HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 500 of 2006 (S/S) Surendra Singh Negi (since deceased) & others … Petitioners .. Versus State of Uttaranchal & others … Respondents Mr. Atul Bahuguna, Advocate for the petitioners. Mr. K.P. Upadhyay, Additional Chief Standing Counsel for the State of Uttarakhand/respondents. 15th December, 2009 Hon’ble Sudhanshu Dhulia, J. Heard Sri Atul Bahuguna, Advocate for the petitioners as well as Sri K.P. Upadhyay, Additional Chief Standing Counsel for the State of Uttarakhand/respondents. The petitioners before this Court are the legal heirs of one Sri Surendra Singh Negi who as a Junior Engineer in the Public Works Department, Uttarakhand, had filed this writ petition in the year 2006 against the order of his compulsory /pre-mature retirement from service. During the pendency of the writ petition Sri Surendra Singh Negi (the petitioner) had passed away and consequently vide orders of this Court his legal heirs have been substituted who are presently before this Court as petitioner no. 1, 2 and 3 i.e. widow and the sons of the petitioner, respectively. For sake of convenience Sri Surendra Singh Negi, now deceased, shall be referred to as the petitioner. The case of the petitioner is that he was initially appointed on 17.3.1970 on the post of “Draftsman” in the Public Works Department of the erstwhile State of Uttar Pradesh. Consequently, on 1.7.1997 he was promoted to the post of Junior Engineer. While he was continuing as Junior Engineer in the Public Works Department, due to his ill health he moved an application to the Chief Engineer, Garhwal Zone praying that since he has not been keeping well he is seeking voluntary 2 retirement from service with effect from 31.12.2005. This letter though, was sent a few months prior to 31.12.2005. What is significant is that the petitioner did not voluntarily retire immediately but from a date which was to operate after four months from the date of filing of this representation which is dated 30.8.2005. Be that as it may, immediately after filing of such an application, on 23.9.2005 the petitioner moved another application before the Chief Engineer, Level -1 stating that he is now withdrawing the earlier application dated 30.8.2005 and it should not be treated to be in effect and the same may be consigned to records. In effect, the petitioner has withdrawn his earlier application for voluntary retirement. Consequent to the said letter of the petitioner dated 23.9.2005, a letter was sent by the senior staff officer of the department dated 23.11.2005 to the Chief Engineer, Garhwal Zone in which it was said that the matter of the petitioner regarding his voluntary retirement has been consigned to record. The said letter is annexed as Annexure RA-2 to the rejoinder affidavit. Strangely, vide letter dated 15.12.2005 which was sent to the petitioner, clarification was sought as to whether the family condition of the petitioner has been improved? In this letter reference has made to the earlier request of the petitioner for his voluntary retirement i.e. the application dated 30.8.2005 wherein he had sought voluntary retirement w.e.f. 31.12.2005. Reference of another letter which was sent by the petitioner dated 23.9.2005 has also been made where he had said that his family condition has improved and he wants to withdraw his application for voluntary retirement. The said letter is also available on record and is annexed as Annexure RA-3 to the rejoinder affidavit. Thereafter vide letter dated 16.12.2005 the petitioner informed the Chief Engineer, Garhwal Zone that he was 3 mentally upset in the past and presently his family and his mental condition has improved and he had, therefore, written to the concerned authority on 23.9.2005 to withdraw his earlier application of voluntary retirement. He regrets that such an application could not be addressed to the Chief Engineer, Garhwal Zone but to the higher authority, the same may be reconsidered and appropriate order may be passed. This letter has been filed by the respondents in their short counter affidavit and annexed as Annexure SCA-4. Therefore, from the records, it is clear that the petitioner had withdrawn his earlier application for voluntary retirement and the matter stands closed as far as voluntary retirement of the petitioner is concerned. No action needed to be taken on the said application of the petitioner. On this there is no dispute. All the same, the Chief Engineer, Level -1 of Public Works Department vide his letter dated 15.2.2006 (annexure no. 2 to the writ petition) has compulsorily retired the petitioner. It is this order dated 15.2.2006 which has been challenged by the petitioner before this Court, by means of the present writ petition. After the exchange of counter affidavit and rejoinder affidavit in this case, when the matter has come up before this Court on 17.11.2009, this Court had directed the State Counsel to produce the original records of the petitioner before this Court. This was done because what goes to the root of the matter in cases of “compulsory retirement” is service record of the employee. These records have been produced before this Court and have been examined. A reference would be made of these records in the paragraphs which follow. The order dated 15.2.2006 which has presently been impugned in the writ petition only states that in pursuance of the Government Order dated 