Allowed

Devi Singh v. State of Raj and Ors.

Rajasthan HC3 Apr 2015CW/14419/2009

Case brief

AI extract

What is this about?

In a writ petition challenging compulsory retirement, the Single Judge held that the order was arbitrary under Articles 14 and 16. The court found the retirement decision perverse as it ignored the petitioner's unblemished recent service record post-promotion, in contrast to a co-delinquent who received a major penalty. The Tribunal's upholding of the retirement was quashed.

What did the court decide?

The writ application is allowed. The impugned order of compulsory retirement dated 11.05.2000 and the Tribunal order dated 06.08.2009 are quashed and set aside. Petitioner is entitled to consequential

Devi Singh Vs State of Raj and Ors. — Pension and Retirement Benefits | Rajasthan HC (2015)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR

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O R D E R

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S.B. Civil Writ Petition No.14419/2009 Devi Singh Vs. State of Raj. & Ors.

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Date of Order

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::: 3^rd April, 2015

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PRESENT HON'BLE MR.JUSTICE VEERENDR SINGH SIRADHANA

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Mr. Sunil Samdaria, for the petitioner. Mr. N.K. Bhatt, Addl. G.C., for the State-respondents.

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The present writ application projects a simultaneous challenge to the order dated 11^th May, 2000 whereby the petitioner was compulsorily retired, and the order passed by the Rajasthan Civil Services Appellate Tribunal, Jaipur (hereinafter referred to as the 'Tribunal' for short), upholding the action of the State-respondents in compulsorily retiring the petitioner.

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Briefly, the indispensable skeletal material facts necessary for appreciation of the controversy raised in the writ application needs to be first noticed. The petitioner was initially appointed on 23^rd May, 1997 as Lower Division Clerk (LDC) and was accorded promotion to the post of Upper Division Clerk (UDC) vide order dated 14^th September, 1999, on the recommendations of the Departmental Promotion Committee against the vacancies of the year 1996-97. However, the promotion was foregone by the petitioner for attendant domestic circumstances at the relevant time. The promotion was preceded by a joint departmental action

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against the petitioner, one Laxman Singh and one Bhanwar Singh, culminating into imposition of penalty of stoppage of one annual grade increment without cumulative effect vide order dated 16^th September, 1995, which was unsuccessfully subjected to departmental appeal, that was dismissed on 19^th March, 2000. The co-delinquent, Laxman Singh, was inflicted with the major penalty of withholding of one grade increment with cumulative effect while proceedings against Bhanwar Singh were dropped.

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It is pleaded case of the petitioner while the petitioner was compulsorily retired vide order impugned dated 11^th May, 2000, whereas Laxman Singh was retained in service. Further, no adverse entries were ever communicated to the petitioner. SBCWP No.2515/2000 was instituted by the petitioner challenging the legality, validity and correctness of the impugned order dated 11^th May, 2000. However, on an objection by the State-respondents for availability of an alternative remedy before the Tribunal, the writ application was withdrawn. The appeal No.1646/2001, preferred on behalf of the appellant (petitioner) has been dismissed by the Tribunal vide impugned order dated 6^th August, 2009, by a patently illegal and invalid order.

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Learned counsel for the petitioner, Mr. Sunil Samdaria, reiterating the pleaded facts and grounds of the writ application strenuously argued that impugned order dated 11^th May, 2000, order of compulsory retirement, not only

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suffered with gross discrimination but also suffered with gross non-application of mind. Neither any adverse entry was recorded against the petitioner nor was communicated to him at any point of time. Moreover, the effect of minor penalty inflicted in the year 1995, stood obliterated/wiped off in the face of promotion accorded to the petitioner in the year 1999, against the vacancy of the year 1996-97, on the recommendations made by the Departmental Promotion Committee (DPC). Thus, in the facts and circumstances obtaining, the petitioner could not have become a dead wood warranting compulsory retirement.

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According to the learned counsel, the order of compulsory retirement has been passed in flagrant violation of Rule 53(1) of the Rajasthan Civil Services Pension Rules, 1996 (hereinafter referred to as the 'Rules of 1996', for short). Keeping in view the mandate of the Rule aforesaid compulsory retirement could be restored to only upon a satisfaction of indolence or doubtful integrity or incompetence to discharge office duties or inefficiency in due performance of official duties or if the petitioner lost his utility and became a dead wood.

