{"id":11122,"date":"2002-03-14T00:00:00","date_gmt":"2002-03-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-and-others-vs-vijay-kumar-jain-on-14-march-2002"},"modified":"2019-01-18T04:37:18","modified_gmt":"2019-01-17T23:07:18","slug":"state-of-u-p-and-others-vs-vijay-kumar-jain-on-14-march-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-and-others-vs-vijay-kumar-jain-on-14-march-2002","title":{"rendered":"State Of U.P. And Others vs Vijay Kumar Jain on 14 March, 2002"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of U.P. And Others vs Vijay Kumar Jain on 14 March, 2002<\/div>\n
Author: V N Khare<\/div>\n
Bench: V.N. Khare, Ashok Bhan<\/div>\n
           CASE NO.:\nAppeal (civil) 2083  of  2002\n\n\n\nPETITIONER:\nSTATE OF U.P. AND OTHERS\n\n\tVs.\n\nRESPONDENT:\nVIJAY KUMAR JAIN\n\nDATE OF JUDGMENT:\t14\/03\/2002\n\nBENCH:\nV.N. Khare & Ashok Bhan\n\n\n\n\nJUDGMENT:\n<\/pre>\n
[with C. A. No. 2085\/2002 (@  S.L.P (Civil) No. 8975\/2001]
\nJ U D G M E N T<\/p>\n
V. N. KHARE, J.\n<\/p>\n
\tLeave granted.\n<\/p>\n
\tThe respondent herein was, on 18.10.1972,  initially appointed as an
\nAssistant Engineer in an ad-hoc capacity in U.P. Rural Engineering Services.
\nSubsequently, in the year 1979, the respondent’s services were regularised
\nand he was also confirmed on the post of Assistant Engineer.  The
\nrespondent was promoted to the post of Executive Engineer w.e.f.
\n23.11.1980 by a Government Order on the basis of seniority-cum-merit.  A
\nScreening Committee set up by the U.P. Govt. after considering the
\nrespondent’s service record and entries available in the character roll
\nrecommended that he should be retired compulsorily.  Under Government
\nOrder, the Screening Committee or the State government while considering
\na case of compulsory retirement, is required to take into account the service
\nrecord and entries in the character roll for last ten years prior to the order of
\ncompulsory retirement.\tThe government accepted the said recommendation
\nof the Screening Committee and passed an order dated 22.2.1999
\ncompulsorily retiring the respondent from service.  The Screening
\nCommittee while recommending the compulsory retirement of the
\nrespondent and the State government while accepting the said
\nrecommendation took into consideration four adverse materials found in\tthe
\ncharacter roll of the respondent, which are as under :\n<\/p>\n
1)\tThe order dated 8.2.94 whereby the government directed
\nfor recovery of a sum of Rs. 79,994 from the salary of the
\nrespondent and also stoppage of increment in the pay
\nscale of Executive Engineer and awarding censure entry
\nin his character roll for the year 1993-94.\n<\/p>\n
2)\tThe order dated 16.10.86 whereby an warning was given
\nto the respondent for his conduct in exercise of his duties.\n<\/p>\n
3)\tAn order dated 20.3.83 whereby another censure entry
\nwas  ordered to be recorded in the character roll of the
\nrespondent.\n<\/p>\n
4)\tAn order dated 13.6.97 whereby the integrity of the
\nrespondent was not certified for committing serious
\nirregularities in the work at Lucknow in the year 1983-\n<\/p>\n
84.  By the said order the respondent was also awarded a
\ncensure entry for the year 1997-98.\n<\/p>\n
The respondent herein filed a writ petition before the High Court of
\nJudicature at Allahabad challenging the order dated 22.2.1999 compulsorily
\nretiring him from service.  The respondent also filed a second writ petition
\nbefore the High Court challenging the order dated 8.2.1994 whereby the
\ngovernment directed for recovery of Rs. 74,994\/- from the salary of the
\nrespondent and also for ordering stoppage of increment in the pay scale of
\nExecutive Engineer and awarding of censure entry in his character roll in the
\nyear 1993-94.\tThe respondent also filed a claim petition before the U.P.
