JUDGMENT
Pradeep Kant and Kamal Kishore, JJ.
1. The petitioner R.P. Pandey, who was working as Deputy General Manager in the U.P. Power Corporation Ltd., (hereinafter referred to as the Corporation) has filed Writ Petition No. 734 (SB) of 2002, challenging the order of his compulsory retirement said to have been passed in exercise of the powers under Regulations 2(b) and 2(c)(i) of the U.P. State Electricity Board (Retirement of UPSEB Employees) Regulations, 1975 (hereinafter referred to as the Regulations, 1975).
2. The arguments at considerable length have been raised by both the parties but the controversy revolves around the following two questions, namely, (i) whether the petitioner be relegated to the remedy of U.P. Public Services Tribunal and in the presence of such remedy, the writ petition is maintainable or not and; (ii) whether the order of compulsory retirement is vitiated, as the adverse material in the shape of certain adverse entries or certain minor punishments stood wiped of in view of the promotion of the petitioner on the post of Superintending Engineer (Deputy General Manager) on 5.10.2000, the criteria of which promotion was merit; or in view of the Regulations, 1975 the overall assessment could have been done by the Screening Committee as well as the Appointing Authority which would include even that adverse material which existed even prior to the aforesaid promotion.
3. The existence of alternative remedy is not an absolute bar, is a legal proposition, which does not require any detailed reasons. It is also not open to debate that in case an alternative efficacious remedy is available, the High Court normally would not interfere straightaway under Article 226 of the Constitution of India. It is also established principle of law that self restraint is exercised by the High Court in dealing with such matters, which otherwise can be looked into by the Special Forums or Statutory Authorities. Merely the bar in granting any interim relief by a Special Forum or Tribunal created for the purpose of adjudicating such disputes would also not be a ground in itself to permit the aggrieved person to by-pass the alternative remedy and to entertain the petition straightaway in writ jurisdiction unless there are some cogent reasons for permitting such a challenge straightaway in writ jurisdiction. The exceptions, however, have been well defined by the Apex Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors., (1998) 8 SCC (sic), the Supreme Court has laid down the. following principles for the guidance for the High Court in determining the forum in a matter where efficacious alternative remedy is available and has observed that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of Habeas corpus; Mandamus; Prohibition, quo warranto and Certiorari, for the enforcement of any of the Fundamental rights contained in Part 111 of the Constitution but also for “any other purpose”.
4. The Supreme Court further held that under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition but the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in atleast following contingencies, namely,-
(i) where the writ petition has been filed for the enforcement of any of the Fundamental Rights; or
(ii) where there has been a violation of principle of natural justice; or
(iii) where the, order or proceedings are wholly without jurisdiction; or
(iv) the vires of an Act is challenged.
5. Learned Counsel for the respondents, Sri Vishal Singh, in support of the submission that the petitioner be relegated to the remedy of Tribunal has relied upon the case of Secretary, Minor Irrigation and Rural Engineering Services, UP. and Ors. v. Sahngoo Ram Arya and Ors., (2002) 5 SCC 521. In this case, the Supreme Court held that when the statute has provided for the constitution of” a Tribunal for adjudicating the disputes of a Government Servant, the fact that the Tribunal has no authority to grant interim order is no ground to by-pass the said remedy and thus, the direction issued in the aforesaid case relegating the petitioner to the Tribunal and directing the Tribunal to decide the claim petition without raising any objection regarding limitation was held to be valid.
6. Reliance has also been placed upon the case of State of U.P. v. Labh Chand, AIR 1994 SC 754, where the Division Bench of the High Court dismissed the petition on the ground of not availing of alternative remedy and a second writ petition on the same ground was entertained by the learned Single Judge. It was held that such a petition before the learned Single Judge was not maintainable and the petitioner could not have been allowed to by-pass the remedy of Tribunal except in exercise of review of Appellate Powers.
7. The Division Bench judgment passed in the case of Siya Ram v. Chairman, U.P. State Electricity Board (Civil Misc. Writ Petition No. 5353 of 1995, decided on 13.7.1998), has also been produced in support of the submission that the Division Bench dismissed the writ petition as not maintainable on the ground of exhaustion of alternative remedy available to the petitioner.
