{"id":270591,"date":"2010-08-27T00:00:00","date_gmt":"2010-08-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ajit-narayan-vs-union-of-india-on-27-august-2010"},"modified":"2018-04-21T23:34:26","modified_gmt":"2018-04-21T18:04:26","slug":"ajit-narayan-vs-union-of-india-on-27-august-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ajit-narayan-vs-union-of-india-on-27-august-2010","title":{"rendered":"Ajit Narayan vs Union Of India on 27 August, 2010"},"content":{"rendered":"
Madhya Pradesh High Court<\/div>\n
Ajit Narayan vs Union Of India on 27 August, 2010<\/div>\n
     HIGH COURT OF MADHYA PRADESH : AT JABALPUR\n\n                     Writ Petition No : 97 of 2007(S)\n\n                                   Ajit Narayan\n                                     - V\/s      -\n                            Union of India and others\n\nPresent :             Hon'ble Shri Justice Rajendra Menon.\n\n --------------------------------------------------------------------------------------\n              Petitioner Shri Ajit Narayan in person.\n\n              Shri Vikram Singh for respondent No.1.\n\n              Shri R.N. Singh, Senior Advocate, with Shri\n              Arpan Pawar for respondent No.2.\n\n              Shri Brian D'Silva, Senior Advocate, with\n              Ms. Kanak Gaharwar for respondent No.3.\n\n              Shri R.G. Mahajan for respondent No.4.\n\n --------------------------------------------------------------------------------------\n        Whether approved for reporting:                              Yes \/ No.\n\n                                    ORDER\n<\/pre>\n
                                     \/08\/2010
\n              Challenging the order-dated 28.9.2007 – Annexure P\/31,
\ncompulsorily retiring the petitioner, petitioner has filed this writ petition.
\n2-            It is the case of the petitioner that in pursuance to a
\nselection conducted by a duly appointed selection committee, petitioner
\nwas appointed as a Registrar in respondent No.2’s institute on 22.12.90.
\nHe had been performing his duties sincerely, honestly and with
\ndedication, when all of a sudden he has been compulsorily retired by the
\nimpugned order. It is the case of the petitioner that he is a Group A
\nofficer and the establishment of respondent No.2 was initially registered
\nas a Society under the Societies Registration Act<\/a>, 1860. It was earlier
\nknown as Maulana Azad College of Technology and was a Regional
\nEngineering College functioning under the joint supervision of the
\n                                       2<\/span><\/p>\n
Central Government and the State Government. Subsequently, in the
\nyear 2002, it was declared as a National Institute of Technology and was
\nrenamed as Maulana Azad National Institute of Technology Society,
\nBhopal. Memorandum of Association and documents evidencing
\nincorporation of the Society are Annexure P\/1. It is further stated that the
\nUniversity Grants Commission (hereinafter referred to as ‘UGC’)
\nexercising powers conferred by Section 3<\/a> of the University Grants
\nCommission Act, 1956 has issued a Notification – Annexure P\/2, on
\n26.6.2002, granting the status of deemed university to respondent No.2
\nand circulars in this regard have been issued vide Annexure P\/3 on
\n29.6.2002. According to the petitioner, the service conditions of the
\nemployee after the change made in the set up of respondent’s
\nestablishment, as indicated hereinabove, continued to remain the same
\ntill resultant changes were made by the Central Government. It is the
\ncase of the respondent that in the Institute in question the non-teaching
\nstaff retire in accordance to the Circular – Annexure P\/10 dated
\n12.11.2003 and as the provisions of Fundamental Rule 56 (j) [hereinafter
\nreferred to as ‘FR 56 (j)’], applicable to the central government
\nemployees are not applicable, it is stated that compulsory retirement of
\nthe petitioner under the aforesaid rule is illegal.
\n3-           By bringing on record various documents and circulars in
\nthis regard, petitioner has tried to demonstrate before this Court that he
\nhas an unblemished career, but ever since there has been change in the
\nset up of the Institute in question, petitioner was being harassed and
\nsomehow or the other respondents were trying to device means to
\nremove the petitioner from the post. Initially, petitioner’s services were
\ntried to be terminated, but on a petition filed by the petitioner before this
\nCourt in the light of the order passed on 20.7.94, in M.P.No.2726\/1993,
\npetitioner was reinstated and thereafter, again the respondents were
\nsomehow trying to device methods to remove the petitioner from
\nservice. It is stated that with a design to remove the petitioner from the
\npost in question, provisions of FR 56 (j) has been applied and the
\npetitioner compulsorily retired. Apart from contending that the
\n                                        3<\/span><\/p>\n
provisions of FR 56 (j) are not applicable to the respondent’s institute,
\nthe petitioner, who has appeared in person, has taken me through the
\nvarious documents filed by him as Annexure P\/1 to P\/31 and by
\nreferring to the procedure followed for removing the petitioner from
\nservice, it is emphasized by him that action is taken on the basis of an
\nenquiry conducted behind the back of the petitioner and on the basis of
\nan enquiry report submitted vide Annexure P\/24, with regard to his
\nappointment and entitlement to continue in service. It is argued by the
\npetitioner that in the enquiry conducted, petitioner was not noticed, he
\nwas not heard, behind his back evidences were collected and based on
\nthe enquiry report the Board of Directors took a decision to compulsorily
\nretire the petitioner. Referring to the decision of the Board of directors
\ndated 5.12.2005, available on record as Annexure R-2\/8, and the
\nsubsequent decision again taken by the Board ratifying the earlier
\ndecision dated 5.12.2005, on 29.10.2006, and the impugned action taken
\nthereof, petitioner submitted that the Board of Directors have taken
\naction only on the basis of the enquiry report without assessing the
\noverall service record of the petitioner. It is the case of the petitioner that
\nin the present case compulsory retirement of the petitioner is nothing but
\nan act for punishing the petitioner, without holding a proper enquiry, in
\nviolation of the principles of natural justice and, therefore, the same is
\nunsustainable. By taking me through the documents filed, the
\nrepresentation submitted and the other material available on record
\npetitioner tried to emphasize that the respondents have acted in a biased
\nand malafide manner and only to harass and victimize the petitioner the
\nimpugned action is taken. It was argued by him that respondents have in
\ntotal disregard to the principles governing compulsory retirement, to
\nweed out dead wood, have acted in a manner which is impermissible
\nunder law and, therefore, he prays for interference into the matter.