30.11.2005 regarding compulsory retirement of government servants and the 4 available report of the Committee, the petitioner who is a Junior Engineer in Public Works Department working under Chief Engineer (Garhwal Zone) is compulsorily retired from 28.2.2006. Aggrieved by this order the petitioner moved a representation to the Secretary, Public Works Department on 28.2.2006, in which he had stated that there was no occasion for compulsory retiring the petitioner from service, as there is no adverse entry against the petitioner and, inter alia, he also pointed out the anomalies in the impugned order of compulsory retirement dated 15.2.2006, as it was not in accordance to Fundamental Rule 56 (j) which mandatorily requires that in case of compulsory retirement three months’ notice or notice pay for this period must be given. After ths representation the petitioner immediately received a letter dated 16.2.2006. The original copy of this letter has been examined by this Court which clearly shows that although the letter is dated 16.2.2006 it was effectively sent to the petitioner by the office of Zonal Chief Engineer on 6.3.2006, as the stamp indicates and the date of posting is 2.3.2006. On these set of facts, which have been examined after perusal of records in original, the submission of learned counsel for the petitioner Sri Atul Bahuguna at the bar that the letter dated 16.2.2006 by which a rectification has been made in the original order dated 15.2.2006 is actually “anti-dated” and the apparent mistake, of not complying with the mandatory requirement of three months’ notice or notice pay under Rule 56, is being rectified. By the subsequent order dated 16.2.2006 in effect what the respondents have done is that they have tried to meet the mandatory condition of three months’ notice or notice pay to the petitioner. These contentions of the petitioner are further strengthened by the fact that an amount of Rs. 41,293/- as notice pay was actually deposited in the S.B.I. account of the petitioner on 10.3.2006, which the petitioner has annexed as Annexure -10 5 to the writ petition. Annexure -10 which is bank record clearly states that an amount of Rs. 41,293/-, which is the salary of three month of petitioner, was actually credited in the account of petitioner on 10.3.2006. Fundamental Rule 56 relates to compulsory retirement of government servants. This provision reads as follows : “F.R. 56. [(a) Except as otherwise provided in this rule, every Government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years “ Provided that a Government servant whose date of birth is the first of a month shall retire from service on the afternoon of the last day of the preceding month on attaining the age of sixty years.] (b) … (c) … (d) … (e) … (f) … (g) … (h) … (i) … [(j) Notwithstanding anything contained in this rule, the appropriate authority shall, if it is of the opinion that it is in the public interest so to do, have the absolute right to retire any Government servant by giving him notice of not less than three month months in writing or three month’ pay and allowances in lieu of such notice. – (i) if he is, in Group ‘A’ or Group ‘B’ service or post in a substantive, quasi-permanent or temporary capacity and had entered Government service before attaining the age of 35 years, after he has attained the age of 50 years; (ii) in any other case after he has attained the age of fifty-five years: 6 Provided that nothing in this clause shall apply to a government servant referred to in clause (e), who entered Government service on or before the 23rd July, 1966.” This fact is further strengthened by letter dated 28.2.2006 which has been passed by the Drawing and Disbursing Officer of the petitioner, which is a mere follow-up of the original order of compulsory retirement dated 15.2.2006 which informs the petitioner that vide order dated 15.2.2006 the petitioner has been compulsorily retired from service. What is significant here is that letter dated 28.2.2006 refers to letter dated 15.2.2006 and not of letter dated 16.2.2006. This vindicates the apprehension of the petitioner, that the letter dated 16.2.2006 was never in existence on 16.2.2006. The petitioner has challenged the order of compulsory retirement on various grounds. One of them being the violation of the principles of natural justice and fairplay as the petitioner was not given any opportunity of hearing or show- cause before the order of compulsory retirement was passed. Before this Court deals with other grounds raised by the petitioner, it would be necessary to discuss as to whether an order of compulsory retirement involves civil consequences because if it does only then would the application of the principles of natural justice and fairplay, more particularly, the show-cause or the opportunity of hearing to the petitioner, would become necessary. The law on the subject of compulsory retirement, as it stands today, is clear that the compulsory retirement of a government servant is only one of the facets of the “pleasure doctrine” as embodied in Article 310 of the Constitution of India. It does not involve any civil consequences and, therefore, there is no necessity of giving any opportunity of hearing or show-cause to the government servant before he is compulsorily retired. The leading decision here is of Shyamlal v. State of Uttar Pradesh and another 7 (AIR 1954 S.C. 369) and Union of