ORDER
A.K. Shrivastava, J.
1. This petition was originally filed before the State Administrative Tribunal at Jabalpur on 15-4-1998. However, on account of abolition of the Tribunal, this petition has been received by this Court for its adjudication.
2. By this petition, the petitioner is challenging the pregnability of the impugned order Annexure A-9, 2-3-1998 by which he has been compulsorily retired under Rule 44 (1)(d) of the M.P. Civil Services (Pension) Rules, 1976 (in short ‘Pension Rules’) w.e.f. 30-6-1998.
3. The contention of Shri Nagu, learned Counsel for the petitioner is that the petitioner was appointed on the post of Block Development Assistant in the pay scale of Rs. 350-650/- on 22-5-72. Later on he was sent on deputation in the same department on 5-5-81 on the post of Assistant Project Officer in District Rural Development Authority in the higher pay scale of Rs. 425-900/-. The contention of learned Counsel for the petitioner is that though the respondents under the clutches of provisions of Pension Rules have demonstrated that entire service record of the petitioner is not found to be satisfactory, but if the service record of the petitioner is considered in proper perspective it would be difficult to hold as such. In that regard learned Counsel has invited my attention to the averments made in Para 2 of the return in which the service record pertaining to ACRs of the petitioner has been summarized. Learned Counsel submits that grading “D” is in ACR is of years 3/73, 3/74, 3/80 and 3/90 and all the rest ACRs in grade “C”. It has also been put forth by the learned Counsel that grading “D” in the ACRs of the years 3/73, 3/74 and 3/80 should not have been considered while passing the impugned order for the simple reason that, thereafter the petitioner was given higher pay scale and has been directed to be posted on the post of Assistant Project Officer in District Rural Development Authority carrying higher pay scale of Rs. 425-900. In that regard learned Counsel for the petitioner by placing reliance on two decisions of the Supreme Court, namely, J.D. Shrivastava v. State of M.P. and Ors., AIR 1984 SC 630 and Sukhdeo v. Commissioner Amravati Division, Amravati and Anr., (1996) 5 SCC 103, has submitted that since petitioner was given higher post and was benefited by higher pay scale on 5-5-81, therefore, it would be deemed that “D” grade ACRs earlier to 5-5-81 were condoned and the theory of “washing off” would be applicable. It has also been canvassed by the learned Counsel that in order to pass an order in regard to compulsory retirement, the recent record is to be given more importance and in that regard two decisions of the Supreme Court arc relied and they are Brij Mohan Singh Chopra v. State of Punjab, (1987) 2 SCC 188 and Narasingh Patnaik v. State of Orissa, (1996) 3 SCC 619. Learned Counsel by inviting my attention to Annexure A-12 which is a communication of adverse ACR of March, 1993 has submitted that though it has been labelled as adverse ACR, but it can not be said to be an adverse ACR on going through entire document Annexure A-12 because overall assessment of the year of petitioner was made and there is nothing in the said ACR in order to hold that it was adverse to the petitioner. Learned Counsel has also invited my attention to last column of Annexure A-12 which is said to be an adverse ACR of the year 1992-93 and has submitted that overall assessment of the petitioner was found to be average and his integrity was not found doubtful and he was found to be an honest officer and thus this ACR, according to learned Counsel, can not be based for assessing the case of petitioner for compulsory retirement. Learned Counsel by placing reliance on decision of the Supreme Court in the case of Union of India and Ors. v. R.C. Mishra, , has submitted that if the integrity is not doubtful and the record of an employee is average, then there can not be any compulsory retirement. He has also placed reliance on another decision of the Supreme Court in the case of M.P. Electricity Board v. Shree Baboo, . Lastly it has been submitted by the learned Counsel by placing reliance on the decision of the Supreme Court in the case of State of Gujarat v. Umedbhai M. Patel, that the Supreme Court has laid down certain norms that when an order of compulsory retirement can be passed and when judicial review is permissible. On the basis of these premises submissions it has been prayed by the learned Counsel that this petition be allowed and the impugned order be set aside.
4. On the other hand, Shri Ashok Agrawal, learned Govt. Advocate has contended that merely because promotion was given to the petitioner would not mean that a clean chit has been given to him. According to learned Govt. Advocate several factors come in the way if any promotion is given to an employee. The promotion could have been given on the basis of non-availability of suitable candidates, the nature of work and its urgency etc. and, therefore, merely promotion was given to the petitioner would not be a ground to hold that his past service record can not be considered for passing the order of compulsory retirement. It has also been put forth by the learned Govt. Advocate that adverse ACR of the year 1993 of petitioner was communicated to him, but there was no improvement in his performance and, therefore, the department did not commit any error in recommending the case of petitioner for compulsory retirement and the State Government did not commit any error in according the permission to retire the petitioner compulsorily.
