LODHA, J - (1.) THIS writ application is directed against the order of the Government of Rajasthan, Medical and Public Health Department No. F. 1 (142) MPH/74/ Gr. II dated 17th October, 1975 marked Exhibit-17 at page 92 of the Paper Book by which the petitioner, who was Professor of Physiology, S. N Medical Colleges Jodhpur, was compulsorily retired from service on the date of receipt of the order by him after completion of twenty years service by payment of three months pay and allowances in lieu of three months previous notice.
(2.) THE petitioner's case is that he was appointed by the Government of Rajasthan as Demonstrator in Physiology after passing M. B. B. S. on 28 February, 1958 and by dint of his merit and high academic qualifications which he acquired later on he was promoted as Professor in Physiology on 30 March, 1963 in R. N. T. Medical College, Udaipur. He goes on to state that he was awarded merit pay by order dated 30 April, 1966 marked Exhibit-1, under the Rajasthan Civil Services (Merit Pay) Rules, 1961. This merit pay continued for a period of five years upto 30 April, 1971 and the period was further extended for five years. In this connection, it has also been stated by him that the merit pay was enhanced from Rs. 100/- to Rs. 200/-p. m. from 11 June, 1973 under the Rajasthan Civil Services (Grant of Reward, Merit Awards and Merit Certificates) Rules, 1973. THE petitioner has also made mention of an outstanding research work conducted by him in the subject of Physiology. Inspite of his merit and efficiency, the petitioner's case is that for extraneous reasons and on account of bias against him, certain adverse remarks were made against him in the Confidential Roll of 1966 67. He also admits that during the year 1967-68 certain adverse remarks were recorded against him on the report of Dr. P. D. Mathur, Principal of S. P. Medical College, Bikaner. Thus it is the admitted case of the petitioner that a warning was given to him by order dated 22 January, 1969 and a penalty of censure was also imposed upon him by order dated 2 May, 1970. THEre is further no dispute that all efforts made by the petitioner to get the penalty of censure quashed proved fruitless. THE petitioner's case, in brief, is that he is a highly merited and efficient officer well versed in his subject and the order of compulsory retirement has been passed against him without forming the requisite opinion and that the order is based on collateral and arbitrary grounds. THE order has also been assailed on the ground that it has been passed mala fide and on account of persona! bias against him. In this connection it has also been pointed out that Rule 244 (2) of the Rajasthan Service Rules, 1951 as amended is bad, inasmuch as it cannot apply to him retrospectively, as his appointment was made long before the Rule came into force. THE validity of the order has been attacked on the ground that the petitioner could not take the benefit of the earned leave. Lastly it was contended that the period of twenty years service of qualifying service is unreasonable and consequently the Rule is liable to be struck down. A large number of cases have been cited by learned counsel for the petitioner in support of his various contentions. But I propose to refer to only those rulings in which the position of law with respect to compulsory retirement has been clinched. In Tarasingh etc. etc. vs. State of Rajasthan and others (1) their Lordships, after making reference to earlier Supreme Court cases on the point viz. Shyam Lal vs. The State of U. P. (2), T. C. Shivacharana Singh vs. The State of Mysore (3), Union of India vs. Col. J. N. Sinha (4) and R. L. Butail vs. Union of India (5), were pleased to observe that the absolute right to retire an officer who has completed twenty five years service is conferred on the Government. It was further observed that : "the right to be in public employment is a right to hold it according to rules. The right to hold is defeasible according to rules. The rules speak of compulsory retirement. There is guidance in the rules as to when such compulsory retirement in made. When persons complete 25 years of service and the efficiency of such persons is impaired and yet it is desirable not to bring any charge of inefficiency or incompetency the Government passes orders of such compulsory retire- ment. The Government servant in such a case does not lose the benefits which a Government servant has already earned. These orders of compulsory retirement are made in public inter est. This is the safety valve of making such orders so that no arbitrariness or had faith creeps in. " In Dr. N M. Putta Bhatta vs. The State of Mysore and another (6) it