India v. J.N. Sinha (AIR 1971 S.C. 40). ‘Shyamlal’ as well as ‘Sinha’, the two cases referred above still cover the field as far as applicability of principle of natural justice and fairplay are concerned in cases of compulsory retirement. Therefore, the first challenge of the petitioner against the order of his compulsory retirement on the grounds of violation of natural justice and fairplay must fail. The second ground of the petitioner is that there has been a violation of Fundamental Rule 56 (j) where the mandatory requirement of three months’ notice or notice pay has been violated. This point has already been referred to above and this Court is of clear opinion that the initial order of compulsory retirement dated 15.2.2006 was clearly in violation of Fundamental Rules as three months’ notice or notice pay was not given to the petitioner. It was to fill the apparent loop-hole in this order dated 15.2.2006 that the order dated 16.2.2006 was passed, that too much belatedly and the date on the order which is shown as 16.2.2006 appears to be “anti dated”. Be that as it may, there is one illegality in the impugned order which needs to be discussed in some detail. This Court is conscious of the fact that in a government department there are too many deadwoods which need to be chopped off in public interest. This is done primarily with the motive of better administration and good governance, as stated by the Hon’ble Apex Court in J.N. Sinha’s case (supra) : “While a minimum service is guaranteed to the Government servant, the Government is given power to energise its machinery and make it more efficient by compulsorily retiring those who in its opinion should not be there in public interest.” 8 Therefore, the significant aspect here is “public interest”, and therefore, the powers given to the appointing authority in these matters cannot be exercised lightly and never arbitrarily or with malice. While dealing with the issue of compulsory retirement Justice V.R. Krishna Iyer in the case of Baldev Raj Chadha v. Union of India (AIR 1981 SC 70) had given voice to the genuine fear and apprehensions of a Government servant in such matters when he said that “It (compulsory retirement)* is an affirmative action, not a negative disposition, a position conclusion, not a neutral attitude. It is a terminal step to justify which the onus is on the Administration, not a matter where the victim must make out the contrary. Security of tenure is the condition of efficiency of service. The Administration, to be competent, must have servants who are not plagued by uncertainty about tomorrow. At the age of 50 when you have family responsibility and the somber problems of one’s own life’s evening, your experience, accomplishments and fullness of fitness become an asset to the Administration, if and only if you are not harried or worried by ‘what will happen to me and my family?’ ‘Where will I go if cashiered?’ ‘How will I survive when I am too old to be newly employed and too young to be superannuated?’ These considerations become all the more important in departments where functional independence, fearless scrutiny, and freedom to expose evil or error in high places is the task. And the Ombudsmanic tasks of the office of audit vested in the C. & A.G. and the entire army of monitors and minions (* Emphasis supplied.) 9 under him are too strategic for the nation’s financial health and discipline that immunity from subtle threats and oblique over-aweing is very much in public interest. So it is that we must emphatically state that under the guise of ‘public interest’ if unlimited discretion is regarded acceptable for making an order of premature retirement, it will be the surest menace to public interest and must fail for unreasonableness, arbitrariness and disguised dismissal. To constitutionalise the rule, we must so read it as to free it from the potential for the mischiefs we have just projected. The exercise of power must be bona fid and promote public interest.” This Court is also conscious of the limitations on its power of “judicial review” in matters such as that of compulsory retirement. As already referred above, the principles of natural justice and fairness are not applicable in these matters. Having said this, it must also be stated that once it has become clear to this Court that the petitioner has not been compulsorily retired for bona fide reasons and in public interest but for some other collateral reason or due to mala fide or arbitrariness, this Court will surely interfere. A perusal of Fundament Rule 56 shows that what goes to the root of the matter is the public interest involved in the compulsory retirement of a Government servant. The rules state that in case a Government servant has entered before attaining age of 35 years then he cannot be compulsorily retired till he is attained the age of 50 years and in other cases 55 years. However, there is no mechanism or broad guidelines which have been given in the Fundamental Rules on which such an exercise can be made. In order to fill this 10 apparent vacuum the State of Uttarakhand had passed a Government Order dated 20.2.2002, which has been annexed by the petitioner as Annexure 9 to the writ petition, which says that a Government servant can be prematurely retired if he has attained the age of 50 years without assigning any reasons after giving him three months’ notice or notice pay in public