^l 4^. HIGH COURT OF CHHATTISGARH. BILASPUR DB:HON"BLE SHRE SUNIL KUMAR SINHA & HON'BLE SHRI RADHE SHYAM SHARIVIA. JJ. APPELLANT Writ Appeal No.302/2007 Dr.G.S.Khatri RESPONDENTS Versus State of Chhattisgarh and others JUDGMENT For consideration Sd/- Sunil KumarSinha Judge HON'BLE SHR8 JUSTICE RADHE SHYAM SHARMA <3 c^^^^_ Sd/- R.S.Sharma Judge Post for Judgment: /^ ^01/2012 Sd/- Sunil Kumar Sinha Judge HIGH COURT OF CHHATTISGARH. BILASPUR DB; HON'BLE SHRI SUNIL KUMAR SINHA & HpN'BLESHmRADHESHYAMSHARMA^J^ WRIT APPEAL N0.302/2007 APPBLLANT Dr. G.S. Khatri, sonofShi'iB.S.Khatri, aged about 60 years, Resident of C-75, Gyatd Nagar, Raipur, Chhattisgarh Versus RESPONDENTS State of Chhattisgarh Through Secretary, Departaieiit of Veteriiiaiy Maiitralaya, DKS Bhawan, Raipur, Chhattisgarh Deputy Secretary, Departinent of Veterinar^7 MaD.trala^^a, DKS Bhawan, Raipur Chhattisgarh Director of Veterinai^7 Sendces, Raipzir, Chhattisgarh APPEAL TO DIVISION BBNCH UNDER SBCTION 2 (1) OF THB CHHATTISGARH HIGH COURT (APPBAL TO DIVISION BBNCH) ACT, 2006 READ WITH RULB 157 |10) OF THE CHHATTISGARH HIGH COURT RULES, 2005 Appearasiee: Shri Ainrito Das, Advocate for fhe appeUaat, Shri A.S. Kachhawaha, Dy. Advocate General for fhe State/respondents. p^as^BW^ •^&^.. .,,^.""-^ ^ tl" ^^ ••^^^'^^: WA 302/2007 •o^ JUDGMBNT (1^.01.2012) FoUowirLg judgraent of fhe Court was delivered by Sun.il Kumar Siaha, J. (1) This appeal is directed agaiast the order dated 29th of August, 2006, passed in W.P.(S.)No.l778 of 2005. By fhe impugned order, fhe writ petition filed by the appellant/petitioner against tlie order ofhis coinpulsoiy retireiaent has been disinlssed by the wnt Court, (2) The appeUaiit was appointed as Veterinary Assistaiit Surgeon on 6.5,1972 on temporary basis. Thereafter, his services were regularized 011 the basis ofapproval graated by PubMc Service Commission by order dated 23.5,1978. The State goveniment retired tlie appeUaiit coinpulsonly ia pubUc iaterest by order dated 2nd Januaxy, 1999, which was chaltenged before the writ Court. Before the writ Court, tlie appeUaiit raised singular contention that he was neifher given any show cause notice nor fhe enquiiy \vas held before tlie decision was taken to retire tlie appeUaat coiapulsonly. Except tlie above ground of violation of prmciples of natural justice, no other ground was raised. The writ Court, rcferrmg to various decisions, includiag fhe decision of Bcdkuntha Nath Dcts and another Vs. Chief Districf Medical Officer^ Saripada o.nd em.ather, observed fhat tiie order of compulsoty retiireiaent can be challenged only on tiie groxind that fhe requisite opuiion was not fomied or fhe decision was based on co-lateral grounds/no evideuce or fhe decisionwas arbitorar}', Itwas held tliat if fhe order is passed on flie subjective satisfaction of tlie goverainent, tiie High Court cannot sit as aa appellate Coiirt to iiiterfere with the decision of tlie Govemiiient/Employer except in case of no evidence or estabUshed mala&de or arbitrariness. Siace "L- WA 302/2007 ».<-' lmN««ll—, tlie writ Court did not fiiid all this whUe examinmg tlie matter, the writ petition was dismissed. (3) Shri Amrito Das, leaiiied coimsel for tlie appeUant, raised alaiost siBiUar poiats, which were raised before thie writ Court. Iii addition, he ai'gued tliat the order of compulsory retirement was passed on tlie scrutiay of the records of goveminent servaiits for fheir removal to stop the negligence aiid comiption m vadous govemnxent departnieats, flierefore, it was not a case of compulsoiy retireiaent siinpUcitor aad it was punitive. He fiirtfaer argiied that tlie appellaat was regularized ia service on 23.5.1978, tlierefore, he had uot completed 25 yeai's of qualiftdng service aiid as such, he could uot have been retired compulsoiily under The Madhya Pradesh Civil Services (Pensiou) Rules, 1976 (hereinafter refen-ed to as 'the Riiles 1976'}. (4) On flie ofher haad, Shri A.S.Kachhawaha, leaaied Dy. Advocate General appearing for the State, opposed the arguments aiid supported tlie order passed by the writ Coitrt. He ai'gued tliat the ground of qualifying service was not raised before fhe writ Court, therefore, the saine caiinot be raised ia fhis appeal. (5) We have heard