3- State of Chhattisgarh Through the Secretary, Revenue Department Mantralay, AtD.K.S.BuildingRaipur(C.G.) 4. The Director, Government Press printing, And stationary Depot. Behind old commissioner Building Raipur (C.G.) 5. Union of India, Through the Secretary, Ministry of the Personal & Public Grievances & Pension (State Reorganization) Govt. of india New Delhi STT^T XT?T STcPttT ETRT 19 y^ll'iHpl't' sriSTcf^uT srfEl^PTtT 1985 STT^-T ^T ^T e- 1. 2. 3. ^TT S)'1|c|^c;ct?|' ^T 3TT^?T cCT f^'cRUT VJ4M|cW \j4';lcra ^ ^ i ^ 01 srr^?T 228/uft ^r/^eTT./^ 3TR-81)/ 96/3909 ST-t^F-T ?-1 :-^ ^pf{ -^&^ HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 2862 of2005 PETITIONER Govind Ram Venna. RESPONDENTS VERSUS State ofMadhya Pradesh & Others. sf- Post for pronouncement ofjudgment & order on .2.1..day ofFebruary, 2011. Sd/- Satish K. Agnihotri Judge <r HIGH COURT OF CHHATTISGARH AT ^ILASPUR WRIT PETITION (S) No. 2862 of 2005 PETITIONER RESPONDENTS Govind Ram Verma. VERSUS State ofMadhya Pradesh & Others. SBL Hon'ble^Shri Satish K. Agnihotri, J. Present: Shri S.K.Thomas, Advocate for thepetitioner. Shri Rajeev Shrivastava with Shri Malay Shrivastava, Advocates for the respondent No. 1 and 2. Shri Sushil Dubey, Govemment Advocate for the State/ respondent No. 3 and 4. None for the respondent No. 5. •^ <* ,-^1~. (Delivered on .«^./...day of February, 2011) 1. Initially, this petition was filed before the Madhya Pradesh State Administrative Tribunal, Jabalpur (for short 'the Tribunal') as O.A. No. 304/1999. After dissolution ofthe Tribunal, the petition was transferred to this High Court and was registered as W.P.(S) No. 2862/2005. 2. By this petition, the petitioner seeks quashing of the order dated 25.06.1998 (Annexure A/l) and to reinstate the petitioner in service and to declare the period i.e. from the date ofcompulsory retirement till reinstatement, as service period with all consequential monetary benefits. 3. The facts, in nutshell, as projected by the petitioner is that initially the petitioner was appointed as Lower Division Clerk on 20.03.1970 and was posted at Govemment Regional Press, Jv Rajnandgaon. The petitioner was confirmed in service vide order dated 27.09.1978 w.e.f. 05.01.1973 (Annexure A/3). Thereafter, vide order dated 25.06.1998 (Annexure A/l) issued by the Controller, Govemment Printing and Stationary, M.P. Bhopal, exercising the powers conferred by clause (b) of sub-rule ( 1) ol' Rule 42 of the Madhya Pradesh/Chhattisgarh Civil Services (Pension) Rules, 1976 (for short 'the Rules, 1976') the petitioner, on attaining the qualifying service of25 years on 20.03.1995, was retired compulsorily from service w.e./ 30.06.1998, which is impugned herein. 4. Shri S.K.Thomas, leamed counsel appearing for the petitioner would submit that the petitioner was retired compulsorily on account ofadverse remarks in his Annual Confidential Reports (for short 'the ACRs'). None of the adverse remarks were communicated to the petitioner within time. However, after making representation to the respondent authorities, some of the adverse entries were expunged. Shri Thomas would further submit that the petitioner was assigned the work of Upper Division Clerk while he was holding the substantive post of Lower Divisjon Clerk. The petitioner had performed his duties in accordance with law and there was no complaint, whatsoever, with regard to his work and conduct. Shri Thomas would next contend the constitution of the Committee namely "Shashkiya Vibhagon Me Dhilai Tatha Bhrastachar Unmoolan/Anivarya Sevanivritti Samiti" (for short 'the Committee') was unconstitutional. Thus, the action ofthe respondent authorities by compulsorily retiring the petitioner *-» » 6. on the recommendation made by the Committee, is unjust, illegal and deserves to be quashed. On the other hand, Shri Shrivastava, leamed counsel appearing for the respondent No. 1 and 2 would submit that on the reconunendation made by Committee constituted pursuant to the circulars dated 27,12.1990 of the Revenue Department ancl 13.01.1997 of the General Administration Department of the Govemment of Madhya Pradesh, the petitioner was retired compulsorily. The circular dated 27.12.1990 provides for compulsory retirement if (i) the honesty and integrity of an employee was doubtful, (ii) reduction in physical ability, (iii) the employee has not obtained 'good' grading for the last three years, and 'average' for two years and (iv) deficiency in the goodwill and work performance for the last five years. Shri Shrivastava would further categorically submit that after retirement, the petitioner had accepted all his retrial dues viz. pension, gratuify, family