\nServices Tribunal, challenging the order dated 13.6.1997 whereby the State
\ngovernment declined to certify his integrity.  While the aforesaid writ
\npetitions were pending, the U.P. Services Tribunal disposed of the said claim
\npetition by ordering that the entry in respect of withholding of integrity for
\nthe year 1997-98 awarded by an order dated 13.6.1997 since related to the
\nperiod 1983-84, said entry is shifted to the year 1983-84.\n<\/p>\n
The High Court first took up the writ petition which was directed
\nagainst the order dated 8.2.1994 and set aside the order impugned in the writ
\npetition on the ground that the\t respondent was not responsible for any loss
\ncaused to the government in the purchase of the materials for the
\ndepartment.  After setting aside the order dated 8.2.1994, the High Court
\ntook up the writ petition which related to compulsory retirement of the
\nrespondent from service.  The High Court was of the view that so far as the
\nrecovery of money, stoppage of increment and censure entry for the year
\n1993-94 are concerned, the same having been set aside in connected writ
\npetition, the said adverse materials are rendered non-existent\tand the same
\ncould not have formed basis of passing of the order compulsorily retiring the
\nrespondent. Therefore,\tthe High Court excluded the said adverse materials
\nwhile testing the validity of the order of compulsorily retiring the
\nrespondent.  The High Court was of the further view that since the order
\ndated 16.10.1986 administering warning to the respondent was not
\ncommunicated to the respondent and, further, the said warning related to a
\nperiod\tbeyond ten years prior to the date of  order of compulsory retirement,
\nthe said entry could not be legally made basis for compulsorily retiring the
\nrespondent, especially when the said warning was not communicated to the
\nrespondent and also in view of the government order dated 29.7.89
\nwhereunder it has been provided that administering of warning to a
\ndelinquent officer shall not form part of the character roll  and it is only to be
\nplaced in the Personal File of such a delinquent officer. In this way, the High
\nCourt excluded the second and third adverse materials which the
\ngovernment took into account while forming its opinion to compulsorily
\nretire the respondent.\n<\/p>\n
The High Court coming to the fourth adverse material contained in the
\ngovernment order dated 13.6.1997 whereby the integrity of the respondent
\nwas withheld,  was of the view that since the said entry was modified by the
\nU.P. Services Tribunal to the extent that it would relate to the year 1983-84,
\nthe said entry being  for a period beyond ten years preceding to the date of
\npassing of order of compulsory retirement has to be excluded  from zone of
\nconsideration for forming opinion to compulsorily retire the respondent.  By
\nthe aforesaid process of elimination of adverse entries,  the High Court
\nfound that there was no foundation or basis  available to the government to
\nform an opinion to compulsorily retire the respondent.\tIn that view of the
\nmatter, the High Court set aside the order of compulsory retirement of the
\nrespondent, being arbitrary and allowed the writ petition.  It is against the
\naforesaid judgment of the High Court the  State of U.P. has preferred these
\nappeals by way of special leave petitions.\n<\/p>\n
We took up Civil Appeal No..\/2002 (arising out of S.L.P (Civil)
\n8738\/2001) first which arises out of the judgment of the High Court whereby
\nthe order compulsorily retiring the respondent from service was set aside.\n<\/p>\n
Learned counsel for the appellant urged that, under law relating to
\ncompulsory retirement, the State government is entitled to take into account
\nthe entire service record, preference  being given to the later entries while
\nconsidering whether an officer is required to be retained in the service after
\nhe attains the age of 50 years or has put in qualifying service and the view
\ntaken by the High Court that entries only for the period of ten years
\nimmediately prior to the date of order of compulsory retirement could only
\nbe looked into is patently erroneous.  However, learned counsel appearing
\nfor the respondent supported the judgment of the High Court and\t contended
\nthat the  entries falling only within ten years of the order of compulsory
\nretirement  can\t only be looked into while exercising power of compulsory
\nretirement and any consideration of  adverse material beyond ten years from
\nthe date of order of compulsory retirement would vitiate the order of
\ncompulsory retirement.\n<\/p>\n
It is true that as per government order, the service record or
\nconfidential reports for ten years prior to passing of order of compulsory
\nretirement are ordinarily required to be seen for taking a decision to
\ncompulsorily retire a government servant.  It appears that the High Court on
\nthe said premise held that entries in the character roll being beyond ten years
\nof passing of the order of compulsory retirement, the order passed by the
\nState government compulsorily retiring the respondent was arbitrary.