8. The order passed in the case of R.N. Tandon v. U.P. State Electricity Board (Civil Misc. Writ Petition No. 24006 of 1998, decided on 27.7.1998) and Satyendra Kumar Singhal v. Chairman, U.P. State Electricity Board and Ors. (Civil Misc. Writ Petition No. 21708 of 1998, decided on 3.7.2000), have also been cited in support of the submission that the petitioner has got alternative remedy and therefore, the petition be dismissed.
9. So far as the judgments of the various Division Bench passed by the High Court at Allahabad, referred to above have been cited, are concerned, they are not an answer to the question formulated as to whether the petitioner should be relegated to the remedy of Tribunal or not. In those cases, discretion has been exercised by the Court in not entertaining the writ petition and relegated the petitioners of such writ petitions to the remedy of Tribunal.
10. This discretion, once exercised by the Court of original jurisdiction, namely, by the Single Judge or the Division Bench of the High Court in refusing to entertain the writ petition in pursuance of alternative remedy and not permitting the aggrieved person to by-pass the remedy of the Tribunal may not normally be interfered with when exercise of such discretion is appealed against.
11. The question as to whether in a given case, the petitioner should be compelled to avail the alternative remedy or he should be allowed to pursue his remedy straightaway under Article 226 of the Constitution of India would depend upon the facts and circumstances of each case and there cannot be any straightjacket formula or hard and fast rule so as to either entertain such writ petition or throw it away at the threshold asking the petitioner to approach the alternative Forum.
12. In the case of State of U.P. v. Labh Chand (supra), the circumstances were such that the learned Single Judge of the High Court by by-passing the order of the Division Bench, which had earlier dismissed the writ petition for the same cause of action of the same petitioner on the ground of availability of alternative remedy, entertained the writ petition and this permitted the petitioner to go against the decision of the Division Bench and also allowed him to pursue the remedy bypassing the alternative remedy. In this case also the Supreme Court did not put a complete bar on entertaining the writ petition by the High Court in which the alternative remedy of Tribunal is assailable. The aforesaid authority of the Supreme Court in the case of State of U.P. v. Labh Chand (supra), cannot be read so as to preclude the High Court from entertaining each and every writ petition which relates to a service matter of a Government Servant. Of course, in entertaining the writ petition the basic principle and guidelines issued from time to time have to be adhered to and discretion has to be exercised by exercising the self restraint and by consideration of the facts and circumstances of each and every case. In the case of Secretary, Minor Irrigation and Rural Engineering Services, UP. and Ors. v. Sanhgoo Ram Arya and Ors. (supra), again the discretion was exercised by the High Court in refusing to entertain the writ petition on the ground of alternative remedy of Tribunal where the petitioner was relegated with the direction issued to the Tribunal to entertain any such claim petition filed by the petitioner without any objection as to the limitation. The Supreme Court has found no illegality in such discretion being exercised by the High Court.
13. In the case of Harbans Lal Sahnia and Anr. v. Indian Oil Corporation Ltd. and Ors., (2003) 2 SCC 107, the Supreme Court noted that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies : (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged.
14. In the said case despite there being an arbitration clause available in the agreement for the action impugned, the Apex Court set aside the order passed by the High Court which has dismissed the writ petition on the ground of alternative remedy and allowed the appeal.
15. While considering as to whether the petition should be dismissed on the ground of alternative remedy at the time of hearing or not, one more aspect of the matter which requires consideration is as to when the petition was filed what orders have been passed by the Court and the period of pendency of the petition before the High Court.
16. It is to be seen that if the High Court had taken up the petition for admission or hearing and thereafter has passed an order by conscious application of mind either for filing counter-affidavit with or without requiring the production of records or it has formally admitted the writ petition and has allowed time to file counter-affidavit and has not rejected the writ petition on the ground of alternative remedy on the date when the petition has been entertained though, it was fully in the knowledge of the respondents that such petition would not be maintainable and either such objection has not been raised at that time or the High Court of its own did not feel it appropriate to dismiss the writ petition on the ground of availability of alternative remedy, then in these circumstances, it would normally be not appropriate to dismiss the writ petition at the time of hearing when affidavits have been exchanged between the parties and the matter is being listed for hearing on the ground of alternative remedy.
