Allowed

Vijay Kumar Sharma v. State of U.P. and 3 Ors.

Allahabad HC23 Jan 2020SPLA/501/2018

Case brief

AI extract

What is this about?

The court allowed the special appeal, holding that compulsory retirement based on material not before the Screening Committee and without comparative assessment of positive and negative remarks was legally unsustainable.

What did the court decide?

The writ petition was allowed, the impugned judgment dated 10th April 2018 set aside, the retirement order of 12th December 2017 quashed as never passed, and the appellant declared entitled to consequ

Vijay Kumar Sharma Vs State of U.P. and 3… — Pension and Retirement Benefits | Allahabad HC (2020)

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Chief Justice's Court

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Case :- SPECIAL APPEAL No. - 501 of 2018

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Appellant :- Vijay Kumar Sharma Respondent :- State Of U.P. And 3 Ors Counsel for Appellant :- Ranjeet Asthana,Ashok Khare Counsel for Respondent :- C.S.C.,Ajay Kumar Upadhyay,Dharmendra Singh Chauhan

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Hon'ble Govind Mathur,Chief Justice Hon'ble Samit Gopal, J.

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The appellant entered in service of Mathura Vrindavan Development Authority (hereinafter referred to as MVDA) on 19^th June, 1989 being appointed as Clerk.

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As per the appellant, he served MVDA with utmost satisfaction, hence, selection grades were allowed to him on completion of 10, 16 and 26 years of service. He also earned “Outstanding” remarks in Annual Confidential Reports for the years 2007-08, 2008-09, 2009-10, 2011-12, 2012-13 and “Very Good” for the part of year 2009 and 2010-11.

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The Vice Chairman of the MVDA by an order dated 12^th December, 2017 retired the appellant from service compulsorily by invoking powers under Rule 56 of the Fundamental Rules.

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Suffice to state that before retiring the appellant compulsorily his entire service record was examined by a Screening Committee constituted as per a government order. The compulsory retirement was effected by acting upon the recommendation made by the Screening Committee. The minutes of the Screening Committee are available on record and as per that the appellant was Clerk of average standard and his performance in discharging official duties was also of average level. He was looking after the work of Mapping and Nazarat and to get the work done repeated insistence was necessary. He was in habit of presenting the files before

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officials with delay and was not adhering the time schedule. The Screening Committee observed that slow pace of working was due to some vested interest that brought working of the official within the circle of doubt. He was also remaining absent from office without requisite approval and was not turning to work despite repeated calls. The conduct of the appellant was termed as indiscipline. In these circumstances, a recommendation was made for his compulsory retirement from service.

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Aggrieved by the order dated 12^th December, 2017, the appellant preferred a petition for writ that came to be rejected by the judgment impugned dated 10^th April, 2018. Hence, this appeal is before us.

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Learned single Bench while dismissing the petition for writ relied upon certain facts stated in the counter affidavit though were not examined by the Screening Committee. The total consideration and the findings arrived by learned single Bench reads as follows:-

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“In Counter Affidavit, it has been stated that annual confidential report of the petitioner from 2013-2014 till 2016-2017 were blanks and the petitioner has filed fabricated papers as Annexure-1 to the writ petition. If the entry was blank, then it could not be taken adverse against an employee. But filing fabricated papers along with writ petition is serious. Screening Committee was constituted on 03.11.2017, while wife of the petitioner fell ill on 07.11.2017, thus it cannot be said that the name of the petitioner was included in the list of scrutiny due to his unavoidable absence from service from 07.11.2017. The petitioner has not given any reply to the inspection reports dated 31.03.2017 submitted by the Secretary and 12.09.2017 submitted by Vice Chairman, in which various deficiency in performance of the duty of the petitioner were noted.

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The petitioner was assigned duties of map, property and nazarat and the Secretary, Executive Engineer and Tahsildar were in-charge of these works, who were members

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of Screening Committee as such opinion of in-charge of the works of the petitioners for his current performance of the work is material. These members found that the petitioner used to withheld the work for unreasonable period for his personal interest and due to which his integrity was also doubted. Once integrity of an employee is doubted by the appointing authority then order of compulsory retirement cannot be said to be illegal. This Court in exercise of writ jurisdiction cannot interfere with subjective satisfaction of the appointing authority. In view of judgments of Supreme Court, cases relied upon by the counsel for the petitioner are not liable to be accepted.”

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In appeal, the argument advanced by learned counsel appearing on behalf of the appellant is that learned single Bench failed to appreciate that the working of the appellant was appreciated by his Officers and that was treated as “Outstanding” and “Very Good”. The learned single also failed to appreciate that the Screening Committee did not consider the relevant record and whatever recommendation made by it is not supported by cogent material.

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It is also stated that learned single Bench has taken into consideration the material which was not at all examined by the Screening Committee. It is asserted that no material supplemented at a subsequent stage by way of filing a counter or supplementary affidavit could have been taken into consideration while examining validity and correctness of the reasons contained in the order originally passed.

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Per contra, learned Standing Counsel, while defending judgment passed by learned single Bench and the decision taken by the competent authority to compulsorily retire the appellant, submits that looking to the working style of the appellant, it was necessary to weed out him from service.

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It is also stated that the compulsory retirement from service is not a

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punishment but an administrative measure to ensure efficiency in administration.

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The facts taken into consideration by learned single Bench as per learned Standing Counsel indicates that the appellant was not performing his duties efficiently and as such an objective decision was taken to retire him compulsorily.

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Heard learned counsels and perused the record.