was held that so long as the right is not qualified, the right of the Government to retire a Government servant compulsorily must be held to be absolute. The theory of the right being absolute was succinctly laid down by their Lordships in R. L. Butail vs. Union of India and Union of India vs. Col. J. N. Sinha (5 and 4) while discussing the scope of fundamental rule 56 (j), The Court observed : "the right conferred on the appropriate authority is an absolute one. That power can be exercised subject to the conditions mentioned in the rules, one of which is that the concerned authority must be of the opinion that it is in public interest to do so. If that authority bona- fide forms that opinion, the correctness of that opinion cannot be challenged before the Courts, It is open to an aggrieved party to contend that the requisite opinion has not been formed or the decision is based on collateral grounds or that it is an arbitrary decision. " The impugned order of compulsory retirement has been passed against the petitioner under sub-rule (2) of rule 244 of the Rajasthan Service Rules. It reads as under: - " (2) The Government may, after giving least 3 months previous notice in writing or by payment of three months' pay and allowance in lieu of such notice require a Government servant at to retire from the service on the date on which he completes 20 years of qualifying service or the date on which he attains the age of 50 years whichever is earlier, or on any date thereafter. " There is no denying the fact that the petitioner had completed twenty years of qualifying service and he had also attained the age of 50 years when the impugned order of compulsory retirement was passed. The only question to be examined is whether the requisite opinion has not been formed or the decision is based on collateral grounds or that it is an arbitrary decision. Admittedly certain adverse remarks were recorded in the annual Confiden-tial Report of the petitioner for the year 1966-67 while the petitioner was working under Dr. P. D. Mathur, the then Principal R. N. T. Medical College, Udaipur. Again adverse remarks were recorded against the petitioner during the year 1967-68. Subsequently by order dated 22 January, 1969 the petitioner was given a warning to work with caution in respect of administrative matters. Initially he was charge-sheeted under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 but the enquiry was later on converted to one under rule 17 and as stated above, the petitioner was given a written warning. Again in the next year a penalty of censure was imposed upon the petitioner by order dated 2 May, 1970. After exhaust-ing the departmental remedy by way of appeal esc. the petitioner also filed a writ application in this Court against the order of imposition of the penalty, but he was unsuccessful. Copies of the charge sheet as well as the statement of allegations have been put on record and have been marked Ex. SR/1 and Ex. SR/4 respectively. Ex. SR/2 is the order dated 2 May, 1970 imposing the penalty of censure upon the petitioner. A screening committee was constituted to scrutinise the officers of the Rajasthan Medical Services (Collegiate Branch) who had completed 20 years of qualifying service and/or had attained 50 years of age in pursuance of the various circulars issued by the State Government in order to find out whether any of the officers deserved to be compulsorily retired under rule 244 (2) of the Rules. The screening committee after going through the service records, annual Confidential Report and personal file of the petitioner recommended his compulsory retirement and the recommendation of the screening committee was approved by the State Government. The report of the screening committee as well as the approval of the State Government recorded thereon have been shown to me. It has been asserted by the State Govern-ment that the petitioner's compulsory retirement was in the public interest and further that it was neither based on collateral grounds nor is arbitrary. It is thus clear that the requisite opinion was formed in the present case and the decision arrived at by the Government cannot be said to be arbitrary nor can it be successfully asserted that the decision is based on collateral grounds. It has, however, been argued by the learned counsel for the petitioner with great emphasis that there was no material before the Government on which the impugned order could be based. In this connection, it has also been pressed upon me that the petitioner was awarded merit pay vide order dated 30 April, 1966 (Exhibit-1) under the Rajasthan Civil Services (Grant of Merit Pay) Rules, 1961. A certificate of merit was also awarded