ORDER
A.K. Patnaik, C.J.
1. In this petition, the petitioners have challenged the order dated 29-9-2001 passed by the M.P. Administrative Tribunal, Gwalior Bench, in O. A. No. 395/94.
2. Brief facts of the case are that the respondent No. 1 was originally inducted in Government service in the year 1957 in the office of the I.G. Municipality and after abolition of the office of the I.G. Municipality, he was taken into service of the Collectorate, Ujjain as a Lower Division Clerk. He was posted as Lower Division Clerk in the Land Records & Settlement at Gwalior and thereafter was promoted to the post of Assistant. By order dated 4-3-94, the respondent was compulsorily retired under F.R. 56 (3). Aggrieved by the said order, the respondent filed O.A. No. 395/94 before the M.P. Administrative Tribunal, Gwalior Bench. By the impugned order dated 29-9-2001, the Tribunal quashed the order of compulsory retirement dated 4-3-94 after holding that the Screening Committee considered the ACRs of the respondent No. 1 only for last 5 years and had not considered the entire records of service contrary to the decision of the Supreme Court in the case of Baikuntha Nath Das v. Chief District Medical Officer, Baripada . In the said order dated 29-9-2001, the Tribunal also directed the authorities to grant consequential reliefs to the respondent.
3. Mrs. Ami Prabal, learned Dy. Advocate General, appearing for the petitioners submitted that in the case of Baikuntha Nath Das and Anr. v. Chief District Medical Officer, Baripada and another, in Para 32 of the judgment as reported in AIR, the Supreme Court has summed up the principles in a case where an order of compulsory retirement is challenged before the Court, and it will be clear from the said Para 32 of the judgment that interference with the order of compulsory retirement will be permissible only when the Court is satisfied that the order is passed (a) malafide, 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 a perverse order. She submitted that the Tribunal has not properly appreciated the judgment of the Supreme Court in the case of Baikuntha Nath Das and Anr. v. Chief District Medical Officer, Baripada and Anr. (supra), and has interfered with the order of compulsory retirement only on the ground that the entire service record of the respondent No. 1 has not been considered and instead only 5 years ACRs of the respondent No. 1 have been considered. She further submitted that in the present case, the ACRs of the respondent No. 1 would show that during the period from 30-9-1966 to 31-3-1994, the respondent No. 1 was graded 7 kha (good), 17 ga (average) and 2 gha (below average). She further submitted that several adverse remarks have also been entered in the ACRs of the respondent No. 1 and in the last ACR of the respondent, an adverse remark has been entered that such type of employee, who has no knowledge about the service rules and official procedures and does not take interest in learning, should not be retained in Government service. She submitted that even if the entire service record of the respondent was considered by the Screening Committee, then Screening Committee would have come to the same conclusion that the respondent should be compulsory retired under FR 56 (3) in the public interest.
4. Mr. Arvind Dudawat, learned Counsel for the respondent, on the other hand, submitted that the decision of the Supreme Court in the case of Baikuntha Nath Das (supra), is very clear that the entire service record of a Government servant has to be considered for taking the decision whether or not to retire the employee compulsorily from service in the public interest and this view has been reiterated by the Supreme Court in the case of State of Gujrat v. Umedbhai M. Patel . He further submitted that in the case of State of M.P. and Anr. v. Ram Sewak Jaiswal and Anr. 2006 (4) MPLJ 150, a Division Bench of this Court has upheld the order of the Tribunal in a similar case after having found that only 5 years ACRs of the Government servant had been considered by the Screening Committee and the entire service records of the respondent had not been considered. He further submitted that in the case of State of M.P. and Anr. v. Kedar Nath Ashthana, W.P. No. 113/02, a Division Bench has similarly sustained the order passed by the Tribunal quashing the order of compulsory retirement on the ground that only four years record of the Government servant was perused by the Screening Committee which had recommended the compulsory retirement of the Government servant. He submitted that the aforesaid order passed by the Division Bench of this High Court in the case of Kedar Nath Ashthana (supra), was challenged by the State of M.P. in Civil Appeal No. 5866/02, but by the order dated 13-12-2005, the Supreme Court dismissed the same saying that there is no reason to interfere with the order passed by the High Court. Finally, Mr. Arvind Dudawat has submitted that as the cause title of the petition would show that it is a petition under Article 227 of the Constitution of India and the jurisdiction of the High Court under Article 227 of the Constitution is not as wide as under Article 226 of the Constitution because under Article 226 of the Constitution, the High Court has only to see whether the Tribunal has passed an order which is not beyond its jurisdiction.
