- (1.) BY this writ petition, the petitioner seeks to quash the order dt. 13. 4. 1993 (Anx. 1) whereby he was retired compulsorily, with all consequential benefits. It has been prayed that the order dt. 27. 1. 1984 (Anx. 3) whereby penalty of withholding of three grade increments with cumulative effect was imposed, may be set aside.
(2.) THE petitioner has alleged that he was initially appointed as Patwari on 5. 5. 1963 and continued as such but while he was serving as Patwari at Samdari, Tehsil Siwana, Dist. Barmer he has been compulsorily retired vide order dt. 13. 4. 1993 (Anx. 1) Hence, this writ petition. I have heard learned counsel for the parties and perused the case law cited at the Bar. I have also perused the material on record carefully including the reply and rejoinder and also gone through the relevant provisions of law. It is settled that the appointing authority is empowered to retire a government servant compulsorily after forming subjective satisfaction on the basis of entire record favourable and against in the public interest. It is also settled that uncommunicated entries can also be taken into consideration and principle of natural justice are not required to be followed and that can be subject to judicial review only on the ground of malafide and perversity. The order of compulsory retirement is neither a punishment nor it implies any stigma or any suggestion of misbehaviour. Considering the arguments advanced by the counsel for the parties in the light of said legal position and on perusal of material on record, I find no ground to interfere in the order of compulsory retirement passed in the public interest by the competent authority according to the rules, in the writ jurisdiction. It is not necessary to deal with the case law cited by the petitioner in detail as the position of law is settled. Though each case depends on its own facts & circumstances. The thrust of the argument of the learned counsel for the petitioner is that the impugned order dt. 13. 4. 1993 is illegal as for exercising power under Rule 244 (2) of the Rajasthan Service Rules, 1951 (hereinafter referred to as the Rules of 1951), the respondents could only consider five years service record preceding the date of retirement. In support of the contention reliance has been placed on Banwarilal vs. State (1), Krishna Dut vs. State (2), State of Raj. vs. Narendramal (3), Union of India vs. Shaik Ali (4) and Narsingh Patnaik vs. State of Orissa
(3.) A careful reading of the Rule 244 (2) of the Rules of 1951 makes it clear that it empowers the appointing authority to compulsory retire any State Govern- ment employee after giving him three months prior notice, from service she has completed 25 years of service or attained 50 years of age. The main purpose of this provision is to compulsory retire government employees in the public interest whose efficiency is found to be impaired or whose integrity is considered doubtful. The State Government has issued instructions and guidelines in this regard. According to the procedure laid done the appointing authority is required to constitute an internal screening committee for scrutinising cases of employees who completes 25 years of pensionable service or attains 50 years of age. The internal screening committee after considering the entire service record recommends name of the employees for compulsory retirement in the public interest and in certain cases such committee may look into the five years of service record of the government employee preceding the compulsory retirement. In the instant case, the Collector who is appointing authority constituted a internal screening committee to examine the cases of all the Patwaries & like others and Land Records Inspectors who has completed 25 years of service or attained 50 years of age, as per the guidelines and circulars, on 19. 12. 1992 (Anx. R/8 ). The committee so constituted by the appointing authority after examin- ing the entire service record forwarded the case of the petitioner vide Anx. R/1 to the appointing authority with the recommendation to compulsory retire the petitioner under the provisions of Rule 244 (2) of the Rules of 1951 which is within its competence. The internal screening committee while forwarding the case of the petitioner has considered the entire service consisting of eight penalties imposed on the petitioner including the penalty imposed in the year 1989 and stated that in public interest it is not proper to retain the employee in service. The Collector in pursuance of the said report compulsorily retired the petitioner vide order dt. 13. 4. 1993 (Anx. 1) after subjective satisfaction and evaluation of the entire service record. Considering the argument from different angle that irrelevant material be- yond five years has been considered is also not sustainable for the reason that there is no specific condition in this rule that only five years service record preceding the date of compulsory retirement will only be seen. Admittedly, the petitioner has never been promoted and, therefore, the respondents were not debarred from considering the punishments so also the entire material on record while coming to the conclusion that the employee is not fit to be retained in service. Under these circumstances, it cannot be said that the impugned order dt. 13. 4. 1993 has been passed in violation of the provisions of Rule 244 (2) of the Rule of 1951 and I am of the view that the order dt. 13. 4. 1993 is perfectly legal and passed in accordance with the provisions of Rule 244 (2) (i) of the Rules of 1951. In the administrative ins- structions, issued in the form of Circular dt. 13. 9. 1985 also it has been made clear that perusal of the entire service record is necessary. At the same time it has been suggested that in the cases of employees who are sought to be compulsorily retired on the ground of impaired efficiency/decreasing capacity generally five years service record may be seen. Nevertheless the case in hand not only pertains to de- creasing efficiency but also based on the evaluation of entire service record as well as the conduct of entire service period. Therefore, on this count also the contention of the learned counsel for the petitioner can't be accepted that the respondents could not consider the entire service record. In view of this, the decisions cited by the learned counsel for the petitioner are not of any help. The latest decision cited by the learned counsel for the petitioner rendered in Narsingh Patnaik vs. State of Orissa (supra) is not applicable to the facts of present case as in that case the incumbent was not only promoted but in the later years his performance was appraised as `good' whereas present petitioner has never been promoted. Learned Counsel for the petitioner has not been able to make out a case in the writ petition that on what ground only five years record could only be seen nor during the course of arguments he has put forward such a case. That apart in the year 1989, last penalty was imposed on the petitioner of with-holding of one grade increment without cumulative effect. Reference may be made to the decisions rendered in Union of India vs. V. P. Seth (6), Bekunthnath Das vs. Chief Dist. Medical Officer, Bari Pada (7) and Bhagwan Das vs. State of Raj. (8) decided o n 19. 9. 1995. Thus, the contention of the learned counsel for the petitioner has no substance. It has been next contended that the impugned order of compulsory retirement has been passed to circumvent the departmental enquiry pending under Rule 16 of the Rules of 1958 against the petitioner. As stated above, the order of compulsory retirement is based on the entire service record of the petitioner and it has not been passed due to pending enquiry. Therefore, this contention is not tenable. It may be stated that it is for the authority concerned to decide as to whether an employee is required in the public interest or not, of course such decision is required to be taken on the basis of entire service record as per the rules and this Court cannot sit over the decision of the competent authority in the writ jurisdiction unless the same is made malafidely of perverse or against the provisions of the Rules. As already stated the petitioner has not been able to establish his case on either counts, so as to interfere under Article 226 of the Constitution. Furthermore, compulsory retirement is not a penalty but it is a right of the State Government to keep an employee or not in the public interest who has completed his pensionable service or who has attained 50 years of age. That apart the enquiry under Rule 16 of the Rules of 1958 has already been adjourned as per the respondents and is still pending. The petitioner has not shown me any such rule or case law holding that if an enquiry is pending a government employee cannot be compulsorily retired. ;