IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 7566/2008 Reserved on: 16.9.2011 Decided on:23.9. 2011 _____________________________________________ S.S. Thakur. …Petitioner. Versus Dr. Y. S. Parmar University of Horticulture and Forestry Nauni and others. …Respondents. _______________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the petitioner : Mr. M.S. Chandel, Sr. Advocate with Mr. Dinesh Thakur, Advocate. For the Respondent: Mr. Onkar Jairath, Advocate. ____________________________________________________ Justice Rajiv Sharma, Judge. Petitioner joined Agriculture Department in the year 1969. His services were allocated to the Himachal Pradesh University in the year 1971. A new University in the name of Krishi Visvavidyalaya was set up in the year 1978 and petitioner’s services were allocated to this University. Petitioner was allocated to Dr. Y.S. Parmar University in the year 1985. He had been working as 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 Assistant Scientist in Regional Horticulture Research Station, Mashobara since the allocation of his services to the Himachal Pradesh Krishi Visvavidyalaya and thereafter to Dr. Y.S. Parmar University. Petitioner is aggrieved by the issuance of office order dated 3.1.2001 whereby he has been compulsorily retired. 2. Mr. M.S. Chandel, learned Senior Advocate has strenuously argued that the action of respondent- University of compulsorily retiring the petitioner on 3.1.2001 is illegal and arbitrary, thus violative of Articles 14 and 16 of the Constitution of India. According to him, his client was suffering from schizophrenia and his case was covered under section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as the “Act” for brevity sake). He then contended that initially the departmental proceedings were initiated against the petitioner vide memorandum dated 16.2.1993, however, the same have been dropped and thereafter the respondent-University has taken a decision to compulsorily retire his client. He further contended that University has been set up under the Act. The University has framed its own Statute and as per the Statute, penalty of compulsorily retirement could not be imposed upon his client. 3 3. Mr. Onkar Jairath has vehemently argued that the respondent-University had constituted a Committee to look into the working of the petitioner. The Committee has made its recommendations and thereafter Board of Management of the respondent- University has taken a conscious decision to retire the petitioner compulsorily. He then argued that the petitioner had not improved working despite number of opportunities given to him. He further argued that the Medical Board was constituted at the instance of the University and the petitioner has been found medically fit to discharge the duties. Thus, the Act will not be applicable in the case of the petitioner. He also contended that as per Statute 7.27, any matter regarding conditions of service not covered by the provisions of the Statue, can be decided in accordance with the rules laid down by the Himachal Pradesh Government for its own employees or in such manner as the Vice-Chancellor with the approval of the Board or under the powers delegated to him by the Board may deem fit. In other words, his submission is that the University had rightly exercised the power under F.R. 56 (j) while compulsorily retiring the petitioner. He then argued that since the Inquiry Officer has retired, the 4 Management decided to close the departmental proceedings. 4. I have heard the learned counsel for the parties and have perused the record carefully. 5. Petitioner was appointed in the year 1969. He was allocated initially to the Himachal Pradesh University and thereafter to Krishi Visvavidyalaya and finally to the Dr. Y.S. Parmar University in the year 1985. According to Mr. M.S. Chandel, his client was under great mental tension since he was not released annual increments with effect from 1.10.1981, 1.1.1986 and thereafter 1.1.1996. Mr. M.S. Chandel has also drawn the attention of the Court to letters dated 6.3.1984 and 17.12.1984. According to him, the Secretary to the Vice-Chancellor has sent a confidential/registered letter to the petitioner whereby he was conveyed entries in the Annual Confidential Report for the year 1982-83. In this communication, expression “mental case” has been made. Similarly, in letter dated 17.12.1984, adverse entries have been conveyed to the petitioner for the year 1983-84 whereby following remarks had been recorded: “He is not doing any research work because of mental abnormality.” 5 6. The Secretary to Vice-Chancellor has also informed the Director of Research on 30.5.1987 that his previous A.C.Rs also speak of his mental disorder and nil progress in work and thereafter the case for pre- mature retirement be initiated against the petitioner. The Registrar of the respondent-University sent a communication to the Director, Health Services to constitute the Medical Board on 22.12.1987. Consequently, the Medical Board was constituted as per Annexure R-13 (page 99 of the paper book) and the petitioner was to be examined on 9.2.1988. The Medical Board medically examined the petitioner and opined him fit to join his duties vide Annexure R-10 dated 11.2.1988. Since the petitioner has been found medically fit by the duly constituted Medical Board, the Act will not apply in his case. It was only if the Medical Board had recommended that the petitioner was unfit to discharge his duties, provisions of the Act could be applied. 