\n4-           Shri    R.N.     Singh,       learned   Senior   Advocate     for
\nInstitute\/respondent No.2, supported the order passed by the Institute and
\npointed out that petitioner is a Group-A employee, as is evident from the
\nStaffing Pattern – Annexure P\/6 and as the Fundamental Rules have
\n                                      4<\/span><\/p>\n
been adopted by the Institute, it is argued by Shri R.N. Singh, learned
\nSenior Advocate, that the provisions of FR 56 (j) would apply to all
\nGroup A and Group B employees and the action taken by the Institute
\nfor compulsorily retiring the petitioner under FR 56 (j) is said to be
\nproper. Referring to the Notifications available on record filed by the
\npetitioner as Annexures P\/8, P\/9, P\/10 and P\/11 and the decision of the
\nBoard of Directors Shri R.N. Singh, learned Senior Advocate, tried to
\nemphasize that the contention of the petitioner that FR 56 (j) does not
\napply is wholly misconceived.\n<\/p>\n
5-           Shri R.N. Singh, learned Senior Advocate, further pointed
\nout that appointment of the petitioner was found to be contrary to the
\nrules, it was made on a post reserved for a scheduled caste candidate and
\neven though petitioner was below the age required for appointment to
\nthe post, in an illegal and arbitrary manner undue benefit was conferred
\non the petitioner and he was appointed illegally. When complaints in this
\nregard were received in the year 2001, an enquiry was constituted and in
\nthe enquiry the report indicated that petitioner’s appointment itself in the
\ndepartment was illegal. Referring to the enquiry report – Annexure P\/4
\nand the findings recorded therein, learned Senior Counsel emphasized
\nthat petitioner’s appointment itself being illegal action taken by the
\nrespondents are proper. Thereafter, taking me through the service
\nrecords of the petitioner and the performance appraisal for the years
\n2003-04, 2005-06 and 2006-07, filed collectively as Annexure R-2\/10 to
\nR-2\/12, and available from page 40 to page 63 of the return filed by the
\nrespondents, Shri R.N. Singh emphasized that the entire service record
\nof the petitioner was bad, his performance was always poor and below
\nstandard and, therefore, assessing the overall performance the Board of
\nDirectors took a decision to compulsorily retire the petitioner and
\naccordingly the action is taken. Referring to the decision of the Board of
\nDirectors on 5.12.2005 vide Annexure R-2\/8 and ratified vide Annexure
\nR-2\/9 on 29.10.2006, learned Senior Advocate submitted that as
\npetitioner is compulsorily retired, considering his overall performance
\nand suitability to the department, the action taken does not warrant any
\n                                     5<\/span><\/p>\n
interference. Placing reliance on the following judgments namely;
\nBishwanath Prasad Singh Vs. State of Bihar and others, (2001) 2
\nSCC 305; State of Gujarat Vs. Umed Bhai M. Patel, (2001) 3 SCC
\n314; Jugal Chandra Saikia Vs. State of Assam and Another, (2003) 4
\nSCC 59; and, finally a judgment of the Supreme Court in the case of R.
\nVishwanatha Pillai Vs. State of Kerala and others, (2004) 2 SCC
\n105, Shri R.N. Singh, learned Senior Advocate, argues that in the present
\ncase petitioner is only compulsorily retired after considering his overall
\nservice performance, the same does not amount to punishment and,
\ntherefore, interference into the matter is not warranted. Accordingly,
\nlearned Senior Advocate submitted that there is no merit in the claim
\nmade by the petitioner and, therefore, the petition be dismissed.
\n6-           Shri Vikram Singh, learned counsel appearing for
\nrespondent No.1, apart from adopting the arguments advanced by Shri
\nR.N. Singh, learned Senior Advocate, points out that the institute in
\nquestion is managed by Central Government and after it became a
\nNational Institute of Technology, the service conditions at par with the
\nsame applicable to the Indian Institute of Technology, New Delhi has
\nbeen made applicable. Taking me through the averments made by
\nrespondent No.1 in paragraphs 10 and 11 of the reply, and the
\ndocuments available on record, it is argued by Shri Vikram Singh that
\nvide notification – R-1\/2 dated 9.11.2003, the rules and regulations
\napplicable to Indian Institute of Technology, New Delhi has been
\nadopted and as the provisions of FR 56 (j) is applicable to the Indian
\nInstitute of Technology, New Delhi the same governs the service
\nconditions of the petitioner also. By referring to the rules applicable to
\nthe Indian Institute of Technology, New Delhi – Annexure R-1\/4, Shri
\nVikram Singh submitted that petitioner’s case is governed by the
\nprovisions of FR 56 (j) and in applying the same respondents have not
\ncommitted any error. That apart, inviting my attention to the statutory
\nrules now framed in the matter of prescribing the service conditions for
\nRegistrars of the National Institute of Technology i.e…The National
\nInstitute of Technology [NITs] Registrars Recruitment Rules 2008, Shri
\n                                        6<\/span><\/p>\n
Vikram Singh submits that the rules applicable to Group A employees of
\nthe Central Government are also applicable to the Registrars and,
\ntherefore, the respondents have not committed any error in taking action
\nunder the said rules. That apart, taking me through the enquiry report –
\nAnnexure P\/24 separately filed by respondent No.1; the appraisal reports
\nof the petitioner for the years 2004-04, 2004-05 and 2005-06, Shri
\nVikram Singh emphasized that compulsory retirement is not a
\npunishment and as action is taken by the Board of Directors after
\nevaluating the service rendered, no case is made out for interference.