17. The period for which the petition has remained pending from the date of passing such an order, till the date of hearing is also a relevant consideration, which may be taken into consideration while considering such an issue.
18. If the petition has been entertained, there would be little justification, unless the reasons are such which would not warrant the adjudication under Article 226 of the Constitution, to dismiss the writ petition on the ground of alternative remedy. By the term ‘entertaining’ the writ petition, one has to keep in mind that in recent trend formal orders of admission of writ petitions are rarely passed and while issuing notices or where the notices already stand served on the respective Standing Counsel, the High Court passes an order for filing counter- affidavit if prima facie satisfied about the case in hand and thereafter fixes dates for orders/hearing. The dismissal of the writ petition on the ground of alternative remedy at the time of hearing, as already observed, can only be ordered in such cases where the adjudication under Article 226 of the Constitution is either not possible or is not desirable. One of the factors, which would relegate the petitioner to the alternative remedy, may be the requirement of recording findings on disputed questions of fact or some other such relevant consideration. In a case, where in terms of the order passed on the writ petition, the parties have exchange their affidavits and have brought on record the material which is being relied upon from both the sides in support of their respective claims and which does not require appreciation of evidence nor require any adjudication on disputed questions of fact or the order is found to be wholly without jurisdiction or is found to be based on absolutely no material or is covered by any of the exceptions and proposition laid down by the Supreme Court in the case of Whirlpool Corporation (supra), there would be little justification to dismiss the writ petition at that stage, on the ground of availability of alternative remedy.
19. Apart from this, if in a writ petition, on the exchange of affidavits, the petition can be decided only on appreciation of legal proposition or only by adverting to the law, as may be applicable, in such a case and that too on the given facts which are no more in dispute, the High Court would not be justified in dismissing the writ petition on the ground of alternative remedy at the time of hearing of the writ petition.
20. The rule of alternative remedy is a rule of convenience but it should not be applied in such strict manner at every stage of the proceedings which may cause great hardship to the litigant, as once the litigant approaches the High Court, his petition is not dismissed on day one on the ground of alternative remedy but is allowed to be entertained under the orders of the High Court and is kept pending either for its turn to come on the board or for the time consumed in exchange of affidavits, which time is again granted by the High Court sometimes and then after a lapse of considerable period when the matter is taken up, the petitioner is asked to go to the alternative Forum at the time of hearing which would again mean long drawn litigation from square one, as the petitioner is again much below the line of pending cases filed during the aforesaid period i.e., from the date when the petition was entertained and the date when the petition has been dismissed. The right of litigant to have speedy justice would thus be frustrated. It is, therefore, necessary that a petition where efficacious speedy and alternative remedy is available should be refused from being entertained at the outset, if not at the outset, then in the earliest possible time.
21. The instant writ petition has been filed, challenging the order of compulsory retirement. The questions regarding adjudication on the admitted facts of the case are that there are certain adverse material prior to the date of promotion of the petitioner on the post of Deputy General Manager (Superintending Engineer) but there is no adverse material after his promotion whereas the order of compulsory retirement has been passed after the date of promotion and therefore, whether such an order can be sustained in view of the various legal pronouncements and relevant Regulations. Such a dispute hardly requires any disputed questions of fact to be determined. The basis, namely, the material on which such an order was passed is not to be appreciated or re- appreciated as evidence but it has to be looked into only with a view to find out as to whether it would constitute any basis for such an order being passed. The existing material may be adverse or otherwise, is not to be scrutinized or assessed by the High Court, in case, it is found that the material relied upon could not have been relied upon for the purpose of holding the petitioner a dead wood or it does not conform to the requirement of relevant Regulations, namely, Regulations 2(b) and 2(c)(i) of the Regulations, 1975, the order of compulsory retirement would not be liable to be sustained but if the Court comes to the conclusion that the material was such which was legally admissible and could have been relied upon for the purpose of compulsory retirement, mere sufficiency or insufficiency of material would not be a ground for setting aside the order of compulsory retirement. For necessary consideration of the respective claims of both the parties, affidavits have already been exchanged.