welfare fimd, group insurance, general provident fund, leave encashment etc. which goes to show that the petitioner had accepted the order ofcompulsory retirement and thus, he has no right to challenge the same before this Court. The petitioner had further been grantecl three months salary in lieu ofnotice. Shri Dubey, leamed counsel appearing for the respondent No. 3 and 4 would submit that the case ofthe petitioner was not a case of punishment, but compulsory retirement on having completed 25 years of qualifying service. A Committee, comprising of Shri J.L.Sankat, Controller, Govemment Printing & Stationery, Smt. ^ Beena Chapekar, Deputy Secretary, Government of Madliya Pradesh, Department of Revenue, Bhopal, Shri P.C. Seth, Deputy Conta-oller, Government Printing & Stationary Department, Bhopal and Shri Devdatt, Incharge, Deputy Controller, Govemment Regional Printing Press, Rajnandgaon, was constituted vide order dated 27.11.1997, which was a proper committee as provided under circular dated 13.01.1997 (Annexure A/18). The ComiTiittee, headed by the head of the department, assessed the case of the petitioner on the basis of his honesty and integrity, physical capability, perfomiance in the last five years and progress ancl capability of the petitioner, and made a recommendation accordingly for retiring the petitioner compulsorily. The petitioner has accepted all the retrial dues including pension, gratuity, family welfare fimd, group insurance, general provident fund, leave encashment etc. 7. On consideration ofthe rival submissions advanced by the learnetl counsel for the parties, it is evident that the petitioner was retired compulsorily on completion of 25 years qualifying service by order dated 19.6.1998 under the provisions of clause (b) of sub- mle 1 ofRule 42 ofthe Rules, 1976. 8. Rule 42( 1)(b) of the) Rules, 1976, reads as under: "42. Retirement on compl.etion of [20 years] qualifying service. - (l)(a) A Government servant may retire at any time after completing 20 years qualifying service, by giving a notice in Form 28, to the appointing authority at least three months before the date on which he wishes to retire on payment by him of pay and allowances for the period ofthree months or for the period by which |k* 9. the notice actually given by him falls short of three months: Provided thatwhere 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 Govemment servant to retire from service at any time after he has completed [20 years qualifying service or he attains the age of 50 years whichever is earlier], with the approval of the State Government by giving him three months notice in Form 29: Provided that such Govemment servant may be retired forthwith and on such retirement the Govemment servant shall be entitled to claim a sum equivalent to the amount of his pay plus 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 notice falls short ofthree months." Earlier, qualifying service was 25 years which was substituted by 20 years vide notification dated 30.05.2000. The main grievance of the petitioner is that the ACRs which contained adverse entries were not communicated within a periocl of three months but they were communicated after three months. However, the fact remains that response to the communications were filed by the petitioner and the same were considered before all the ACRs were taken into consideration by the Committee. Thereafter, it was decided not to retain the petitioner in service on attaining qualifying service of 25 years. It is evident froiTi annexures enclosed by the petitioners that ACR of 1990-1991 was communicated to the petitioner on 28.8.1991 (Annexure A/5) which was responded to and the same was rejected on 11.06.1993 (Annexure A/6). The ACR of 1992-1993 was also communicated 10. to the petitioner to which the petitioner responde'd on 18.05.1993, butthe same was rejected on 20.01,1994 (Annexure A/7). Adverse entries in ACR of 1994-1995 was communicated on 13.04.1996 which was responded to by the pefitioner and on consideration of his response/representation dated 21.05.1996, it was rejected on 12.03.1997 (Annexure A/8). ACR ending till 31.03.1996 was communicated to the petitioner on 15.01.1997. His representatian dated 17.04.1997 was considered and was rejected on 23.03.1998 (Annexure A/10). ACR till 31.03.1997 was communicated on 25.11.1997 (Annexure A/ll) vvhich was responded to by the petitioner on 06.01.1998 (Annexure A/12). The same was also considered. The impugned compulsory retirement order was passed on 25.6.1998 (Annexure A/l) and before that, ail the adverse entries in the ACRs were communicated to the petitioner and the