7. Mr. Onkar Jairath has drawn the attention of the Court to various communications whereby the petitioner had been asked to improve his research/extension work. However, according to him, there was no improvement. He then contended that in these circumstances the University decided to 6 constitute a Committee to consider whether the petitioner was able to discharge responsibility of his duties or not, (at page 119 of the paper book). The petitioner appeared before the Committee to present his case. The Committee members specifically asked the petitioner to improve his working. Petitioner admitted before the Committee that he has not carried out any research, extension or teaching work during his service career at Mashobra. He also stated before the members of the Committee that he could not undertake any scientific, teaching or any other work related to the post which he was holding nor he could perform the duties of any other post he was likely to hold for the next few years till his retirement. Thereafter, the matter was placed before the Board of Management by agenda item No.15, vide Annexure R-13. In the agenda there is a reference to the A.C.Rs. of the petitioner with effect from 1979-80 till 1998-99. It is evident from the A.C.Rs. with effect from 1979-80 to 1998-99 that his grading was “poor”. Medical Board was constituted to see whether the petitioner was mentally fit to discharge his duties or not. The Medical Board has opined that the petitioner was fit to discharge his duties. 8. Petitioner has not challenged the recommendations made by the duly constituted 7 Committee. He had appeared before the Committee. The grading of the petitioner remained poor with effect from 1979-80 to 1998-99. He has not done any research work nor improved his scientific temperament. He himself has told the members of the Committee that he was not in a position to undertake the research work. Agenda item alongwith recommendations of the Committee were placed before the Board of Management, vide item No. 15. The Board of Management decided to compulsorily retire the petitioner by invoking F.R. 56 (j) by giving him three months salary in lieu of notice period. The Management has taken into consideration, as per law, the entire service record of the petitioner from his initial appointment till the decision was taken to compulsorily retire the petitioner. He had not improved despite number of opportunities given to him. His grading has always remained poor. The Scientist has to undertake research work as well as extension work. Merely that the petitioner has not been given three increments cannot be an excuse for not discharging duties. Even presuming that the petitioner was entitled to three increments, it cannot be said that non-payment of the same would amount to such a mental harassment 8 that he would not discharge his normal duties of Assistant Scientist. 9. Mr. M.S. Chandel has also argued that the respondent-University had initially issued memorandum to the petitioner whereby disciplinary proceedings were initiated, however, the same was dropped later on. According to him, the Management had already decided to compulsorily retire the petitioner though knowing fully well that the petitioner was not mentally fit. It was for the Management to see whether the person is to be retained or not after taking into consideration the entire service record of the petitioner. The decision of the Management to constitute a Committee and thereafter to take a conscious decision to compulsorily retire the petitioner cannot be termed illegal or arbitrary. According to Statute 7.27, in those cases where the rules have not been framed by the respondent-University, the rules framed or adopted by the State Government would be applicable. State has adopted the Fundamental Rules and F.R. 56 (j) contained therein. Thus, it was open to the respondent- University to invoke F.R. 56 (j) to compulsorily retire the petitioner. The action of the respondent-University to retire the petitioner compulsorily is not illegal. It is on the basis of overall assessment of his working. 9 10. Their Lordships of Hon’ble Supreme Court in Union of India v. J.N. Sinha and another, AIR 1971 SC 40 have held that Fundamental Rule 56(i) holds the balance between the rights of the individual Government servant and the interest of the public. Their Lordships have further held that where an appropriate authority bona fide forms opinion that a Government servant be retired in public interest, he can pass order of compulsory retirement. Their Lordships have further held that opinion cannot be challenged before courts nor Rule 56(i) requires that opportunity to show cause against compulsory retirement must be given. Their Lordships of the Hon’ble Supreme Court have held as under (paras 8 and 10):- “Now coming to the express words of Fundamental Rule 56 (i), it says that the appropriate authority has the absolute right to retire a Government servant if it is of the opinion that it is in the public interest to do so. The right conferred on the appropriate authority is an absolute one. That power can be exercised subject to the conditions mentioned in the rule, one of which is that the concerned authority must be of the opinion that it is in public interest to do so. If that authority bona fide forms that opinion, the correctness of that opinion cannot be challenged before Courts. It is open to an aggrieved party to contend that the requisite opinion has not been formed or the decision is based on collateral grounds or that it is an arbitrary decision. The 1st respondent challenged the opinion formed by 10 the Government on the ground of mala tide. But that ground has failed. The High Court did not accept that plea. The same was not pressed before us. The impugned order was not attacked on the ground that the required opinion was not formed or that the opinion formed was an arbitrary one. One of the conditions of the 1st respondent's service is that the Government can choose to retire him any time after he completes fifty years if it thinks that it is in public interest to do so. Because of his compulsory retirement he does not lose any of the rights acquire by him before retirement. Compulsory retirement involves no civil consequences. The aforementioned Rule 56 (j) is not intended for taking any penal action against the Government servants. That rule merely embodies one of the facets of the 'pleasure' doctrine embodied in Art. 310 of the Constitution. Various considerations may weigh with the