ASHOK KUMAR TIWARI Vs. STATE OF M.P.

JUDGEMENT

(1.) THE petitioner joined in the post of Sub -Engineer under the respondents department on 1 -1 -1979. On 1 -4 -1986 he met with an accident at Seoni, as a result of which he sustained injuries on his shoulder. Despite availing best medical treatment he could not get strength on his right hand. He gave information about the accident of permanent disablement to the respondent Nos. 2 and 3 but the same was not paid heed to as it was not entered in his service book. It is putforth that by such an action of the respondents the usual benefits which are to flow in favour of an employee suffering from 50% permanent disablement, could not get the benefit. The petitioner submitted numerous representations but it was of no avail. In the year 1994 a charge -sheet was served on the petitioner alleging that he was not meeting the inspection targets and collection of inspection fees. The applicant co -operated in the expeditious disposal of the departmental inquiry against him. Though, the inquiry was completed in the year 1996, as setforth in the petition, the same was not finalized. It is contended that though the petitioner had put in 12 years of service by 1991 he was not given the time -bound superior pay -scale (kramonnati) though, other junior Sub -Engineers were extended the said benefit. It is alleged that the juniors to the petitioner were given the promotion but the case of the petitioner was totally ignored. According to the writ petitioner all the Sub -Engineers who were appointed along with the petitioner and after him have been made permanent but no such order has been passed in respect of the petitioner. At this stage, the petitioner moved to Commissioner, Nishaktajan, M.P., Bhopal vide Annexure A -6 and the said respondents in exercise of powers vested in him under section 63 of the 'Nishakta Vyakti (Saman Avsar, Adhikar Sanrakshan aur Poorna Bhaagidaari) Adhiniyam, 1995' (for brevity 'the Act') called for the explanation from the Chief -Engineer, the respondent No. 2 herein, on certain points. On receipt of the said letter, the respondents No. 2 and 3 sent a reply vide Annexure A -8 which shows that the petitioner was conferred the same benefit but he was superseded before 1996. There is also silence with regard to final order passed in the departmental proceeding. A reply given by the respondents No. 2 and 3 were stood to be cross -checked and so the petitioner submitted a further representation clarifying the position. When the matter stood thus, the respondent No. 3, thought with a pre -determine mind to teach the petitioner a lesson by conveying an adverse ACR for the first time on 26 -3 -2000 as per Annexure A -12. The petitioner has represented against the said adverse entry. When the writ petition was pending the respondent No. 2, Chief Engineer, Bhopal by the impugned order dated 14 -12 -2001, Annexure A -1, passed an order of compulsory retirement against the petitioner and three others with effect from 31 -12 -2001. Though, the order is dated 14 -12 -2001, the same was communicated on 20 -12 -2001. It is urged in the petition that the petitioner has not yet completed 25 years of service and, therefore, the respondents have no authority to pass an order of compulsory retirement. It is also urged that the order of compulsory retirement has been passed without appreciating the facts in proper perspective and absolutely in an arbitrary manner. In this backdrop, prayer has been made to quash the impugned order dated 14 -12 -2001 contained in Annexure A -

(2.) A reply has been filed by the respondent No. 1 to 3 stating, inter alia, that the stand taken by the petitioner that he could not have been visited with the order of compulsory retirement as he had not completed 25 years of service is incorrect as Rule 42(1)(b) of M.P. Civil Services (Pension) Rules 1976, postulates that 20 years of completed service is required for the authority to pass an order of compulsory retirement. It is putforth that on the basis of the recommendation of the Scrutiny Committee which has been constituted in accordance with the Circular of the State Government issued on 22 -8 -2000, the petitioner was compulsorily retired. The said order has been passed on the overall assessment done by the Committee. The said Committee has screened the entire service record of the petitioner from the initial date of appointment and on the basis of said scrutiny and the entries made in the service book and his past records, it is urged that the order of compulsory retirement has been passed in the public interest and, hence, the petitioner could not have any grievance. I have heard Mr. N.S. Ruprah, learned counsel for the petitioner and Mr. A.S. Raizada, learned Government Advocate. The heart of the matter is whether the petitioner could have been visited with the order of compulsory retirement. Submission of Mr. Ruprah, to the effect that the petitioner had not reached the qualifying service is sans substance as on the perusal of the Rule it is quite clear that any public servant can be compulsorily retired after completion of 20 years of service in public interest. As the petitioner joined in the year 1979, he had completed 20 years of service. Thus, the aforesaid submission of Mr. Ruprah is not acceptable.

(3.) THE next aspect that requires consideration is whether the order of compulsory retirement has been passed with any kind of mala fide intention. It is urged with vehemence that when the petitioner sought certain reliefs from the respondent No. 4 and there were correspondences between the respondent No. 4 and other respondents the order of compulsory retirement came to be passed. Mr. Raizada, learned Government Advocate has referred to the Circular as well as the assessment of the Screening Committee. He has laid emphasis on Annexure R -2 to show the career graph of the petitioner. It is urged by him that in the very start of the career in the year 1979, the petitioner was given D and, thereafter, was given C, D, C, C, C, C, C, B, C, C, D, C, D, D, D, D, C, C, D, C. He has also pointed out that in the year 1980 -81, 1989 -90, 1991 -92, 1992 -93, 1993 -94, 1994 -95, 1999 -2000 the petitioner was given D. The learned Government Advocate, has taken me through the Circular to show how the parameters are fixed. The Scrutiny Committee has been given the discretion. As far as assessment is concerned, I am not going to express any opinion in the present case inasmuch there is an additional ground which has been urged by Mr. Ruprah in favour of the petitioner. It is his submission that full protection is to be given to a handicapped person. In the return, there is no mention with regard to the status of the petitioner, though such a stand has been taken in the petition. In the case of Kunal Singh vs. Union of India and another, (2003)4 SCC 524, a two Judge Bench of the Apex Court referred to section 47 of the Act. The said provision reads as under: - 47. Non -discrimination in government employment (1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service: Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits: Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. No promotion shall be denied to a person merely on the ground of his disability: Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section. In the aforesaid decision their Lordships expressed the view as under: -