22. Since, these questions can be decided in writ jurisdiction without departing from any of the principle enunciated above, we reject the contention of the learned Counsel for the respondents that the petition cannot be heard and decided finally and the petitioner should be relegated to the alternative remedy of Tribunal. The answer to the question No. 1 formulated above is thus, in the negative.
23. With respect to the merits of the case, undisputed facts relevant for the present controversy are that the petitioner was initially appointed as Assistant Engineer in then UP. State Electricity Board in January, 1969. He was promoted to the post of Executive Engineer and then on the post of Deputy General Manager (Superintending Engineer) on 5.10.2000. The order of compulsory retirement has been passed on 22.4.2002. The material which has been considered by the Screening Committee and which has formed the basis for retiring the petitioner compulsorily has been stated in the writ petition but has been more clearly enumerated in the short counter-affidavit filed by the U.P. Power Corporation Ltd. and the Chairman, UP. Power Corporation Ltd. It has been stated that the High Level Committee has considered and examined the service record of the officers and found 8 Deputy General Managers including the petitioner not fit to be retained further in service. The name of the petitioner has been shown at S1. No. 5 of the said list. On the report of the High Level Committee, the Chairman-cum- Managing Director, in his capacity of Appointing Authority, after considering the report/recommendation and the service record, has passed the order of compulsory retirement.
24. The material which has been considered by the High Level Committee and also by the Chairman-cum-Managing Director is given in Para 8 of the affidavit, namely :-
(a) punishment of warning dated 17.1.1997 for not taking interest and neglecting revenue realisation work;
(b) censure entry dated 27.9.1997 for not taking interest in electrification work of Ambedkar Villages (This censure entry was subsequently cancelled vide order dated 8.12.2000);
(c) censure entry, while posted as Executive Engineer in EDD-II, Basti, as he failed to lodge FIR in case of missing/theft of dog conductor of 33 K.V. Basti Naugarh Line and also failed to take effective steps for necessary recovery on 8.7.1992 (This censure entry was also withdrawn subsequently, vide order dated 24.7.1999);
(d) on 15.1.1991, the petitioner was warned for incurring expenditure beyond the prescribed limit in construction of house;
(e) the petitioner, while working as EDD Sultanpur, was found guilty of late submission/closure of temporary imprest opened in his name and also not adjusting miscellaneous advance of Rs, 1230/-. For this he was awarded censure entry and recovery of Rs. 1230/- from the pay of the petitioner. This minor punishment has been given for an act done in the year 1984. As a result of the disciplinary proceedings conducted against the petitioner, the petitioner was awarded censure entry on 27.5.2000. A portion of this entry was set aside by the State Public Services Tribunal.
25. Besides this, the petitioner has earned adverse remarks in the years 197576, 1989-90, 1993-94 and 1994-95. This is admitted case of the opposite parties and which is mentioned in the counter affidavit that these adverse remarks were expunged some time in the year 1996, as has also been informed by the learned Counsel for the petitioner.
26. Learned Counsel for the respondents has submitted that in view of the Regulation 2(b) read with Regulation 2-A, it is the entire record of service which has to be seen for judging the efficiency and suitability of the member of service and simply because a promotion has been granted before the order of compulsory retirement, it would not wipe out the adverse materials otherwise existing on record.
27. Reliance has been placed on the case on State of U.P. and Anr. v. Bihari Lal, AIR 1995 SC 1161, wherein the Supreme Court while considering the scope of Fundamental Rule 56(j) has held that the entire service record has to be considered while taking the decision in the matter of compulsory retirement of a Government Servant. The Supreme Court observed that the Court has to see whether before the exercise of power, the authority has taken into consideration the overall record even including some of the adverse remarks, though for technical reasons might have been expunged on appeal or revision. What is needed to be looked into is the bona fide decision taken in the public interest to augment efficiency in the public service. In the absence of any mala fide exercise of power or arbitrary exercise of power, a possible different conclusion would not be a ground for interference by the Court/Tribunal in exercise of judicial review.