appropriate authority while exercising the power conferred under the rule. In some cases, the Government may feel that a particular post may be more usefully held in public interest by an officer more competent than the one who is holding. It may be that the officer who is holding the post is not inefficient but the appropriate authority may prefer to have a more efficient officer. It may further be that in certain key posts public interest may require that a person of undoubted ability and integrity should be there. There is no denying the fact that in all organizations and more so in Government organizations, there is good deal of dead wood. It is in public interest to chop off the same. Fundamental Rule 56 (j) holds the balance between the rights of the individual Government servant and the interests of the public. While a minimum service is guaranteed to the Government servant, the Government is given power to energize its machinery and make it more efficient by compulsorily retiring those who in its opinion should not be there in public interest. 11 In our opinion the High Court erred in thinking that the compulsory retirement involves civil consequences. Such a retirement does not take away any of the rights that have accrued to the Government servant because of his past service. It cannot be said that if the retiring age of all or a section of the Government servants is fixed at 50 years, the same would involve civil consequences. Under the existing system there is no uniform retirement age for all Government servants. The retirement age is fixed not merely on the basis of the interest of the Government servant but also depending on the requirements of the society.” 11. Their Lordships of Apex Court in E. Venkateswararao Naidu v. Union of India, AIR 1973 SC 698 have held that compulsory retirement does not involve civil consequences and therefore it is not necessary to afford to a Government servant concerned an opportunity to show cause against his compulsory retirement. Their Lordships have held as under (para 11):- “The Miscellaneous Petition filed by the appellant contending that he should have been heard before the order of compulsory retirement was passed has no substance in view the decision in Union of India v. Col. J. N. Sinha, (1971) 1 SCR 791 = (AIR 1971 SC 40). It was held therein that compulsory retirement does not involve civil consequences and therefore it is not necessary to afford to a Government servant an opportunity to show cause against his compulsory retirement.” 12 12. Their Lordships of Hon’ble Supreme Court in Union of India Versus M.E. Reddy and another, (1980) 2 SCC 15 have held that the courts can intervene in the case of compulsory retirement, if it is in colourable exercise of power, motivated by victimization, arbitrary or mala fide. Their Lordships have further held that the Court’s decision should be based on examination of affidavits, documents etc. and not minute scrutiny of confidential records. Their Lordships have further held that while determining the non- suitability of a government servant, overall performance based on the whole service record including the un- communicated confidential reports and not merely a few scattered entries made in the service record, is to be considered. 13. Their Lordships of the Hon’ble Supreme Court in C.D. Ailawadi Versus Union of India and others, (1990) 2 SCC 328 have reiterated that compulsory retirement under Rule 56(i) of Fundamental Rules is not punishment as it does not take away any of the past benefits. Their Lordships have further held that once the opinion is reached on the basis of materials on record, the order cannot be treated to be arbitrary. Their Lordships of the Hon’ble Supreme Court have also held that an aggrieved civil servant can 13 challenge an order of compulsory retirement on any of the following grounds:- (i) that the requisite opinion has not been formed; or (ii) that the decision is based on collateral grounds; or (iii) that it is an arbitrary decision. 14. Their Lordships of the Apex Court have again reiterated these principles in Baikuntha Nath Das and Another Versus Chief District Medical officer, Baripada and Another, 1992) 2 SCC 299 by holding that judicial review of the order of compulsory retirement is open only on the grounds of mala fides, arbitrariness and perversity. Their Lordships have further held that the record to be so considered would naturally include the entries in the confidential reports/character rolls, both favourable and adverse. These principles were again reiterated in Posts and Telegraphs Board Versus C.S.N. Murthy, (1992)2 SCC 317. 15. Their Lordships of Hon’ble Supreme Court in State of U.P. and Another Versus Bihari Lal, 1994 Supp (3) SCC 593 have held that while exercising the scope of judicial review in the case of compulsory retirement, the Court is to see whether before exercising 14 the power, the authority has taken into consideration the overall record even including some of the adverse remarks, though for technical reasons might be expunged on appeal or revision. What is needed to be looked into is the bona fide decision taken in the public interest to augment efficiency in the public service. Their Lordships have held as under (para-4):- “We have issued notice to the respondent who appeared through counsel and filed counter affidavit. It is now settled law that the entire service record should be considered before taking a decision to compulsory retire a Government servant exercising the power under Rule 56 (j) of the Fundamental Rules. It is not necessary that adverse remark should be communicated or every remarks, which may sometimes be categorised as adverse, be communicated. It is on an overall assessment of the record, the authority would reach a decision whether the Government servant should be compulsorily retired in public interest. In an appropriate case, there may not be tangible material but the reputation of officer built around him could be such that his further continuance would imperil