5. In the case Of Baikuntha Nath Das (supra), the Supreme Court has held in sub-para (iv) of Para 32 of the judgment as reported in the AIR that 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 attaching more importance to record of and performance during the later years. It was again reiterated by the Supreme Court in the case of State of Gujarat v. Umedbhai M. Patel (supra), that the Government before taking such a decision to retire a Government employee compulsorily from service, has to consider the entire record of the Government servant including the latest reports. In the case of State of M.P. and Anr. v. Ram Sewak Jaiswal and Anr. a Division Bench of this Court after discussing the aforesaid law Laid down by the Supreme Court in the cases of Baikuntha Nath Das and Umedbhai M. Patel (supra), found in that case that during the period from 1966 to 1995, Ram Sewak Jaiswal had been graded in ACRs for 15 periods as “Good”, for 17 periods as “Average” and for 5 periods as “Adverse”, but the Screening Committee had ignored the 15 periods during which he had been graded as “Good” and had considered only the last 5 years ACRs. On these peculiar facts, the Division Bench held that the whole approach of the Screening Committee was clearly contrary to the aforesaid law Laid down by the Supreme Court in the cases Baikuntha Nath Das and Umedbhai M. Patel (supra), and the Tribunal was right in quashing the order of compulsory retirement.
6. But the facts of the present case are different from that of the case of Ram Sewak Jaiswal (supra), inasmuch as the respondent No. 1 in the present case has been graded “Good” only for 7 periods, “Average” for 17 periods and “below average” for 2 periods. That apart, there are several adverse remarks against the respondent No. 1 including one in the last year (1994) that he had no knowledge about the service rules and official procedures and he does not take interest in the learning and he should not be retained in Government service. On these facts, the Tribunal should not have quashed the order of compulsory retirement of the respondent No. 1, but should have directed the State Government to reconsider the case of the respondent for compulsory retirement by considering the entire service record as per the law Laid by the Apex Court in the cases of Baikuntha Nath Das and Umedbhai M. Patel (supra). The authority to form an opinion as to whether a Government servant should be compulsorily retired in the public interest is not the Court but the State Government or the Screening Committee and in the peculiar facts of this case, the Tribunal should not have quashed the order of compulsory retirement but should have directed the State Government to reconsider the case of the respondent for compulsory retirement after taking into consideration the entire service records.
7. It is true, as has been contended by Mr. Arvind Dudawat, learned Counsel for the respondent No. 1, that the petition filed by the petitioners is labelled as petition under Article 227 of the Constitution of India, but it is also well settled that the label of the petition will not limit the jurisdiction of the Court, which it has under the Constitution or the law. The averments made in the petition and the grounds taken in the petition are such that it is difficult to hold that the petition is only one under Article 227 of the Constitution of India. In such matters, the High Court can always exercise the jurisdiction under Article 226 of the Constitution in case it finds from the averments made, the grounds taken and the relief sought in the writ petition that the petition is also one under Article 226 of the Constitution of India. A perusal of the writ petition would show that the petition is both under Article 226 and Article 227 of the Constitution, though it is stated to be one under Article 227 of the Constitution.
8. For the aforesaid reasons, we set aside the order of the Tribunal dated 29-9-2001 and direct that the State Government and/or the Screening Committee will consider the entire service record of the respondent No. 1 and in case they find that the respondent No. 1 should not have been compulsorily retired from service under F.R. 56 (3), they will cancel the order of compulsory retirement treating the respondent as having retired from service from the date of superannuation, which is said to be 2-3-96, and pay him his salary and allowances for the period from the date of order of compulsory retirement till the date of superannuation. We make it clear that the State Government and the Screening Committee will not be influenced in any manner by the observations made in this judgment while taking a decision as to whether or not the respondent No. 1 should be compulsorily retired under F.R. 56 (3).