\nAssuming  that the view taken by the High Court that entries in the character
\nroll of a government servant only for ten years can be seen for passing of an
\norder of compulsory retirement is correct which according to us is not a
\ncorrect view of law, the question arises whether the Government Order dated
\n13.6.1997 whereby the integrity of the respondent was withheld, merely
\nbeing relatable to the year 1983-84 would render the order of compulsory
\nretirement as arbitrary.   Admittedly, the order withholding of integrity was
\npassed in the year 1997 which was well within ten years of passing of the
\norder of compulsory retirement.\t But the said entry in the character roll was
\nshifted from the year 1997-98 to 1983-84 by the order of U.P. Services
\nTribunal.  It is not disputed that the aforesaid entry in the character roll of
\nthe respondent was taken into account by the Screening Committee while
\nrecommending the compulsory retirement of the respondent and the State
\ngovernment also took into consideration the said entry while passing the
\norder compulsorily retiring the respondent.\n<\/p>\n
Fundamental Rule 56 (in short F.R.) of the U.P. Fundamental Rules
\nprovides for compulsory retirement of government servant.  FR 56 (c)
\nprovides that notwithstanding anything contained in clause (a) or clause (b),
\nthe appointing authority may, at any time by notice to any government
\nservant (whether permanent or temporary), without assigning any reason,
\nrequire him to retire after he attains the age of fifty years or the government
\nservant may by notice to the appointing authority voluntarily retire at any
\ntime after attaining the age of forty five years or after he has completed
\nqualifying service of twenty years.  Sub-rule (2) of Rule 56 of the
\nFundamental Rules reads as under:\n<\/p>\n
“2) that in order to be satisfied whether it will be in
\nthe public interest to require a government servant
\nto retire under clause (c) the appointing authority
\nmay take into consideration any material relating
\nto the government servant and nothing herein
\ncontained shall be construed to exclude from
\nconsideration.\n<\/p>\n
(a) any entries relating to any period before
\nsuch government servant was allowed to
\ncross any efficiency bar or before he was
\npromoted to any post in an officiating or
\nsubstantive capacity or on an ad-hoc basis; or<\/p>\n
(b)  any entry against which a representation
\nis pending, provided that the representation
\nis also taken into consideration along with
\nthe entry; or<\/p>\n
(c) any report of the Vigilance
\nEstablishment constituted under the Uttar
\nPradesh Vigilance Establishment Act, 1965.”\n<\/p>\n
The aforesaid rule thus empowers the State government to retire any
\ngovernment servant on  completion of fifty years of age or on completion of
\nqualifying service.\n<\/p>\n
Before we advert to the question which we are required to decide, it is
\nnecessary to notice the nature of an order compulsorily retiring a
\ngovernment servant under FR 56 (c).    In  Shyam Lal vs. State of U.P.