28. In the aforesaid case, the Supreme Court also found that in an appropriate case, there may not be tangible material but the reputation of officer built around him could be such that his further continuance would imperil the efficiency of the public service and would breed indiscipline among other public servants and therefore, the Government could legitimately exercise their power to compulsorily retire a Government Servant.
29. In view of the observations made by the Supreme Court in the aforesaid judgment, an arbitrary exercise of power may invite interference in judicial scrutiny. The arbitrariness can be for multiple reasons and one of the reasons can be that there being no material either in writing in the shape of service record or even otherwise there may be no such reputation even in the absence of any tangible material of the officer concerned, the order of compulsory retirement has been passed.
30. In the case of State of Punjab v. Gurdas Singh, (1998) 4 SCC 92, the Supreme Court held that any adverse entry prior to earning of promotion or crossing of effieiency bar or picking up higher rank is not wiped out and can be taken into consideration while considering the overall performance of the employee during Whole of his tenure of service whether it is in public interest to retain him in the service. The whole record of service of the employee will include any uncommunicated adverse entries as well.
31. The aforesaid Case was again considered in the case of State of U.P. and Anr. v. Lalsa Ram, 2001 (3) SCC 389, wherein the Apex Court came to the conclusion and relying upon ;the fourth principle laid down by the Supreme Court in the case of Baikunth Nath Das v. Chief District Medical Officer, (1992) 2 SCC 299, observed as follows :-
“Admittedly, the law being well settled on this score that in the event of there being a promotion by the Departmental Promotion Committee upon assessment of the service career and annual confidential reports, the adverse entries lose their sting-in the event, however, the promotion is offered only the ground of seniority without any assessment of the entire career situation, question of adverse entries losing their sting does not and cannot arise. In the contextual facts if it was promotion by way of a selection and not by seniority, no exception could be taken therefor.”
32. Thus, if the promotion has been made by way of selection i.e., on merit and not by seniority, the effect of the entries prior to such promotion would lose their sting.
33. In the case of State of U.P. v. Vijay Kumar Jain, 2002 SCC (L&S) 455, where the order of compulsory retirement has not been found to be punitive or stigmatic, the Apex Court held that the judicial review of an order of compulsory retirement can be on the ground of arbitrariness and not being in public interest. The Apex Court took note of the proposition laid down in the case of Baikunth Nath Das (supra), wherein the following principles were laid down :-
(i) An order of compulsory retirement is not as punishment. It implies no stigma nor any suggestion of misbehaviour,
(ii) The order has to be passed by the Government on forming 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.
(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 Appellate Court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on 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 a perverse order.
(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 and 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.
(v) An order of compulsory retirement is not liable to be quashed by a Court merely on showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference.”
34. The aforesaid fourth principle that 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 has again been reiterated, as held by the Supreme Court in the case of Lalsa Ram (supra).
35. The case of Vijay Kumar Jain (supra) was again a case of promotion on the basis of seniority subject to rejection of unfit and not as promotion on merit.
36. In the case of State of U.P. v. Raj Kishore Goel, 2002 SCC (L&S) 763, the Apex Court allowed the appeal against the order of the High Court after holding that the order of compulsory retirement was neither arbitrary nor unreasonable and was passed in public interest and therefore, the judgment of the High Court was set aside.
37. In the case of State of Orissa v. Ram Chandra Das, (1996) 5 SCC 331, the Supreme Court observed that it is not for the Court/Tribunal to see whether the decision of the Government to compulsorily retire the Government Servant is justified or not. It is for the Government to consider the same and take a proper decision in that behalf. It is the entire records, which is to be seen by the Government. Merely because a promotion has been given even after adverse entries were made cannot be a ground to note that compulsory retirement of the Government Servant could not be ordered.
38. Reliance has also been placed upon the case of Sone Lal Sankhwar v. Chairman-cum-Managing Director (Civil Misc. Writ Petition No. 27387 of 2002), wherein a Division Bench of this Court considered the provisions of Regulation 2(b) read with Regulation 2-A and held that the promotion of the petitioner was not a promotion on merit but he was granted time scale. The Division Bench further observed as under :
“We are of the opinion that the grant of time scale is not the promotion and it has been laid down by the Supreme Court in number of decisions that merely promotion has been given even after adverse entries were made or crossing of efficiency bar/picking up higher rank after the adverse entries does not wipe out the adverse entries or the said entries/evidence does not become inadmissible or irrelevant.”