\nPlacing reliance on various judgments to show that compulsory
\nretirement is not a punishment and for compulsorily retiring an
\nemployee, the principles of nature justice are not applicable, Shri
\nVikram Singh tried to justify the action of the respondents.
\n7-              Shri Brian D’Silva, learned Senior Advocate appearing for
\nrespondent No.3, argued on the same lines as was done by Shri R.N.
\nSingh and further submitted that as petitioner is proceeded against and
\naction is taken for compulsorily retiring him, no case is made out for
\ninterference.\n<\/p>\n
8-              Shri Mahajan, learned counsel appearing for respondent
\nNo.4, adopted the arguments canvassed by learned counsel for
\nrespondents 1 to 3, and sought for dismissal of this writ petition.
\n9-              Having heard learned counsel for the parties at length and
\non consideration of the totality of the facts and circumstances, this Court
\nis of the considered view that following two questions arise for
\nconsideration in this writ petition:\n<\/p>\n
                The first question would be as to whether the provisions of
\n                FR 56 (j) applies; and, the second question would be as to
\n                whether the order of compulsory retirement passed meets
\n                the legal parameters required and is in accordance to law?\n<\/p><\/blockquote>\n
10-             As far as the first question is concerned, it is clear that
\ninitially the Institute of respondent No.2 was a registered society, but it
\nbecame a National Institute of Technology by virtue of the Notification
\nissued by the Central Government and subsequently it became a deemed
\n                                      7<\/span><\/p>\n
university. It is also an admitted position that the institute is fully owned
\nand governed by the State Government and functions in accordance to
\nthe circulars and policies laid down by the Ministry of Human Resources
\nand Development, Government of India. It is also an admitted position
\nthat the Institute has been granted the status of National University by
\nUGC. Documents available on record are sufficient to hold so. As far as
\napplicability of the service rules are concerned, after conversion of the
\nMaulana Azad National Institute, Bhopal as National Institute of
\nTechnology, Government of India and the Ministry of Human Resources
\nand Development issued the circular – Annexure P\/4 on 26.6.02, and
\nindicated in the said circular in paragraph 3 that every person employed
\nin the Maulana Azad College of Technology, Bhopal immediately before
\nconversion shall hold office or service in the National Institute of
\nTechnology, Bhopal at the same remuneration and upon the same terms
\nand conditions, with the same rights and privileges and the change, if
\nany, to be brought in the light of the new memorandum of association,
\nshall be referred to the Central Government for decision on case to case
\nbasis. The faculty and staff pattern of the Institute as is evident from
\nAnnexure P\/6, filed by the petitioner, clearly indicates that the post of
\nRegistrar is a Group A post and petitioner admits to the same in the writ
\npetition.\n<\/p>\n
11-          In the office memorandum and notifications – Annexures
\nP\/7 and P\/8, Government of India has laid down rules and regulations
\ngoverning service conditions of employees of the National Institute of
\nTechnology. A perusal of Annexure P\/8 indicates that for the purpose of
\nconduct and discipline rules, leave rules, period of probation,
\nrecruitment, the rules governing the same and applicable in the Institute
\nof Technology, New Delhi is made applicable. Similarly various other
\nrules have been adopted. The Institute also issued a circular – Annexure
\nP\/9 on 8.4.2004, laying down the service condition of employees of the
\nInstitute and it is stated that in the matter of retirement and
\nsuperannuation, the circular Annexure P\/10 dated 12.11.2003 would be
\napplicable. Petitioner wants this Court to hold that in the light of the
\n                                      8<\/span><\/p>\n
circulars – Annexures P\/9 and P\/10, screening of an employee for
\ncompulsory retirement can be done only beyond the age of 58 years and
\nas petitioner has not reached the age of 58 years, he cannot be
\ncompulsorily retired and, therefore, it is stated that FR 56 (j) does not
\napply.\n<\/p>\n
12-          As far as Annexure P\/10 is concerned, it speaks about
\nretirement on superannuation. The circular – Annexure P\/10 dated
\n12.11.2003, is a memorandum issued by the Government of India in the
\nMinistry of Human Resources and Development with regard to
\nextension of service of the employees after 58 years. The said circular is
\nbeing misconstrued by the petitioner. This circular does not contemplate
\na provision akin to FR 56 (j), for compulsorily retiring an employee. On
\nthe contrary, this circular relates to screening of an employee to find out
\nhis suitability of continuing in service after he has completed 58 years of
\nage upto the age of 60. If the aforesaid circular is perused, it would be
\nseen that this circular only speaks about extension of service beyond the
\nage of 58 years and does not speak about compulsory retirement of an
\nemployee. FR 56 (j), on the other hand reads as under:\n<\/p>\n
             “FR 56 (j): Notwithstanding anything contained in this
\n             rule, the appropriate authority shall, it is of the opinion that
\n             it is in the public interest so to do, have the absolute right to
\n             retire any Government servant by giving him notice or not
\n             less than three months in writing or three months’ pay and
\n             allowances in lieu of such notice….\n<\/p><\/blockquote>\n
             (i)    If he is, in Group ‘A’ or Group ‘B’ service or post in
\n                    a substantive, quasi-permanent of temporary capacity
\n                    and had entered Government service before attaining
\n                    the age of 35 years, after he has attained the age of
\n                    50 years.\n<\/p><\/blockquote>\n
             (ii)   In any other case after he has attained the age of
\n                    fifty-five years.”<\/p><\/blockquote>\n
             and, contemplates a provision for retiring an employee
\ncompulsorily on public interest. That being so, contention of the
\n                                      9<\/span><\/p>\n
petitioner that the circular – Annexure P\/10 contemplates compulsory
\nretirement only after 58 years is not correct. On the contrary, if the
\ncircular – Annexure P\/11 dated 21.7.2004 clarifying circular – Annexure
\nP\/10 dated 12.11.2003 is seen, it would be clear that even for the
\npurpose of screening of an employee after crossing the age of 58 years,
\nfor the purposes of superannuation after crossing the age of 58 years, the
\nprinciple akin to FR 56 (j) is held to be applicable. It is, therefore, clear
\nthat the scope of FR 56 (j) and the circular – Annexure P\/10 are entirely
\ndifferent.\n<\/p>\n
13-          Accordingly, I am of the considered view that the
\ncontention of the petitioner to the effect that compulsory retirement in
\nthe respondents’ institute is governed by the Circular Annexure P\/10,
\ndated 12.11.2003 is not correct. The said circular pertains to screening of
\nthe employees, for the purposes of their continuation in service beyond
\nthe age of 58 years (i.e… the age of superannuation) and does not, in any
\nmanner whatsoever, prescribe procedure for compulsory retirement of a
\nperson.\n<\/p>\n
14-          In this regard, if the principle laid down by the Supreme
\nCourt in the case of Bishwanath Prasad Singh (supra), relied upon by
\nShri R.N. Singh, learned Senior Advocate, is taken note of, it would be
\nseen that in that case also after taking note of the judgment and
\ndirections of the Supreme Court in the case of All India Judges’
\nAssociation case, 1993(4) SCC 288. The distinction between
\ncompulsory retirement and continuation of an employee beyond the age
\nof 58 years is taken note of and the distinction pointed out. The same
\nposition is applicable in the present scenario also.