same were responded to by the petitioner. Thus, the contention of the petitioner that the adverse entries in the ACRS were communicated after a period of three months, thus, the proceeding is vitiated, does not merit acceptance. Without making necessary amendment in the pleadings, the petitioner, in his additional written argument, questions the legality and validity of the Committee, constituted under the circular dated 13.01.1997 ofthe General Administration Department ofthe then State of Madhya Pradesh. The circular dated 13.01.1997 (Annexure A/18) provides for constitution of the Screening Committee for compulsor}' retirement. The main criterja for consideration was honesty and integrity, physical capability, ^' ^— 11. performance of the employee in the last five years and progress and capability of the employee. The Committee, comprising ol' Shri J.L.Sankat, Controller, Govemment Printing & Stationery, Smt. Beena Chapekar, Deputy Secretary, Govemment of Madhya Pradesh, Department of Revenue, Bhopal, Shri P.C. Seth, Deputy Controller, Govemment Printing & Stationary Department, Bhopal and Shri Devdatt, Incharge, Deputy Controller, Govemment Regional Printing Press, Rajnandgaon, was constituted vide order dated 27.11.1997, which recommended not for retaining services of the petitioner, considering the over all performance of the petitioner. The ComiTiittee was properly constituted as it was headed by the Controller, Government Printing and Stationaiy Department, wherein the petitioner was working. The pending departmental enquiry was dropped after the order of compulsory retirement was passed and it appears from the recommendation and the order that pendency ofthe departmental enquiry was not one of the consideration against the petitioner. There is no challenge to the compulsory retirement on any other ground except the ground of non-communication of adverse entries in the ACRs of the petitioner, within time. Under the circular dated 13.01.1997 (Annexure A/18), it was provided to constitute a Committee for screening ofthe employees as under: "(?) ai'iiuiMRiti sr&EprfNf ^ f^- (cp) f^WTIHIST c^TcT f^qmsqgT cbl'yld^ ^ ^-T f- ?T? ^[Prfrl ^pT ^\ ^- \^ *. €t yi'isTl'i cpr ?pT4 cb^Fl fSr^ sn^ ^ fii'^nieqgT c^ srfEt^R ^ ^ sifSrci; sriSichiR^" 'cpt f I 'E[?T W T[? f^TFmsqST W-i^ ^rN^ cCT STEZIST ?tTTT ^ift ^PT 'cpr4 q7??n' t, ^- v^ sifiw^, yya •ER ^S^ STTf^ '?}? ^Tfrtf^r ^ a'ilul^Rld *4-c|lR4T ^ TfeffgRT fEpTFTTEZiaT ^ 1TcT7 1T7 7?i ^TRl' 11 ?'? 4 Pi**1l^t1l'< ';FR~P? ?pt— 1. f^*nTnBF[gr •M"4lui* 2. WffSRT fStWT ^ ?rf%[cT f^TFTTKTS 3?t^ ^T ^T H^PN 'EPT 'cf^ sri6rw?t ''T ?t 'cifr ^ c|RtcS<i*i aifeRiifri" 12. Reliance ofthe petitioner on a decision ofthe Supreme Court in Kusum Ingots & Alloys Ltd. v. Union oflndia & Another , is not relevant to the facts ofthe case as the case deals with situs ofcause of action, which is not in question in the facts of the case. The another decision viz. State of Maharashtra v. Jagannath Achyitl Karandikar , is also not relevant to the facts ofthe case as the said case was not on compulsory retirement but on appointment of the persons who fall into the category of 'Late Passing'. Further, the case of C.L.Verma v. State of M.P. & another , holds that the administrative instructions cannot compete with a statutory rule and ifthere be contrary provisions in the rule, the administrative instructions must give way and the rule shall prevail. But in the instant case, that is not the question as there is clear provision ' (2004) 6 SCC 254 2AIR1989SC 113 'AIR 1990 SC 463 under the Rules, 1976 to retire an employee on completion of 20/25 years qualifying service. In the case on hand, the Committee comprising of four members and was convened by the Head of the Department i.e. the Controller, Govemment Printing & Stationary Department, thus, the order passed by the Madhya Pradesh State Administrative Tribunal in S.Laxmi Chand Awadhiya v. State of M.P. & Others , relied on by the petitioner and was affinned by the High Court of Madhya Pradesh, is also not applicable to the facts ofthe present case. 13. The case ofRam Kishore Goutam v. State of M.P. (Now C.G.) & Others , of this Court, relied on by the petitioner, was in regard to imposition of penalty of compulsory retirement after departmental enquiry, and as such, the same is not applicable to the facts ofthis case as in the instant case, the petitioner was retired compulsorily on the basis of over all performance and assessment on having completed 25 years of qualifying service under the provisions of Rule 42 ofthe Rules, 1976. 