- (1.) HEARD learned counsel for the petitioner Sri S. K. Kalia, Se nior Advocate and Sri 1. P. Singh for the respondent Jal Nigam.
(2.) THE petitioner, an Assistant Engineer in the U. P. Jal Nigam, has been compulsorily retired, vide order dated 2. 9. 2005, by the appointing authority in exercise of his powers under Fundamental Rule 56 (C ). The petitioner assails the aforesaid order of compulsory retirement mainly on the following grounds: (i) the criteria applied for screening out the dead wood was arbitrary and manifestly illegal; (ii) the criteria of allocation of marks to the annual entries as per catego rization made therein cannot be said to be a valid and reasonable criteria for determining a case of compulsory retirement; (iii) the reduction of marks to the extent of one each for every adverse entry or for punishment awarded during the course of service is also not inconsonance with the provisions of Fundamental Rule 56 (C) or otherwise, which also vitiates the entire exercise of screening of dead wood or inefficient officers; (iv) there was no adverse material against the petitioner so as to form an opinion on objective consideration for retiring him compulsorily and the en tries/material, which has been shown in the counter affidavit was hardly rel evant for the said purpose; Sri IP. Singh, appearing for Jal Nigam, refuting theclaim of the petitioner, urged that the petitioner's service record as indicated in the counter affidavit shows that the petitioner was not a fit person to be retained in service and, therefore, no fault can be attributed to the action taken by the appointing authority in passing the order of compulsory retirement.
(3.) IT may be pertinent to mention here that the criteria, which was adopted by the Screening Committee was to see the entire record of the service with more weightage to the recent ten year's record and that the following criteria was adopted for determining the worth of the officers for being retained or being ousted from service: (i) marks were allocated to Annual Character Roll remarks, category-wise and in case the officer belongs to general category could not or did not acquire a minimum number of marks (9) on the basis of his Character Roll entries, he was liable to be retired compulsorily, which, in the case of an officer of Reserved category were only 6 marks; (ii) in case the officer had been awarded a punishment of recovery or he had deposited any amount towards recovery, as a result of some fault com mitted by him during his service period, it would constitute a ground for com pulsory retirement. To cut the controversy short, the question regarding reasonableness, valid ity and legality of the criteria of awarding marks in the manner in which they are awarded in a selection for promotion, in which the criteria is "merit1 came up for consideration before us in Writ Petition No. 1888 (SB) of 2005, Mahesh Chandra Agarwal v. State of U. P. and others and we found that the aforesaid criteria was unreasonable, illegal and against the parameters of Fundamental Rule 56 (C ). The reasoning given by Division Bench is as follows: "the criteria, which is applicable in the matter of promotion based on merit cannot be applied for screening out the officers for compulsory retire ment. The purpose of the two Committees namely; selection for promotion and the Screening Committee for screening out the officers from service is entirely different. In the matter of promotion the comparative "merit" of the officers is to be seen so as to promote him on higher post and burden him with more responsibilities whereas in the screening the officers' past con duct, performance, behaviour and service record is to be seen only for the purpose of finding out as to whether the officer has lost his utility and has become a dead-wood. The Committee has to form an opinion that the officer is of no use for being retained in service or that he has become a dead wood or that he is a person of doubtful integrity or dishonest or inefficient. Yardstick which would be applicable in the case of promotion cannot be applied nor would be applicable in the case of compulsory retirement insofar as the award of marks is concerned in the matter of promotion based strict on "merit". It is the most meritorious officer under consideration for promotion, would be se lected, may be that there may be meritorious officers though less in the merit than the person (s) selected but that would not mean that those persons were not fit for promotion or that it would constitute any adverse material for the purpose of compulsory retirement. Even if, a Government servant, in the matter of promotion is not found suitable, that itself alone may not be a ground for retiring him compulsorily, of course, unless his past record of service alongwith aforesaid fact for not being found suitable for promotion permits the Screen ing Committee or Appointing Authority to form such an opinion. We further hold that the criteria of awarding marks and requiring the officer under scrutiny to obtain minimum lower marks for being retained and continued in service was not based on any intelligible criteria, apart from being wholly arbitrary and illegal. The compulsory retirement has to be con sidered within the parameters of Fundamental Rule 56 (C) of the Financial Hand Book Volume (2), which does not envisage any such scheme. It is the entire service record with due weightage to the record of recent past, has to be considered and if the Committee or the Screening Committee or the Ap pointing Authority reaches the satisfaction on the basis of objective consider ation that the concerned officer has lost his utility or is dishonest or lacks integrity or is inefficient and it is not in public interest to retain him in service, he is to be compulsorily retired. . . . . . . . . . . . . . . . . . . . . . . . . . . . . While considering the case of a public servant it is not only the Character Roll which would be relevant either for retaining the officer or public servant in service or for screening him out, but such consideration would also go to the other materials in the service record namely; e. g. appreciation letters or cer tificates of commendable work by higher or superior authorities or to say of the competent authority or if there is material which though does not find mention in the Character Roll entry but either appreciates or deprecates the work and conduct of the public servant or shows his or her shortcomings or in any other way reflects his or her character, integrity and reputation. All such material cannot be lost sight by the Screening Committee and has to be considered while making an assessment. Thus relying only upon the award of marks as against the annual remarks on the basis of criteria of promotion strictly on the basis of "merit" cannot be supported to, under the aforesaid provision. ";