39. In the instant case, it is not disputed that the rules regarding promotion to the post of Superintending Engineer were amended in the year 1998 and criteria for promotion to the aforesaid post became merit (which earlier to the amendment was ‘seniority subject to rejection of unfit). These Rules are known as UP. State Electricity Board (Service of Engineers) Regulations, 1970.
40. Reliance has further been placed upon the case of Chandra Shekhar Singh v. State of U.P. and Ors., 2001 (19) LCD 317, in support of the submission made on behalf of the petitioner that there is no admissible material in the case of the petitioner to warrant his compulsory retirement. Stress has also been laid upon the case of State of Gujarat and Anr. v. Suryakant Chunnilal Shah, (1999) 1 SCC 529, to impress upon ;the Court that the integrity of the petitioner has never been withheld which constitute a major consideration in finding out as to whether a Government Servant is fit for being retained in service or he is dishonest and inefficient. The observation made by the Apex Court to the following effect has been largely emphasized :
“The performance of a Government Servant is reflected in the annual character roll entries and therefore, one of the methods of discerning the efficiency, honesty or integrity of a Government Servant is to look at his character roll entries for the whole tenure from the inception to the date on which decision for his compulsory retirement is taken. It is obvious that if the character roll is studded with adverse entries or the overall categorization of the employee is poor and there is material also to cast doubts upon his integrity. Such a Government Servant cannot be said to be efficient. Efficiency is a bundle of sticks of personal assets, thickest of which is the stick of ‘integrity’. If this is missing, the whole bundle would disperse. A Government Servant has, therefore, to keep his belt tight.”
41. It is admitted to both the parties that the petitioner was given promotion on the criteria of ‘merit’ on the post of Superintending Engineer, viz., on the post of Deputy General Manager on 5.10.2000. This merit promotion could only have been granted when the entire service career of the petitioner was examined by the Selection Committee and he was found more meritorious and suitable person for the post as compared to other eligible candidates. Such merit promotion wipes out the sting of adverse material as per the direction of the Supreme Court in the case of Baikunth Nath Das (supra), for the purpose considering the case of compulsory retirement. The proposition has been reiterated by the Supreme Court in the case of Lalsa Ram (supra), and also in Vijay Kumar Jain’s case (supra). The Division Bench in the case of Sone Lal Sankhwar (supra), also refused to interfere because the promotion in that case was not on merit but was simply grant of time scale on the basis of seniority.
42. There is no adverse material nor there was anything adverse before the Screening Committee or before the Appointing Authority against the petitioner after the date of his promotion, namely, 5.10.2000. The petitioner was compulsorily retired by means of an order dated 22.4.2002. Thus, the material, which has been taken into consideration and has been treated as adverse in judging the suitability and reasonableness of the petitioner to continue in service, was no material in the eye of law, as it lost its entire sting after promotion of the petitioner on 5.10.2000 on the substantive post of Deputy General Manager (Superintending Engineer).
43. Learned Counsel for the petitioner has also urged that the minor punishment of recovery of the year 1984 or simple warnings even otherwise could not have been made the basis for compulsory retirement. We do not find it relevant to dwell upon this question, as we have already found that after the merit promotion of the petitioner on the substantive post of Deputy General Manager and there being no adverse material, atleast right from the date of promotion till the date of his compulsory retirement, the order of compulsory retirement cannot be said to have been passed either reasonably or in public interest. We, therefore, hold that the order of compulsory retirement has been made in violation of principle enunciated in Regulation 2(b) read with Regulation 2-A of the Regulations, 1975, as amended in the year 1998 and the order cannot be sustained, the same having been passed on non existent material, which otherwise could not have been taken into consideration for the purpose of considering the desirability of the petitioner to be retained in service.