to the petitioner sanctioning the merit pay for a period of five years from 30 April, 1966 (Exhibit-2 ). It is urged that the petitioner continued to receive this merit pay for a period of five years upto 30 April, 1971 and thereafter by order dated 21 January, 1975 (Exhibit - 3) the merit pay awarded to the petitioner was continued for a further period of five years from 30 April, 1971 to 10th June, 1973. Admittedly this merit pay was enhanced from Rs. 100/- p. m. to to Rs. 200/- p. m. with effect from 11 June, 1973 and was to continue upto 30th April, 1976 under rule 6 (3) (i) of the Rajasthan Civil Services (Grant of Rewards, Merit Awards and Merit Certificates) Rules, 1973. It has also been argued that the petitioner had done outstanding research work in the subject of Physiology and the same has received wide recognition. The petitioner has submitted a list of his published works and also a list of his text-books in which his work on physiology has been referred to and appreciated. These facts are not denied by the opposite parties either and it does appear to me that the petitioner has attained high proficiency in his subject, learned counsel for the petitioner has placed much reliance on the academic efficiency of the petitioner and has argued that adverse entry in Confidential Report and punishment awarded before the order dated 21 January, 1975 whereby the merit pay of the petitioner was increased to Rs. 200/- p. m. and thereby the merit of the petitioner had been recognised, cannot be taken into consideration to form the opinion for the purpose of compulsorily retiring the petitioner. In support of his contention the petitioner has relied upon J. R. Jain vs. Union of India and ors (7 ). On the other hand, Mr. Ashok Mathur, learned Additional Government Advocate has placed strong reliance on Deepchand Jain vs. State of Rajasthan & Ors. (3), Premchand Sanghi vs. State of Rajasthan (9), Smt. Manmal vs. State of Rajasthan (10) and Vithalrao Ramchandra Ghorpade vs. State of Maharashtra (11 ). The case relied upon by the learned counsel for the petitioner viz. J. R. Jain vs. Union of India (7) is completely distinguishable on facts It was observed in that case that the penalty of withholding two increments was passed on 6 July, 1966 but the officer was admittedly allowed to cross the Efficiency Bar by order dated 28 September, 1967. ''if the authorities were taking the serious note of the punishment," the learned Judge held, "they would not have allowed the petitioner to cross the Efficiency Bar later on. " By certifying him as fit for crossing the Efficiency Bar, the conclusion was that he was efficient enough to claim the higher pay. These facts could not later on be taken into consideration for the purpose of taking decision under fundamental Rule 56 (j ). In this view of the matter, the learned Judge held that the punishment of withholding two increments could not be taken into consideration by the appropriate authority while forming the requisite opinion. Now, in the present case reference to the relevant provisions of the Rajasthan Civil Service (Grant of Merit Pay) Rules, 1961 and the Rajasthan Civil Services (Grant of Rewards, Merit Awards and Merit Certificates) Rules, 1973 would show that the assessment for grant of merit pay is made on the basis of "original work of special merit" written by the applicant. "original work of special merit" has been defined to mean a book, article or paper containing original work of special merit, or important research work or invention of practical significance which advances existing scientific knowledge or which may receive high appreciation from institutions well recognised in the related sphere It appears to me that grant of merit pay on account of writing a book, pamphlet or paper on any subject adjudged to be of significant merit does not stand on the same footing as allowing a person to cross the Efficiency Bar. It is not impossible to imagine of cases where an officer may be highly efficient in academic field and yet his retention in service may be considered by the Government to be not in the public interest. I am, therefore, unable to accept the contention that by granting the merit pay, the Government condoned all the previous defaults of the petitioner for which the petitioner had been given a warning and a penalty of censure was also imposed upon him and that the punishment so imposed not be taken into consideration by the Government while forming the requisite opinion of retiring the petitioner compulsorily.