\n15-          As far as applicability of FR 56 (j) is concerned, the
\nNotifications and the circulars issued by the Central Government vide
\nAnnexures P\/8 and P\/9 clearly establishes that the service conditions of
\nthe employees of the National Institute of Technology are based on the
\nservice conditions of the employees working in the Central Government
\nand for the purpose of leave rules, conduct and disciplinary appeal rules
\netc, the rules applicable to Indian Institute of Technology, New Delhi
\n                                     10<\/span><\/p>\n
has been made applicable. The rules applicable to Indian Institute of
\nTechnology, New Delhi filed by Government of India alongwith their
\nreturn – Annexure R-1\/4 clearly indicates that the provisions of the
\nFundamental Rules and Supplementary Rules are applicable and,
\ntherefore, if the totality of the circumstances is evaluated, it has to be
\nheld that FR 56 (j) is adopted by the respondents and is made applicable
\nto the Institute in question. That apart, the statutory rules now framed
\ni.e…. The National Institute of Technology [NITs] Registrars
\nRecruitment Rules, also makes applicable the rules of the Central
\nGovernment, particularly the Fundamental Rules, to employees of the
\nInstitute, particularly the Registrars and, therefore, the first ground of
\nchallenge made by the petitioner is devoid of substance and cannot be
\naccepted. The same is accordingly rejected.\n<\/p>\n
16-          As far as the second ground is concerned, if the facts of the
\npresent case are scrutinized, it would be seen that petitioner was
\nappointed on 22.12.1990. It seems that certain complaints were received
\nagainst him and, therefore, after instructions from the State Government,
\nan enquiry was ordered into the facts leading to appointment of the
\npetitioner. The complaints were particularly with regard to the
\neducational qualification of the petitioner, his entitlement to be
\nappointed on the post of Registrar, reservation to the post of Registrar
\netc. The enquiry report is available on record. It is filed by the petitioner
\nas Annexure P\/24 and by respondent No.2 as Annexure R-2\/5. A perusal
\nof this report indicates that the enquiry was ordered on the basis of
\ncertain complaints received by the State Government with regard to
\nappointment of the petitioner by Scheduled Caste and Scheduled Tribe
\nPersons Association. The points of enquiry are with regard to
\nqualification of the petitioner, his entitlement to be appointed to the post
\nof Registrar and the fact of Reservation Policy being violated in the
\nappointment. The report of the enquiry officer indicates that the enquiry
\nofficer visited the office of the Institute and took the statements of Dr.
\nM.C. Soni, Principal, MACT, Bhopal; Shri R.K. Baghel, Liaison
\nOfficer, Scheduled Caste and Scheduled Tribe; and Shri Manoj
\n                                    11<\/span><\/p>\n
Shrivastava, Assistant Registrar (Establishment), scrutinized certain
\nrecords and gave a finding holding that the petitioner was appointed
\ncontrary to the provisions of law. It is the case of the petitioner that in
\nthis enquiry he was never heard, he was not permitted to participate and
\nthe report was given on the basis of material collected behind his back.
