Dismissed

Heera Lal Yogi v. State and Ors.

Rajasthan HC8 Jan 2019CW/4548/2001

Case brief

AI extract

What is this about?

This High Court dismissed a writ petition challenging a compulsory retirement order under Rule 53(1) of the Rajasthan Civil Services Pension Rules. The court held that the order was not arbitrary, rejected the claim that natural justice rules on satisfaction must be reflected, and affirmed that the High Court does not sit in appeal.

What did the court decide?

Writ petition dismissed; no interference with the compulsory retirement order.

Heera Lal Yogi Vs State and Ors. — Pension and Retirement Benefits | Rajasthan HC (2019)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writs No. 4548/2001

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Heera Lal Yogi S/o Shri Ram Sahai, Caste Yogi, aged about 46 years, R/o Livali Tehsil Bamanwas, Distt. Sawai Madhopur.

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----Petitioner

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Versus

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State of Rajasthan through Home Commissioner, Govt. of Rajasthan, Jaipur.

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The Superintendent of Police, Sawai Madhopur.

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----Respondents For Petitioner(s) : Mr. Suresh Goyal, Adv. For Respondent(s) : Dr. AS Khangarot, Addl. G.C.

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HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

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Order

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08/01/2019

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The petitioner by way of this writ petition assails the order dated 5.3.2001 of compulsory retirement passed under Rule 53(1) of the Rajasthan Civil Services (Pension) Rules,1996 (hereinafter referred to as the ‘Rules of 1996’).

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The petitioner was holding the post of Constable and had completed 25 years of qualifying services and had also attained the age of 50 years and the respondents while invoking the powers conferred upon it under Rule 53(1) of Rules of 1996 compulsory retired the petitioner. Copy of the said order has been sent for information to the Inspector General of Police with reference to his letter No.S-17(6) Police force/Gupt/2000/301-2 dated 1.3.2001. The amount of three months previous notice and a bank draft was also paid alongwith the order.

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(2 of 7)

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[CW-4548/2001]

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Counsel for the petitioner submits that the order does not reflect the satisfaction of the concerned competent authority as to whether petitioner can be said to be such an official who is on account of his indolence or doubtful integrity or incompetence to discharge Official duties or inefficient in due performance of official duties has lost his utility. Such satisfaction has not been independently arrived at by the appointing authority and the same is not reflected in the impugned order dated 05.03.2001.

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The second submission of the learned Counsel for the petitioner is that the petitioner had been performing his duties to the best of his capabilities. There were some punishments which were awarded with regard to absence for some days and such minor punishments which were stale and old could not be considered for the purpose of compulsory retiring him. The learned Counsel also submits that it is on account of a drive to reduce the total strength of the police force that the respondents have acted and compulsorily retired the petitioner, otherwise there was no reason to the petitioner to have been compulsory retired. The action is not served any public interest.

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Learned Counsel further submits that the report of the Screening Committee or the Review Committee have not been placed on record by the respondents to show as to how the subjective satisfaction arrived at. The period for which the petitioner had been absent, have already been regularised. Learned Counsel submits that the appointing authority has abandoned his power with Reviewing Committee and the Screening Committee and the very purpose of the Rule 53 is the

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(3 of 7)

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[CW-4548/2001]

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appointing authority ought to examine himself the record to reach to such a conclusion as required under Rule 53(1).

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Learned Counsel appearing for the petitioner also submits that the retirement order was required to be published in the Gazette which has not been done and, therefore, the order stands vitiated in law.

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Per contra, learned Counsel appearing for the State submits that the Screening Committee had considered the service record of the petitioner. On consideration of the service record, it was found that the petitioner was habitual of remaining willful absent from duty and so also he was indolent in discharge of his duties. His service record is full of penalties and the Screening Committees itself found that the conduct of the petitioner is adverse to the service of the police department and it was in public interest to compulsory retire him from service. After the close scrutiny conducted by the Screening Committee the recommendation was placed again before the Reviewing Committee constituted for the purpose which again independently considered the relevant materiel and endorsed the recommendations of the Screening Committee. The order has thereafter been passed by the competent authority having satisfied himself to the recommendations both of the reviewing Committee as well as of the Screening Committee. Thus, it cannot be said that Rule has not been followed will passing the order. It is further submitted that the purpose of the Rule is to weed out such elements who were inefficient and whose integrity was doubtful and those who were indolent towards their service. In

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(4 of 7)

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[CW-4548/2001]

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view thereof, learned Counsel for the respondents submits that no interference is warranted to the action taken.

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I have considered the submissions of the learned

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Counsels for the parties.