interest. However, before it is done the matter of such Government servant shall be examined by a screening committee, which in the present case would constitute of the appointing authority of the petitioner as Chairman and another senior officers nominated by the appointing authority as a member. It has further been stated in this order that the screening committee shall examine the entire service record of the petitioner but more particularly the service record of the last ten years. It will also see whether the incumbent has crossed the efficiency bar and as to what are the reports about his integrity. In paras 17 and 30 to the writ petition, the petitioner had alleged that he has been compulsorily retired on the sole recommendation of the screening committee, the report of which has not been provided to the petitioner. In the counter affidavit there has been no specific denial to this averment by the respondents. All the same, since the records are before this Court, these records have been examined. One of the glaring defects in the present case is the very constitution of this screening committee which consists of the Superintending Engineer as the Chairman and another officer of the department as member. Now, since the appointing authority of the petitioner admittedly is the Chief Engineer Level -1, the screening committee is not a properly constituted committee and, therefore, any report given by this committee will not have any relevance, although this committee has recommended the compulsory retirement of the petitioner. 11 Since there was no report of the committee before the petitioner, there was no question of the petitioner challenging the constitution of this committee. All the same, on a query of this Court to the learned Additional Chief Standing Counsel for the State of Uttarakhand Sri K.P. Upadhyay as to whether the Superintending Engineer is indeed the appointing authority of the petitioner, Sri Upadhyay quite candidly and in his usual fairness stated that no the appointing authority of the petitioner is not the Superintending Engineer but Chief Engineer, Level -1 of Public Works Department. Therefore, the committee who has recommended the voluntary retirement of the petitioner is not a properly constituted committee as per the Government Order dated 20.2.2002. From the records, it is further evident that the last 10 years of service records of the petitioner which have been examined by the screening committee, there is no adverse entry against the petitioner, in fact some of the entries are “very good”. On these set of facts, this Court is clearly of the opinion that the orders of compulsory retirement of the petitioner is not in public interest but has been passed for other collateral purposes. Though there is no clear evidence of any malice against the petitioner but the past history of the voluntary retirement of the petitioner and the immediate recalling of that letter and the communication between the petitioner and the concerned authorities strike some doubt even in the mind of this Court that the reasons to compulsorily retire the petitioner are other than public interest. The screening committee on the advice of which the order for compulsory retirement dated 15.2.2006/16.2.2006 have been passed is not a properly constituted committee. Moreover, the committee has not examined the records properly as there is no adverse entry or any remark about 12 integrity of the petitioner and, therefore, the order of the compulsory retirement of the petitioner is absolutely illegal and fails to stand on the scrutiny of this Court. The report of the screening committee only says that the petitioner is not capable to perform Government duties. On what basis and on what material this committee has reached such a conclusion is clearly not evident from the record ! This Court, therefore, holds that the orders dated 15.2.2006, 16.2.2006 and 28.2.2006 are liable to be quashed. Since the petitioner during the pendency of the petition has passed away, in the normal course he would have attained the date of superannuation only on 31.7.2007 (the petitioner died on 4.10.2006). This Court, therefore, orders as follows : The writ petition of the petitioners is allowed. Orders dated 15.2.2006, 16.2.2006 and 28.2.2006 (annexure nos. 2, 6 and 4 respectively to the writ petition) are quashed. The petitioner Sri Surendra Singh Negi, erstwhile Junior Engineer of Public Works Department shall be treated to be in service at the time of his death and the petitioner no. 1 who is widow of Sri Surendra Singh Negi shall receive the entire salary of the petitioner of the period for which it has not been paid. Apart from the salary, the family pension shall be calculated from his date of appointment till the date of his death and the arrears of pension and all other service benefits shall be given to petitioner no. 1 within a period of one month from the date a certified copy of this order is produced before the concerned authority and the regular family pension shall be given thereafter every month. Apart from this, the respondents shall also consider the case of any one of the heirs/dependants of Sri Surendra Singh Negi for appointment under the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974, in case such an application is made. 13 With these observations writ petition is disposed of. No order as to costs. (Sudhanshu Dhulia, J.) 15.12.2009 Avneet