V.M.Sahai, Sabhajeet Yadav - (1.) -By this application under Chapter V, Rule 12 read with Chapter 9 of Rule 7 of Rules of High Court Allahabad, the petitioner has sought review of the judgment and order dated 23.5.2006 passed in Writ Petition No. 77674 of 2005, Pradeep Kumar Sudele v. State of U. P. and another, which was disposed of in the terms of judgment order dated 23.5.2006 passed in Writ Petition No. 64222 of 2005, Ram Briksha Prasad and others v. State of U. P. and others, whereby the petitioners' pending appeal/representation before the State Government was directed to be decided within a period of three months from the date of production of certified copy of the order before I.G. Registration, U. P., Allahabad as well as concerned Secretary to the Government of Uttar Pradesh. In case the petitioner succeeds in appeal, his case shall be considered or reviewed again by screening committee and appointing authority within a further period of two months thereafter.
(2.) THE facts of the case in brief are that while working on the post of Sub-Registrar, Firozabad the petitioner has been compulsorily retired from service vide order dated 16.9.2005 passed by I.G. Registration. Uttar Pradesh, Allahabad. THE petitioner was appointed as Sub-Registrar on 19.8.1980 after recommendation of U. P. Public Service Commission and in pursuance thereof he has joined his post on 20.10.1980. He was given promotional pay scale vide order dated 20.10.1998 w.e.f. 1.3.1995. On 23.7.1997 I.G. Registration had passed an order withholding the next three increments of petitioner and further directed that during the period of suspension he shall not be entitled to any additional salary apart from subsistence allowance already received by him, in a disciplinary inquiry held against him. Against the aforesaid order dated 23.7.1997 the petitioner has filed a claim petition before the State Public Service Tribunal which has been numbered as Claim Petition No. 180 of 1999, Pradeep Kumar Sudele v. State of U. P. and others. THE said claim petition is still pending. On 25.5.2000 an order has been again passed by I.G. Registration declaring the integrity of petitioner to be doubtful for the period 1993-94. Against the said order he has filed a representation dated 17.6.2000 before the State Government and the same is still pending with the State Government. On 18.9.2000 an order was again passed by I.G. Registration, whereby three annual increments of the petitioner were directed to be withheld with cumulative effect and the petitioner was also awarded censure entry and a direction was further issued to the effect that petitioner shall not be posted in a sensitive or major revenue earning district. Aggrieved by the said order, the petitioner filed an appeal on 17.11.2000 before the State Government and same continues to remain pending before the State Government. On 18.1.2005 an order has been passed by I.G. Registration, whereby three increments of petitioner have been withheld with permanent basis and an adverse entry was also awarded to him. Feeling aggrieved against the order dated 18.1.2005 the petitioner has filed appeal on 18.4.2005 before the State Government and same continues to remain pending and no order has been passed by State Government till the date thereon, meanwhile impugned order dated 16.9.2005 has been passed retiring the petitioner on compulsory basis. At this juncture it is also necessary to point out that there is nothing to indicate in the review application that after the judgment and order passed by this Court in his case and Ram Briksha Prasad's case as referred hereinbefore, the copy of judgment has been served upon the I.G. Registration, Uttar Pradesh, Allahabad and concerned Secretary of the Government with request to decide the pending appeals/representations moved by the petitioner against various punishment orders passed against him and yet the State Government did not decide the aforesaid pending appeals/ representations filed by the petitioner. The petitioner has moved the above noted review application basically on the ground that while deciding the writ petition filed by the petitioner and several other persons, the Division Bench of this Court did not take notice of the written argument submitted by the learned counsel for the petitioner, particularly, in respect of law laid down by Hon'ble Apex Court in Madan Mohan Chaudhary v. State of Bihar and others, (1999) 3 SCC 396, which is binding precedent, and ought to be noticed by Division Bench of this Court while deciding the writ petition in question giving rise cause of action to this review petition. Sri Ashok Khare, learned senior counsel for the petitioner has submitted that the law laid down by Hon'ble Supreme Court in judgment in Baikuntha Nath Das v. Chief District Medical Officer, (1992) 2 SCC 299, stands clarified in Madan Mohan Chaudhary's case (supra) and paragraphs 32 to 40 of the said decision is an authority for the proposition that the law declared by Supreme Court in case of Baikuntha Nath Das is to apply where the various actions of authorities are taken in "normal course" and in which uncommunicated adverse entries were held as not being valid material for consideration in view of facts that the entries in the said case had not been awarded in the "normal course" and applying the aforesaid ratio on the facts of the instant case, his submission is that on account of appeals against the orders of penalties having been kept to be pending for years together thus such pendency cannot be treated as events taking place in the normal course and as such the order of compulsory retirement passed against the petitioner was liable to be set aside on the ground of appeals still remain pending for inordinate period and no decision having been taken expeditiously as would have taken in the normal course of events, therefore, the decision of Division Bench of this Court rendered in this case, in the terms of decision of Ram Briksha Prasad's case requires reconsideration.