the efficiency of the public service and would breed indiscipline among other public servants. Therefore, the Government could legitimately exercise their power to compulsorily retire a Government servant. The Court has to see whether before the exercise of the power, the authority has taken into consideration the overall record even including some of the adverse remarks, though for technical reasons might be expunged on appeal or revision. What is needed to be looked into is the bona fide decision taken in the public interest to augment efficiency in the public service. In the absence of any mala fide exercise of power or arbitrary exercise 15 of power, a possible different conclusion would not be a ground for interference by the Court/Tribunal in exercise of its judicial review. In this case, the judgment was delivered on 4-5-1992 and on the same day hardly even the ink of Judge's signature dried up, he was reinstated. He is due to retire on his attaining the age of superannuation on 31-5-1995. Hardly nine months remain for him to reach superannuation. In this view of the matter, we find that no useful purpose would be served in allowing the appeal. However, it is needless to emphasise that in cases of serious nature, the Government should expeditiously pursue the remedy and seek appropriate directions from the Court. Leisurely, the appeal was filed on 18-9-1992 after reinstatement. 16. Their Lordships of the Apex Court in State of U.P. and Another Versus Abhai Kishore Masta, (1995) 1 SCC 336 have upheld that when compulsory retirement order is passed during the pendency of departmental inquiry, it could not be held to be necessarily penal in nature. 17. Their Lordships of Hon’ble Supreme Court in Registrar, High Court of M.P., Jabalpur Versus Kumari Rajabai Gorkar and Another, 1995 Supp (3) SCC 202 have held that omission to state in the order that it was made in public interest not vitiated on that ground alone if it can otherwise be shown that the action was taken in public interest. Their Lordships of the Hon’ble Supreme Court have held as under (paras-2 and 3):- 16 “We have heard learned counsel for the appellant. The learned counsel very fairly stated that the order of compulsory retirement on the face of it did not mention that the action was taken in public interest. He, however, pointed out that in paragraph 8 of the written statement it was pleaded that the action was taken in public interest in pursuance of Rule 42(1 of the rules. However, in the written statement the particulars in support of public interest were not pleaded. Evidence was also not tendered at the trial in that connection. Therefore, the High court came to the conclusion that no material was adduced in the course of the trial to support its action on public interest. It is for that reason that the High court allowed the second appeal. We are of the opinion that even though on the face of the order it was not stated that the action was initiated in public interest and even though the particulars in that behalf were not pleaded in the written statement, it was open to the State as well as the High court to place material before the court at the trial in support of its contention that the action was taken in public interest. Of course, that is not to say that care need not be taken while drafting the order of compulsory retirement or drawing up the defence, if the action is challenged. But on that account alone the order will not be quashed if it can otherwise be shown that the action was taken in public interest. An attempt was made to point out certain material in support of the contention that the action was in public interest for the first time before this court, but we have not permitted it. Therefore, we do not see any reason to interfere with the order passed by the High court. Hence, the appeal is dismissed with no order as to costs.” 17 18. Their Lordships of Apex Court in K. Kandaswamy Versus Union of India and Another, (1995) 6 SCC 162 have held that the scope of judicial review in the matters of compulsory retirement is to ensure that the opinion is formed bona fide and it can be challenged only on the grounds of being based on no evidence of having not been formed or being based on collateral grounds or being arbitrary, but cannot be challenged on merits. Their Lordships of the Hon’ble Supreme Court have held as under (paras 10 and 11):- “Higher the ladder the officer scales in the echelons of service, greater should be the transparency of integrity, honesty, character and dedication to duty. Work culture and self discipline augment his experience. Security of service gives fillip to accelerate assiduity to stay in line and measure up to the expected standards of efficiency by the Government employee. Thereby, they ultimately aid to achieve excellence in public service. The security of service provided by Article 311 of the Constitution and the statutory rules made under proviso to Article 309 would thus ensure to remove deficiency and incompetence and augment efficiency of public administration. The rights - constitutional or statutory - carry with them corollary duty to maintain efficiency, integrity and dedication to public service. Unfortunately, the latter is being overlooked and neglected and the former unduly gets emphasised. The appropriate Government or the authority would, therefore, need to consider the totality of the facts and circumstances appropriate in each case and would form the opinion whether compulsory retirement of a Government employee would be in the public interest. The opinion must be based on the material on record; 18 otherwise it would amount to arbitrary or colourable exercise of power. Considered from this perspective and the material on record, we are of the considered view that the decision taken by the Government of India cannot be held to be arbitrary, unjustified or based on no evidence. It is made clear that our observations may not be construed as any finding on the alleged disproportionate assets of the appellant. We