- (1.) THE petitioner, who was Executive Engineer, Garhwal Jal Sansthan, Kotdwar, Pauri, has filed this writ petition, challenging the order of his com pulsory retirement from service dated 11. 12. 1991 passed under Fundamental Rule 56 Financial Handbook Volume II Part II to IV THE State has filed counter affidavit and the petitioner has filed rejoinder affidavit in reply thereto. We have heard the learned counsel for the parties.
(2.) SRI. H. S. Nigam, learned counsel for the petitioner has made the following sub missions in support of the writ petition: (i) while passing an order of compul sory retirement the Government con sidered the petitioner's service record of the last ten years only and did not take into account the service record of the whole Ser vice; (ii) Adverse entries for the years 1986-87 and 1987-88 could not have been taken into consideration by the Government while passing the order of compulsory retirement, because the representation filled against those entries was not decided till then; (iii) Adverse entry for the year 1988-89 has not become final till the time the order of compulsory retirement was passed and, therefore, it was also not liable to be taken into account for the purposes of compulsory retirement, (iv) Entry for the year 1989-90 was a good entry; but it was not taken into con sideration when the impugned order was passed and (v) Adverse entries for the years 1984-85 and 1985-86 were not so serious so as to justify the compulsory retirement of the petitioner. Sri Kushwaha, learned Standing counsel has disputed the above contentions and has also submitted that in view of the facts and circumstances of the case, no inter ference with the impugned order is called for by this Court under Article 226 of the Constitution of India. The Government of U. P. by its letter dated 26. 10. 85 has provided for constitution of Screening Committee for scrutinising the cases of Government servants for compul sory retirement. The said letter has also laid down that although the record of whole service of the Government servant is liable to be taken into account; but it is the record of the last ten years of his service on which more emphasis should be placed while con sidering his case for compulsory retirement. In paragraph 43 of the counter affidavit, it has been stated that the petitioners records of service of the last ten years was con sidered by the Government. Annexure 2 to the counter affidavit contains the summary of the entries, which were awarded to the petitioner during the last ten years of his service. The said entries are as under: 1980-81. . . Satisfactory 1981 -82. . . Satisfactory 1982-83. . . Very good 1983-84. . . Satisfactory (30-8-83 to 3/84) 1984-85. . . Censure 1985-86. . . Censure 1986-87. . . Bad ( 9/86 to 3/87) 1987-88. . . Bad 1988-89. . . . . Adverse 1989-90. . . . . . 1990-91. . . Good (27. 11. 90 to 3/91) In the said paragraph, it has further been stated that the adverse entry for the years 1988-89 was not considered by the Screening Committee, because it was not confirmed till then by the higher authorities. It has also been mentioned therein that during the years 1984-85 and 1985-86 when the petitioner was posted at Jhansi Jal Sansthan, an inquiry was con ducted against him for various ir regularities. He was found guilty of several charges by the Inquiry Officer and accept ing the report of the Inquiry Officer the Government passed an order censuring his work and conduct for the aforesaid two years. The question is as to whether the petitioner could have been retired compulsorily on the basis of the aforesaid material/service record?
(3.) AS regards the compulsory retire ment, the Supreme Court in Baikuntha Nath Das v. Chief District Medical Officer (AIR 1992 SC1020) has laid down as under: " (i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour. (ii) The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a Government servant compulsorily. The order is passed on the subjec tive satisfaction of the Government. (iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as appellate Court, they may interfere if they are satisfied that the order is passed: (a) modified, or (b) that it is based on no evidence, or (c) that it is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material in short; if it is found to be mala fide perverse order. (iv) The Government for the Review Com mittee, as the case may be shall have to consider the entire record of service before taking a decision in the matter-of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and ad verse. If a Government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority. " In view of the law laid down as above although the entire service record of a Government servant is liable to be con sidered by the Government while consider ing the case of his compulsory retirement; but the most relevant record is the service record of the later years. In this connection Supreme Court in Baikuntha Nath Das's case has cited the following extract of it earlier judgment in Brij Bihari Lal Agarwal v. High Court of Madhya Pradesh (AIR 1981 SC594): "what we would like to add is that when considering the question of compulsory retire ment, while it is no doubt desirable to make an overall assessment of the Government servant's records, more than ordinary value should be at tached to the confidential reports pertaining to the years immediately preceding such consideration. It is possible that a Government servant may possess a somewhat erratic record in the early years of service, but with the passage of time he may have so greatly improved that it would be of advantage to continue him in service upto the statutory age of superannuation. Whatever value the confidential reports of earlier years may pos sess, those pertaining to the later years are not only of direct relevance but also of utmost impor tance. " In S. Ramachandra Raju v. State of Orissa (AIR 1995 SC III) Supreme Court has reiterated the same principle regarding relevance of the service record of the later years of service of an employee for the