HIGH COURT OF UTTARAKHAND, AT NAINITAL Writ Petition No.215 of 2002 (S/S) (Old No.32835 of 1995) Lalit Kumar S/o Daulat Singh … Petitioner Versus The Union of India and others … Respondents Dated:- 23rd April, 2010 Hon’ble Tarun Agarwala, J. Heard Sri Pawan Mishra, the learned counsel for the petitioner and Sri M. A. Khan, the learned counsel for the respondents. The petitioner has challenged the order dated 21.08.2005 passed by the respondent no.2, by which the petitioner has been compulsorily retired from service w.e.f. 20th November, 1995 in exercise of powers conferred by the authority under Rule 48(1)(b) of the Central Civil Services (Pension) Rules, 1972. The brief facts leading to the filing of the writ petition is, that the petitioner was appointed in the year 1965 as a Sipahi Pioneer and was confirmed by an order dated 05th September, 1971 w.e.f. 20.11.1969. The petitioner thereafter was promoted as a motor driver w.e.f. 01.11.1984 and, since then, he was driving the vehicle to the satisfaction of his superiors. In December, 1990 while working in the workshop, an incident occurred as a result of which the left eye was damaged which resulted in the hospitalization of the petitioner. Upon discharge, the petitioner continued to work as a driver and was also posted in the maintenance and repairing department. Pursuant to the injury, an enquiry was made by the respondents in which it was found that the petitioner was not at fault for the injury and that the cause of accident was attributable to the service and that compensation was to be paid to the petitioner as per the Workmen’s Compensation Act. In this regard, an order dated 25th September, 1990 was passed by the respondent no.3. The matter ended there and the petitioner continued to work either as a motor driver or was deployed in the maintenance and repairing department and, eventually, by the impugned order, the petitioner was compulsorily retired alleged to be in public interest. The petitioner, being aggrieved, has filed the present writ petition. 2 A counter affidavit has been filed by the respondents indicating that the petitioner sustained a perforating injury in his left eye in an accident which occurred in the workshop on 19th February, 1990 and that the injury was attributable to the service condition and that the petitioner was not at fault. The respondents further admitted that an order for compensation, as admissible under the Workmen’s Compensation Act, for the disability incurred upon the petitioner, was also passed. The respondents however contended that in the medical documents, the petitioner was placed in low medical category since 14th June, 1990 due to the perforating injury sustained in his left eye and that the medical board recommended on 09th July, 1993 that he was not fit to drive a vehicle. Because of this medical report, the petitioner was not deployed for driving a vehicle and was deployed in the maintenance and repairing unit. The medical board in its report dated 03rd July, 1995 again recommended that he was unfit to drive a motor vehicle, but found him fit for sedentary duties. In paragraph 7 of the counter affidavit, the respondents have contended that the percentage of disability of the petitioner has been shown as nil in the medical board dated 22.12.1990, 09.07.1990 & 09.07.1993 and that no remarks of disability was indicated in the board’s meeting of 03rd July, 1995. In paragraph 8 of the counter affidavit, the respondents have indicated the annual confidential records of the petitioner for the last five years i.e. for the year 1990 to 1994. The respondents have contended that his work and performance was satisfactory. The details of ACRs are quoted hereunder:- “(a) ACR for the year 1990 – Work satisfactory, Grading - Good (b) ACR for the year 1991 – He is an average driver. Overall grading “Average”. (c) ACR for the year 1992 – He is inducted for the maintenance and the repairing works mostly Grading ‘Good’ (d) ACR for the year 1993 – Average driver. Grading ‘Average’. (e) ACR for the year 1994 – He has been driving vehicle during day for a short distance in an emergency. Overall grading ‘Good’.” 3 In paragraph 8 of the counter affidavit, it has been stated that in view of the good performance of the petitioner for the period 1990 to 1994, the Committee recommended him for retention in service upon completion of 30 years of service and, inspite of which, the impugned order was passed. The counter affidavit suggests that since the petitioner had suffered an injury in his left eye and was not found fit to work as a driver, the respondents took a decision to compulsorily retire him in service. For facility Rule 48 of the Central Civil Services (Pension) Rules, 1972 is quoted hereunder:- “48. Retirement on completion of 30 years’ qualifying service. - (1) At any time after a Government servant has completed thirty years qualifying service – (a) he may retire from service; or (b) he may be required by the appointing authority to retire in the public interest, and in the case of such retirement the Government servant shall be entitled to a retiring pension: Provided that – (a) a Government servant shall give a notice in writing to the appointing authority at least three months before the date of which he wishes to retire; and (b) the appointing authority may also give a notice in writing to a Government servant at least three months before the date on which he is required to retire in the public interest or three months’ pay and allowances in lieu of such notice: Provided further that where the Government servant giving notice under Clause (a) of the proceeding proviso is under suspension, it shall be open to the appointing authority to withhold permission to such Government servant to retire under this rule.” A bare perusal of the aforesaid rule