Sudhir Agarwal - (1.) -Petitioner, Jagdish Singh, has filed this writ petition under Article 226 of the Constitution of India aggrieved by the order dated 22.9.2005, Annexure-4 to the writ petition, issued by the District Magistrate, Aligarh compulsorily retiring the petitioner in purported exercise of power under Fundamental Rule 56 (hereinafter referred to as 'FR-56') from the post of Revenue Inspector.
(2.) IN brief, the case set up by the petitioner in the writ petition is that his date of birth is 31.1.1951 and after passing high school in the year 1968 from Board of High School and INtermediate, U. P., Allahabad, he was selected and appointed on the post of Lekhpal on 23.6.1973 and was posted in Tahasil Sadar, District Etah. The appointing authority of the petitioner was Collector. He was promoted on the post of Supervisor Kanoongo (Revenue INspector) on 25.5.2005 after passing departmental examination. His service record is exemplary, unblemished and no adverse entry has been communicated to him, but a censure awarded on 27.4.2002, a copy whereof has been filed as Annexure-2 to the writ petition, where against he has filed a representation before the competent authority, i.e., Commissioner, Agra Division, Agra on 6.5.2002, which has not been decided so far. He attained the age of 54 years in the year 2005 and in an arbitrary manner, the respondent No. 3 has passed the impugned order of compulsory retirement in exercise of powers under FR-56. The order of compulsory retirement is assailed on the ground of being violative of Articles 14, 16 and 21 of the Constitution of INdia. It is said that the petitioner has not been given any show cause notice and opportunity of hearing and, therefore, the impugned order is in violation of principles of natural justice and has also been passed mala fide, in gross abuse and misuse of process of law resulting in substantial failure and miscarriage of justice to the petitioner. The only adverse material available against the petitioner was the censure dated 27.4.2002 whereagainst representation before the competent authority was pending and therefore, the same could not have been taking into account, yet the impugned order has been passed, which is only illegally based on no material. The respondents have filed a counter-affidavit admitting the date of birth of the petitioner being 31.1.1951 and his date of appointment as Lekhpal in District Etah wherefrom he was transferred and was posted in Aligarh. His promotion on the post of Revenue Inspector vide order dated 27.7.2001 passed by the Additional District Magistrate (Admn.) Aligarh is also not disputed. However, it is said that his service record is not unblemished inasmuch he was given a special adverse entry on 12.6.1998 and 5.11.1998 during the year 1998-99, two special adverse entries dated 18.5.1999 and 7.7.1999, in the year 1999-2000, and adverse entries in the year 2002-03 and 2003-04, photo copies whereof have been filed as CA-3. In respect to the alleged censure entry dated 27.4.2002, it is said that it is also special adverse entry awarded for the year 2002-03 and not censure. Further, it is denied that against the aforesaid special entry, the petitioner has made any representation before the Commissioner, Agra and communication of the alleged representation. Annexure-3 to the writ petition, to the Commissioner, Agra Division, Agra is specifically denied. It is further said that a screening committee constituted in accordance with the Government orders considered the entire service record of the petitioner as provided under FR-56 and after considering his service record and in particular ten years previous record, the screening committee recommended for compulsory retirement of the petitioner, which was accepted by the competent authority, whereupon the order of compulsory retirement, impugned in the writ petition has been passed in public interest and therefore, does not warrant any interference. In the rejoinder-affidavit the petitioner has simply denied the various averments made in the counter-affidavit and reiterated what he has stated in the writ petition.