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A Government servant in normal course is entitled to remain in service till attaining the age of superannuation otherwise than subject to a penalty. Such penalty too must be subject to the checks given under Article 311 of the Constitution of India and the Rules framed by the competent authority in consonance thereto. The power to retire a person from service after completion of a definite term in service or on completing certain age before attaining the age of superannuation is exception to a normal course to detach a Government servant from service. The basic concept behind giving such exceptional power is to weed out dead wood from service with a view to have a fine of work culture to meet the administrative efficiency. Rule 56 of the Fundamental Rules empowers the appointing authority to exercise this extraordinary power on being satisfied that the concerned Government servant on account of indolence or doubtful integrity or incompetence to discharge official duties or inefficiency in due performance of official duties has lost his utility and that demands his retirement in public interest.

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In Baikuntha Nath Das & Anr. Vs. Chief District Medical Officer, Baripada & Anr., reported in AIR 1992 SC 1020 , the Apex Court considered the concept of premature retirement and enumerated the following principles in this regard:-

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“(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour.

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(ii) The order has to be passed by the government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the government.

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(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide 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 short, if it is found to be perverse order.

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(iv) 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 an performance during the later years. 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, more so, if the promotion is based upon merit (selection) and not upon seniority.

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(v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference.”

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In view of the law laid down by the Apex Court in the case of Baikuntha Nath Das (supra), a Government servant can be compulsorily retired in public interest on basis of subjective satisfaction of the appointing authority but that must be based on evidence and material that is sufficient for a reasonable person to form requisite opinion to place him under compulsory retirement. It is exclusive and subjective satisfaction of the appointing authority that may result into compulsory retirement of a Government servant in public interest, but such satisfaction must be based on adequate material to provide a valid cradle for maintaining the decision for premature retirement. A Tribunal or Court may scrutinise a decision of the competent authority and interfere with that on being satisfied that the decision is malafide one or is based on no evidence or that is arbitrary in the sense that no reasonable person would have formed the requisite opinion on the given material. To form an opinion about effecting compulsory retirement, it is to be kept in mind that such retirement is in public interest. To arrive at such definite conclusion,the authority concerned must look into entire service record, meaning thereby, the competent authority is required to thresh complete material available on service record, may that be negative or positive, about working of the officer concerned. The competent authority merely by referring negative aspects of service career cannot retire a Government servant compulsorily. The prime duty is to arrive at the conclusion about utility of such Government servant in public service for public interest. The competent authority must mention definite reasons as to how retention of subject Government servant is not in public servant and that demands his compulsory retirement from service. Hon'ble Supreme Court in Nand Kumar Verma Vs. State of Jharkhand & Ors., reported in (2012) 3 SCC 580, while dealing with the issue as to how service record of a person whose case is under consideration for compulsory retirement should be examined, held that a person cannot be retired compulsorily on basis of selective service record. The consideration must be by evaluating the

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complete service record reflecting totality of relevant material necessary to form definite opinion.

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Keeping in mind the legal position discussed above, we have considered case of the appellant.

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It is not in dispute that the appellant earned outstanding and very good remarks for several years. So far as the assessment of recent past is concerned, admittedly, the record relating to that was not available with the Screening Committee. The respondents in their counter have specifically mentioned that the Annual Confidential Reports of the appellant pertaining to the years subsequent to 2012-13 were not available. It would also be pertinent that the appellant earned all the selection grades on completion of 10, 16 and 26 years of service. Nothing is shown to us about the material that was disclosed and considered by the Committee and the competent authority to establish worthlessness of the appellant to service.

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On going through the consideration made by the Screening Committee, it is apparent that the same is not supported by any material. Nothing is available on record to disclose that the appellant was not regularly coming to the office or was having intentional slow pace in his working or had any vested interest. No material too was before the Committee to impeach integrity of the appellant.

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It would also be appropriate to state that in view of the consideration made by the Screening Committee, the act of appellant was an instance of indiscipline. The Screening Committee has just referred certain negative aspect of the service career of the appellant and those have been ipse dixit accepted by the competent authority while placing him under compulsory retirement. No comparative assessment at all was made in this regard.

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So far as certain other material pointed out by learned Standing Counsel is concerned, it was admittedly not before the Screening

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Committee. Learned single Bench has heavily relied upon that material. The Supreme Court in the case of Commissioner of Police, Bombay Vs. Gordhandas Bhanji reported in AIR 1952 SC 16 held that reasons to an impugned order cannot be supplied by supplementary affidavit or by way of counter. Validity of an order is required to be examined on basis of the availability of the reasons at the time of taking the impugned action. The law laid down by the Supreme Court was reiterated in the case of Mohinder Singh Gill & Another Vs. The Chief Election Commissioner & Others reported in AIR 1978 SC 851 .

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In light of the law laid down in the case aforesaid, we are of considered opinion that learned single Bench erred while taking into consideration the additional material supplied by the respondents to support their decision.

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Before parting with, it would also be appropriate to state that whatever additional material shown constitute misconduct and the administrative measure of compulsory retirement is not at all available to an employer to circumvent disciplinary action. If any doubt was there about conduct of the appellant then the appropriate course available was to have an inquiry in the matter, otherwise the decision to place the officer under premature retirement acquires the color of stigma.

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In view of whatever stated above, we are inclined to accept this appeal. Accordingly, the same is allowed. The judgment dated 10^th April, 2018 passed by learned single Bench is set aside. The petition for writ preferred by the appellant is allowed. The order dated 12^th December, 2017 passed by the competent authority of MVDA is quashed and the same is to be treated as never been passed. The petitioner is declared entitle to have all consequential benefits. No order to costs.

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Order Date :- 23.1.2020 Bhaskar

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(Samit Gopal, J.) (Govind Mathur, C.J.)

Vijay Kumar Sharma v. State of U.P. and 3 Ors.

Case brief

What is this about?

What did the court decide?

Vijay Kumar Sharma v. State of U.P. and 3 Ors.

Case brief

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