\nThe said assertion of the petitioner seems to be correct as in the inquiry
\nreport there is no mention with regard to hearing of the petitioner or
\nrecording of his defence. Even in their reply, none of the respondents
\ncontend that petitioner was heard in the enquiry and the report is
\nsubmitted after hearing him. That being so, it has to be held that the
\nenquiry in question and the report submitted as contained in Annexure
\nP\/25 and Annexure R-2\/5, is based on an enquiry conducted exparte,
\nbehind the back of the petitioner and without granting him any
\nopportunity of hearing. On the basis of the enquiry report, the Principal
\nof the Institute placed the matter for consideration and the Board of
\nDirectors considered the enquiry report against the petitioner and in its
\nmeeting held on 5.12.2005 – Annexure R-2\/8, decided to compulsorily
\nretire the petitioner in the light of the enquiry report received against
\nhim. The agenda of the meeting and the decision approved by the Board
\nof Directors reads as under:\n<\/p>\n
             “Item BG-2005-2\/14 – ENQUIRY REPORT AGAINST
\n             THE    REGISTRAR         SHRI    AJIT      NARAYAN        AND
\n             PROPOSAL FOR HIS COMPULSORY RETIREMENT-\n<\/p><\/blockquote>\n
                          The Board has considered the proposal to retire
\n             Shri Ajit Narayan, Registrar from the Institute service as he
\n             has    completed     sufficient\/required    service\/age    for
\n             compulsory retirement.<\/p><\/blockquote>\n
\n                   '-ppvd'\n                                'Approved'\n\n\n             CHAIRMAN                         MEMBER SECRETARY.\"\n                                    12<\/span>\n\n\n<\/pre>\n
            Even though this Resolution was passed on 5.12.2005,
\nnothing was done for about 8-9 months and again in a Board Meeting
\nheld on 29.10.2006, vide Annexure R-2\/9, the Resolution dated
\n5.12.2005 was approved and thereafter the impugned action taken. If the
\nproceedings of the meeting of the Board of Directors held on 5.12.2005
\nand 29.10.2006 are scanned, it would be seen that the decision to
\ncompulsorily retire the petitioner is taken on the basis of the enquiry
\nreport and there is no scrutiny of the service record of the petitioner to
\nfind out as to whether he is a dead wood and, therefore, liable to be
\ncompulsorily retired under FR 56 (j).\n<\/p><\/blockquote>\n
17-         At this point of time, it would be appropriate to consider the
\nlaw governing compulsory retirement. Apart from the four judgments
\nrelied upon by Shri R.N. Singh, the principles governing compulsory
\nretirement have been laid down in the case of Baldev Raj, Ex-
\nConstable Vs. State of Punjab, AIR 1984 SC 984; State of UP and
\nothers Vs. Vijay Kumar Jain, 2002(3) SCC 641; and, by a Division
\nBench of this Court in the case of State of MP and another Vs. Noor
\nJama Khan and another, 2002(3) MPLJ 147. All these judgments
\nhave been considered by this Court recently in the case of Yogiraj
\nSharma (DR) Vs. State of MP, ILR (2009) MP 959 and after taking
\nnote of all the judgments referred to hereinabove so also the judgment of
\nthe Supreme Court, in the case of Umed Bhai M. Patel (supra) relied
\nupon by Shri R.N. Singh, the matter has been dealt with by a Bench of
\nthis Court in the case of Yogiraj Sharma (supra) in paragraphs 9
\nonwards:\n<\/p>\n
            “9-          Having heard learned counsel for the parties at
\n            length and on consideration of the facts that have come
\n            on record, this Court deems it appropriate to
\n            evaluate at the very outset the principles laid down
\n            by the Supreme Court in the matter of compulsorily
\n            retiring an employee on the grounds of public interest.
\n            It is the application of this principle in the facts and
\n            circumstances of the present case, which is required to be
\n            done for adjudication of the present petition.\n<\/p><\/blockquote>\n
                       13<\/span><\/p>\n
10-           Normally an employee is retired compulsorily
\nin public interest earlier to his normal age of superannuation
\nafter he has put in a specified period of service as
\ncontemplated under the Rules. In the present case, Rule
\n42(1)(b) empowers the State Government to proceed in the
\nmatter in public interest if the employee concerned has
\ncompleted 20 years of qualifying service or has attained the
\nage of 50 years, whichever is earlier. In such a case action
\ncan be taken by the appointing authority after approval by
\nthe State Government. On a close scrutiny of the various
\njudgments available on the subject in question, it would be
\nseen that the Courts have taken a general view that for
\ncompulsorily retiring an employee grant of opportunity of
\nhearing is not necessary. Challenge to an order of
\ncompulsory retirement on the ground of violation of the
\nprinciples of natural justice is not normally available. The
\naforesaid view is based on the principle that compulsory
\nretirement in public interest does not amount to dismissal, it
\nis neither a punishment nor any stigma is attached to such
\nan action and, therefore, the effected employee need not be
\nheard. The aforesaid principle would be clear on a complete
\nreading of the law laid down by the Supreme Court, in the
\ncase of Baikuntha Nath Das (supra).\n<\/p>\n
11-          Justification or otherwise of an order of
\ncompulsory retirement is done on the basis of requirement
\nof public interest. In the case of Baldev Raj, Ex-constable
\nVs. State of Punjab, AIR 1984 SC 984, when it was
\nsubmitted before the Supreme Court that a police officer
\nhas been proceeded against and action is taken against him
\nin public interest. It has been observed by the Supreme
\nCourt that public interest is an “unruly horse” and once it is
\nalleged that the impugned action is a device to circumvent
\nsome decision of the Court or some statutory provision,
\nthen it is obligatory for the State to explain as to how the
\npublic interest is involved and what is the impending danger
\nin keeping the person in service. It is clear from a reading of
\nthe judgment of the Supreme Court in various cases that the
\nprinciple idea underlying compulsory retirement or pre-
\nmature retirement is to weed out inefficient employees and
\ndeadwood from the department. Action taken in this regard,
\nif not properly structured, is open to abuse. In a series of
\ncases over a period of time Supreme Court and various
\nother Courts have interfered with administrative discretions
\nexercised in the area of compulsory retirement on the
\nground of abuse of power, taking note of irrelevant
\nconsideration or non-application of mind. In the case of
\nBaldev Raj (supra), after taking note of the provisions of
\nRule 56(j) of the fundamental rules, which is para materia
\n                       14<\/span><\/p>\n
with Rule 42 of the Rules of 1966, the Supreme Court and
\nparticularly Justice V. Krishna Iyer, for the Bench, has
\nobserved that while taking action for compulsory
\nretirement, the appropriate authority must form the requisite
\nopinion, not subjective suggestions, but objective and
\nbonafide based on relevant material and the opinion should
\nindicate that retirement of the employee is in public interest
\nand not on personal, political or other interest. It is held by
\nthe learned Judge that the right to retire under this provision
\nis not absolute, naked and arbitrary exercise of power is
\nsaid to be bad in law and in the guise of public interest
\nunlimited discretion to prematurely retire an employee
\ncannot be granted. It is held that the action should not be
\nunreasonable, arbitrary and amounting to disguised
\ndismissal. It is held in the aforesaid case that whenever an
\norder of retirement is challenged, the State must disclose the
\nmaterial so that the Court can analyse the material and from
\nthe material produced come to a conclusion as to whether a