(3.) NOW before adverting to the submissions of learned counsel for the petitioner/applicant, it would be useful to notice the observations and directions made in our decision dated 23.5.2006 in Ram Briksha Prasad v. State of U. P. and others, 2006 (3) ESC 1936 : 2006 (6) AWC 5641 (SC), in the terms of which we have disposed of the writ petition filed by the petitioner/applicant, wherein while taking notice of various provisions of Uttar Pradesh Government Servants (Disposal of Representation against Adverse Annual Confidential Reports and Allied Matters) Rules, 1995 and observations made by Hon'ble Court in Baikuntha Nath Das's case in paras 28, 29, 30 and 31 we have observed as under : "28. Besides the aforesaid settled legal position enunciated by Hon'ble Apex Court in preceding paragraphs of this judgment, we cannot fail to take notice of the provisions of the Uttar Pradesh Government Servants (Disposal of Representation against Adverse Annual Confidential Reports and Allied Matters) Rules, 1995 (hereinafter referred to as Rules 1995). Rule 4 of which provides detail provisions regarding the communication of adverse reports and procedure for disposal of representation. Rule 5 of which inter alia deals with the effect or impact of failure to communicate the adverse remarks or disposal of representation against such an adverse report as under : "Rule 4. Communication of adverse report and procedure for disposal of representation.-(1) Where a report in respect of a Government servant is adverse or critical, wholly or in part, hereafter referred to as adverse report, the whole of the report shall be communicated in writing to the Government servant concerned by the accepting authority or by an officer not below the rank of reporting authority nominated in this behalf by the accepting authority within a period of 45 days from the date of recording the report and a certificate to this effect shall be recorded in the report. (2) A Government servant may, within a period of 45 days from the date of communication of adverse report under sub-rule (1), represent in writing directly and also through proper channel to the authority one rank above the accepting authority itself, against the adverse report so communicated : Provided that if the competent authority or the accepting authority, as the case may be, is satisfied that the Government servant concerned had sufficient cause for not submitting the representation within the said period, he may allow a further period of 45 days for submission of such representation. (3) The competent authority or the accepting authority as the case may be, shall, within a period not exceeding one week from the date of receipt of the representation under sub-rule (2) transmit the representation to the appropriate authority, who has recorded the adverse report, for his comments, who shall, within a period not exceeding 45 days from the date of receipt of the representation, furnish his comments to the competent authority or the accepting authority, as the case may be : Provided that no such comments shall be required if the appropriate authority has ceased to be in, or has retired from the service or is under suspension before sending his comments. (4) The competent authority or the accepting authority as the case may be, shall within a period of 120 days from the date of expiry if 45 days specified in sub-rule (3), consider the representation alongwith the comments of the appropriate authority and if no comments have been received without waiting for the comments, and pass speaking orders : (a) rejecting the representation ; or (b) expunging the adverse report wholly or partly as he considers proper. (5) Where the competent authority due to any administrative reasons, is unable to dispose of the representation within the period specified in sub-rule (4), he shall report in this regard to his higher authority, who shall pass such orders as he considers proper for ensuring disposal of the representation within the specified period. (6) An order passed under sub-rule (4) shall be communicated in writing to the Government servant concerned. (7) Where an order expunging the adverse report is passed under sub-rule (4), the competent authority or the accepting authority, as the case may be, shall omit the report so expunged. (8) The order passed under sub-rule (4) shall be final. (9) Where any matter for : (i) communication of an adverse report, (ii) representation against an adverse report, (iii) transmission of representation to the appropriate authority for his comments, (iv) comments of the appropriate authority, or (v) disposal of representation against an adverse report, is pending on the date of the commencement of these rules, such matters shall be dealt with and disposed of within the period prescribed therefor under this rule. Explanation.-In computing the period prescribed under this rule for any matters specified in this sub-rule, the period already expired on the date of the commencement of these rules shall not be taken into account. 5. Report not to be treated adverse.-Except as provided in Rule 56 of the Uttar Pradesh Fundamental Rules contained in Financial Handbook Volume II, Parts II to IV, where an adverse report is not communicated or a representation against an adverse report has not been disposed of in accordance with Rule 4, such report shall not be treated adverse for the purposes of promotion, crossing of Efficiency Bar and other service matters of the Government servant concerned." 