VYAS, J. - (1.) INITIALLY this petition was filed by late Laxmi Narayan in the year 1994 challenging the order dated 19. 10. 1994 (Annex. 3) passed by the respondents whereby petitioner Laxmi Narayan was compulsorily retired from service. During the pendency of the writ petition, the petitioner died and his legal heirs filed application under Order 22 Rule 3, CPC for substitution and taking them on record. This court vide order dated 23. 1. 2006 allowed the said application and legal representatives of the late petitioner were ordered to be taken on record. The amended cause title was also filed after taking on record the legal representatives of late petitioner Laxmi Narayan.
(2.) ACCORDING to the facts averred in the writ petition, the petitioner was appointed as Lower Division Clerk 1. 10. 1962 in the pay-scale of Rs. 30-55. In the year 1980, he was promoted to the post of U. D. C. ; and, thereafter, the petitioner was promoted and posted as A-Grade Bhandari in the year 1991. Petitioner late Laxmi Narayan pleaded in the writ petition that his work was satisfactory and, therefore, he was transferred from Nathdwara to different places viz. , Porebandar (Gujarat), Madhya Pradesh, Mathura (U. P.) and Calcutta (W. B.) because of his integrity and faithfulness and in view of the fact that the work of Bhandari could only be entrusted to trusted persons because his duty is to keep valuable articles in his custody. The case of the petitioner is that the respondent No. 1, all of a sudden, issued impugned order of compulsory retirement of the petitioner in accordance with Rule 244 (2) of the Rajasthan Service Rules. Respondent No. 1 Nathdwara Temple Board is constituted under the Nathdwara Temple Act, 1959 (for short, "the Act" hereinafter) and thus it is statutory body amenable to Article 12 of the Constitution of India. The Nathdwara Temple Rules, 1973 are framed under the Act and vide Rule 69 application of the Rajasthan Service Rules, 1954 is provided in respect of the employees of the respondents and as such the terms and conditions contemplated by the rules are statutory in nature. According to the petitioner, while issuing the impugned order of compulsory retirement dated 19. 10. 1994, three months pay was also allowed to the petitioner, however, it is best known to the respondents why such harsh action was taken against him though he performed his duties with utmost devotion and the fact that there is no adverse entry against him. Petitioner late Laxmi Narayan contended in the writ petition that the order passed by the respondents is totally arbitrary and illegal and there is no foundation to stand in the eye of law. In the writ petition, the notice was issued to the respondents and, in response thereto, the respondents filed their reply. It is stated in the reply that after considering the service record of the petitioner objectively and after recording objective satisfaction, the order impugned of compulsory retirement of the petitioner was passed according to Rule 244 (2) of the RSR. It is contended in the reply that there were numerous complaints against the petitioner with regard to his performance and it is revealed that the petitioner has out-lived his utility in the office and he is no more an efficient servant. The petitioner has impaired his efficiency greatly and he was not discharging duties as per expectation from a person like him. Therefore, his retention in service was no more useful as he had become deadwood. It is, therefore, contended by the respondents that the order of compulsory retirement of the petitioner was rightly passed after recording objective satisfaction. In the reply, it is also stated that the petitioner has not come with clean hands and he is guilty of concealing material facts and misguiding the Hon'ble Court. In this regard, in para 10 of the reply, it is submitted by the respondents as follows:      " That the petitioner was transferred from Mathura to Calcutta vide Order dated 15. 9. 1992. In the said order name of the petitioner figures at S. No. 4. A photostat copy of the order dated 15. 9. 1992 is submitted herewith and marked as Ex. R. 1. That unfortunately the petitioner deliberately refused to carry out the lawful order of transfer which was made in view of the administrative exigency of the service. No servant can be permitted to challenge the lawfully passed order in this manner. However, the fact remains that petitioner not only failed to carryout the order of transfer but crossed the limits when he dictates the terms to his employer even for carrying out the orders of transfer. Since passing of the order of transfer the petitioner failed to join his duties, he was served with a notice dated 5. 12. 1992 and was given a chance to join his duties at Calcutta else action shall be taken against him. A copy of the notice dated 5th December, 1992 is submitted herewith and marked as Ex. R. 2. It is not less than surprising, rather disgusting that with reference to above-referred notice the petitioner dared to submit his explanation/reply/terms vide his communication dated 10/12/1992. It is not less than surprising that petitioner suggested that he may be suspended for 2 to 4 years and his Headquarter be kept at Nathdwara and he further dictated that if at all it is necessary to post him to Calcutta then the terms as contained in his application dated 3. 1. 1992 be complied with and then only he will join at Calcutta and finally he dictated that he is prepared to joint at Calcutta provided that the terms as contained in his application dated 3. 1. 1992 are complied with, followed and accepted to. An exact and correct copy of the reply dated 10. 12. 1992 is filed herewith and marked as Ex. R. 3. That at this stage it is also just and proper to make a reference of the application of the petitioner dated 3. 1. 1992 which has been referred by him in his reply dated 10. 12. 1992. The petitioner has dared to dictate his employer that he is prepared to function as Bhandari at Calcutta subject to two conditions namely that his son Narendra Singh be appointed as L. D. C. on permanent basis w. e. f. 21st Feb. , 1991 and his another son Surendra Singh be appointed on muster roll basis @ Rs. 27/- per day and he further said that if these conditions are acceptable then only he is prepared to join at Calcutta. An exact and correct copy of the application dated 3. 1. 