learaed counsel for tlie pafties at lengtiii aiid have also perused the records of fhe writ petltion. (6) The contents^ of tiie order dated 2.1.1999 (order of conipulsory rctirenient) would show fhat the above order was passed under Rule, 42 (b) of the Rules, 1976. Rule 42 (b) of tlie Rules provides tliat the appoiatiiig autiiority inay ia tlie public iiiterest require a Govemment seivaiit to retire from service at aay time after he has completed 25 yeai's qtialif}7mg service, witlx the approval of tlie State Govemment by giviag hioi three nionttis notice in Form 29. Provided that such Goveranieut servaat niay be rctired forthwith aad on such reth'ement, the Goverrmient servant WA 302/2007 0 '/ shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of tiie notice at the saxiie rates at which he was drawiag tlien tmmediately before his retirement or, as the case may be, for flie period by which such notice falls short oftliree Bionfhs. (7) The records relating to retk'ement have been filed before us, (8$ A perusal of the records would show that the General Adniiaistration Departxaent of tlie Goveraraent had taken a decision fhat Meetmg of Scratiiiy Committee shaU regulaiiy take place on iatervals of six laonflis aiid it shaU sci'utiiiize fhe cases of tlie officers/employees for compulsoxy retirement on account of coinpletion of 55 years of age or 25 years of quatifyiiig service. The cases ofVetemiaiy Assistaiit Surgeons, therefore, were considered ia fhe Meetiiig of Scrutiny Committee dated 6,11.1998. Secretar}r, Deputy Secretar}r aad Director ia charge of Vetermar}r Departnient, were the nieinbers of fhe said comm.ittee. The Conimittee, on the uorxtis already set-up aad contabied in. fhe Muiutes ofthie Meetmg, scnitinized ttie cases of aU fhe officers, who feU wifhin the zone of considei-ation of tlie coBiiaittee on such norms aad then the names of two Assistaat Vetermary Surgeons, iacluduig the appeUaat were recom.niended for their coiiipulsoiy retirenient. (9) FoUowiag are the norms^ on which, fhe scrutiay conmiittee sciTitiaized tlie cases of the Assistaat Veterbiary Siix^eons and took a decision as above in the niatter of tlie appellaat, ^ ^TIM^It HW ^^Pl'^1 ^f^ \yRW ^TT (^T tg ^"fSRr ^lltl^<( ^cT^ cj?T 'iEpq^f ^{ ot<sl ^<@T ut{<b^ ^WRT ^t <?Tft) 1s[ ^i{^R4> ^~TOT ^f ^ff ^f ^nf^ ^ q?i4^i*iaj ^T y<ii<t?-i ^icTfSicf i?{}^}ct51<i ^w ^ ^^rraT^ ^ wcpf ^rftf^sT ^ ^TT^K ^R f^rr MTF^ | ^^ ^frayw ^i€F t ^ ^^^? LiRt<iyyi ^rrf^f^xi -3rT§rm ^^t ^srf^f^f Rrp^ ^f^cf ^rf^f^T ^t ^f^T ^t ufT m^ft t, ^i^iq?l<i F ^s"\ •fr "'' ^ ^^.^^-^ ^ 1. T^JJ '%.^«s^^- \^\ WA 302/2007 / ^^9? ^ ^%1^r ^t ^ ^t i ^ri^ f^rft ^l^r ^ ^^FW ^ ^^ f^g^ ^ t^ ^w w^? ^T ^, f^ra^ ^nw^ TT? ^m f^ai ^ii vjrr ^p^, f^>^ B^ ^rf^T^ ^t '^ ^^ft ^mft'^t l^re^ ^r^uy ^1^14^^ ^-^ ^ ^i^m^Fs^reT czirof ?t awcn c?t^ ^^^ <^t ^ST^ff ^HTf^T ^t^ft t ?it ^ft ^Rfl^r ^ ^rPmT^ ^[T ^ ^m l^^r f^'ljn^ ICR f^fR f^rar ^n^ i The Miautes of Meetmg of the Scrutbiy Committee would show that it was not a casual decision aiid the decision was takea aft.er considering the cases of aU fhe Assistaiit Veteriiiaiy Surgeons, fallhig in fhe zone ofconsideration as per Rules, 1976. (10) In State of Gufctrcc^ Aissfellcint v. Umed&hai M. Patcl. Resffondent^ AIR 2001 SC 1109, the Supreme Court obsen^ed tliat the law relating to coinpulsory retirenient has beexi crystaUized mto defiiiite principles and it was broadly suTiomarized as under : (i) When the seryrices of a public senraat are 110 longer useful to the general adininistration, the officer caa be compulsorily retired for the sake ofpubUc io.terest. (ii) Ordiaarily, tlie order of compnlsoiy retiremeiit is not to be treated as a punishnient coniiag under Article 311 offhe Constitution. (iii) For better admmistration, it is not necessaiy to chop olT dead-wood, but the order of coiiipulsor}r retirement caii be passed after havmg due regard to tlie entire ser^ice record ofthe ojGEicer (iv) Any adverse entiies iciade ni the eonfidential record shaU be taken note of aiid be given due weightage iix passiag such order. (v) Even uncominunicated eutdes ui the confidential record caa also be taken iato consideration. (vi) The order of compulsor}r retli'ement shaU not be passed as a short cut to avoid departiaental enquiry when such course is morc desirable. ;'^'' ...I %. 