29. From a careful consideration of the aforesaid provisions of Rules, 1995 it is clear that a time frame schedule has been provided in the aforesaid rules under which the Government servant is required to be communicated with the adverse report in his/her A.C.R. entitling the Government servant to make representation thereon to the competent authority and who in turn is obliged to dispose of such representation of Government servant, failing which except under Rule 56 (c) of Uttar Pradesh Fundamental Rules contained in Financial Handbook Volume 2, Parts II to IV where an adverse report is not communicated or representation against an adverse report has not been disposed of in accordance with Rule 4, such report shall not be treated as adverse for the purpose of promotion, crossing of efficiency bar and other service matters of Government servant concerned. It is also noteworthy that Rule 2 of the said rules has made the provisions of said rules having overriding effect upon the other service rules or Government orders. Thus it is clear that while making the aforesaid Rules, 1995, the rule making authority has consciously excluded Rule 56 (c) of U. P. Fundamental Rules from its operation, which goes to clearly suggest that even if the adverse remarks are not communicated or the representation against such adverse report has not been disposed of by the competent authority even then the Appointing Authority is required to consider such adverse remarks under the said rules and if such adverse reports furnish sufficient materials the Screening Committee or Review Committee and/or Appointing Authority can form opinion to retire Government servants compulsorily and on that count alone the effect or impact of adverse report cannot be held to have lost its efficiency or effect or anyway obliterated or wiped of thereby, therefore, in our considered opinion, the action taken under Rule 56 (c) of U. P. Fundamental Rules cannot be attached on that ground and cannot be said to be vitiated under law on that count for the aforesaid reasons also. Thus, there can be no scope for doubt to hold that the order passed under Rule 56 (c) can neither be challenged on the ground that adverse report was not communicated nor on the ground that the representation against such adverse report was not decided by the competent authority rather kept pending before such authority. 30. Similarly in view of aforesaid discussions, we are of the considered opinion that the impugned order of compulsory retirement of petitioner passed by I.G. Registration cannot be held to be vitiated under law on account of failure to decide appeal, or representation by the State Government inspite of fact that on the basis of aforesaid punishment awarded against the petitioner, which was subject-matter of aforesaid appeal, or representation, the impugned order compulsorily retiring the petitioner was passed by appointing authority. In this connection, as indicated in preceding paragraphs, the learned counsel for the petitioner has failed to persuade us by pointing out either any statutory provisions of law, or case law, under which on account of pendency of such appeal before the higher authority, or State Government, the exercise of power under Rule 56 (c) of U. P. Fundamental Rules could be halted, or postponed awaiting disposal of such pending appeal, thus, the submissions of learned counsel for the petitioner appears to be wholly misconceived and cannot be countenanced rather has to be rejected. But that does not mean to say that appellate authority which is State Government in case in question car. be permitted to sit idle tied over the matter for such a long time as admittedly the appeal preferred against the punishments awarded by appointing authority has not been decided by appellate authority, i.e., State Government for last more than two years and meanwhile during pendency of such appeal the impugned order has been passed, while taking into account the punishments awarded by appointing authority/ competent disciplinary authority against the petitioner, therefore, we are constrained to express our strong displeasure about such state of affairs prevalent with the bureaucratic machinery of the State Government. We suggest that except the application of Rule 5 of Rules 1995 the application of provisions of said Rules should also be extended with necessary modification in connection of disposal of pending appeal and/or revision and/or representations against the penalties awarded by Disciplinary Authority or by higher authorities and officer responsible in this regard may also be held accountable for committing any default like provisions contained in Rule 7 of the aforesaid Rules in connection of failure of communication of adverse report and disposal of representation against such adverse report and we are also of the considered opinion that the Government servant whose case has to be considered by Screening or Review Committee on attaining the age of 50 years for the purpose of his compulsory retirement, if any punishment has been awarded against him and he has already preferred appeal or revision before the higher authority including the State Government the same may be decided by such authority within a period of three months from the date from which such appeal or revision or representation is preferred and atleast one month earlier to his matter has to be considered by Review of Screening committee, if the punishments/penalties were awarded in recent past prior to his case is required to be considered for compulsory retirement otherwise such lethargic approach on the part of appellate or revisional authority would unnecessary multiply the litigations of which State Government would also be a party before the Courts proceeding. Thus, in our considered opinion, to shorten the