1992 is filed herewith and marked as Ex. R. 4. In these circumstances the petitioner was found guilty of dis-obeying and dis-regarding the lawfully passed orders of transfer. The petitioner was relieved on 9. 11. 1992 but he did not join at Calcutta. Thus he was found guilty of dis-obeying the directives. In these circumstances an attempt was made to persuade the petitioner to carry-out the order of transfer and therefore, he was served with a communication dated 4. 1. 1993 and was called upon to explain as to why he has not join. A photostat copy of the letter dated 4. 1. 1993 is submitted herewith and marked as Ex. R. 5. That the aforesaid letter was further followed by a telegram dated 7. 1. 1993. A photostat copy of the telegram dated 7. 1. 1993 is submitted herewith and marked as Ex. R. 6. That despite of all possible efforts the petitioner did not join at Calcutta. In these circumstances he was further served with a communication No. 622 dated 14/16. 7. 1993 and was suggested to take over the charge immediately and inform the office. A photostat copy of the communication No. 622 dated 14/16. 7. 1993 is submitted herewith and marked as Ex. R. 7. That the aforesaid communication Ex. R. 7 was replied by the petitioner vide his letter dated 24. 7. 1993. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " In nutshell, in the reply it is stated that the petitioner failed to comply with the transfer order and dictated terms for appointment of his sons and further made prayer for placing him under suspension while keeping his headquarters at Nathdwara. It is contended by the respondents that in these circumstances the petitioner's case was considered objectively and though, in the facts and circumstances of the case, disciplinary action was warranted in the matter against the petitioner, but a lenient view was taken and the petitioner was given compulsory retirement. It is also replied that the petitioner was not physically fit and mentally he was imbalanced, therefore, his case was dealt with under Rule 244 (2) of the RSR and impugned order was passed.
(3.) LEARNED counsel for the petitioner argued that the order of compulsory retirement is totally illegal and has no foundation to stand before the eye of law. It is true that a deadwood employee having doubtful integrity can be given compulsory retirement and it is for the employer to take such decision; but, such decision should not be based upon illegal terms and, so also, should not be arbitrary. It is contended that it is also required under the law that at the time of recording satisfaction the employer should consider the entire service record of the employee. According to facts it is obvious that four promotions were given to the petitioner since his appointment and lastly he was promoted in the year 1991. It is further argued by learned counsel for the petitioner that the petitioner's entire service record is unblemished and there was nothing adverse against him. The only dispute arose when he was transferred from Mathura to Calcutta. Admittedly, he was relieved in November 1992 and the impugned order was passed on 19. 10. 1994; meaning thereby, the reason for taking such action of retiring compulsorily lacks feet to stand in the eye of law. In this period, the petitioner was repeatedly making prayers for cancellation of the transfer order. It is true that he requested the respondents to allow him to work at Nathdwara and, in the process, he also made prayer for suspension and for appointment of his sons; but, neither his prayer for placing him under suspension with headquarters at Nathdwara nor his requests for appointment of his son can be termed misconduct so as to warrant the action of retiring him compulsorily from service. It is vehemently argued on behalf of the petitioner that far from recording objective satisfaction, the respondents have not at all taken into consideration the services rendered by the petitioner until 1991, therefore, the entire action of the respondents is arbitrary and illegal. It is contended by learned counsel for the petitioner that in whole of the reply nothing has been said by the respondents to show any instance of disobedience by the petitioner before the year 1992. According to learned counsel for the petitioner the decision to retire the petitioner compulsorily was taken by the respondents because the petitioner continuously requested the respondents for cancellation of the transfer order, therefore, this fact itself is sufficient to arrive at the finding that the respondents had failed to consider the case of the petitioner objectively. The employee certainly can make any prayer to the employer by way of filing representation and that cannot be termed as misconduct to cast blemish upon the service career of the employee. It is vehemently contended by learned counsel for the petitioner that prior to the year 1992 the petitioner complied with each and every transfer order of the respondents and it is also evident from the facts and circumstances of the case that the petitioner was physically and mentally fit to serve to the utmost satisfaction of the respondents because the respondents have throughout persisted in sending the petitioner to Calcutta despite his repeated requests. In these circumstances, it is prayed on behalf of the petitioner that the impugned order is passed arbitrarily and illegally and the same, therefore, deserves to be quashed and set aside with all consequential benefits. On the contrary, it is contended by learned counsel for the respondents that the petitioner has completely disobeyed the order is passed by the answering respondents and rather he dictated his terms and conditions and gave threatening to the employer that only if they give appointment to his sons he will join at the transferred place. This action itself is sufficient to show the conduct of the petitioner. Likewise, while the petitioner was working in Calcutta he was to file FIR for loss/damage to the treasury but he did not care and, only upon directions issued by the respondents, he filed the FIR; meaning thereby, he completely ignored the directions issued by the respondents and failed to perform his duties before joining at Calcutta. It is vehemently contended that for the disobedience shown by the petitioner harsher disciplinary action was called for to be initiated against him but a lenient view was taken by the respondents and he was given compulsory retirement. ;