Yadav Rao Bhelkar Vs. State of M.P. and ors. - Court Judgment

Excerpt:
service - compulsory retirement - appellant was lower divisional clerk - appellant got two promotion during his service tenure - respondent passed order for compulsory retirement of appellant in public interest - hence present petition - whether order of compulsory retirement passed by respondent was just and proper or not? - held, nothing has been brought on records which shows adverse remark or entry against appellant - appellant was promoted and allowed to draw higher pay scale - if order of compulsory retirement was passed by respondent against appellant that is not just and proper rather sensitively susceptible - so, appeal allowed in part in respect of reinstatement of appellant and dismissed in respect of backwages - - the screening committee on consideration of the entire service record of the applicant found that in the last five years of service of the applicant no acr reflected 'good' and the applicant had been given adverse acr of 'gha' for the years 1978-79, 1985-86, 1986-87 and 1988-89. it is also putforth that he was punished with the punishment of admonition in the year 1980-81. the screening committee also noted that in most of the orders the applicant was issued warning and if the overall review of the record is made it would be discernible that he had four acrs wherein he had been awarded the punishment of stoppage of one annual increment with cumulative effect as per the order dated 2-12-1992 and had been subjected to disciplinary action many a time. it is urged by him that when he was promoted in the year 1996 to a higher post and was given the higher payscale and nothing adverse was found or noticed in respect of subsequent years, the order of promotion in the later years and the grant of higher payscale would pave a long way to show that the services of the petitioner were satisfactory and there was no justification or propriety to pass an adverse order like compulsory retirement against him. (iii) for better administration, it is necessary to chop off wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer.orderdipak misra, j.1 in this petition, the petitioner has prayed for issue of an appropriate writ for quashment of annexure a-3, by which he has been compulsorily retired under rule 42 (1) of madhya pradesh civil services (pension) rules, 1976 read with fundamental rule 56 (2).2. according to the petitioner he was appointed in the post of ldc in the office of the registrar, firms & societies, on 6-9-1973. it is putforth in the petition that while he was working in the aforesaid post, the registrar, firms & societies vide annexure a-3, dated 7-2-2002 passed an order of compulsory retirement. it is asseverated that the impugned order is totally laconic as it is silent with regard to any kind of policy-decision by which the respondent has passed an order of compulsory retirement and only the mention of public interest does not subserve the purpose. it is urged that entire service record of the petitioner has to be properly perused but, on the contrary, a mechanical order has been passed on the bedrock that as the petitioner had completed 20 years of service he was asked to leave in public interest. a representation had been submitted vide annexure a-1, but, as pleaded, the said representation has not been paid heed to. it is the case of the petitioner that he had never been proceeded against in a departmental proceeding and no adverse entry had ever been communicated to him. quite apart from the above it is asserted that the petitioner was promoted to the post of udc on 30-4-1981 and further to the post of assistant grade-i in the year 1996 and.was allowed to draw higher payscale with effect from 9-9-1996. a copy of the government policy enunciating the guidelines in relation to compulsory retirement has been brought on record. it is contended that when the petitioner has rendered unblemished service and has secured two promotions during his service tenure, there is no justification for passing an order of compulsory retirement.3. a counter affidavit has been filed by the answering respondents contending, inter alia, that the decision to retire the applicant compulsorily has been taken in terms of the recommendations of the screening committee which held its meeting on 24-10-2001. the said committee was constituted in terms of guidelines as contained in g.a.d. circular dated 22-8-2000 (annexure a-2). the screening committee, as setforth, was constituted at the head of department level to consider the cases of class iii and two from class iv employees who had either attained 50 years of age or had completed 20 years of service. the screening committee on consideration of the entire service record of the applicant found that in the last five years of service of the applicant no acr reflected 'good' and the applicant had been given adverse acr of 'gha' for the years 1978-79, 1985-86, 1986-87 and 1988-89. it is also putforth that he was punished with the punishment of admonition in the year 1980-81. the screening committee also noted that in most of the orders the applicant was issued warning and if the overall review of the record is made it would be discernible that he had four acrs wherein he had been awarded the punishment of stoppage of one annual increment with cumulative effect as per the order dated 2-12-1992 and had been subjected to disciplinary action many a time. taking into consideration the totality of factual scenario, the order had been passed in public interest. the recommendations of the screening committee have been brought on record as annexure r-1. it is the case of the respondent that the petitioner was promoted as assistant grade-i from the udc four and half years back and the said promotion was on the basis of recommendation of the dpc which considered the claim of the petitioner for such promotion on the basis of confidential report of the preceding few years and that can not be a factor to totally ignore the career graph of the petitioner. in the return it has been stated that the assertion that the order of compulsory retirement is laconic and not speaking one, does not vitiate the same. with regard to non-communication of adverse entries, it is urged in the return that adjudging a person for the purpose of compulsory retirement, the non-communicated adverse entries can be pressed into service and looked into.4. i have heard mr. devesh khatri, learned counsel for the petitioner and mr. ashok agrawal, learned govt. advocate for the state. it is submitted by mr. khatri that when the petitioner had been given two promotions during his service career, the impact and effect of the adverse entries can be marginalised and the same can not form the foundation to pass an order of compulsory retirement against the petitioner. it is urged by him that when he was promoted in the year 1996 to a higher post and was given the higher payscale and nothing adverse was found or noticed in respect of subsequent years, the order of promotion in the later years and the grant of higher payscale would pave a long way to show that the services of the petitioner were satisfactory and there was no justification or propriety to pass an adverse order like compulsory retirement against him.5. mr. ashok agrawal, learned govt. advocate for the state, sounding a contra note, submitted that the screening committee has acted in accordance with the circular in question and when the career graph of the petitioner is scrutinised and scanned in proper perspective it does not fresco a picture which would entitle to the petitioner to be retained in service and hence, the order of compulsory retirement can not be found fault with. it is his further submission that because the petitioner was promoted in the year 1996, that does not necessarily mean that all the dirty line has been washed away and the case of the petitioner has become clear and clean not inviting the order of compulsory retirement as his whole career exposits a different scenario.6. as this juncture, i think it appropriate to refer to the law laid down in the case of state of gujrat v. umedbhai m. patel, 2001 air scw 862. in para 11 of the said case the apex court referred to the law laid down in various cases and culled out the principles which i profitably reproduce :'the law relating to compulsory retirement has now crystallized into definite principles, which could be broadly summarized thus:--(i) whenever the service of a public servant are no longer useful to the general administration, the officer can be compulsoriry retired for the sake of public interest.(ii) ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under article 311 of the constitution.(iii) for better administration, it is necessary to chop off wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer.(iv) any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.(v) even uncommunicatcd entries in the confidential record can also be taken into consideration.(vi) the order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable.(vii) if the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer.(viii) compulsory retirement shall not be imposed as a punitive measure.'7. the factual scenario of the present case has to be tested on the anvil of the aforesaid enunciation of law. in the case at hand, the petitioner has been compulsorily retired taking into consideration his career graph. prima facie, the same may appear to be correct in consonance with the guidelines in vogue but one thing that stands out is that the petitioner has been given promotion. the apex court in the case of umedbhai m. patel (supra) observed, if an officer has been given promotion despite adverse entries made in the confidential record, that is a fact in favour of the petitioner. it is relevant to state here, nothing has been brought on record to show that there was any kind of adverse remark or entry after 1996.1 am conscious, that can not be a sole and solitary governing factor but as the petitioner was promoted in the year 1996 and allowed to draw higher pay scale and thereafter in the year 1998 he was visited with the order of compulsory retirement when nothing happened during the interregnum period, i am of the considered view, the order of compulsory retirement is sensitively susceptible and deserves to be lanceted.8. accordingly, i quash the order of compulsory retirement and direct that the petitioner be taken back in service. however, it is hereby made clear that the petitioner shall not be entitled to any back wages.9. the writ petition is accordingly allowed to the extent indicated above. there shall be no order as to costs.