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The specific pleadings of the petitioner before the Tribunal to the effect that no adverse entries were ever communicated to him during the tenure of his service and their non-existence in the service record, was neither specifically denied nor the statement was controverted but for

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a statement to the effect that non-communication of adverse remarks did not render the services of the employee 'Good', as would be evident from the materials available on record. The State-respondents in their counter affidavit before the Tribunal stated the APAR's of the petitioner, to be just satisfactory; which reflected his incompetency.

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The petitioner in the entire service career of 23 years was inflicted only with one punishment that too with a minor penalty of withholding of one grade increment without cumulative effect, which stood obliterated/wiped off in view of the promotion accorded to the petitioner to the post of Upper Division Clerk on 14^th September, 1999, on the recommendations made by the Departmental Promotion Committee (DPC).

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Just after one year of the promotion, there could not have been and there was no material to justify the compulsory retirement of the petitioner. The action was in colourable exercise of power and suffered with the vice of Wednesbury principle of unreasonableness, and therefore, the Tribunal committed a serious illegality in upholding the impugned order of compulsory retirement of the petitioner.

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The impugned action of compulsory retirement of the petitioner is also bad in law on the ground of discrimination because, Laxman Singh, a person, who suffered major penalty, was retained in service while the petitioner was signaled out for compulsory retirement.

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Further, the explanation, which related to the period w.e.f. 1986 to 1988, could not have been made the basis for compulsory retirement of the petitioner for those explanations/notices lost their sting, even if they had any, in the face of promotion of the petitioner in the year 1999, against the vacancy year of 1996-97, on the recommendations of DPC.

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In response to the notice of the writ application, the respondents have filed their counter affidavit supporting the impugned order dated 11^th May, 2000, and reiterating the stand in the reply to the memo of appeal before the Tribunal and also supported the order dated 6^th August, 2009, passed by the Tribunal, upholding the compulsory retirement of the petitioner.

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Per contra, Mr. N.K. Bhatt, Additional Govt. Counsel, reiterating the contents of the reply/counter affidavit to the writ application in support of the impugned order of compulsory retirement dated 11^th May, 2000, as well as endorsing the view of the Tribunal, in declining the challenge to the impugned order of compulsory retirement, submitted that the case of the petitioner for promotion to the post of Upper Division Clerk was considered against the vacancy of the year 1994-95 but on account of pendency of disciplinary enquiry, sealed cover procedure was adopted. On the conclusion of the enquiry proceedings, the petitioner was inflicted with penalty of stoppage of one annual grade

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increment. The Review Departmental Promotion Committee convened, did not recommended the petitioner for promotion for the year 1995-96. On a subsequent consideration against the vacancy of the year 1996-97, the departmental Promotion Committee recommended the case of the petitioner for promotion. However, the petitioner had foregone the promotion and continued to discharge the duties on the post of LDC. The joint enquiry conducted against one Shri Bhanwar Singh, Range Officer (Retd.) and Laxman Singh (Forester), along with the petitioner, resulted into imposition of penalty of withholding of one grade increment vide order dated 16^th September, 1995.

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The petitioner was warned by letter dated 16^th February, 1988 and was called upon to improve his work. The petitioner was also called upon to explain for his lapse for not furnishing required informations for reply to Assembly Question, as would be evident from the order dated 8^th February, 1986. Letter dated 24^th February, 1986 and 15^th August, 1987, were addressed to the petitioner for his laxity in Government work and for his indifference towards his duties and carelessness. 14. Explanation was also sought for keeping work pending, as would be reflected from communication dated 1^st September, 1987. Show cause notice was issued vide communication dated 3^rd November, 1987, for his absence and he was warned vide communication dated 11^th December, 1987 and 14^th February, 1991.

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The plea of discrimination was repelled for the Departmental Promotion Committee recommended compulsory retirement of the petitioner after proper scrutiny of the entire service record of the petitioner and similarly placed employees. The petitioner was not found an efficient worker but for a part of the year 1995-96 and part of the year 1996-97 while the petitioner was graded as 'Good'. The petitioner has always been assessed to be an 'Average Worker'.