\n(1955) 1 SCR 26, it was held that an order of compulsory retirement is
\nneither a punishment nor any stigma attached to it and it was held therein as
\nthus:\n<\/p>\n
“There is no such element of charge or imputation
\nin the case of compulsory retirement.  The two
\nrequirements for compulsory retirement are that
\nthe officer has completed twenty five years’
\nservice and that it is in the public interest to
\ndispense with his further services.  It is true that
\nthis power of compulsory retirement may be used
\nwhen the authority exercising this power cannot
\nsubstantiate the misconduct which may be the real
\ncause for taking the action but what is important to
\nnote is that the directions in the last sentence of
\nNote 1 to Article 465-A make it abundantly clear
\nthat an imputation or charge is not in terms made a
\ncondition for the exercise of the power.  In other
\nwords, a compulsory retirement has no stigma or
\nimplication of misbehaviour or incapacity.”\n<\/p>\n
In Union of India vs. J.N. Sinha,<\/a> 1971 (1) SCR 791, it was held that
\nan employee compulsorily retired does not lose any right acquired by him
\nbefore retirement and that the said rule is not intended for taking any penal
\naction against the government servant and that the order retiring a
\ngovernment servant compulsorily can only be challenged on the ground that
\neither the order is  arbitrary or it is not in public interest.\t No other ground is
\navailable to a government servant who is sought to be compulsorily retired
\nfrom service under the relevant rules subject to the conditions provided
\ntherein.\n<\/p>\n
Coming to the main question whether entries beyond ten years of the
\nservice record from the date of compulsory retirement could have been taken
\ninto account by the government while retiring a government servant under
\nFR 56 (c) of the Rules, it is necessary to refer some of the decisions of this
\nCourt.\n<\/p>\n
In Baikuntha Nath Das and another vs. Chief District Medical Officer
\nBaripada and another  1992 (2) SCC 299, this Court laid down certain
\nprinciples which are as under:\n<\/p>\n
“(i) An order of compulsory retirement is not a
\npunishment.  It implies no stigma nor any
\nsuggestion of misbehaviour.\n<\/p>\n
(ii) The order has to be passed by the Government
\non forming the opinion that it is in the public
\ninterest to retire a government servant
\ncompulsorily.  The order is passed on the
\nsubjective satisfaction of the government.\n<\/p>\n
(iii) Principles of natural justice have no place in
\nthe context of an order of compulsory retirement.
\nThis does not mean that judicial scrutiny is
\nexcluded altogether.  While the High Court or this
\nCourt would not examine the matter as an
\nappellate court, they may interfere if they are
\nsatisfied that the order is passed (a) mala fide or\n<\/p>\n
(b) that it is based on no evidence or (c) that it is
\narbitrary  in the sense that no reasonable person
\nwould form the requisite opinion on the given
\nmaterial; in short, if it is found to be a perverse
\norder.\n<\/p>\n
(iv) The government (or the Review Committee, as
\nthe case may be) shall have to consider the entire
\nrecord of service before taking a decision in the
\nmatter\tof course attaching more importance to
\nrecord of and performance during the later years.
\nThe record to be so considered would naturally
\ninclude the entries in the confidential
\nrecords\/character rolls, both favourable and
\nadverse.  If a government servant is promoted to a
\nhigher post notwithstanding the adverse remarks,
\nsuch remarks lose their sting, more so, if the
\npromotion is based upon merit (selection) and not
\nupon seniority.\n<\/p>\n
(v) An order of compulsory retirement is not liable
\nto be quashed by a Court merely on the showing
\nthat while passing it uncommunicated  adverse
\nremarks were also taken into consideration.  That
\ncircumstance by itself cannot be a basis for
\ninterference.”\n<\/p>\n
In State of Punjab vs. Gurdas Singh<\/a>  1998 (4) SCC 92, it was held
\nthus:\n<\/p>\n
“Before the decision to retire a government servant
\nprematurely is taken the authorities are required to
\nconsider the whole record of service.  Any adverse
\nentry prior to earning of promotion or crossing of
\nefficiency bar or picking up higher rank is not
\nwiped out and can be taken into consideration
\nwhile considering the overall performance of the
\nemployee during whole of his tenure of service
\nwhether it is in public interest to retain him in the