indicates that the retirement of a government servant could be made in public interest upon completion of 30 years of service. In Registrar, High Court of Madras Vs. R. Rajiah 1998 (3) SCC 211, it has been held that there must be some adverse material before the authority before compulsory retirement of government servant could be ordered in public interest. The Supreme Court held as under:- “21. We may now come to the merits of the case. It has been upheld by both the learned Judges of the Division Bench of the High Court that the impugned orders were not supported by any material. Further, it has been held that no material has been placed before the High Court to show that the impugned orders have been passed in public interest. This finding has not 4 been challenged by the learned Additional Solicitor General appearing on behalf of the High Court. All that has been submitted by him is that the High Court was not justified in considering the adequacy or otherwise of the materials in support of the orders of compulsory retirement. There can be no doubt that when the High Court takes the view that an order of compulsory retirement should be made against a member of the subordinate judicial service, the adequacy or sufficiency of such materials cannot be questioned, unless the materials are absolutely irrelevant for the purpose of compulsory retirement. But, in the instant case, there is no question of adequacy or sufficiency of the materials in support of the impugned orders of compulsory retirement. According to the High Court, no material has been placed in justification of the impugned orders of compulsory retirement of the respondents. 22. It is true that the High Court in its administrative jurisdiction has power to compulsorily retire a member of the judicial service in accordance with any rule framed in that regard, but in coming to the conclusion that a member of the subordinate judicial service should be compulsorily retired, such conclusion must be based on materials. If there be no material to justify the conclusion, in that case, it will be an arbitrary exercise of power by the High Court. Indeed, Article 235 of the Constitution does not contemplate the exercise by the High Court of the power of control over subordinate courts arbitrarily, but on the basis of some materials. As there is absence of any material to justify the impugned orders of compulsory retirement, those must be held to be illegal and invalid.” Similarly in the case of Madan Mohan Choudhary Vs. State of Bihar & others 1999 (3) SCC 396, it has been held that the authority cannot act arbitrarily and that there has to be some material to come to a decision that the officer had outlived his utility. The Supreme Court held as follows:- “28. It has already been pointed out by this Court in Registrar, High Court of Madras vs. R. Rajiah, AIR 1988 SC 1388 (1988) 3 SCC 211 = 1988 Supp. (1) SCR 332 that though the High Court, in its administrative jurisdiction, has the power to recommend compulsory retirement of a member of the Judicial Service in accordance with the rules framed in that regard, it cannot act arbitrarily and there has to be material to come to a decision that the officer has outlived his utility. It was also pointed out in this case that the High Court while exercising its power of control over the subordinate judiciary is under a constitutional obligation to guide and protect judicial officers from being harassed or annoyed by trifling 5 complaints relating to judicial orders so that the and Officers may discharge their duties honestly independently unconcerned by the ill-conceived or motivated complaints made by unscrupulous lawyers and litigants.” In the light of the aforesaid, the Court finds that the respondents admitted that the injury sustained by the petitioner in his left eye was not on account of his fault and that it was attributable to the service condition. The respondents admitted that he was liable to be paid compensation under the Workmen’s Compensation Act. The respondents have further admitted that after the injury between 1990- 1995 the petitioner had worked as a driver and had also worked in the maintenance and repairing unit of the respondents. His annual confidential reports from 1990 to 1994 indicate the effective performance of the work. The respondents were satisfied with his performance. In fact, the Committee also recommended his retention in service after completion of 30 years of service. The counter affidavit indicates that there was no adverse material before the authority, which could suggest that the petitioner had outlived his utility. Merely because the medical board had placed him in low medical category did not mean that the petitioner had outlived his utility. If he could not be permitted to drive the vehicle, he was fit and competent to be placed in the maintenance and repairing unit where his work has found to be satisfactory as indicated in the ACR. Even otherwise, Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 provides that no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service and that if the employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post on the same pay scale and same service benefits. This provision is squarely applicable upon the respondents. In the light of the aforesaid, this Court is of the opinion that the action of the respondents in compulsory retiring the petitioner was wholly arbitrary and was not based on any adverse material against the petitioner. The ACR of the petitioners clearly indicates that the petitioner had not outlived his utility. The order for compulsory 6 retirement cannot be sustained. The writ petition is allowed. The order dated 21.08.1995 is quashed and the petitioner is entitled for all consequential benefits. Dated 23.04.2010 LSR (Tarun Agarwala, J.)