\nreasonable man, reasonably instructed in law, would take
\naction in public interest justifying forced retirement of an
\nemployee.\n<\/p>\n
12-           At this stage it would be relevant to consider
\nthe case of Umed Bhai M. Patel (supra), relied upon by
\nSmt. Shobha Menon, learned Senior Advocate. In the
\naforesaid case, reliance has been placed on various earlier
\njudgments on the subject, including the case of Baikuntha
\nNath Das (supra), and the facts of the said case indicates
\nthat the employee concerned was an Executive Engineer
\nworking in the Narmada Development Department of the
\nState of Gujarat. Pending departmental enquiry into
\nallegations of misuse of power in the matter of purchasing
\ntarpaulin, he was suspended on 22.5.86. Departmental
\nproceedings were initiated against him, a charge sheet was
\nissued, but before enquiry into the charge sheet could be
\ncompleted he was compulsorily retired from service. The
\nfacts in the case of Umed Bhai M. Patel (supra) is similar
\nto the present case. After evaluating the judgments and the
\nprinciples laid down in the case of Baikuntha Nath Das
\n(supra), pertaining to the law governing action to be taken
\nfor compulsory retirement, it was held by the Supreme
\nCourt that the order of compulsory retirement was based on
\nextraneous reasons and the action was taken which was
\nmainly based on the allegations, which formed part of the
\ncharge sheet on which the enquiry was pending and without
\nwaiting for conclusion of the enquiry, decision taken on the
\nbasis of allegations, which were not proved and in the
\nabsence of the entire service record being not adverse,
\ncompulsory retirement was quashed. If the case of the
\n                       15<\/span><\/p>\n
petitioner is evaluated in the backdrop of the principles laid
\ndown and the facts in the case of Umed Bhai M. Patel
\n(supra), it would be seen that the present case is somewhat
\nsimilar to or rather identical to the one which has been
\ndecided by the Supreme Court.\n<\/p>\n
13-         In the case of Umed Bhai M. Patel (supra),
\nreference has been made to the principle laid down in the
\ncase of State of Orissa Vs. Ram Chandra Das, 1996(5)
\nSCC 331, and emphasis is placed on the fact that while
\ncompulsorily retiring an employee from service, the
\ndepartment should consider the entire record of service of
\nthe government servant, including the last reports.\n<\/p>\n
14-          Same principles are laid down by the Supreme
\nCourt in the case of State of UP and others Vs. Vijay
\nKumar Jain, 2002(3) SCC 641. In the case of Vijay
\nKumar Jain (supra), the Supreme Court has so considered
\nthe matter in paragraphs 10,11,13 and 14:\n<\/p>\n
      “10. Before we advert to the question which we are
\n      required to decide, it is necessary to notice the nature
\n      of an order of compulsorily retiring a government
\n      servant under FR 56 (c). In Shyam Lal v. State of
\n      U.P<\/a>., (1955) 1 SCR 26, it was held that an order of
\n      compulsory retirement is neither a punishment nor
\n      any stigma attached to it and it was held therein as
\n      thus:\n<\/p><\/blockquote>\n
              “There is no such element of charge
\n             or imputation in the case of
\n             compulsory retirement. The two
\n             requirements       for      compulsory
\n             retirement are that the officer has
\n             completed twenty five years’ service
\n             and that it is in the public interest to
\n             dispense with his further services. It is
\n             true that this power of compulsory
\n             retirement may be used when the
\n             authority exercising this power cannot
\n             substantiate the misconduct which
\n             may be the real cause for taking the
\n             action but what is important to note is
\n             that the directions in the last sentence
\n             of note 1 to Article 465-A<\/a> make it
\n             abundantly clear that an imputation or
\n             charge is not in terms made a
\n             condition for the exercise of the
\n             power. In other words, a compulsory
\n                 16<\/span><\/p>\n
      retirement has        no stigma        or
\n      implication of        misbehaviour     or
\n      incapacity.”\n<\/p><\/blockquote>\n
11. In Union of India v. Col<\/a>. J.N. Sinha, (1971) 1
\nSCR 791, it was held that an employee compulsorily
\nretired does not lose any right acquired by him before
\nretirement and that the said rule is not intended for
\ntaking any penal action against the government
\nservant and that the order, retiring a government
\nservant compulsorily can only be challenged on the
\nground that either the order is arbitrary or it is not in
\npublic interest. No other ground is available to a
\ngovernment servant who is sought to be compulsorily
\nretired from service under the relevant rules subject
\nto the conditions provided therein.\n<\/p><\/blockquote>\n
13. In Baikuntha Nath Das and Another v.\n<\/p>\n
Chief District Medical Officer Baripada and
\nAnother, 1992 (2) SCC 299, this Court laid down
\ncertain principles, which are as under:\n<\/p>\n
      “34. (i)       An order of compulsory
\n      retirement is not a punishment. It
\n      implies no stigma nor any suggestion
\n      of misbehaviour.\n<\/p>\n
      (ii) The order has to be passed by
\n             the government on forming the
\n             opinion that it is in the public
\n             interest to retire a government
\n             servant compulsorily. The order
\n             is passed on the subjective
\n             satisfaction of the government.\n<\/p>\n
      (iii) Principles of natural justice have
\n             no place in the context of an
\n             order of compulsory retirement.\n<\/p>\n
             This does not mean that judicial
\n             scrutiny is excluded altogether.\n<\/p>\n
             While the High Court or this
\n             Court would not examine the
\n             matter as an appellate court,
\n             they may interfere if they are
\n             satisfied that the order is passed\n<\/p>\n
             (a) mala fide or (b) that it is
\n             based on no evidence or (c) that
\n             it is arbitrary – in the sense that
\n             no reasonable person would
\n             form the requisite opinion on
\n               17<\/span><\/p>\n
            the given material; in short, if it
\n            is found to be a perverse order.\n<\/p>\n
     (iv)   The government (or the review
\n            committee, as the case may be)
\n            shall have to consider the entire
\n            record of service before taking a
\n            decision in the matter – of
\n            course        attaching     more
\n            importance to record of
\n            performance during the later
\n            years. The record to be so
\n            considered would naturally
\n            include the entries in the
\n            confidential records\/character
\n            rolls, both favourable and
\n            adverse. If a government servant
\n            is promoted to a higher post
\n            notwithstanding the adverse
\n            remarks, such remarks lose their
\n            sting, more so, if the promotion
\n            is based upon merit (selection)
\n            and not upon seniority.\n<\/p>\n
     (v)    An order of compulsory
\n            retirement is not liable to be
\n            quashed by a court merely on
\n            the showing that while passing
\n            it uncommunicated adverse
\n            remarks were also taken into
\n            consideration.               That
\n            circumstance by itself cannot be
\n            a basis for interference.”\n<\/p>\n
14. In State of Punjab v. Gurdas Singh<\/a>, 1998 (4)
\nSCC 92, it was held thus:\n<\/p>\n
       “Before the decision to retire a
\n     government servant prematurely is
\n     taken, the authorities are required to
\n     consider the whole record of service.