5. After having heard learned Counsel for the parties, I am of the view that this petition deserves to be allowed.
6. The contention of learned Govt. Advocate that merely promotion is given to the petitioner will not give a clean chit to him and, therefore, merely because he was given promotion, it can not be said that he can not be compulsorily retired. The contention of learned Govt. Advocate is that so many factors may be taken into consideration for giving promotion and may be on some compelling reasons on account of some circumstances the petitioner was given promotion. There is no quarrel to this preposition. But, the question is whether there were compelling circumstances and there was some urgency in the department on account of which the petitioner was given promotion, there is nothing on record and thus merely on the basis of such a nice argument which is not supported by any document, the view of this Court is that the petitioner was promoted in the year 1981 and, therefore, the adverse ACR assessing him in “D” grade in past years, i.e., March, 1973, March, 1974 and March, 1980 can not be taken into consideration while taking a decision to retire him compulsorily. In the case of J.D. Shrivastava (supra) there were adverse ACRs against the judicial officer and thereafter he was given promotion and in that situation the Supreme Court held that the old record of the judicial officer after which he was given promotion should not have been seen. The Apex Court quashed the order of compulsory retirement of the judicial officer. The decision of J.D. Shrivaslava (supra) throws sufficient light in the present case and, therefore, the view of this Court is that after having given higher post and higher pay scale in the year 1981, the past record of the petitioner should not have been seen according to the “washing off.
7. It be seen that if the entire record of the petitioner is considered in proper perspective, it is gathered that he was having grading “C” for 11 years and only for four years his grading was “D”. There is substance in the submission of the learned Counsel for the petitioner that though it is the stand of the respondents that 25 years ACRs were considered, but in the return only 15 ACRs are shown which would mean that other ACRs were not adverse to the petitioner and were good.
8. There is no merit in the submission of the learned Govt. Advocate that ACR of 31-3-1993 was adverse to the petitioner and it was communicated to him vide Annexure A- 12, dated 10-11-93. I have given my anxious and bestowed consideration to each point mentioned in the ACR and I could not find anything to hold that it is an adverse ACR. Under the each head, the average assessment of the petitioner is made. In the last column it has been specifically mentioned that the integrity of the petitioner is not doubtful, he is an honest person and his grading is “average”. Thus, in all fairness, it can not be said to be an adverse ACR on the basis of which the decision of compulsory retirement is taken. After the ACR of March, 1993 there is only one ACR of March, 1996 which is shown to be “average” grading.
9. The Apex Court in the case of Umedbhai M. Patel (supra) has laid down certain norms on the basis of which order of compulsory retirement can be passed. In that regard it will be fruitful to quote Para 11 which reads thus:
“11. The law relating to compulsory retirement has now crystalised into definite principles, which could be broadly summarised thus:–
(i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.
(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.
(iii) For better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer.
(iv) Any adverse entries made in the confidential record shall be taken note of and be given due weight age in passing such order,
(v) Even uncommunicated entries in the confidential record can also be taken into consideration.
(vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable.
(vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer, (viii) Compulsory retirement shall not be imposed as a punitive measure.”
Thus, on the touchstone of the norms fixed by the Apex Court in the case of Umedbhai M. Patel (supra) the facts of the present case are to be considered. Since the integrity of the petitioner has not been found to be doubtful and his record is “average” there can not be any compulsory retirement. In that context, I may profitably rely the decision of the Supreme Court in the case of R.C. Mishra (supra) wherein the Apex Court held that merely service record of an employee was found unsatisfactory but his integrity was not questioned, therefore, the order of compulsory retirement could not have been passed. On the same line the decision of Shree Baboo (supra) is there and it can also be relied. The Supreme Court in the case of Brij Mohan Singh Chopra (supra) has held that recent record is to be given more importance while taking decision of compulsory retirement. In the present case there is nothing adverse to the petitioner and his assessment is overall “average” in the recent years before the impugned order was passed. On the same ground the decision of Sukhdeo (supra) can be placed reliance as well as the decision of Narasingh Patnaik (supra).
10. I have also perused the minutes of the department dated 16-12-1997 taking a decision to retire petitioner compulsorily. On going through the minutes it is gathered that in all 23 ACRs were considered, but the reference of only 11 ACRs, has been given. Out of these 11 ACRs, eight are of “Ga” category, meaning thereby “average” and three are of “Gha” (poor) category out of which ACR of March, 1976 can be ignored since the petitioner was given higher pay scale in the year 1981.
11. As the stand taken by the respondents in their return is that the maximum ACRs of the petitioner are “average” and, therefore, on the basis of abovesaid decisions of the Supreme Court, no case of compulsory retirement is made out.
12. Resultantly, this petition is allowed. The impugned order Annexure A-9, dated 2-3-1998 directing to retire petitioner compulsorily is hereby quashed and the petitioner is entitled for all the consequential benefits as he was enjoying before passing the impugned order. Since the order of compulsory retirement has been quashed, therefore, the petitioner in ordinary course would have retired on 31-7-2005. Thus, he is entitled for all consequential benefits for the intervening period, which he would have obtained, if the order of compulsory retirement would not have been passed.
13. Petition is allowed with no order as to costs.