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I have heard the learned counsel for the parties and with their assistance perused the materials available on record.

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Indisputably, as a consequence of joint enquiry proceedings, the petitioner was inflicted with the penalty of stoppage of one grade increment without cumulative effect whereas Laxman Singh, the co-delinquent was inflicted with the penalty of stoppage of one grade increment with cumulative effect. The date of birth of Laxman Singh is stated to be 1^st April, 1950 and his initial date of appointment is 23^rd September, 1970 and thus, he had completed about 30 years of service whereas the petitioner, who suffered the minor penalty and had completed only 23 years of service was compulsorily retired while retaining the services of Laxman Singh.

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The fact that the petitioner was not served with any adverse remark and none existed in his service record, has

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not been denied but for statement that the petitioner was assessed to be an 'Average Worker'. The petitioner, only for a part of the year 1995-96 and 1996-97, was assessed as 'Good'.

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The fact that the notices/communications addressed to him for his alleged laxity and indifference towards duties, dates back to the year 1986 to 1991, is also not in dispute. The petitioner was accorded promotion from the post of LDC to UDC, on the recommendations made by the Departmental Promotion Committee for the vacancy of the year 1996-97, is not in dispute. The promotion of the petitioner was lateron confirmed while the adversities, as referred to, were very much on record.

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The respondents have not placed on record even an iota of evidence to indicate that after the petitioner was accorded promotion on the post of UDC vide order dated 14^th September, 1999, any adverse remark or any oder of penalty whether major or minor, was ever imposed. Thus, the petitioner after having been accorded promotion, on the recommendations of the Departmental Promotion Committee vide order dated 14^th September, 1999 on the post of UDC for the vacancy of the year 1996-97, continued to discharge his duties until he was served with the impugned order of compulsory retirement dated 11^th May, 2000. Therefore, it can safely be inferred that the petitioner had unblemished record of service during that period.

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21. In the case of Baikuntha Nath Das & Anr. Vs. Chief District Medical Officer, Baripada & Anr.; AIR 1992 SC

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1020 in no uncertain terms held that the Government shall 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. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favaourable and adverse. If a Government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting.

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In the instant case at hand, the petitioner in the later years of a service reckoning from the date, he was accorded promotion until he was compulsory retired, did not suffer any adversity or adverse remark as is evident form the materials available on record.

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Be that as it may, the State-respondents have not putforth any justifiable reason while retaining the services of the co-delinquent Laxman Singh, who suffered a major penalty in a joint enquiry wherein the petitioner was inflicted with a minor penalty. No doubt the principles of natural justice have no place in the matter of an order of compulsory retirement but that does not exclude judicial scruitiny altogether. Though the matter of compulsory retirement is not to be examined by the High Court or Supreme Court as an Appellate Court, such orders may warrant interference in the event it is

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demonstrated that the impugned order is (a) malafide, (b) 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 perverse order.

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Dealing with somewhat similar controversy in the case

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of State of Rajasthan Vs. Tej Singh; RLW 2009 (1) (Raj.)

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163 , the Division Bench of this Court held thus:

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“5. 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 v. Union of India and Ors.: (1999) ILLJ 923 SC, 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 Section Ramchandra Raju v. State o f Orissa: (1995) ILLJ 1083 SC, 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 v. Union of India and Anr. :(1996) ILLJ 979 SC 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

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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. v. 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.

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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 v. Union of India and Ors.: (2005) ILLJ 6 SC 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.”

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For the reasons and discussions hereinabove, the writ application merits acceptance and is hereby allowed.

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In the result, the impugned order dated 11^th May, 2000 of compulsory retirement of the petitioner as well as the order passed by the Tribunal dated 6^th August, 2009, are hereby quashed and set aside.

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The petitioner would be entitled to all the consequential benefits on notional basis.

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No costs.

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(VEERENDR SINGH SIRADHANA),J.

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Pcg

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All corrections made in judgment/order have been incorporated in the judgment/order being emailed. P.C.Gupta, Sr.P.A.

Devi Singh v. State of Raj and Ors.

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Devi Singh v. State of Raj and Ors.

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