\n     Any adverse entry prior to earning of
\n     promotion or crossing of efficiency
\n     bar or picking up higher rank is not
\n     wiped out and can be taken into
\n     consideration while considering the
\n     overall performance of the employee
\n     during whole of his tenure of service
\n     whether it is in public interest to retain
\n     him in the service. The whole record
\n     of service of the employee will include
\n                       18<\/span><\/p>\n
             any uncommunicated adverse entries
\n             as well.”<\/p><\/blockquote>\n
      And, finally the principles are laid down in paragraph
\n15, in the following manner:\n<\/p>\n
             “15. The aforesaid decisions unmistakably
\n             lay down that the entire service record of a
\n             government servant could be considered by the
\n             government while exercising the power under
\n             FR 56 (c) of the rules with emphasis on the
\n             later entries. FR 56 (c) of the rules read with
\n             sub-rule (2), empowers the state government
\n             with an absolute right to retire an employee on
\n             attaining the age of 50 years. It cannot be
\n             disputed that the dead woods need to be
\n             removed to maintain efficiency in the service.
\n             Integrity of a government employee is
\n             foremost consideration in public service. If a
\n             conduct of a government employee becomes
\n             unbecoming to the public interest or obstruct
\n             the efficiency in public services, the
\n             government has an absolute right to
\n             compulsorily retire such an employee in public
\n             interest.    The     government’s      right    to
\n             compulsorily retire an employee is a method to
\n             ensure efficiency in public service and while
\n             doing so the government is entitled under
\n             Fundamental Rule 56 to take into account the
\n             entire service record, character roll or
\n             confidential report with emphasis on the later
\n             entries in the character roll of an employee. In
\n             fact, entire service record, character roll or
\n             confidential report furnishes the materials to
\n             screening committee or the state government,
\n             as the case may be, to find out whether a
\n             government servant has outlived his utility in
\n             service. It is on consideration of totality of the
\n             materials with emphasis on the later entries in
\n             the character roll, the government is expected
\n             to form its opinion whether an employee is to
\n             be compulsorily retired or not.”\n<\/p><\/blockquote>\n
                                        (Emphasis supplied)<\/p>\n
15-          It is clear from the aforesaid principle that the
\nentire service record has to be evaluated and if the integrity
\nof the government employee is doubtful and there are
\n                                   19<\/span><\/p>\n
            material to show existence of the aforesaid fact, action can
\n            be taken.\n<\/p><\/blockquote>\n
            16-        Similar principle is laid down in the case of
\n            M.L. Binjolkar Vs. State of MP, 2005(6) SCC 224.\n<\/p><\/blockquote>\n
            17-           Finally, a Division Bench of this Court in the
\n            case of State of MP and another Vs. Noor Jama Khan
\n            and another, 2002(3) MPLJ 147, has taken note of various
\n            judgments, including the judgment in the case of Umed
\n            Bhai M. Patel (supra), and the principles have been
\n            crystallized in the following manner:\n<\/p><\/blockquote>\n
                  “The order of compulsory retirement is the
\n                  prerogative of the Government and it can be passed
\n                  on the subjective satisfaction of the State
\n                  Government. Subjective satisfaction cannot be done
\n                  in a manner which a prudent man can never conceive.
\n                  Satisfaction like discretion has to be based on proper
\n                  consideration and weighment of material. In the
\n                  name of subjective satisfaction no one can be allowed
\n                  to behave in a whimsical or capricious manner. Fancy
\n                  has no place in law. Subjective satisfaction cannot be
\n                  scanned as if done one is sitting in an appeal, but it
\n                  must meet the requirement of appreciation expected
\n                  of a prudent man and the appreciation should be
\n                  relevant and germane to the purpose apropos to its
\n                  context. It cannot be conceived for a moment that the
\n                  subjective satisfaction would take away the order
\n                  from the purview of judicial scrutiny solely on the
\n                  basis that the committee has been subjectively
\n                  satisfied. It must indicate the satisfaction of a prudent
\n                  and fair man and there should be no perversity of
\n                  approach.”\n<\/p><\/blockquote>\n
                                              (Emphasis supplied)”\n<\/p><\/blockquote>\n
18-         The judgment of the Single Bench, in the case of Yogiraj
\nSharma (supra) was further considered by the Division Bench on a writ
\nappeal being filed by the State Government in the case of State of MP
\nVs. Yogiraj Sharma, 2009(4) MPHT 250, and the Division Bench has
\napproved the decision.\n<\/p><\/blockquote>\n
19-         It is, therefore, clear from the principle governing the law
\nrelating to compulsory retirement that an employee is retired
\ncompulsorily in public interest earlier to his normal age of
\n                                     20<\/span><\/p>\n
superannuation, after he has completed the requisite period of service
\nand when it is found that he is a dead wood in the department.