14. In State of M.P. & Others v. Indra Sen Jain , compulsory retirement of the petitioner was in question on the ground of malafide. The Supreme Court held that the order of compulsory retirement must be made in bonafide exercise of power and in public interest. In the case on hand, there is no allegation of malafide. In the instant case, some of the adverse entries in the ACRs were deleted which goes to indicate that there was no 4 O.A. No. 3061, decided on 20.03.1998 5 2009 (3) CGLJ 65 (1998) 1 SCC451 10 malafide against the petitioner. The Supreme Court, in Indra Sen Jain , held that "if in earlier enquiries the respondent was either exonerated or on appeal the adverse orders against him were set aside, this would go to show that there were no malafides against the respondent and that his case was fairly considered by the authorities concemed". 15. The Supreme Court, in M.L.Binjolkar v. State of M.P. , the Supreme Court has considered the aspect of compulsory retirement, observed as under: "5....It is a trite law that an order ofcompulsory retirement is not a punishment. The employer takes into account various factors emanating from the employee's past records and takes a view whether it would be in the interest of the employer to continue services of tlie employee concerned. It can certainly pass an order of compulsory retirement when the employee is considered to be a dead wood and practically of no utility to the employer. The purpose and object of premature retirement of a goveiTiment employee is to weed out the inefficient, the cornipt, the dishonest or the dead wood from the govemment service. As 'noted above, in the background facts of these cases, we do not consider it necessary to go into the merits." 16. In National Aviation Company of India Ltd. v. S.M.K.Khan , tbe Supreme Court observed as under: "14. The unsatisfactory service of the employee which may include any persistent misconduct or inefficiency fumishes the background fortaking a decision that the employee has become a dead wood and that he should be retired compulsorily. Such "compulsory retirement" is different and distinct &om imposition of a punishment of compulsory retirement (or dismissal/removal) on a specific charge of misconduct, where the 7 (2005) 6 SCC 224 8 (2009) 5 SCC 732 1 •» ^ 11 •misconduct is the basis for the punishment. The difference is on account oftwo factors: firstly, the employee on account of completing a particular age or number of years of service falls within the zone where his performance calls for assessment as to whether he is of continued utility to the employer or has become a dead wood or liability for the employer. Secondly, the record of service, which may include poor performance, unsatisfactory service or incidentally any recent conduct (which if separately considered may constitute a misconduct subject to punishment) when considered as a whole, leads the reviewing authority to the conclusion that the employee in question is not fit to be continued in service and not of utility to the employer. Therefore, any incidental reference to unsatisfactory service or any remarks in the context of explaining the reason for compulsory retirement under the relevant mle, in the letter of compulsory retirement will not be considered as stigmatic, even though read out of context, they may be capable of being construed as allegations of misconduct." 17. In State of Gujarat v. Umedbhai M. Patel , the Supreme Court crystallized the lawrelating to compulsory retirement, as under: "11. The law relating'tocompulsory retirement has now crystallized into definite principles, which could be broadly summarized thus: ^ (i) Whenever the services of a public servant are no longer useful to the general administration, the ofEcer can be compulsorily retired for the sake of public interest. (ii) Ordinarily, the order of compulsory retirement is not to be treated as a punisbment coming under Article 31 lofthe 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 sei'vice record ofthe officer. (iv) Any adverse enti'ies made in the confidential recoi-d shall be taken note of and be given due weiglitage in passing such order. (v) Even uncommunicated entries in the confidential record can also be taken into consideration. <* -"(2001) 3 SCC 314 E-:'.% ^ t-.. 18. •"^^i (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 m favour of the officer. (viii) Compulsory retirement shall not be imposed as a punitive measure. " For the reasons mentioned hereinabove and applying the well-settled principles of law in respect of compulsory retirement, to the facts of the instant case, there is no merit in the case. The petition accordingly fe;ls and is dismissed. 19. There shall be no order asto costs. ^s'^"' Sft^^