(3.) IN Smt. Manmal vs. State of Rajasthan (10) the learned Judge observed that "for the purpose of consideration of the case of an employee for compulsory retirement, his entire service record has to be considered and the mere fact that the employee was allowed to cross the Efficiency Bar could not have the effect of washing away the record of that employee relating to the earlier period. " It was further held thaf "compulsory retirement is not a punishment and no right is taken away by passing the order of compulsory retirement". Again in Premchand Sanghi vs. State of Rajasthan (9) it was observed that "the matter of compulsory retirement cannot be considered on the same basis as that of awarding punishment or making selection for promotion to higher posts on the basis of merit or seniority-cum-merit and it would be wholly unrealistic to hold that once the employee is allowed to cross the Efficiency Bar, all punishments awarded to him or adverse remarks made in his character rolls prior thereto, are completely wiped out for all purposes. " It is sufficient to point out that the Court cannot sit as a court of appeal over the decision of the Government which has been arrived at after taking into account over all picture of the officer. The entire character roll was put before the Screening Committee and the Government. On going through the report of the Screening Committee, I find that the salient features or the case were considered and I am not in a position to say that the impugned order is wholly unjustified or is arbitrary or is otherwise based on collateral grounds. The next point urged by the learned counsel for the petitioner is that the order is mala fide. The learned counsel for the petitioner frankly admitted that the non-petitioners Shri L. N. Gupta, Secretary to the Government, Medical and Public Health Department, Dr. V N. Sharma, Principal, S. N. Medical College Jodhpur and Dr. M. L. Gupta, Principal, R. N. T. Medical College, Udaipur have been impleaded to this writ petition only on account of the petitioner's allegation of malafides con-tained therein. It has been alleged that Shri Somnath Gupta, Professor of Physiology of Jawaharlal Nehru College is being patronised by Shri L. N. Gupta who is out to harm the petitioner in order to boost up Shri Somnath Gupta. In this connection it has also been stated that Shri L. N. Gupta is also hand-in-g!ove with Shri M L. Gupta, Principal, R. N. T. Medical College, Udaipur. Shri L. N. Gupta prepared a note in favour of Dr. M. L. Gupta on the ground of his seniority, research work etc. so that Dr. Gupta may be posted in the up-graded department of Physiology at S. MS. Medical College, Jaipur and when there was a tie between the petitioner and Dr. Somnath Gupta, Shri L. N. Gupta prepared a note against the petitioner. It is further alleged that Shri L N. Gupta, respondent No. 2, asked Dr. V. N. Sharma Principal at Jodhpur to make a special report against the petitioner for his compulsory retirement and in compliance of Shri Gupta's wishes, Dr. V. N. Sharma did so as Dr. Sharma had also developed professional jealousy against the petitioner. Affidavits of Dr. V. N. Sharma, Dr. M. L. Gupta and Shri L N. Gupta have been filed so as to controvert the allegations made by the petitioner against them. In the reply filed on behalf of respondents No. 1 to 3 to the writ petition, it has been asserted that the allegations of malafides made with respect to respondents No. 2 to 4 are false and in course of arguments the learned Additional Government Advocate has submitted that respondent No. 4 Dr. M. L. Gupta has been impleaded as a party to the writ petition merely to take the case out of the hands of Gupta J. who was regularly hearing such writ petitions. In this connection, learned Additional Government Advocate has referred to the order-sheet dated 13 November, 1975 by Gupta J. wherein the learned Judge has observed as follows: - "having perused the aforesaid record I do not find that respondent No. 4 has anything to do with the passing of the order of compulsory retirerment of the petitioner. No relief has been prayed for against respondent No. 4, nor it appears from the record that he has any connec- tion with the compulsory retirement of the peti- tioner, which is a matter entirely within the jurisdiction of the State Government under Rule 244 (2) of the Rajasthan Service Rule. Looking to all these facts, it clearly emerges that respon- dent No. 4 has been added as a party to the writ petition with the oblique design of taking out the present case from a particular bench. I must strongly deprecate the unhealthy tendency of unnecessarily impleading relations of Presiding Judges of Courts as parties to writ proceedings, as appears to have been done in the present case, with the sole object of ousting the the jurisdic- tion of a particular bench. " ;