(3.) I have heard Sri B. B. Paul, assisted by Sri A. P. Paul, learned counsel for the petitioner and learned standing counsel for the respondents and have perused the record. From the rival submissions made by the learned counsels for the parties, following questions require consideration in this case : 1. Whether the principles of natural justice are attracted for compulsory retiring an employee in exercise of power under FR-56? 2.Whether the order of compulsory retirement needs to be a speaking order? 3.Whether the various adverse entries awarded to the petitioner were communicated to him? 4.Whether the order impugned in the writ petition can be said to based on no material on record and is arbitrary? Before answering the aforesaid issues, it would be appropriate to have a perusal of Fundamental Rule 56 as applicable in U. P. which has been substituted vide U. P. Fundamental Rule 56 (Amendment and Validation) Act, 1976 (U. P. Act No. 33 of 1976) and reads as under : "56. (a) Except as otherwise provided in other clauses of this rule, the date of compulsory retirement of a Government servant, other than a Government servant in inferior service, is the date on which he attains the age of 58 years. He may be retained in service after the date of compulsory retirement with the sanction of the Government on public grounds, which must be recorded in writing, but he must not be retained after the age of 60 years except in very special circumstances. (b) The date of compulsory retirement of a Government servant in inferior service is the date on which he attains the age of 60 years. He must not be retained in service after that date, except in very special circumstances and with the sanction of Government. (c) Notwithstanding anything contained in Clause (a) or Clause (b) the appointing authority may, at any time, by notice to any Government servant (whether permanent or temporary) without assigning any reason, require him to retire after he attains the age of 50 years, or sucj Government servant may, by notice to the appointing authority, voluntarily retire at any time after attaining the age of 45 years or after he had completed qualifying service of 20 years. (d) The period of such notice shall be three months : Provided that : (i) any such Government servant may, by order of the appointing authority, without such notice or by a shorter notice, be retired forthwith at any time after attaining the age of 50 years, and on such retirement the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances, if any, for the period of the notice or, as the case may be, for the period by which such notice falls short of three months, at the rates at which he was drawing them immediately before his retirement ; (ii) it shall be open to the appointing authority to allow a Government servant to retire without any notice or by a shorter notice without requiring the Government servant to pay any penalty in lieu of notice : Provided further that such notice given by the Government servant against whom a disciplinary proceeding is pending or contemplated, shall be effective only if it is accepted by the appointing authority, provided that in the case of a contemplated disciplinary proceeding the Government servant shall be informed before the expiry of his notice that it has not been accepted ; Provided also that the notice once given by a Government servant under Clause (c) seeking voluntary retirement shall not be withdrawn by him except with the permission of the appointing authority ; (e) A retiring persons shall be payable and other retirement benefits, if any, shall be available in accordance with the subject to the provisions of the relevant rules to every Government servant who retires or is required or allowed to retire under this rule : Provided that where a Government servant who voluntarily retires or is allowed voluntarily to retire under this rule the appointing authority may allow him, for the purposes of pension and gratuity, if any, the benefit of additional service of five years or such period as he would have served if he had continued till the ordinary date of his superannuation, whichever be less. Explanation. - (1) The decision of the appointing authority under Clause (c) to require the Government servant to retire as specified therein shall be taken if it appears to the said authority to be in the public interest, but nothing herein contained shall be construed to require any recital, in the order, of such decision having been taken in the public interest. (2) In order to be satisfied whether it will be in the public interest to require a Government servant to retire under Clause (c) the appointing authority may take into consideration any material relating to the Government servant and nothing herein contained shall be construed to exclude from consideration : (a) any entries relating to any period before such Government servant was allowed to cross any efficiency bar or before he was promoted to any post in an officiating or substantive capacity or on an ad hoc basis ; or (b) any entry against which a representation is pending, provided that the representation is also taken into consideration alongwith the entry ; or (c) any report of the Vigilance Establishment constituted under the Uttar Pradesh Vigilance Establishment Act, 1965. (2A) Every such decision shall be deemed to have been taken into the public interest. (3) The expression "appointing authority" means the authority which for the time being has the power to make substantive appointments to the post or service from which the Government servant is required or wants to retire, and the expression "qualifying service" shall have the same meaning as in the relevant rules relating to retiring pension. (4) Every order of the appointing authority requiring a Government servant to retire forthwith under the first proviso to Clause (d) of the rule shall have effect from the afternoon of the date of its issue, if the Government servant concerned, bona fide and in ignojance of that order, performs the duties of his office, his acts shall be deemed to be valid notwithstanding the fact of his having earlier retired." ;