pur pose of compulsory retirement by laying down as under: "therefore, the entire service record par ticularly the latest, would form the foundation for the opinion and furnish the base to exercise the power under the relevant rule to compulsorily retire a Government servant. " Therefore, what is most relevant and of utmost importance is the record of the later years of service of the Government servant. In the instant case the Government has stated in its counter affidavit that it has taken into consideration the service record of the petitioner of the last ten years preceding the date of his compulsory retirement. Even if it is presumed, although the entries of the earlier years are not on the record, that petitioner's service record of the earlier years was good, he cannot successfully chal lenge the order of his compulsory retire ment, if his record of service of later years is not satisfactory and good. In Post and Telegraph Board v. C. S. N. Murty, AIR 1992 SC 1368, the order of compulsory retire ment was upheld on the basis of solitary adverse entry, although the earlier record of service of the concerned employees was good. In the instant case the service record of the later years of service of the petitioner is undoubtedly not good and satisfactory. The impugned order, therefore, cannot be said to be bad merely on the ground that the record of the earlier years of the service of the petitioner was not taken into considera tion. Hence the first contention of the petitioner has to be rejected. As regards the adverse entries for the years 1986-87 and 1987-88 are con cerned, it is true that the petitioner has filed representation against them and the same was not disposed of till the order of compul sory retirement was passed. Supreme Court in Brij Mohan Singh Chopra v. State of Pun jab AIR 1987 SC 948, has taken the view that it is "unjust and unfair and contrary to the principles of natural justice to retire prematurely a Government employee on the basis of adverse entries which are either not communicated to him or if communi cated representation made against those entries are not considered and disposed of. " Same view was taken in Baidyanath Mahapatra v. State of Orissa AIR 1989 SC 2218. But the Supreme Court in Bauamth Nath Das v. Chief District Medical Officer (supra) reconsidered this question and has laid down that its view in Brij Mohan Singh Chopra v. State of Punjab and Baidyanath Mahapatra v. State of Orissa (Supra) is not the correct view. In this connection para graph 29 of the decision of Baikuntha Nath Das's case is reproduced below: "on the above premises, it follows in our respectful opinion that the view taken in J. N. Sinha AIR 1971 SC 40 is the correct one viz. , principles of natural justice are not attracted in a case of compulsory retirement under F. R. 56 (j) or a rule corresponding to it. In this context, we may point out a practical difficulty arising from the simultaneous operation of two rules enunciated in Brij Mohan Singh Chopra AIR 1987 SC 948. On one hand it is stated that only the entries of last ten years should be seen and (2) on the other hand, it is stated that if there are any adverse remarks therein, they must not only be communicated but the representations made against them should be considered and disposed of before they can be taken into consideration. Where do we draw the line in the matter of disposal of representation. Does it mean, disposal by the appropriate authority alone or does it include appeal as well. Even if the appeal is dismissed, the Government Servant may file a reason or make a repre sentation to a still higher authority. He may also approach a court or Tribunal for expunging those remarks. Should the Government wait until all these stages are over. All that would naturally take a long time by which time these reports would also have become stale. A Government Servant so minded can adopt one or the other proceeding to keep the matter alive. This is an additional reason for holding that the principle of M. E. Reddy (AIR 1987 SC 563) should be preferred over Brij Mohan Singh Chopra AIR 1987 SC 948 and Baidyanath Mahapatra, AIR 1989 SC 2218, on the question of taking into consideration un communicated adverse remarks. " In the case of Baikunth Nath Das v. Chief District Medical Officer (supra) the Supreme Court has further laid down that while considering the case for compulsory retirement of a Government servant, it is open to the Government to take into consideration the adverse entry against which a representation in pending, but the Govern ment has also to consider the repre sentation along with it. This is clear from paragraph 31 of the judgment of the said case, relevant extract of which is reproduced below. "we may not be understood as saying either that adverse remarks need not be communicated or that the representation, if any, submitted by the Government servant (against such remarks) need not be considered or disposed of. The adverse remarks ought to be communicated in the normal course, as required by the Rules/orders in that behalf. Any representations made against them would and should also be dealt within the normal course, with reasonable promptitude. All that we are saying is that the action under F. R. 56 (j) (or the rule corresponding to it) need not await the disposal or final disposal of such representation as the case may be. In some cases, it may happen that some adverse remarks of the recent years are not communicated or if communicated, the repre sentation received in that behalf are pending consideration. On this account alone, the action under F. R. 56 (j) need not be held back. There is no reason to presume that the Review Committee or the Government, if it chooses to take into consideration such uncommunicated remarks, would not be conscious or cognizant of the fact that they are not communicated to the Govern ment servant and that he was not given an oppor tunity to explain or rebut the same. Similarly, if any representation made by the Government ser vant is there, it shall also be taken into considera tion.;