44. In view of the above, the writ petition filled by R.P. Pandey, deserves to be allowed.
45. So far as the writ petition of Ram Lal is concerned, learned Counsel for the petitioner besides arguing the same points which have been argued in the case of R.P. Pandey (petitioner in the aforesaid writ petition) also submitted that the petitioner was subjected to charge-sheet and during pendency of these proceedings, the order of compulsory retirement has been passed which itself vitiates the order of compulsory retirement. The material on which the petitioner Ram Lai has been compulsorily retired has been brought on record by the opposite parties in the counter affidavit. The procedure adopted was as per Regulations, 1975 and the matter was considered by the same High Level Committee, which considered the case of R.P. Pandey.
46. The petitioner was confirmed on the post of Assistant Engineer with effect from 1.4.1976 and was awarded adverse remarks for the period 1.4.1976 to 31.3.1977, which were communicated to him on 29.5.1978. The representation made against the aforesaid remark was rejected on 10.12.1979. The petitioner was required to pass first professional examination within four years of the date of his appointment, but he could not do so within the prescribed time. He passed this examination as late as in the year 1978. In the selection for the post of Executive Engineer, the Departmental Selection Committee in its meeting held on 12.11.1981 did not find the petitioner fit for promotion and decided to pass him over in ;the selection on account of his poor service record. He was, however, again considered for promotion by the Departmental Selection Committee in its meeting held on 18.10.1982 and was promoted on trial basis for a period of two years on 22.11.1982 as reserved category candidate. The criteria for promotion was seniority subject to rejection of unfit. The petitioner has been granted time scale which time scale is granted not on the basis of merit but on criteria of seniority and length of service. The adverse entries for the period 1.4.1993 to 31.3.1994 and 1.4.1994 to 31.10.1994 were, however, expunged vide order dated 20.12.1995: There were certain other adverse material, some of which were expunged at a later point of time.
47. The petitioner bases his claim that he was promoted on the post of Superintending Engineer in March, 1996 and therefore, any adverse remark before the said date was of no consequence.
48. Learned Counsel for the respondents has submitted that the criteria for promotion on the post of Superintending Engineer in the year 1996 was not ‘merit’ but was seniority subject to rejection of unfit. Relevant Regulation has been shown to the learned Counsel for the petitioner and there is no scope of taking a different view than the view stated by the learned Counsel for the respondents. From the record, it is clear that the amendment in the criteria for promotion on the post of Superintending Engineer became effective sometime in the year 1998 and prior to that the criteria was seniority subject to rejection of unfit.
49. In view of the judgment of the Apex Court and view expressed by us and proposition of law laid down in the case of RP. Pandey, the promotion simply on the basis of seniority subject to rejection of unfit would not minimize the effect of adverse material which existed prior to such promotion.
50. It is also on record that in March, 1995, the petitioner could not get through in the selection for the post of Superintending Engineer even on the criteria of seniority subject to rejection of unfit because of certain adverse remarks, which were subsequently expunged on 20.12.1995.
51. Apart from the fact that the petitioner had to his credit a number of adverse remarks prior to the promotion on the post of Superintending Engineer, he also earned adverse remarks even as Superintending Engineer in the year 1995-96 when he was found not taking interest in electrification work of the Ambedkar Villages resulting into non-achievement of target fixed for electrification of the said villages in the prescribed time for which he was awarded censure entry, which was later on reduced to warning, vide order dated 23.11.1998. Again in the year 1997-98 the petitioner was found lacking in taking interest in revenue realisation work and also of poor monitoring thereof and therefore, he was awarded censure entry. The above censure entry was again converted into warning, vide order dated 19.8.2000.
52. As Superintending Engineer, E.D.C., Ghazipur, the petitioner on information of the proposed strike of the Officers/officials from the night of 23.3.1997 did not make himself available to the District Administration nor contracted the District Administration to make advance arrangement to face the strike. Therefore, he was found guilty of not properly discharging his duties and for this he was awarded censure entry. This censure entry was also reduced to warning, vide order dated 19.6.2000.