Judgment:
ORDER

Dipak Misra, J.

1 In this petition, the petitioner has prayed for issue of an appropriate writ for quashment of Annexure A-3, by which he has been compulsorily retired under Rule 42 (1) of Madhya Pradesh Civil Services (Pension) Rules, 1976 read with Fundamental Rule 56 (2).

2. According to the petitioner he was appointed in the post of LDC in the office of the Registrar, Firms & Societies, on 6-9-1973. It is putforth in the petition that while he was working in the aforesaid post, the Registrar, Firms & Societies vide Annexure A-3, dated 7-2-2002 passed an order of compulsory retirement. It is asseverated that the impugned order is totally laconic as it is silent with regard to any kind of policy-decision by which the respondent has passed an order of compulsory retirement and only the mention of public interest does not subserve the purpose. It is urged that entire service record of the petitioner has to be properly perused but, on the contrary, a mechanical order has been passed on the bedrock that as the petitioner had completed 20 years of service he was asked to leave in public interest. A representation had been submitted vide Annexure A-1, but, as pleaded, the said representation has not been paid heed to. It is the case of the petitioner that he had never been proceeded against in a departmental proceeding and no adverse entry had ever been communicated to him. Quite apart from the above it is asserted that the petitioner was promoted to the post of UDC on 30-4-1981 and further to the post of Assistant Grade-I in the year 1996 and.was allowed to draw higher payscale with effect from 9-9-1996. A copy of the Government policy enunciating the guidelines in relation to compulsory retirement has been brought on record. It is contended that when the petitioner has rendered unblemished service and has secured two promotions during his service tenure, there is no justification for passing an order of compulsory retirement.