5?'f ..y ^ ^^ \5'7 WA 302/2007 (vu) If the officer is given a proxaotion despite adverse entries inade ia the confidential record, that is a fact ia favour of fhe oflScer (vui) Compulsoiy retii'ement shall not be imposed as a punitive raeasure. (11| In the instant case, if a decision was taken by ihe duly authorized coniraittee offhe Goverament iii scrutiay offhe cases of all Assistaat Veterinaiy Surgeons ia a general niaiiner, unless an iafimiity is poiated out so as to niake it illegal or arbitraiy, the above decision has to be held, to be correct. The cominittee has considered fhe entire service records of the conceraed eniployees aad then only it has recomimended for compulsor)r retireriient of the two Assistant Veteilaaiy Surgeons, uicludnig fhe appellant. The appeUaiit has not raised aiiy ground in. his petition relatmg to defect iii the action taken by fhe scnitiay comiaittee. He has challenged the compulsory retireiaent in general maiuier. No speci&c nxstaaces for controvertmg the decision have been taken as ground iii tiie petition filed by the appeUaat. Even no niaterial ^vas placed on record by fhe appeUaat to show perversity or to raake out a case of no evidence or to estabUsh malafide or arbitranness ia taktag tlie decision ofhis compulsoiy retirenient. The writ Court has rightiy held fhat in. such cases i.e. m cases of compiilsoiy retirenient under Rule 42 (b) of the Riiles, 1976, fhe piinciples of natural justice, has no role. The writ Court, therefore, held ffaat fhe order of coinpulsory retirenient was not suffering from perversity or UlegaUty. (12) Shri Ainrito Das, leanied counsel for the appeUarit has next contended that fhe appellant had not conxpleted 25 yeara of quali^riiig ser^ice, as the period of his service for fhe piirpose of Rule 42 (b) shaU be counted froin tlie date of his regularization, and not from the date of his iaitial appomtoient. We have ^ WA 302/2007 considercd the above contention, "Qualifyuig seivice^, as defiaed in tlie Riiles itselfvide Rxile 3 (p), ineaas the period between tlie date of joiaiag peusionable ser^ice uuder the State Govenimient aiid rctireraent fherefronx which shall be taken into accoiint fbr purpose of the pension aad gratuity admissible under fhese rules and iacludes tlie period which qualifies under any other oi-der or nile for tlie time being ia force. Though fh.is ground was not pressed before the writ Court, but it was taken ui fhe originaJ application, which was registered as writ petition and additional retuna was filed by fh.e Gtoveminent ia fhis regard, It was contended fhat tiie appeUaat was uiitiaUy apponited on 6.5.1972 aad fhe ser^ice rendered by him siace 1972, was tiie quaU^^iag service for fhe purpose of pension, though fhe saaie may not be faken iato consideration whUe fixmg tlie seniority of the appetlaiit, FroBi the definition of qualifyuig service, it is clear fhat quallfymig service is different thaa fhe service to be takeii iato consideration for fixing tlie seniority. In the iustant case, as rightly coutended by tiie State, fhe appellaat tliough was granted approval by Pablic Service Comniission aad regularized as Veteriiiary Assistaat Surgeon vide order dated 23.5,1978, wiU get a seniority as Veteiiaary Assistaat Surgeon from the . date of rcgulanzatioii through P.SC,, but because there was continuity ini service, the quaU^^iag service for pension etc. would be fhe service rendercd by him froin his initial date of appointooient ie. 6,5.1972. The cnicial date, as per defiiiition clause 3 (p) ofthe Rules, would be tlie date ofjommg ofthe Pensionable ser^ice under the State Govemment aad not tlie date of regularization, as the above clause nowhere mdicates like tliat. We are of tlie view tliat the Goverament has rightly counted flie period of qualifynig service of the appellaiit froin fhe first day of his johiiag ia fhe Veterinary Department, therefore, the said argunient, caxinot be accepted, "-^. \'l. 8 WA 302/2007 (13) For the forcgomg reasons, we do not find any substance in this appeal. The appeal, fherefore, is Uable to be dismissed and is hereby disnxissed. (14) No order as to cost(s), Sd/- Sunil Kumar Sinha Judge Sd/- R.S.Sharma Judge