53. As a result of internal audit of Electricity Distribution Centre, Sultanpur it came into light that the petitioner made excess than the prescribed payment in respect of bill of the telephone installed at his residence. As such he was found guilty of violating Board’s Order dated 19.9.1987 and thereby causing financial loss to the tune of Rs. 3619.28 to the Power Corporation. The petitioner was awarded punishment of recovery of the aforesaid amount.
54. Apart from the aforesaid adverse material, it is also on record that the petitioner was considered for further promotion and he was not found, fit for selection for the post of Chief Engineer, Level II/General Manager, which resulted into his supersession, though the petitioner was consecutively considered in two selections on 28.8.2000 and 23.8.2001.
55. The aforesaid material itself indicates that the High Level Committee as well as the Appointing Authority was having enough material to form an opinion in public interest for retiring the petitioner compulsorily. The benefit of promotion on the post of Superintending Engineer on the criteria of seniority subject to rejection of unfit would not dilute the effect of adverse entries awarded prior to the said promotion and could not be ignored or lost sight of while considering the overall record of the petitioner. Besides the aforesaid material, the petitioner has earned several warnings even after his promotion on the post of Superintending Engineer and has been found unsuitable for promotion on the post of Chief Engineer, Level-II/General Manager in two consecutive selections held on 28 8.2000 and 23 8.2001. All these material leads to an irresistible conclusion that the order passed by the Corporation retiring the petitioner compulsorily does not suffer from any illegality so as to warrant any interference under Article 226 of the Constitution.
56. The argument of the learned Counsel for the petitioner further is that since the charge-sheet was issued to the petitioner on 27.6.2001 to which he has submitted reply on 13.9.2001 wherein several dates were fixed and the Enquiry Committee had fixed 14.5.2002 as the date for further enquiry/personal hearing and during the pendency of such proceedings the order of compulsory retirement has been passed, the impugned order is bad, being punitive.
57. Reliance has been placed upon the case of High Court of Punjab and Haryana v. Ishwar Chand Jain and another, 1999 Lab IC 1823 (SC). In the aforesaid case, the Full Court while retiring the judicial officer prematurely, under suspension in respect of an enquiry which was kept pending for the limited purpose of imposing cuts on retiral benefits, the Supreme Court observed that it appears that the High Court on its administrative side decided to keep disciplinary proceedings against the respondent pending for the purpose pf imposing the cut on his retiral benefits making the conclusion obvious that the action of the Higli Court in retiring respondent was based on the allegation of misconduct, which was subject matter of enquiry before a Judge of the High Court. The Apex Court, therefore, found that the order was not an order of compulsory retirement, but it was an order of punishment.
58. It is true that even for finding out the basis of the order of compulsory retirement, the veil can be lifted and true nature of the order can be looked into, However, in the instant case, there was ample material apart from the chargesheet, which would justify the order of compulsory retirement. The pendency of the disciplinary proceedings besides being hardly relevant in the present case, as the order of compulsory retirement has been passed on material indicated above and not on the basis of pending enquiry, as has been specifically mentioned by the Committee in its report that the pending disciplinary enquiry/departmental proceedings have not been made the basis of the recommendation. In Para 26 of the counter-affidavit, it has been specifically stated that the Committee or the Chairman-cum-Managing Director has not based his conclusion/decision on the disciplinary proceedings and secondly, the learned Counsel for the petitioner himself informs that after passing the order of compulsory retirement, the petitioner has been exonerated from the charges labelled against him. This concludes that before the High Level Committee or the Appointing Authority there could have been no material or finding against the petitioner, in the so-called enquiry on whose basis the order of compulsory retirement could have been passed.
59. The facts of the present case, in respect of the adverse entries and adverse material as it existed prior to the promotion on the post of Superintending Engineer and also after the said promotion did make out a case for compulsory retirement, which action is fully covered by the judgment of the Division Bench in the case of Sone Lal Sankhwar (supra).
60. For the reasons stated above, Writ Petition No. 734(SB) of 2002 is hereby allowed. The order of compulsory retirement of petitioner R.P. Pandey, dated 22.4.2002 is hereby quashed. He shall be entitled to all consequential benefits and shall be reinstated forthwith.
61. Writ Petition No. 779 (SB) of 2002, filed by Ram Lal is hereby dismissed.