litigation, this exercise should be completed by the Government functionaries within a time frame, which would be conducive to maintain efficiency in the administration and also be in the larger public interest otherwise in such a state of affairs the Court would examine the action of State functionaries from the angle of its being arbitrary and/or mala fide. 31. In view of the aforesaid discussions, since the law on the question of mala fide as enunciated hereinbefore has not been much crystallised earlier and learned counsel for the petitioner could not address the Court on this aspect of the matter so as to demonstrate any arbitrariness and mala fide on the part of Appointing Authority, therefore, we are not inclined to examine the issue from the angle of mala fide, or malice in law or it is being arbitrary in given facts and circumstances of the case, but at the same time we are constrained to hold that such State action is highly deplorable and we strongly deprecate it. In given facts and circumstances of the case, the State Government is directed to decide pending appeal of the petitioner within a period of three months from the date of production of certified copy of this order before the I.G. Registration, U. P. Allahabad, as well as concerned Secretary to the Government of U. P. In case the petitioner succeeds in appeal, his case shall be considered or reviewed again by Screening Committee and Appointing Authority within a period of two months thereafter." Since learned counsel for the petitioner/applicant has placed strong reliance upon the observations made in paras 32 to 40 of the decision of Hon'ble Apex Court rendered in Madan Mohan Chaudhary's case, therefore, it would be useful to extract the said observations as under : "32. The character of roll entries recorded by various District Judges have already been reproduced by us in the earlier part of the judgment. The remarks given by the High Court on various occasions have also been set out above. It has also been found that there were no entries in the character roll of the appellant for the years 1991-92, 1992-93 and 1993-94. The entries for these years were recorded at one time simultaneously and the appellant was categorised as a 'C' Grade Officer. The expression used by the High Court in the counter-affidavit filed in this Court in relation to the entries for the aforesaid three years is that they were recorded "at one go". And, we may add, the officer was made to go! The date on which these entries were made is not indicated either in the original record or in the counter-affidavit filed by the respondents. These were communicated to the appellant on 29.11.1996 and were considered by the Full Court on 30.11.1996 but it is clear that these entries were recorded at a stage when the Standing Committee had already made up its mind to compulsorily retire the appellant from service as it had directed the office on 6.11.1996 to put up a note for compulsory retirement of the appellant. The High Court should have considered that all entries prior to his promotion to the Superior Judicial Service were not bad and his integrity either as a member of the Inferior Judicial Service or Superior Judicial Service was never doubted. The grant of anticipatory bail in a case under Section 307, I.P.C. particularly when there was a cross case could not have been legally made the basis of compulsory retirement in the particular circumstances of this case. Whatever might have been the feeling of the learned Judge who entertained and ultimately allowed the petition for cancellation of bail granted by the appellant, the fact remains that it was an order passed on the judicial side in all bona fides. It may have been a wrong order but it was not a motivated order based on extraneous considerations. It was thus a case where there was no material on the basis of which an opinion could have been reasonably formed that it would be in the public interest to retire the appellant from service prematurely in terms of Rule 74 of the Bihar Service Code. 33. The entries recorded "at one go" for the three years, namely, 1991-92, 1992-93 and 1993-94 could hardly have been taken into consideration. They were communicated to the appellant on 29.11.1996 and on the next day, namely, on 30.11.1996, the Full Court took the decision to retire him from service without giving any opportunity to him to make a representation which, however, he did make but had the mortificaiton of seeing it rejected a year later in December, 1997. 34. Learned counsel for the respondent contended that the entries for the aforesaid three years cannot be excluded on the ground that the appellant was not given an adequate chance to represent against those entries. He referred to a decision of a three-Judge Bench of this Court in Baikuntha Nath Das v. Chief District Medical Officer and contended that in view of the law laid down therein, the order of compulsory retirement passed in the instant case cannot be legally assailed particularly as the character roll entries which are not even communicated can be taken into consideration for the purpose of forming an opinion for retiring a person compulsorily in public interest. We hardly find any merit in this submission. 