1 D.B.CIVIL SPECIAL APPEAL NO.871/2008 (Nathdwara Temple Board vs. L.Rs. of Late Shri Laxmi Narayan) DATE OF ORDER : 16/12/2008 HON'BLE MR.JUSTICE A.M.KAPADIA HON'BLE MR. JUSTICE DEO NARAYAN THANVI Mr.M.R.Singhvi, for the appellants. Mr.D.K.Parihar, for the respondents.] Heard learned counsel for the parties. While relying upon the various decisions of the Hon'ble Supreme Court and this Court viz; (1) Gujarat Electricity Board vs. Atma Ram reported in (1989) 2 SCC 602; (2) S.C.Saxena vs. Union of India reported in (2006) 9 SCC 583; (3) Jugal Chandra Saikia vs. State of Assam reported in (2003) 4 SCC 59; (4) State of U.P. vs. Vijay Kumar Jain reported in (2002) 3 SCC 641; (5) State of U.P. vs. Lalsa Ram reported in (2001) 3 SCC 389; (6) Vinod Kumar Agarwal vs. High Court of 2 Judicature for Rajasthan reported in 2001(1) WLC (Raj.) p.1; and Janaki Vallabh Joshi vs. State of Rajasthan reported in 2000(3) WLC (Raj.) 509, it has been contended by the learned counsel for the appellants that on account of there being various complaints against the respondent-petitioner with regard to his disobedience and inefficiency, his services were not found of utility and he was made to compulsorily retire in public interest. The main reasons for compulsory retirement of respondent-petitioner were of flouting the order of transfer and pressurizing upon the department to appoint his son. In this regard, the learned counsel for the appellants has drawn our attention to Annex.R/4 in which the respondent- petitioner stated that he is prepared to work on the transferred post at Calcutta, provided his son Narendra Singh Gorva is appointed as permanent LDC from 2.12.1991 and his another son Surendra Singh Gorva is paid a sum of Rs.27/- per day on the post of LDC. In our view, this type of request by respondent-petitioner 3 cannot be said to be disobedience or pressurizing the appellants to cancel his transfer because when a person, who has been appointed in the Nathdwara Temple Board in the year 1965 and continued upto 1992, is transferred to Calcutta all of a sudden without there being any reason, it undoubtedly creates mental disturbance of a low paid employee on account of financial stress because the place Calcutta is about 2000 kms. away from Nathdwara and is another corner of the Country from West to East. Even the respondent-petitioner complied with the directions and joined his new place of posting at Calcutta, when he failed to get any relief from the appellant-employer and during the pendency of the writ petition, he also died. There is nothing on record to substantiate the contention of the learned counsel for the appellants that there were numerous complaints against him about his inefficiency. A request made by an employee to his employer for employment of his sons cannot be said to be disobedience or unusual in terms of dictating 4 the appellants. Learned Single Judge, while allowing all consequential benefits to the legal heirs of respondent- petitioner, has rightly held that the decision of compulsory retirement of respondent-petitioner taken by the appellants suffers from material perversity and is arbitrary. The above-referred judgments, cited by the learned counsel for the appellants are not applicable to the facts of the present case. The case of Gujarat Electricity Board (supra) was based on the equal pay for equal work. In S.C.Saxena's case (supra), the matter was relating to the transfer of a Govt. servant but he indulged in litigation and took long leave of one year and four months, which was held to be misconduct. In Jugal Chandra Saikia's case (supra), it was held that the compulsory retirement of a Govt.servant on the recommendation of the Screening Committee, was not based on arbitrary or unreasonable grounds. In the case of State of U.P. vs. 5 Vijay Kumar Jain (supra), the compulsory retirement was justified because of entire service record, character roll or confidential report. In the case of State of U.P. vs. Lalsa Ram (supra), there were adverse entries while passing the order of compulsory retirement and it was held to be justified. In Vinod Kumar Agarwal's case and Janaki Vallabh Joshi's case (supra), it was held that the compulsory retirement is not a punishment and if the powers are exercised in the public interest without there being arbitrariness or perversity, it cannot be questioned. In the present case, as discussed above, the case of the respondent-petitioner is not covered by any of the citations, referred-to by the learned counsel for the appellants. The only grievance of the respondent- petitioner was that he being a low paid employeee in the grade of LDC, should not be transferred to Calcutta, which he complied-with later on, when the appellants failed to adhere-to his request to appoint his 6 sons. An employee making such a request cannot be subjected to such a high & exorbitant punishment, whereby he may lose his livelihood. The appellant- Board has not been able to show before the learned Single Judge any complaint relating to misconduct vis- a-vis adverse entry in the service roll of respondent- petitioner. Therefore, the order of compulsory retirement of respondent-petitioner passed in the present case is not at all based on subjective satisfaction or on the basis of the entire service record. Such order can even be termed as the order passed on whims & caprices. In view of this, we are unable to interfere with the finding of reinstatement with all consequential benefits, arrived-at by the learned Single Judge. 7 Accordingly, the Special Appeal is dismissed with no order as to costs. (DEO NARAYAN THANVI), J. (A.M.KAPADIA), J. RANKAWAT JK, PS