RAFIQ, J. - (1.) THIS appeal has been preferred by the State of Rajasthan against the judgment passed by learned Single Judge dated 1. 2. 2007, whereby writ petition of the respondent has been allowed and the order of his compulsory retirement dated 12. 6. 1998 has been set aside. The respondent, who was serving the petitioner State as Inspector in its Settlement Department was compulsorily retired from service by the said order dated 12. 6. 1998.
(2.) SHRI Harshvardhan Nandwana, learned Government Counsel has argued that the appellants had rightly retired the respondent by invoking Rule 53 of Rajasthan Civil Services (Pension) Rules, 1996 (for short- `the Rules') because in the scrutiny that was made by the Review Committee, he was found to be an inefficient government servant who had become liability to the service. Reference was made to the records indicating that the respondent was awarded three penalties namely, (i) the penalty of withholding of one grade increment vide order dated 3. 12. 1988, (ii) penalty of censure vide order dated 31. 10. 1991 and (iii) yet another penalty of censure vide order dated 31. 10. 1991. It was argued that merely because the respondent was promoted in the year 1995, the effect of those penalties would not be completely wiped out. Learned Single Judge has erred in law in not correctly applying the principles of law enunciated by the Hon'ble Supreme Court in Baikuntha Nath Das & Anr. vs. Chief District Medical Officer, Baripada & Anr.- AIR 1992 SC 1020. Even in that judgment, the Supreme Court had observed that if a government servant is promoted to a higher post, notwithstanding the adverse remarks, such remarks loose their sting, but clarified its view by observing further that if promotion is based merely on seniority, the adverse report anterior to the date of promotion shall also have a bearing on the decision to retire him compulsorily. Learned counsel cited the judgment of Supreme Court in State of India vs. Gurdass Singh, (1998) 4 SCC 92 and argued that effect of an adverse entry even prior to the earning of promotion or crossing of efficiency bar or picking up higher rank is not wiped out and can still be taken into consideration while considering the overall performance of the employee during whole of his tenure. Learned counsel also relied on the judgment of a learned Single Judge of this Court in Banshi Lal Nayati vs. State of Rajasthan & Ors. 1993 (3) WLC 215. It was argued that prior to promotion of the petitioner in 1995, he was promoted, though on temporary basis on 27. 6. 1991, but was soon thereafter reverted on 28. 9. 1993 because in between the penalty of censure had been awarded to him. Per contra, Shri Sunil Samdaria, learned counsel appearing for the respondent argued that the petitioner was promoted on temporary basis on 27. 6. 1991 because the appellants invoked the seal cover pending disciplinary enquiry against him. That enquiry resulted in a minor penalty of censure. Notwithstanding the withdrawal of that temporary promotion, the petitioner was again promoted on regular basis by order dated 2. 9. 1993 though subject to review and revision against the vacancies of the year 1993-94. His promotion was thereafter confirmed by order dated 14. 2. 1995. It was argued that the learned Single Judge has rightly relied on the judgment of Supreme Court in Baikuntha Nath Das, supra and also that of State of Gujarat vs. Umedbhai M. Patel- JT 2001 (3) SC 223 wherein the Supreme Court held that if the Officer is given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer. It was argued that in fact the respondents in their reply to the writ petition did not come out with a case that any adverse remark was entered in the ACR of the petitioner either immediately before his promotion or thereafter. The learned Single Judge has therefore rightly allowed the writ petition. Learned counsel also submitted that the respondent has since attained the age of superannuation, therefore, the appellants would not be required to actually reinstate him in service and the respondent will only get the monetary benefits that will flow from the impugned judgment. There is thus no case for interference even otherwise. Having heard the learned counsel for the parties and perused the impugned order and also the other material forming part of the record, we find that though there were three adversities against the respondents in the shape of minor penalties, one of withholding of one grade increment vide order dated 3. 12. 1988 and second and third, both of censure, by two different orders passed on the same date i. e. 31. 10. 1991, even then the petitioner was promoted within two years of date of last two penalty orders dated 2. 9. 1993, against the vacancies of the year 1993-94, though of course, subject to review or revision. This promotion of the respondent was later on confirmed by order dated 14. 2. 1995. While therefore the adversities referred to supra, were very much on record, the respondent was granted promoted within two years thereof. He has thereafter served the appellants till 12. 6. 1998 when the order of compulsory retirement has been passed. Nothing has been brought on record that after promotion of the respondent in the year 1993, any adverse remark or any order of penalty, whether major or minor, was ever passed/imposed against the respondent. In other words, the respondent served the appellants from the date of promotion i. e. 2. 9. 1993 till he was ordered to be compulsorily retired i. e. 12. 6. 