3. A counter affidavit has been filed by the answering respondents contending, inter alia, that the decision to retire the applicant compulsorily has been taken in terms of the recommendations of the Screening Committee which held its meeting on 24-10-2001. The said Committee was constituted in terms of guidelines as contained in G.A.D. Circular dated 22-8-2000 (Annexure A-2). The Screening Committee, as setforth, was constituted at the Head of Department level to consider the cases of Class III and two from Class IV employees who had either attained 50 years of age or had completed 20 years of service. The Screening Committee on consideration of the entire service record of the applicant found that in the last five years of service of the applicant no ACR reflected 'good' and the applicant had been given adverse ACR of 'Gha' for the years 1978-79, 1985-86, 1986-87 and 1988-89. It is also putforth that he was punished with the punishment of admonition in the year 1980-81. The Screening Committee also noted that in most of the orders the applicant was issued warning and if the overall review of the record is made it would be discernible that he had four ACRs wherein he had been awarded the punishment of stoppage of one annual increment with cumulative effect as per the order dated 2-12-1992 and had been subjected to disciplinary action many a time. Taking into consideration the totality of factual scenario, the order had been passed in public interest. The recommendations of the Screening Committee have been brought on record as Annexure R-1. It is the case of the respondent that the petitioner was promoted as Assistant Grade-I from the UDC four and half years back and the said promotion was on the basis of recommendation of the DPC which considered the claim of the petitioner for such promotion on the basis of confidential report of the preceding few years and that can not be a factor to totally ignore the career graph of the petitioner. In the return it has been stated that the assertion that the order of compulsory retirement is laconic and not speaking one, does not vitiate the same. With regard to non-communication of adverse entries, it is urged in the return that adjudging a person for the purpose of compulsory retirement, the non-communicated adverse entries can be pressed into service and looked into.

4. I have heard Mr. Devesh Khatri, learned Counsel for the petitioner and Mr. Ashok Agrawal, learned Govt. Advocate for the State. It is submitted by Mr. Khatri that when the petitioner had been given two promotions during his service career, the impact and effect of the adverse entries can be marginalised and the same can not form the foundation to pass an order of compulsory retirement against the petitioner. It is urged by him that when he was promoted in the year 1996 to a higher post and was given the higher payscale and nothing adverse was found or noticed in respect of subsequent years, the order of promotion in the later years and the grant of higher payscale would pave a long way to show that the services of the petitioner were satisfactory and there was no justification or propriety to pass an adverse order like compulsory retirement against him.

5. Mr. Ashok Agrawal, learned Govt. Advocate for the State, sounding a contra note, submitted that the Screening Committee has acted in accordance with the circular in question and when the career graph of the petitioner is scrutinised and scanned in proper perspective it does not fresco a picture which would entitle to the petitioner to be retained in service and hence, the order of compulsory retirement can not be found fault with. It is his further submission that because the petitioner was promoted in the year 1996, that does not necessarily mean that all the dirty line has been washed away and the case of the petitioner has become clear and clean not inviting the order of compulsory retirement as his whole career exposits a different scenario.

6. As this juncture, I think it appropriate to refer to the law laid down in the case of State of Gujrat v. Umedbhai M. Patel, 2001 AIR SCW 862. In Para 11 of the said case the Apex Court referred to the law laid down in various cases and culled out the principles which I profitably reproduce :

'The law relating to compulsory retirement has now crystallized into definite principles, which could be broadly summarized thus:--

(i) Whenever the service of a public servant are no longer useful to the general administration, the officer can be compulsoriry retired for the sake of public interest.

(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.

(iii) For better administration, it is necessary to chop off wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer.

(iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.

(v) Even uncommunicatcd entries in the confidential record can also be taken into consideration.

(vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable.

(vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer.

(viii) Compulsory retirement shall not be imposed as a punitive measure.'

7. The factual scenario of the present case has to be tested on the anvil of the aforesaid enunciation of law. In the case at hand, the petitioner has been compulsorily retired taking into consideration his career graph. Prima facie, the same may appear to be correct in consonance with the guidelines in vogue but one thing that stands out is that the petitioner has been given promotion. The Apex Court in the case of Umedbhai M. Patel (supra) observed, if an officer has been given promotion despite adverse entries made in the confidential record, that is a fact in favour of the petitioner. It is relevant to state here, nothing has been brought on record to show that there was any kind of adverse remark or entry after 1996.1 am conscious, that can not be a sole and solitary governing factor but as the petitioner was promoted in the year 1996 and allowed to draw higher pay scale and thereafter in the year 1998 he was visited with the order of compulsory retirement when nothing happened during the interregnum period, I am of the considered view, the order of compulsory retirement is sensitively susceptible and deserves to be lanceted.

8. Accordingly, I quash the order of compulsory retirement and direct that the petitioner be taken back in service. However, it is hereby made clear that the petitioner shall not be entitled to any back wages.

9. The writ petition is accordingly allowed to the extent indicated above. There shall be no order as to costs.