\nservice.  The whole record of service of the
\nemployee will include any uncommunicated
\nadverse entries as well.”\n<\/p>\n
The aforesaid decisions unmistakably lay down that the entire service
\nrecord of a government servant could be considered by the government
\nwhile exercising the power under FR 56 (c) of the Rules with emphasis on
\nthe later entries.  FR 56 (c) of the Rules read with sub-rule (2), empowers the
\nState government with an absolute right to retire an employee on attaining
\nthe age of 50 years.  It cannot be disputed that the dead woods need to be
\nremoved to maintain efficiency in the service.\tIntegrity of a government
\nemployee is foremost consideration in public service.  If a conduct of a
\ngovernment employee becomes unbecoming to the public interest or obstruct
\nthe efficiency in public services, the government has an absolute right to
\ncompulsorily retire such an employee in public interest.  The government’s
\nright to compulsorily retire an employee  is a method to ensure efficiency in
\npublic service and while doing so the government is entitled under
\nFundamental Rule 56 to take into account the entire service record, character
\nroll or confidential report with emphasis on the the later entries in the
\ncharacter roll of an employee.\tIn fact, entire service record, character roll or
\nconfidential report furnishes the materials to Screening Committee or the
\nState government, as the case may be, to find out whether a government
\nservant has outlived his utility in service.\tIt is on consideration of totality
\nof the materials with emphasis on the later entries in the character roll, the
\ngovernment is expected to form its opinion whether an employee is to be
\ncompulsorily retired or not.\n<\/p>\n
Withholding of integrity of a government employee is a serious
\nmatter.\t In the present case, what we find is that the integrity of the
\nrespondent was withheld by an order dated 13.6.1997 and the said entry in
\nthe character roll of the respondent was well within ten years of passing of
\nthe order of compulsory retirement.  During pendency of the writ petition in
\nthe High Court, the U.P. Services Tribunal on a claim petition filed by the
\nrespondent, shifted the entry from 1997-98 to 1983-84.\tShifting of the said
\nentry to a different period or entry going beyond ten years of passing of
\norder of compulsory retirement does not mean that its vigour and sting of the
\nadverse entry is lost.\tVigour or sting of an adverse entry is not wiped out
\nmerely it is relatable to 11th or 12th years of passing of the order of
\ncompulsory retirement.\tThe aforesaid adverse entry which could have been
\ntaken into account while considering the case of the respondent for his
\ncompulsory retirement from service, was duly considered by the State
\nGovernment and said single adverse entry in itself was sufficient to
\ncompulsorily retire the respondent from service.  We are, therefore, of the
\nview that entire service record or confidential report with emphasis on the
\nlater entries in the character roll can be taken into account by the
\ngovernment while considering a case for compulsory retirement of a
\ngovernment servant.\n<\/p>\n
It was not urged before us that the order compulsorily retiring the
\nrespondent was mala fide or was not in the public interest, and in the
\nabsence of such a case, we do not find any infirmity in the order
\ncompulsorily retiring the respondent from service.\n<\/p>\n
For the aforesaid reasons, we find that this appeal deserves to be
\nallowed.  The order under challenge is set aside.  The appeal is, accordingly,
\nallowed.  No costs.\n<\/p>\n
Civil Appeal No. 2085\/2002 (@ S.L.P.(Civil) No. 8975\/2001)<\/p>\n
\tIn view of the decision in Civil Appeal No. 2083\/2002 (@ S.L.P
\n(Civil) No. 8738\/2001), this appeal is rendered infructuous and is,
\naccordingly, dismissed.\t No costs.\n<\/p>\n
\t\t\t\t\t\t….J.\n<\/p>\n
\t\t\t\t\t\t(V. N. KHARE)<\/p>\n
\t\t\t\t\t\t…J.\n<\/p>\n
\t\t\t\t\t\t(ASHOK BHAN)<\/p>\n
14th March, 2002<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of U.P. And Others vs Vijay Kumar Jain on 14 March, 2002 Author: V N Khare Bench: V.N. Khare, Ashok Bhan CASE NO.: Appeal (civil) 2083 of 2002 PETITIONER: STATE OF U.P. AND OTHERS Vs. RESPONDENT: VIJAY KUMAR JAIN DATE OF JUDGMENT: 14\/03\/2002 BENCH: V.N. Khare & Ashok Bhan JUDGMENT: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-11122","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of U.P. 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