1998 and he had been having unblemished service record during all that period. The Supreme Court in Baikuntha Nath Das, supra has clearly held that the Government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter, of course, attaching more importance to record of and performance during the later years. It was held that the record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting. Here in the present case, the respondent in later years of service starting from the date of promotion till he has retired compulsorily, he does not have any single adversity against him. The argument that the promotion was seniority based and not merit based and therefore the competent authority was justified in arriving at the satisfaction that the respondent had become a dead wood to be chopped off, cannot be appreciated because even if the promotion is made merely on the basis of seniority, the fact remains that if the respondent having gained the promotion, served the appellants for more than 5 years thereafter and not a single adversity was reported against him, that is certainly a factor which should weigh in his favour. The Supreme Court therefore clearly held in Baikuntha Nath Das, supra, that while considering the entire service record, more importance has to be attached to the record and performance of the government servant during the later years. While analyzing entire major previous case law on the subject, the Hon'ble Supreme Court in Baikuntha Nath, supra held that there is no reason to presume that the competent authority who retires a Government servant will not act bona fide or will not consider the entire record dispassionately but such authority should form its opinion on the totality of consideration of the entire record, of course, attaching more importance to later period of his service. The Supreme Court in the said case formulated five principles of law and one of them is that the principles of natural justice have no place in the context of an order of compulsory retirement. This does not however mean that the judicial scrutiny is excluded altogether. While the High Court or the Supreme Court would not examine the matter as an appellate Court, they may nevertheless interfere with such order, however if they are satisfied that the order passed is (a) malafide or (b) that it is based on no evidence, or (c) that it is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material. In other words, if it is found to be a perverse order. Need to give due weitage to the service record of the later period has been emphasized by the Supreme Court in several later decisions. In M. S. Bindra vs. Union of India & Ors.- 1998 (6) JT 34, somewhat similar observations were made by the Supreme Court wherein it held that while evaluating materials, the competent authority should not altogether ignore the reputation which the Officer has held till recently. The authorities should not keep their eyes totally closed towards the overall estimation in which the delinquent officer was held in the recent past by those who were supervising him earlier. In S. Ramchandra Raju vs. State of Orissa, AIR 1995 SC 111, the Supreme Court observed that the exercise of power of compulsory retirement must not be a haunt on a public servant but must act as a check and reasonable measure to ensure efficiency of service free from corruption and incompetence. It was observed that on consideration of totality of facts and circumstances, the Government should form an opinion that the Government Officer needs to be compulsorily retired from service. Entire service record, particularly the latest one, should form the foundation for the opinion and furnish the base to exercise the power under the relevant rules to compulsory retire a government officer. While recording somewhat similar observations, the Supreme Court in K. Mandaswamy vs. Union of India & Anr. (1995) 6 SCC 162 observed that the appropriate government or the authority would need to consider the totality of the facts and circumstances in each case and would form the opinion whether to compulsory retire a government employee would be in the public interest. If such opinion is not based on material on record, it would amount to arbitrary or colourable exercise of power. In State of U. P. vs. Vijay Kumar Jain - (2002) 3 SCC 641, the Supreme Court held that government's right to compulsorily retire such an employee is a method to ensure efficiency in public service and while doing so, the government is entitled under the Rules to take into account the entire service record, character roll or confidential report with emphasis on the later entries in the character roll of an employee. Scope of interference by this Court in a matter of compulsory retirement is by now well defined by catena of judgments of the Supreme Court referred to above whereunder it has been held that while the High Court or the Supreme Court would not examine the matter as an appellate Court but they may interfere if they are satisfied that the order is passed (a) malafide or (b) it is based on no evidence or (c) it is arbitrary in the sense that no reasonable person of ordinary prudence on the given material would arrive at the conclusion that the concerned government servant has become a dead wood to be chopped of or has lost his utility or has become a liability to the service. The order which falls in the last of the above referred to three categories would be an arbitrary and perverse order. This very view was reiterated by Supreme Court in the Pritam Singh vs. Union of India & Ors. , (2005) 9 SCC 748 wherein it was held that the impugned action of compulsory retirement of the appellant from service can be termed as arbitrary if it is found that no reasonable person could have come to the conclusion that appellant had outlived his utility as a member of the service and had become dead wood to be chopped off. In our considered opinion, in the light of the view that we have taken of the matter, as would be seen from discussion made above, the present matter would fall in third category referred to supra. Decision to retire the petitioner compulsorily, therefore, is an arbitrary and colourable exercise of power and so, it would be violative of Article 14 and 16 of the Constitution of India.
(3.) IN our view, therefore, the learned Single Judge has not committed any error of law in setting aside the order of compulsory retirement of the respondent. Accordingly, the present appeal fails and is hereby dismissed though with no order as to costs. .;