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Rule 53(1) of the Rules of 1996 as it existed on the said date required as under:-

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“53. Compulsory retirement on completion of 15 years qualifying service.

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(1) At any time, after a Government servant has completed 15 years qualifying service or has attained the age of 50 years, whichever is earlier, the appointing authority, upon having been satisfied that the concerned government servant has on account of his indolence or doubtful integrity or incompetence to discharge official duties or inefficiency in due performance of official duties has lost his utility, may require the concerned Government servant to retire in public interest, after following the procedure laid down by the Government in Department of Personnel/Administrative Reforms Departments. In case of such retirement, the government servant shall be entitled to retiring pension.”

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An order of compulsory retirement passed under Rule 53(1) of the Rules of 1996 is neither a punishment nor it entails a stigma. The order of compulsory retirement does not require contain in itself of any allegation as against the concerned employee. Thus viewed, suffice it to only mention that the order has been passed under Rule 53(1) of the Rules of 1996 and detailed discussion of the reasons for reaching to the satisfaction are not required to be mentioned in the order of compulsory retirement. If a different view is taken, then the said order would become stigmatic and would be a colourable exercise of power. Thus viewed, the arguments raised by the learned Counsel that

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(5 of 7)

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[CW-4548/2001]

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the order does not reflect the satisfaction of the competent authority is not made out and the same is rejected.

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This Court while examining an order passed under rule 53 does not sit in appeal and at the same time it also cannot be said that the order cannot be subjected to judicial scrutiny by the High Court or Supreme Court and the case may be examined in the background under which the compulsory retirement order has been passed it would not sit in appeal and substitute its opinion to that of the concerned administrative authority.

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Law in this regard has been settled by the Apex Court in the Constitutional Bench judgment passed in the case of R.L.Butail Vs. Union of India & Ors.-1970(2) Supreme Court Cases 876 and another judgment reported in the case of Union of India Vs. Col.J.N. Sinha & Anr.- 1970(2) Supreme Court Cases 458 wherein it has been held that the compulsory retirement involves no civil consequences and such a retirement does not take away any of the rights that have accrued to the Government servant. Before retirement fundamental Rule 56(j) holds the balance between the rights of the individual Government servant and the interests of the public. While a minimum service is guaranteed to the Government servant, the Government is given power to energised its machinery and make it more efficient by compulsorily retiring those who in its opinion should not be there in public interest. Thus, principles of natural justice would not be necessary to be complied with while passing an order of compulsory retirement. In AIR 1992 Supreme Court SC 1020-

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Baikuntha Nath Das & Anr. Vs. Chief Distt. Medical Officer,

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(6 of 7)

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[CW-4548/2001]

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Baripada & Anr. while following law as laid down above, the Apex Court laid down the criteria where the Courts may interfere with the compulsory retirement subject to well known constraints the order can be set aside on the ground of malafide, perversity or arbitrary action.

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Having noticed the law as above, if the facts of this case are taken into consideration, this Court finds that the petitioner has been punished 11 times on different occasions for having remained absent from duty. Thus, he is a habitual abstentee.

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For a disciplinary force a Constable is required to remain present on duty when demanded. Leave for others is not necessarily a leave for Constable. He is required to be available 24 hours on duty. A different yardsticks is, therefore, required to be adopted while examining the record of the Constable or of Member of a disciplined force. They cannot choose to remain on duty at their own will.

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In the present case, this Court finds that it is on several occasions that the concerned petitioner has remained away from his duties. Although the said period was regularised, the same does not affect the overall working performance of the petitioner, and, therefore, it cannot be said that the authorities have arbitrarily or with malafide intention compulsory retired the petitioner. It also cannot be said that the petitioner was just picked out for the reason that the overall strength of the service was required to be reduced. This fact is noticed from the reply to

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(7 of 7)

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[CW-4548/2001]

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the respondents who have denied that any such action was taken with the purpose to reduce the strength of their service.

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As regards third argument raised by the Counsel for the petitioner with regard to publication of the compulsory retirement order, suffice it to state that Rule 53 sub-clause (3) lays down that the appointing authority may publish the order. Word ‘ may ’ gives discretionary powers to the respondents and perhaps the provision is only to strengthen the Government in publishing the order if the order is being sought to be avoided from being served by the concerned person.

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Thus viewed, I do not find any reason to interfere with the order passed by the respondents. The writ petition being devoid of merit is accordingly dismissed.

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No costs.

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(SANJEEV PRAKASH SHARMA),J

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N.Gandhi/6

Heera Lal Yogi v. State and Ors.

Case brief

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Heera Lal Yogi v. State and Ors.

Case brief

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