35. The question relating to uncommunicated adverse entries has been the subject-matter of several decisions of this Court. In Union of India v. M. E. Reddy, it was laid down that uncommunicated adverse remarks can be relied upon while passing an order of compulsory retirement. But in two subsequent decisions, namely, Brij Mohan Singh Chopra v. State of Punjab and Baidyanath Mahapatra v. State of Orissa, it was laid down that uncommunicated adverse entries could not be legally relied upon while making an order of compulsory retirement. It was also laid down in Baidyanath case that if a representation was pending against the adverse remarks, the adverse entries against which the representation is made could not be taken into consideration unless the representation itself was considered and disposed of. 36. Both these decisions were considered by a three-Judge Bench in Baikuntha Nath Das's case and were overruled and the following five principles were laid down : (SCC pp. 315-16, para 34) "34. (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 subjective 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 an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide 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 perverse order. (iv) The Government (or the Review Committee, 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 adverse. 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. (v) An order of compulsory retirement is not liable to be quashed by a court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference." 37. This decision has since been followed in Posts and Telegraphs Board v. C. S. N. Murthy, AIR 1992 SC 1368 : 1992 (2) AWC 1081 (SC) ; Secy. to the Government, Harijan and Tribal Welfare Deptt. v. Nityananda Pati, AIR 1993 SC 383 and Union of India v. V. P. Seth, AIR 1994 SC 1261, and considered by this Court in M. S. Bindra v. Union of India, (1998) 7 SCC 310, and again in State of Gujarat v. Suryakant Chunilal Shah, (1999) 1 SCC 529. 38. The fifth principle in Baikuntha Nath Das's case which has already been extracted above itself contemplates that the mere circumstance that uncommunicated adverse remarks were taken into consideration would not constitute a basis for interference with an order of compulsory retirement. In para 32 of the judgment, the learned Judges observed as under : (SCC pp. 314-15) "32. We may not be understood as saying either that adverse remarks need not be communicated or that the representations, 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 representation made against them would and should also be dealt with in 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 or representations, 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 representation 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 Government servant and that he was not given an opportunity to explain or rebut the same. Similarly, if any representation made by the Government servant is there, it shall also be taken into consideration. We may reiterate that not only the Review Committee is generally composed of high and responsible officers, the power is vested in Government alone and not in minor official. It is unlikely that adverse remarks over a number of years remain uncommunicated and yet they are made the primary basis of action. Such an unlikely situation, if indeed present, may be indicative of malice in law. We may........... in this connection that the remedy provided by Article 226 of the Constitution is no less an important safeguard. Even with its well-known constraints, the remedy is an effective check against mala fide, perverse or arbitrary action. (Emphasis supplied) 39. These observations indicate that the adverse remarks if recorded in an employee's character roll in the "normal course" ought to be communicated to him and if any representation is made against those remarks, the said representation should be disposed of in the "normal course" but with promptitude. It was further emphasised that the pendency of representation against the adverse remarks or non-disposal of that representation would, however, not prevent the action being taken for compulsory retirement of the employee even on the basis of that entry either under F.R. 56 (j) or any provision equivalent thereto. 40. In the instant case, the adverse remarks, namely, the remarks for the years 1991-92, 1992-93 and 1993-94 were not recorded in the "normal course" but were recorded "at one go" and that too when the Standing Committee of the High Court had already formed an opinion to compulsorily retire the appellant from service. The representation made against these remarks was not dealt with promptitude but was disposed of by the High Court after a long period of one year. These remarks which were recorded in the character roll of the appellant "at one go" and were communicated to the appellant on 29.11.1996 were considered by the Full Court on 30.11.1996 which approved the proposal of compulsorily retiring the appellant from service. The appellant had been categorised as 'B' plus in 1990 by Mr. Justice B. K. Roy. There was no categorisation for the next three years and when the action for compulsory retirement of the appellant was initiated by the High Court on the ground that he had granted anticipatory bail in a case under Section 307, I.P.C., categorization for 1991-92, 1992-93 and 1993-94 was done "at one go" which is unreasonable and not fair. Moreover, the compulsory retirement was ordered in 1996. What was the appellant's categorisation for 1994-95 and 1995-96 is not indicated in the original service record placed before us. It is on account of these abnormalities coupled with other strange circumstances of this case that we are of the opinion that the categorisation of the appellant as a 'C' Class Officer for the year 1991-92, 1992-93 and 1993-94 could not have been legally taken into consideration. If these remarks are excluded, principle (iii) laid down in Baikuntha Nath Das's case becomes applicable immediately and the impugned action of compulsorily retiring the appellant from service cannot but be termed as arbitrary in the sense that no reasonable person could have come to the conclusion that the appellant had outlived his utility as a judicial officer and had become dead wood which had to be chopped off." ;