\nCompulsory retirement is neither a punishment nor does it cast a stigma
\non the employee concerned. However, before taking a decision to
\ncompulsory retire an employee his entire service, character roll etc are to
\nbe placed before the appropriate Screening Committee and on scrutiny
\nof the same the Committee has to decide as to whether the employee is
\nuseful to the department or is a deadwood.\n<\/p>\n
20-          As held by the Division Bench of this Court, in the case of
\nNoor Jama Khan (supra), compulsory retirement is the prerogative of
\nthe government and it can be passed on the subjective decision of the
\ngovernment. However, subjective decision has to be done in a manner,
\nwhich a prudent man would normally do. The entire service record has
\nto be assessed and the discretion is to be passed on proper consideration
\nof the material and a reasonable prudent man’s approach should be
\nadopted. If the action taken in the present case, in the backdrop of the
\nprinciples laid down as indicated hereinabove, are taken note of, it would
\nbe seen that there is no screening of the entire service record of the
\npetitioner. The decision to compulsorily retire the petitioner is taken by
\nthe Board of Directors on 5.12.2005 and as indicated hereinabove the
\ndecision of the Board of Directors to compulsorily retire the petitioner is
\ntaken on the basis of the enquiry report – Annexure P\/24 and Annexure
\nR-2\/5. There is nothing in the proceedings of the Board of Directors –
\nAnnexure R\/8 to indicate that the service record of the petitioner was
\nscrutinized and he was found to be a dead wood in the department. On
\nthe contrary, the proceedings of the meeting indicates that without
\nscrutiny of the service record of the petitioner a decision is taken to
\ncompulsorily retire him, based on the enquiry report obtained behind the
\nback of the petitioner. This enquiry report, which has been obtained
\nwithout hearing the petitioner and without granting him any opportunity
\nto give his say, cannot be used against the petitioner, as it is obtained in
\ntotal violation to and in disregard to the principles of natural justice. The
\nproceedings of the Board of Directors held on 5.12.2005 is approved by
\n                                     21<\/span><\/p>\n
the Board of Directors again on 29.2.2006 and the action taken. Even
\nthough respondents by filing the performance appraisal reports of the
\npetitioner – Annexures R-2\/10, for the period July 2003 to July 2007,
\nhave tried to emphasize that his service record is not ‘good’, this Court is
\nnot to scrutinize the service record and take a decision. Scrutiny of the
\nservice record to assess the suitability or otherwise of the petitioner and
\nto determine as to whether he is deadwood or not was to be done either
\nby a proper scrutiny committee or by the Board of Directors. Nothing of
\nthis sort is done and based on an enquiry report, obtained behind the
\nback of the petitioner, the decision is taken to compulsorily retire the
\npetitioner. This procedure followed by the respondents is wholly illegal,
\nit is unknown to law and not a procedure approved by law for
\ncompulsorily retiring a person under FR 56(j) or any other analogous
\nstatutory provision.\n<\/p>\n
21-          If the facts and circumstances of the case in hand, as has
\nbeen indicated above, is evaluated in the backdrop of the principles laid
\ndown for compulsorily retiring an employee by treating him to be a
\ndeadwood in the department is concerned, it would be clear that in the
\npresent case, petitioner is found to be guilty of certain allegations
\nregarding his appointment and the guilt against the petitioner is recorded
\nin an exparte enquiry conducted behind his back. Based on this enquiry
\nreport, petitioner is infact punished by compulsory retirement and the
\nrespondents want this Court to uphold the said action on the ground that
\nthe compulsory retirement is in accordance to law i.e…. FR 56(j) and
\npetitioner is a deadwood in the department. I am afraid the said stand of
\nthe respondents cannot be accepted or upheld by this court. It is a case
\nwhere action taken by the respondents does not fulfil the requirement of
\nlaw, is in contravention and in total disregard to the principles governing
\ncompulsory retirement of an employee and, therefore, has to be quashed.
\n22-          Accordingly, in view of the above, it has to be held that the
\naction of the respondents in compulsorily retiring the petitioner is illegal,
\ncontrary to the principles of law and has to be quashed. In view of the
\nabove, the decision of the Board of Directors taken on 5.12.2005 and on
\n                                      22<\/span><\/p>\n
29.2.2006, and the impugned order-dated 28.9.2007 – Annexure P\/31 are
\nquashed. Respondents are directed to reinstate the petitioner on the post
\nheld by him at the time of retirement and grant him all consequential
\nbenefit of salary and other monetary benefits in accordance to his
\nentitlement after deducting the post retiral benefits already granted to
\nhim, after his compulsory retirement. Benefits accruing to the petitioner,
\nmandatory in nature, be extended within a period of two months from
\nthe date of receipt of certified copy of this order.
\n23-           Petition stands allowed and disposed of without any order
\nso as to costs.\n<\/p>\n
                                              ( RAJENDRA MENON )
\n                                                     JUDGE
\nAks\/-<\/p>\n","protected":false},"excerpt":{"rendered":"
Madhya Pradesh High Court Ajit Narayan vs Union Of India on 27 August, 2010 HIGH COURT OF MADHYA PRADESH : AT JABALPUR Writ Petition No : 97 of 2007(S) Ajit Narayan – V\/s – Union of India and others Present : Hon’ble Shri Justice Rajendra Menon. ————————————————————————————– Petitioner Shri Ajit Narayan in person. Shri Vikram […]<\/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":[8,24],"tags":[],"class_list":["post-270591","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madhya-pradesh-high-court"],"yoast_head":"\nAjit Narayan vs Union Of India on 27 August, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ajit-narayan-vs-union-of-india-on-27-august-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ajit Narayan vs Union Of India on 27 August, 2010 - 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